Madhya Pradesh High Court
Rakesh vs State Of M.P. on 10 August, 2021
Equivalent citations: AIRONLINE 2021 MP 1480
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
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Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S.Ahluwalia & Rajeev Kumar Shrivastava J.J.
Cr.A.No. 450 of 2004
Rakesh & Ors. Vs. State of M.P.
Shri A.K. Jain, for Appellants No. 1 and 2.
Appellant No.3 is reported to be dead.
Shri Prem Singh Bhadauria for Appellants No. 4 to 6.
Shri Prakhar Dhengula, for Appellants from Legal Aid as none had
appeared for the appellants on 26-7-2021.
Shri Pramod Pachauri, Counsel for the State.
Date of Hearing : 06-Aug-2021
Date of Judgment : 10-Aug-2021
Approved for reporting :
Judgment
10- August - 2021
Per G.S. Ahluwalia J.
1.This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 25-6-2004 passed by Add. Sessions Judge, Karera, Distt. Shivpuri in S.T. No. 265/2001, by which the appellants have been convicted and sentenced as under :
Appellants Conviction under Sentence
Sections
All (i) 147,148 IPC (i) 3 years R.I.
Appellants (ii) Life Imprisonment and fine of
Rs. 1000/- default imprisonment
(ii) 302/149 IPC of 1 year.
All the sentences shall run
concurrently.
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Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
2. The Appellant No. 3 was in jail. A report has been received from Central Jail, Gwalior, that the appellant no. 3 Gudda has expired on 30-6-2016. Accordingly, his appeal was dismissed as abated.
3. According to the prosecution story, the injured/deceased, Lakhan, lodged a F.I.R. on 18-7-2001 at 14:15, on the allegations that he is an agriculturist by profession. At about 9-10 A.M., he was grazing his cattle in the field. His wife Pista was also accompanying him. Santosh Gurjar and Nawab Gurjar, who are the sons of Govind Singh Gurjar and Dhirendra Singh, son of Kamal Singh Gurjar came there and asked the injured/deceased to compromise an old matter. When the injured/deceased refused to do so, then all of them went away by threatening that now they will teach a lesson to the injured/deceased. After some time, Santosh Gurjar, Nawab Gurjar, Dhirendra Gurjar along with Rakesh Khangar, Gudda Khangar, Raju Khangar, Shivraj Khangar, Santu Khangar, Rameshwar Raikwar came there and exhorted that the injured/deceased be killed. On the exhortation of Santosh, Shivraj, Raju, Santu and Rameshwar caught hold of his hands and legs and threw him and Rakesh gave a Farsa blow on the head of the injured/deceased,which landed on left side of his forehead. Blood started coming out. On exhortation of Dhirendra Gurjar, Gudda assaulted the injured by Luhangi causing injury on his back. Another Luhangi blow was given on his back and buttocks. Nawab Gurjar exhorted that one leg of the injured/deceased be chopped off, and accordingly, Rakesh gave another Farsa blow on 3 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) his left leg as a result his left leg below the knee got amputated and is now connected with skin. Santu, Shivraj, Raju and Rameshwar started dragging him. His wife Pista, and Ashok tried to save him but they were also threatened by them that in case if any body comes to rescue the injured/deceased, then he will not be spared. Thereafter, they all ran away as they thought that injured/deceased has died. Thereafter, Ashok Khangar, his wife Pista, Ram Singh Khangar, Malkhan and Raghuvar have brought the injured/deceased to the Police Station.
4. The injured/deceased was sent for medical examination,and a requisition was also given to the Doctor on duty, that the dying declaration of the injured/deceased may also be recorded. Accordingly, the Doctor on duty recorded the dying declaration of the injured/deceased. Thereafter, the injured/deceased was referred to District Hospital, Shivpuri. It is alleged that the injured died on his way to District Hospital Shivpuri.
5. The police arrested the appellants. Farsa was seized from the possession of Appellant Rakesh, vide seizure memo Ex. P.5, whereas Luhangi was seized from Gudda vide seizure memo Ex. P.6.
6. The police after completing the investigation, filed the charge sheet for offence under Sections 302/147/148/149 of I.P.C. and under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (In short Act, 1989).
7. The Trial Court by order dated 11-3-2003, framed charges 4 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) under Sections 147, 148, 302 or in the alternative 302/149 of IPC.
8. The appellants abjured their guilt.
9. The prosecution, in order to prove its case, examined Pista Bai (P.W.1), Ram Singh (P.W.2), Malkhan (P.W.3), Raghuwar (P.W.4), Rona Bai (P.W.5), Ashok (P.W.6), Kalyan (P.W.7), Dr. Vinod Chourasia (P.W.8), Dr. Govind Singh (P.W.9), Pankaj Shrivastava (P.W.10), K.S. Kushwaha (P.W.11), Raghunath (P.W.12) and Nawal (P.W.13).
10. The appellants examined Raghunath (D.W.1) in his defence to prove plea of alibi. As another defence witness Naval was a child witness and was not in a position to understand and answer the preliminary questions put by the Court, therefore, his evidence was not recorded.
11. The Trial Court by judgment dated 25-6-2004, acquitted Santosh Singh, Nawab and Dhirendra and convicted the appellants for the offences mentioned above.
12. Challenging the judgment and sentence passed by the Court below, it is submitted by the Counsel for the appellants, that the deceased was not in a position to speak. Lot of blood must have flush out, resulting in shock. The F.I.R., Ex.P.14 as well as Dying Declaration, Ex.P.8 of the deceased are self contradictory to each other. Pista (P.W.1), Malkhan (P.W.3), and Raghuvar (P.W.4) are not the eye witnesses. The accused persons against whom motive was attributed have already been acquitted by the Court below. Once the 5 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) witnesses as well as the F.I.R., Ex. P.14 and Dying Declaration,Ex. P.8 have been found untrustworthy for Santosh, Nawab and Dhirendra, then it is clear that the evidence against the appellants is also not trustworthy. There is nothing on record to suggest that except Appellant No.1 Rakesh and Appellant No. 3 Gudda, any other person was sharing common object or was the member of Unlawful Assembly. The injured/deceased has adopted a policy of pick and choose as only four persons have been named in the Dying Declaration Ex. P.8 against 9 persons in the F.I.R., Ex. P.14. The written dying declaration, Ex. P.8 does not contain the specific role played by the assailants. The investigating officer did not request any Executive Magistrate to record the dying declaration. The prosecution has failed to prove motive on the part of the appellants. The witnesses have admitted that there is a school at a nearby place of incident and the school was open, but still, no independent witness from the school has been examined. Pista (P.W.1) has admitted that several criminal cases were pending against the deceased, therefore, it is clear that he was having enmity with various persons. Pista (P.W.1) has admitted that in previously instituted criminal case, they had entered into a compromise, therefore, no motive was left. In the F.I.R., Ex. P.14, it was alleged that the deceased was dragged by Rameshwar, Santu, Shivraj and Raju, however, no abrasions were found on the body of the deceased. The prosecution has failed to prove that there was any conspiracy amongst the appellants. The 6 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) deceased had changed the place of incident in his dying declaration, Ex. P.8. Ashok Khangar (P.W. 6) is a witness of dying declaration,Ex. P.8, but he has not supported the prosecution case. All the witnesses are related and interested witnesses. The police statement of Pista Bai was recorded belatedly. There are major omissions and contradictions in the evidence of the witnesses. The Farsa seized from the possession of the appellant Rakesh was never sealed by the police. The dying declaration, Ex. P.8 was not read over to the deceased.
13. Per contra, the Counsel for the State supports the conviction of the appellants. It is submitted that the eye witnesses Pista (P.W.1), Malkhan (P.W.3) and Raghuvar (P.W.4) have been named in the F.I.R. The Trial Court has rightly relied upon the dying declarations of the deceased.
14. Heard the learned Counsel for the parties.
15. Before considering the question as to whether the appellants are guilty of committing murder of the deceased Lakhan or not, this Court thinks it apposite to consider as to whether the death of the deceased Lakhan was homicidal in nature or not?
16. Dr. Govind Singh (P.W.9) had conducted Post-mortem of the dead body of Lakhan. In post-mortem report, the following injuries were found :
(i) Traumatic amputation with incised wound. Lower rd 1/3 left leg. Whole skin on ¾ circumference cut transversely, fibula and tibia shaft cut through and through along with whole musculature. Foot with lower ¼ leg hanging by a skin tag in ant. 1/3 (Skin) blood clot present.7
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
(ii) "L" shaped incised wound transverse limb just above med 2/3 of left eyebrow wound extended vertically on left side of nasal bridge. Tran limb 5 cm x 1 cm x upto brain deep vertical limb 3 cm x 5 mm x 5 mm deep, fracutred lt. Frontal bone (cut through) in base with brain matter.
(iii) Superficial incised wound on back of left shoulder & Scapula Transverse 18 cm x 3 mm x skin deep.
(iv) Contusion Lt. Flank of lower ½ chest 8 cm x 2.5 cm oblique pinkish blue.
(v) Contusion over left side of pelvic 4 cm x 2 cm with pinkish blue.
(vi) Skin deep linear 4 cm x3mm x skin deep incised wound on left buttock lower 1/2.
(vii) 2 cm x 3 mm scratch x skin deep left buttock upper 1/2.
On internal examination, following injuries were found :
(i) Fracture of Lt. Frontal region and Right frontal region just above orbits.
(ii) Lt frontal bone above orbit fracture 4 cm x 4 mm x upto brain deep with linear extension on right frontal and left frontal transversal meninges congested, laceration (2 cm x4 mm x5mm) in frontal lobe with huge intradural hematoma.
(iii) Fracture of Lt. 7 & 8 ribs, ribs impacted in pleura and lung. Hemothorax left side.
(iv) left lung laceration 3cm x 2 cm x 2 cm by fractured ribs in lower lobe. Hemothorax + long tissue congested.
It has been opined that the deceased has sustained fatal injuries to vital organs left lung and brain and left leg amputation (all grievous in nature). Had fatal hemorrhage cumulative effects of injury is responsible for death of patient due to shock. All noted injuries antemortem in nature duration within 2 hours in life time before death. Injury nos.1, 2, ,3 and 6 caused by sharp and cutting object and Injury Nos.4, 5 and 7 caused by Hard and blunt object. The cause of death is shock, hemorrhage as a result of multiple injuries with trauma to vital parts. Duration more than 12 hours and less than 24 hours (prior to PM examination) Death appears to be Homicidal in nature.
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Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
17. The post-mortem report is Ex. P.9.
18. After the F.I.R., Ex.P.14 was lodged, the injured/deceased was sent to Primary Health Center, with a requisition to the Medical Officer to record Dying Declaration.
19. Dr. Vinod Chourasia (P.W.8) had conducted the medical examination of the injured/deceased Lakhan Singh and found the following injuries on his body :
(i) Incised wound present over the left side of forehead size 4 cm x 1/2cm x deep upto bone. Wound extending upto left eyebrow oblique direction. Clotting of blood present.
(ii) Contusion present over the left scapula oblique direction, reddish sized 5 cm x 1 ½ cm. Patient unable to movement of scapula.
(iii) One Incised wound present over the left scapula.
Oblique direction sized 6 cm x ½ cm x deep upto muscles and reddish. Clotting of blood present
(iv) Contusion present over the post aspect of left side of chest sized 5 cm x 1 cm reddish oblique. Patient feeling difficulty in breathing.
(v) The whole left lower leg cut over 1/3 rd region cut portion of left lower leg attached to the leg by small part of skin. Cut of left lower leg through and through all blood vessels, all nerves and both bones and muscles tibia and fibula cut and seen over the wound. Oozing of blood present.
(v) Two incised wounds present over the left buttock sized 2 cm x ¼ cm x deep upto muscles 1 cm x ½ cm x deep upto muscles obliquely present.
The M.L.C. report is Ex.P.8
20. This witness had also recorded the dying declaration, Ex.P.8.
21. From the plain reading of M.L.C., Ex. P.8 and the post-mortem report, Ex. P.9, it is clear that the death of the deceased Lakhan was homicidal in nature.
22. The next question for consideration is that whether the 9 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) appellants are the author of injuries sustained by the deceased Lakhan or not?
Dying Declarations Ex. P.14 and P.8 and whether the deceased Lakhan Singh was in a position to speak or not?
23. Dr. Govind Singh (P.W.9),who had conducted post-mortem, was cross examined extensively. This witness has clearly stated that the injury no.2 could have been caused by a single blow either by axe or Farsa. Even if a person is in a semi lying position, he can sustain the said injury. Even if a person is completely lying on the ground and his face is slightly tilted, even then he can sustain the injury. It was further submitted that blood must have started clotting immediately after the injury no.1 was caused and it is incorrect to say, that there would be continuous bleeding from injuries no.1 to 4. He further stated that blood must have gone inside the trachea. However, denied that if any one tries to speak, then blood would come out of his mouth. He further admitted that the person with such injury would face difficulty in speaking. He further stated that it would not be possible to speak in a stuttering manner. He further clarified that the entire brain was not filled with blood and only left frontal portion was damaged and the laceration was only on that side. He further clarified that it is not necessary that in case of hematoma in brain, the person would get paralyzed. He specifically denied that the patient would not be in a position to speak. He further clarified that the death must have taken place within a period of 12 to 24 hours of post- 10
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) mortem. Since,the post-mortem was conducted at 9:50 A.M. on 19-7- 2001, therefore, the death must have taken place between 9 A.M. to 9 P.M. The food was digested.
24. Thus, from the evidence of this witness, it is clear that even after suffering injury no.2, neither the patient would have suffered paralysis nor the patient would not be in a position to speak. Further, the deceased must have died some time in between 9 A.M. to 9 P.M. On 18-7-2001.
25. The F.I.R., Ex. P.14 was lodged on 18-7-2001 at 14:15 P.M., and in view of evidence of Dr. Govind Singh (P.W.9), that the death must have taken place in between 9 A.M. to 9 P.M., therefore, it is clear that the deceased Lakhan Singh was alive at the time of lodging of F.I.R, Ex. P.14.
26. It is submitted by the Counsel for the appellants, that since in dying declaration Ex. P.8, the injured/deceased had named only 4 persons out of 9, therefore, he had adopted the policy of pick and choose, therefore, the dying declaration is not trustworthy.
27. The dying declaration, Ex. P.8 is in question answer form, which reads as under :
iz- rqEgkjk uke D;k gSA m- y[ku [kaxkj iz- rqEgkjs firkth dk D;k uke gSA m- gjizlkn iz- dgka jgrs gks m- cxsnjh iz- rqEgkjh mez D;k gS m- 40 o"kZ iz- rqEgs fdlus ekjk 11 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) m- jkds'k] jktw]xqM~Mk] f'kojkt [kaxkj us eq>s esjs dqavk ij ekjk Fkk iz- dk;s ls ekjk Fkk m- mUgksus Qjlk rFkk yqgkaxh ls ekjk iz- rqEgs vkSj dqN dguk gS bl ckjs esa m- eq>s vkSj dqN ugh dguk gSA
28. If the dying declaration, Ex. P.8 is considered, then it is clear that the injured /deceased Lakhan Singh had given answers to the questions of Dr. Vinod Chaurasia (P.W.8). No question was put by Dr. Vinod Chaurasia (P.W. 8) regarding presence of any other assailant. After asking about the names of assailants, Dr. Vinod Chaurasia (P.W.8) did not ask whether any other person was also involved in the crime or not? After asking about the names of assailants, Dr. Vinod Chaurasia (P.W.8) immediately went to another question as to whether the injured/deceased wants to say anything in this regard? The injured/deceased had suffered grievous injuries including one on the head and another injury by which his left leg was amputated, and the injured/deceased was without any treatment, then the pain and sufferings of the deceased can be presumed. Although he was conscious, but he must be in pains, therefore, Dr. Chaurasia (P.W.8) should have been more specific in asking the questions. However, we cannot lose sight of the fact, that the primary concern of Dr. Chaurasia (P.W. 8) was to save the life of the injured, and he also must be in a hurry while recording dying declaration, Ex. P.8. Dr. Chaurasia (P.W.8) is an independent witness. The Counsel for the appellants could not point out any thing from the record, which may indicate that Dr. Chaurasia (P.W.8) was interested witness. Further, a 12 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) detailed F.I.R., Ex.P.14 was already lodged by the deceased, therefore, even if certain questions were not put by the Doctor while recording the dying declaration, would not belie the detailed F.I.R., P.14 lodged by the injured/deceased.
29. F.I.R., Ex. P.14 was lodged at 14:15. The F.I.R., Ex. P.14 is a detailed document. In the F.I.R., Ex. P.14 each and every minute detail of offence has been disclosed by the injured/deceased. The F.I.R., Ex. P.14 was recorded by K.S. Kushwaha, P.W. 11. In para 4 of his cross-examination, this witness has specifically stated that at the time of recording of F.I.R., the injured/deceased was speaking and was not stuttering and blood was also not coming out of his mouth. Again in para 5 of his cross-examination, this witness has specifically stated that the injured/deceased was in a position to speak. He further denied that the injured/deceased was not in a position to speak, therefore, he had mentioned in the requisition for recording of dying declaration that "if the injured in a position to speak, then his dying declaration should be recorded". He further stated that the distance between Police Station and Primary Health Center is 1 Km and not 25-30 steps. He further admitted that the injured/deceased had died on his way to Shivpuri Hospital. Again in para 10 of his cross-examination, this witness denied that the injured/witness was not in a position to speak. He further denied that the copy of the F.I.R. was not sent to Magistrate, but admitted that the copy of the register is not on Court record. He denied that the F.I.R. 13
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) is an ante-dated and ante-timed document. He further denied that he has no information that prior to the incident, Santosh and Dhirendra had made a complaint against this witness to S.D.O. (P). He also denied for want of knowledge that during his tenure, some more false offences against Santosh, Nawab and Dhirendra were registered.
30. Thus, it is clear that this witness has categorically stated thrice in his cross-examination, that the injured/deceased was speaking at the time of lodging of F.I.R. Therefore, it is clear that the injured/deceased was conscious and was speaking at the time of lodging of F.I.R. and Dying Declaration.
31. It is next contended by the Counsel for the appellants that in Dying Declaration, Ex. P.8, the Doctor has given fitness certificate twice, i.e., at the time of beginning and after the completion of dying declaration. So far as the declaration after the completion of dying declaration is concerned, it is clear that it was added subsequently, as is evident from the fact that there was no space between the dying declaration and the thumb impression and the declaration has been mentioned in comparatively small font size.
32. Considered the submissions made by the Counsel for the appellants.
33. Dr. Vinod Chaurasia (P.W.8), has stated in para 3 of his examination-in-chief, that he had found the injured/deceased in a fit state of mind to make dying declaration and even during the recording of dying declaration, the injured/deceased was fully 14 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) conscious and was answering the queries. When the attention of this witness was drawn towards the fact that the physical fitness declaration after the recording of dying declaration is in smaller font size, then it was replied by this witness that it was done considering the remaining blank space in the page. He further submitted that a person can reach to P.H.C. from the Police Station within a period of 15 minutes. He had given sedative injunctions to the injured/deceased apart from first aid. He further admitted that he took about 45 minutes to give first aid medical treatment and examination and only thereafter, the dying declaration was recorded. However, he denied that after taking the thumb impression of the injured/deceased on a blank paper, he had referred the injured/ deceased. He denied that the dying declaration, Ex. P.8 was prepared afterwards. This witness further stated that when the injured/ deceased was sent to him for medical treatment, the copy of F.I.R. was not sent by the investigating officer.
34. Whether the explanation given by Dr. Vinod Chaurasia (P.W.8) that the subsequent fitness certificate was given in small font size in view of limited space in the page can be accepted or not?
35. It is well established principle of law that absence of medical fitness certificate would not ipso facto render the dying declaration not reliable. The Constitution Bench of Supreme Court in the case of Laxman v. State of Maharashtra, reported in (2002) 6 SCC 710, while deciding the reference has held as under : 15
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant.
Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the 16 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the Court which persuaded the Bench to make the reference to the Constitution Bench. In Paparambaka Rosamma v. State of A.P. the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate. In the latter decision of this Court in Koli Chunilal Savji v. State of Gujarat it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision in Ravi Chander v. State of Punjab wherein it had been observed that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab 17 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) 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 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.
36. The Supreme Court in the case of Surendra Bangali @ Surendra Kumar Rautele Vs. State of Jharkhand by judgment dated 4-2-2021 in Cr.A. No. 1078 of 2010 has held as under :
Learned counsel for the appellant has referred to the Constitution Bench judgment of this Court in Laxman vs. State of Maharashtra (2002) 6 SCC 710. The Constitution Bench clearly held that mere absence of doctor's certification as to the fitness of the declarant's state of mind would not ipso facto render the dying declaration unacceptable. It was further held that evidentiary value of such a declaration would depend on the facts and circumstances of the particular case............
37. Thus, if the dying declaration is reliable and trustworthy, then 18 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) even absence of certificate by Doctor regarding fitness of the declarant would not make the dying declaration untrustworthy. The satisfaction of the authority recording dying declaration regarding the medical fitness of the declarant is sufficient. However, in the present case, the dying declaration was recorded by the Doctor himself.
Therefore, if he was satisfied that the injured/deceased is in a fit state of mind, then it was not necessary for him to give any medical fitness certificate. Dr. Vinod Chaurasia (P.W.8) has stated that the injured/deceased was in fit state of mind, while he was giving dying declaration.
38. Although in a certain circumstance, the general condition of the injured might be deteriorating and his/her pulse may not be pulpable and blood pressure may not be recordable, however, if the Doctor is of the opinion, that the dying declaration can be recorded, then it cannot be said that the opinion of the Doctor was not correct. The Supreme Court in the case of State of Haryana Vs. Harpal Singh reported in (1978) 4 SCC 465 has held as under :
16. The other circumstance which conclusively establishes the identity of Ram Swarup and Bahadur is the dying declaration recorded by the police officer in the presence of the doctor. According to PW 3, Dr S.P. Singh, Ex. PL the dying declaration was made by Tej Kaur in his presence and he affixed his signature. Explaining the condition of Tej Kaur during the night the doctor stated that when Tej Kaur was brought to the hospital she was not in a critical condition. At 3 a.m. the doctor advised blood transfusion.
At 4 a.m. it was found that the pulse was not palpable. Blood pressure was not recordable and respiration was gasping. The doctor was definite that at that time Tej Kaur was talking coherently. When the police came for recording 19 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) the dying declaration he was attending to Dalip Kaur. The doctor further explained that Tej Kaur was in shock, as she was in a gasping condition and her general condition was not good. She was not able to speak continuously. She was narrating sentences by pauses in small words and a few questions were asked by the Police Officer in the end, which she replied in 'yes' or 'no'. He further stated that the police recorded her replies in the form in which she was asked and soon after her statement was over, her thumb impression was affixed on Ex. PL, the dying declaration. The doctor in Ex. PL endorsed that the patient was fit for recording a statement at 4.55 a.m. and again at 5 a.m. The evidence no doubt discloses that Tej Kaur was not in sound condition but we have no hesitation in accepting the testimony of the doctor that she made the statement and it was truly recorded by the police.
39. In the present case, Dr.Vinod Chaurasia (P.W.8) had found that the blood pressure of the injured/deceased was 100/68. Thus, it is clear that the blood pressure of the injured/deceased was recordable.
40. This Court has already considered the opinions of the Doctors, which is to the effect that inspite of receiving injuries, the injured/deceased was in a position to speak, therefore, this Court is of the considered opinion, that since, the medical fitness certificate was not required at all, and therefore, the explanation given by Dr. Vinod Chaurasia (P.W.8) that due to shortage of space in the page, he had given the subsequent fitness certificate in small font size is acceptable and hence, the objection raised by the Counsel for the appellants is hereby rejected.
41. The next contention of the Counsel for the appellants is that since, in the Dying Declaration, Ex. P.8, the injured/deceased had named only 4 persons whereas he had disclosed the names of 9 20 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) persons in the F.I.R., Ex. P.14, therefore, both the dying declarations are contradictory and hence not trustworthy is concerned, in the considered opinion of this Court, the said submission is liable to be rejected.
42. It is true that in F.I.R., Ex. P.14, the injured/deceased had named 9 persons, whereas in Dying Declaration, Ex. P.8, he had named only 4 persons, but this Court has already observed that this anomaly arose because Dr. Vinod Chaurasia (P.W.8) did not ask the question as to whether any other person was also involved in the commission of offence or not? Further more, the present case is not based on dying declarations also. There are eye-witnesses of the incident. Therefore, this anomaly would be considered after considering as to whether the eye-witnesses are reliable witnesses or not? In case of inconsistencies in two dying declarations, the Court can look for other evidence to reconcile.
43. The Supreme Court in the case of Jagbir Singh Vs. State (NCT of Delhi) reported in (2019) 8 SCC 779 has held as under :
31. A survey of the decisions wou ld 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;21
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) 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 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?
44. The Supreme Court in the case of Vikas Vs. State of Maharashtra reported in (2008) 2 SCC 516 has held as under : 22
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
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 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 23 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) 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.
45. Another contention of the Counsels for the appellants is that the dying declaration, Ex. P.8 written by Dr. Vinod Chaurasia (P.W.8) was not read over by him to the injured.
46. As already pointed out, there are two dying declarations of the injured/deceased i.e., F.I.R., Ex. P.14 and dying declaration Ex. P.8. In F.I.R. Ex. P.14, it is clearly mentioned that the same was read over to the injured who accepted the same to be true. So far as Dying Declaration, Ex. P.8 is concerned, there is no such endorsement, however, no question in this regard was put to Dr. Vinod Chaurasia (P.W.8) in this regard.
47. It is submitted by the Counsel for the appellants that since Ashok (P.W.6) was one of the witness of the dying declaration, Ex.P.8, and as he has turned hostile and has not supported the prosecution case, therefore, it is clear that Dying Declaration, Ex. P.8 is an unreliable document. However, the Counsel for the appellants fairly conceded that if any witness turns hostile and do not support the prosecution case, then the entire prosecution case cannot be thrown overboard. Therefore, if Ashok (P.W.6) decided not to support the prosecution case, then it would not ipso facto render the reliable 24 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) evidence of Dr.Vinod Chaurasia (P.W.8) untrustworthy.
48. It is next contended by the Counsel for the appellants that since, Pista (P.W.1), who was allegedly present on the spot and had also gone to the police station along with her husband/injured/ deceased, has stated in para 4 of her examination-in-chief that she does not know that who had lodged the F.I.R., Ex. P.14, thus, it is clear that the F.I.R.,Ex. P.14 is an ante-dated and ante-timed document. Further, when the F.I.R., Ex. P.14 was already recorded, then it was not necessary for the investigating officer to request the Doctor to record the dying declaration. It is further submitted that since, F.I.R., Ex.P.14 does not contain any certificate by the Doctor regarding fitness of mind of the injured, therefore, the same cannot be relied.
49. Considered the submissions made by the Counsel for the appellants.
50. Pista (P.W.1) is the wife of the injured/deceased. She has claimed that the entire incident took place in her presence. Even She also went to the police station along with her injured husband. One leg of the injured was already amputated and there was a head injury, then the mental condition of a wife can be presumed. Since, her presence in the police station is un-doubtful, then She could have safely stated that the injured/deceased had lodged the F.I.R. If She was in shock and if She could not narrate that who had lodged the F.I.R., then it is clear that She is a witness of credence. Thus, it is 25 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) clear that Pista (P.W.1) is an un-tutored witness and would not make the F.I.R., Ex. P.14 unreliable.
51. No suggestion has been given to any of the eye witness that they had ever tutored the injured/deceased to give dying declaration in a particular manner. Thus, this Court is of the considered opinion, that the Dying Declaration i.e., F.I.R., Ex. P.14, and Dying Declaration, Ex. P.8 were voluntarily given by the injured/deceased and he was in a fit state of mind and was speaking.
52. So far as the necessity to record the dying declaration by the Doctor is concerned, the Investigating officer, had not recorded the dying declaration, but he had recorded the F.I.R. It is another thing, that due to death of the injured, the said F.I.R. became dying declaration. Further, as the investigating officer was recording F.I.R., therefore, there was no necessity to obtain fitness certificate from the Doctor. Thus, it is incorrect to say that after recording F.I.R, Ex. P.14, there was no need to request the Doctor to record the F.I.R. The Supreme Court in the case of Jai Prakash Vs. State of Haryana reported in (1998) 7 SCC 284 has held as under :
4. It was next contended that no weight ought to have been given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the police officer was a dying declaration. As he recorded a complaint, it was not necessary for him to keep any doctor present or obtain any endorsement from him.26
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
53. It is next contended by the Counsel for the appellants, that since, the investigating officer did not requested the Executive Magistrate therefore, the dying declaration recorded by Dr. Vinod Chaurasia (P.W.8) should be disbelieved.
54. Considered the submissions made by the Counsel for the appellants.
55. The Counsel for the appellants could not point out any provision of law, which prohibits the Doctors from taking dying declarations. Where a person is sinking and there is no sufficient time, then the Doctor can always record the dying declaration and his evidence would be reliable as Doctor has no axe to grind against the accused persons. Therefore, where the injured had suffered multiple injuries including one on Head with amputation of his one leg, and if the Doctor instead of waiting for Executive Magistrate or the Investigating Officer, instead of requesting the Executive Magistrate, requested the Doctor to record the dying declaration of the injured, then it cannot be said that the dying declaration recorded by Doctor would fall in the category of suspicious document. Whether Eye-witnesses Pista bai (P.W.1), Malkhan (P.W.3) and Raghuvar (P.W.4) are reliable witnesses ?
56. Pista (P.W.1) is the wife of the injured/deceased. In the F.I.R., Ex.P.14, it is specifically mentioned that the injured/deceased was grazing his cattle in the field and his wife Pista was also there. The presence of wife along with her husband is natural. Further, Pista 27 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) (P.W.1) had come to the police station along with the injured/deceased. The other witnesses have also stated that after hearing the screams/shouts of Pista (P.W.1) they had witnessed the incident. Thus, the presence of Pista (P.W.1) is also supported by the evidence of other witnesses. Thus, it is held that at the time of incident Pista (P.W.1) was present on the spot.
57. Pista (P.W.1) has stated that She had also gone to the fields along with her husband Lakhan. When they were working, appellants Santu, Rameshwar, Gudda, Rakesh, Shivraj, and Raju came there. Rakesh was having Farsa, whereas Raju was having stone, Gudda was having Luhangi and Shivraj was having axe. Santu was having Lathi, whereas Rameshwar was also having axe. Rakesh assaulted her husband by Farsa causing injury on his head. Raju assaulted her husband by stone. Gudda assaulted Lakhan by Luhangi causing injury on his chest. Thereafter, Shivraj and Santu threw Lakhan on ground. Rameshwar caught hold of hands of Lakhan. When her husband fell down on the ground, Rakesh assaulted him by Farsa. In the meanwhile, by hearing her shouts, Ashok, Rona Bai, Malkhan and Raghuvar had also come there. They have also witnessed the incident. After the incident, they brought the injured to the police station on a bullock cart. Ashok, Ram Singh, Rona bai, Malkhan and Raghuvar had also accompanied them. The police had sent the injured for medical treatment. She has further stated that Hargovind had a suspicion that her husband had falsely implicated Santu, 28 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) therefore, he was beaten. Her husband died on his way to Shivpuri Hospital. In cross-examination, She has stated that appellants Santu, Gudda, Rameshwar and Shivraj are real brothers. Rakesh and Raju are sons of appellant Santu. She further stated that there is a public way adjoining to the fields of this witness and lot of persons use the public way. She also admitted that the school, which is situated at a nearby place was in session however, neither the teachers nor the students came on the spot. She further admitted that various false cases were pending against her husband. She further admitted that She had lodged a report against Raghunath etc. regarding theft of her slippers, however, the matter was compromised thereafter. Certain omissions and contradictions were pointed out in her cross- examination. She further stated that her husband was beaten for 2-3 hours, however, nobody came on the spot after hearing her screams. She further denied that her husband was plucking groundnut and as he fell down on a spade, therefore, he sustained the injuries.
58. This witness in her police statement, Ex. D-1 had not stated that Shivraj was having an axe, Santu was having a lathi, Rameshwar was having Luhangi and Raju was having a stone. Thus, the evidence of this witness to the above mentioned aspect can be said to be an improvement. She further stated that She had informed the police that Shivraj had caught hold the injured from his waist and Rameshwar had caught hold of his hand, but could not explain as to why the aforesaid fact is not mentioned in her police diary statement, Ex.D.1. 29
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) She further stated that She had informed the police that Rajesh had given a Farsa blow on the shoulder of the injured, but could not explain as to why the aforesaid fact is not mentioned in her police statement, Ex. D.1.
59. It is well established principle of law that every minor omission will not give fatal blow to the prosecution story, and while appreciating the evidence, the Court has to take the holistic view of the matter. The Supreme Court in the case of Shyamlal Ghosh Vs. State of W.B. reported in (2012) 7 SCC 646, has held as under :
68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case;
however, the latter would not adversely affect the case of the prosecution.
60. The Supreme Court in the case of Menoka Malik v. State of W.B., reported in (2019) 18 SCC 721 has held as under :
14. It is a well-settled position of law that the testimony of a witness cannot be discarded in toto merely due to the 30 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) presence of embellishments or exaggerations. The doctrine of falsus in uno, falsus in omnibus, which means "false in one thing, false in everything" has been held to be inapplicable in the Indian scenario, where the tendency to exaggerate is common. This Court has endorsed the inapplicability of the doctrine in several decisions, such as Nisar Ali v. State of U.P., Ugar Ahir v. State of Bihar, Sucha Singh v. State of Punja, Narain v. State of M.P. and Kameshwar Singh v. State of Bihar. In Krishna Mochi v.
State of Bihar, this Court highlighted the dangers of applying the doctrine in the Indian scenario : (Krishna Mochi case, SCC pp. 113-14, para 51) "51. ... The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P.)... The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. and Ugar Ahir v. State of Bihar.) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood."
31
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) 15*. It is not uncommon for witnesses to make exaggerations during the course of evidence. But merely because there are certain exaggerations, improvements and embellishments, the entire prosecution story should not be doubted. In Ranjit Singh v. State of Punjab, this Court observed : (SCC p. 762, para 26) "26. It is trite that even when exaggerations and embellishments are galore the courts can and indeed are expected to undertake a forensic exercise aimed at discovering the truth. The very fact that a large number of people were implicated in the incident in question who now stand acquitted by the High Court need not have deterred the High Court from appreciating the evidence on record and discarding what was not credible while accepting and relying upon what inspired confidence. That exercise was legitimate for otherwise the Court would be seen as abdicating and surrendering to distortions and/or embellishments whether made out of bitterness or any other reason including shoddy investigation by the agencies concerned. The ultimate quest for the court at all times remains "discovery of the truth" and unless the court is so disappointed with the difficulty besetting that exercise in a given case, as to make it impossible for it to pursue that object, it must make an endeavour in that direction."
16. This Court in State of Punjab v. Hari Singh, observed as follows : (SCC p. 559, para 16) "16. As human testimony, resulting from widely different powers of observation and description, is necessarily faulty and even truthful witnesses not infrequently exaggerate or imagine or tell half truths, the courts must try to extract and separate the hard core of truth from the whole evidence. This is what is meant by the proverbial saying that courts must separate "the chaff from the grain". If, after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt the courts are bound to give effect to the result flowing from it and not throw it overboard on purely hypothetical and conjectural grounds."
17. Thus, it cannot be doubted that it is the duty of the court to separate the chaff from the grain. Moreover, minor variations in the evidence will not affect the root of the matter, inasmuch as such minor variations need not be given major importance, inasmuch as they would not materially alter the evidence/credibility of the eyewitnesses 32 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) as a whole.
61. The evidence of this witness to the effect that Shivraj was having axe, Santu was having lathi, Rameshwar was having Luhangi and Raju was having stone, is nothing but an improvement, because the deceased Lakhan has also not stated that Shivraj, Raju, Rameshwar and Santu were having any weapon. But this improvement on the part of Pista (P.W.1) would not make much difference, because the presence of above 4 appellants is also disclosed by injured/deceased. Therefore, the above mentioned improvement is of minor in nature, and would not make her evidence unreliable.
62. Thus, if the evidence of Pista (P.W.1) is considered in the light of the F.I.R., Ex. P.14 (Which can be treated as Dying Declaration as the informant had expired due to the injuries sustained by him) and the Dying Declaration, Ex. P.8, it is clear that the evidence of Pista (P.W.1) is a trustworthy one and hence, Pista (P.W.1) is held to be a truthful eye-witness.
63. So far as the evidence of Malkhan (P.W.3) and Raghuvar (P.W.4) is concerned, their evidence was challenged mainly on the ground that their names were not mentioned in F.I.R., Ex. P.14 as eye-witnesses.
64. Heard the learned Counsel for the appellants.
65. It is well established principle of law that F.I.R. is not an encyclopedia and each and every minute details are not necessary. 33
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) However, in the present case, F.I.R., Ex. P.14 was lodged by injured/deceased himself, therefore, it would be appropriate for this Court to find out as to whether in the F.I.R., Ex. P.14, the names of Malkhan and Raghuvar have been disclosed as eye-witnesses or not? If not, its effect?
66. In F.I.R., Ex. P.14, it is disclosed by the injured/deceased that the incident has been witnessed by his wife Pista (P.W.1) and Ashok (P.W.6). However, it is also mentioned that he has been brought to the police station on a bullock cart by Ashok, Ram Singh, Pista, Ranobai, Malkhan and Raghuvar. Thus, it is clear that Malkhan and Raghuvar were present in the village and had come to Police Station along with the injured/deceased.
67. If the evidence of Malkhan (P.W.3) is considered, then in para 1 of his examination-in-chief, he has stated that he was going towards his well. On his way, he heard the screams of his aunty Pista and therefore, he saw the incident from a distance. Thus, it is clear that Malkhan (P.W. 3) had witnessed the incident from a distant place. In cross-examination, this witness has clearly stated that since, he was afraid and frightened, therefore, did not go on the spot and was watching the incident from a distance. Thus, if the injured, who was thrown on the ground and was caused multiple injuries, could not notice that this witness was watching the incident from a distance, then it would not negate the evidence of this witness. Further the subsequent conduct of this witness that he also went to the police 34 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) station along with the injured/deceased, makes it clear that this witness had witnessed the incident.
68. Similar is the evidence of Raghuvar (P.W.4). He has also stated that when he was going towards his well, he heard the screams of Pista (P.W.1) and saw the incident. In cross-examination, this witness clarified that after hearing the screams of Pista (P.W.4) he stood on the way and witnessed the incident. This witness has also stated that the appellants were challenging that if any one comes on the spot, then he too will be killed. He further stated that he hide himself behind the bushes. Thus, if the injured/deceased could not notice the presence of this witness, then it would not mean that this witness had not witnessed the incident. Further, mere non-mention of names of the witnesses in the F.I.R., would not make the evidence of eye- witness unreliable. The Supreme Court in the case of Bhagwan Singh Vs. State of M.P. reported in (2002) 4 SCC 85 has held as under :
13. We also do not find any substance in the submission of the learned counsel for the appellants that statement of Kiran (PW 7) should not be given any weight because her name is not mentioned in the FIR. There is no requirement of law for mentioning the names of all the witnesses in the FIR, the object of which is only to set the criminal law in motion. Kiran (PW 7) herself was injured and being the niece of Hari Ram (deceased), had no reason to involve innocent persons in the commission of the crime.
69. The Supreme Court in the case of State of M.P. Vs. Man Singh reported in (2003) 10 SCC 414 has held as under :
10. One of the circumstances highlighted by the High Court 35 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) to discard the evidence of PW 8 is non-mention of his name in the FIR. As stated by this Court in Chittar Lal v. State of Rajasthan evidence of the person whose name did not figure in the FIR as a witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eyewitnesses, should be indicated in the FIR. As was observed by this Court in Shri Bhagwan v. State of Rajasthan mere non-mention of the name of an eyewitness does not render the prosecution version fragile.
70. Thus, merely because the names of Malkhan (P.W.3) and Raghuvar (P.W.4) were not mentioned in the F.I.R., Ex. P.14 as eye- witnesses, this Court is of the considered opinion that, it cannot be a ground to discard the evidence of these witnesses as an eye-witness. Delayed recording of police statement of Pista
71. It is submitted by the Counsel for the appellants, that since, the police statement of Pista (P.W.1) was recorded on 11-8-2001, therefore, it is clear that it was recorded after 1 month of the incident, and therefore, her evidence is not trustworthy.
72. Considered the submissions made by the Counsel for the appellants.
73. The defence has not put a single question to Pankaj Shrivastava (P.W. 10) regarding delay in recording the statement of Pista (P.W.1). Further mere delay in recording of police statement of a witness would not ipso facto make his/her evidence untrustworthy. The Supreme Court in the case of V.K. Mishra Vs. State of Uttarakhand reported in (2015) 9 SCC 588 has held as under :
25......It is pertinent to point out that on the delayed 36 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) examination of PW 2, no question was put to the investigating officer (PW 14) by the defence. Had such question been put to PW 14, he would have certainly explained the reason for not examining PW 2 from 15-8-
1997 to 17-8-1997. Having not done so, the appellants are not right in contending that there was delay in recording the statement of PW 2.
74. The Supreme Court in the case of Ganeshlal Vs. State of Maharashtra reported in (1992) 3 SCC 106 has held as under :
10.....It is true that this Court in Balakrushna Swain v. State of Orissa, held that the evidence of witness recorded at late stage must be received with a pinch of salt. Delay defeats justice. But each case has to be considered on its own facts.
75. The Supreme Court in the case of Banti v. State of M.P., reported in (2004) 1 SCC 414 has held as under :
17. As regards the 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 and Bodhraj v. State of J&K).
76. As no explanation was sought by the defence with regard to delayed recording of statement of Pista (P.W.1), this Court is of the considered opinion, that the evidence of Pista (P.W.1) cannot be discarded on this ground.
Whether Rona bai (P.W.5) is a reliable witness
77. Ronabai (P.W.5) is not an eye-witness. Her evidence is that 37 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) after hearing the screams of Pista (P.W.1) she went to spot and saw that the appellants were running away and the injured informed her that he has been assaulted by Santu, Rameshwar, Gudda, Rakesh, Shivraj and Raju. However, in cross-examination, She could not give any explanation regarding the omission in her police statement, Ex. D/4, in which it was not mentioned "that She saw that the appellants were running away and the injured informed her that he has been assaulted by Santu, Rameshwar, Gudda, Rakesh, Shivraj and Raju". Thus, in view of omissions in her police statement, Ex. D.4, it is clear that although this witness reached on the spot immediately after the incident, but neither saw any of the appellant running away, nor was informed by the injured that he has been assaulted by Santu, Rameshwar, Gudda, Rakesh, Shivraj and Raju.
78. Ram Singh (P.W.2) is a hearsay witness who has stated that he was informed by his wife Ronabai (P.W.5) that the injured has been assaulted by Santu, Rameshwar, Gudda, Rakesh, Shivraj and Raju. This witness is also a witness of seizure of blood stained and plain earth and a pair of slippers from the spot, vide seizure memo Ex. P.2.
79. Ashok (P.W.6) has turned hostile and has not supported the prosecution story. He has proved that spot map, Ex. P.3 was prepared on his instructions and blood stained, plain earth and a pair of slippers was seized vide seizure memo Ex. P.2.
80. Kalyan (P.W.7) has proved the seizure of Farsa from the appellant Rakesh vide seizure memo Ex. P.5 and Luhangi from the 38 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) appellant Gudda vide seizure memo Ex. P.6.
81. Thus, from the discussion mentioned above, it is held that Pista (P.W.1), Malkhan (P.W.3) and Raghuvar (P.W.4) are trustworthy witnesses and they had seen the incident.
No blood on Farsa as per F.S.L. report, Ex. P.13
82. It is submitted by the Counsels for the appellants that since, no blood was found on the Farsa therefore, it is clear that Rakesh had not assaulted the injured/deceased by Farsa.
83. The incident took place on 18-7-2001, whereas Rakesh was arrested on 26-9-2001 vide arrest memo P.12. Thus, it is clear that Rakesh was arrested after about 2 ½ months from the date of incident. In the meanwhile, Rakesh had ample opportunity to wash out the Farsa. Further, the Supreme Court in the case of Nankaunoo Vs. State of U.P. reported in (2016) 3 SCC 317 has held as under :
9. The learned counsel for the appellant contended that the courts below failed to take note of the fact that the alleged weapon "country-made pistol" was never recovered by the investigating officer and in the absence of any clear connection between the weapon used for crime and ballistic report and resultant injury, the prosecution cannot be said to have established the guilt of the appellant. In the light of unimpeachable oral evidence which is amply corroborated by the medical evidence, non-recovery of "country-made pistol" does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency.
Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice.
84. Thus, even if it is held that the Farsa used in the offence was 39 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) not seized, still, it would not brush aside the reliable evidence available on record.
Related and Interested witnesses and non-examination of independent witnesses.
85. It is submitted that the entire prosecution story hinges around the evidence of "related witnesses".
86. It is true that Pista (P.W.1) has admitted that Ram Singh (P.W.2) is her Jeth and Malkhan and Raghuvar are his sons. Thus, it is submitted that Malkhan (P.W.3) and Raghuvar (P.W.4) are the nephews of Pista (P.W.1).
87. There is a distinction between "Related witnesses" and "Interested witnesses".
88. The Supreme Court in the case of Vijendra Singh Vs. State of U.P. reported in (2017) 11 SCC 129 has held as under :
31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para
13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar has opined that a close relative who is a natural 40 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
89. The Supreme Court in the case of Raju Vs.State of T.N. reported in (2012)12 SCC 701 has held as under :
20. The first contention relates to the credibility of PW 5 Srinivasan. It was said in this regard that he was a related witness being the elder brother of Veerappan and the son of Marudayi, both of whom were victims of the homicidal attack. It was also said that he was an interested witness since Veerappan (and therefore PW 5 Srinivasan) had some enmity with the appellants. It was said that for both reasons, his testimony lacks credibility.
21. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki. It was held that: (SCC p. 754, para 7) "7. ... True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be 'interested'."
22. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, the view that a "natural witness"
or "the only possible eyewitness" cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was "concerned in the success of the trap". The Constitution Bench held: (AIR p. 506, para 15) "15. ... The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to 41 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) case, and in a proper case, the court may even look for independent corroboration before convicting the accused person."
23. The wife of a deceased (as in Kalki), undoubtedly related to the victim, would be interested in seeing the accused person punished--in fact, she would be the most interested in seeing the accused person punished. It can hardly be said that she is not an interested witness. The view expressed in Kalki is too narrow and generalised and needs a rethink.
24. For the time being, we are concerned with four categories of witnesses--a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorisation of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.
25. In the present case, PW 5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinised with great care and caution.
26. In Dalip Singh v. State of Punjab this Court observed, without any generalisation, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused--each case has to be considered on its own facts. This is what this Court had to say: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has 42 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
27. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab. This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the "enemy" of the victim. This is what this Court said: (AIR p. 331, para 6) "6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. ... [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It 43 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
28. More recently, in Waman v. State of Maharashtra this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, Balraje v. State of Maharashtr, Prahalad Patel v. State of M.P., Israr v. State of U.P., S. Sudershan Reddy v. State of A.P., State of U.P. v. Naresh, Jarnail Singh v. State of Punjab and Vishnu v. State of Rajasthan it was held: (Waman case, SCC p. 302, para 20) "20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care."
29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words: (Sarwan Singh case, SCC p. 376, para 10) "10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
44
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
90. The Supreme Court in the case of Jodhan v. State of M.P., reported in (2015) 11 SCC 52 has held as under :
24. First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab, it has been observed thus: (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan."
In the said case, it has also been further observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. In Hari Obula Reddy v. State of A.P., the Court has ruled that evidence of interested witnesses per se cannot be said to be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduce a passage from the said authority: (SCC pp. 683-84, para 13) "13. ... an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be 45 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
26. The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the court before relying upon his testimony should seek corroboration in regard to material particulars.
91. The Supreme Court in the case of Yogesh Singh v. Mahabeer Singh, reported in (2017) 11 SCC 195 has held as under :
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar, State of U.P. v. Jagdeo, Bhagaloo Lodh v. State of U.P., Dahari v.
State of U.P., Raju v. State of T.N., Gangabhavani v. Rayapati Venkat Reddy and Jodhan v. State of M.P.)
92. The Supreme Court in the case of Rupinder Singh Sandhu Vs. State Of Punjab reported in (2018) 16 SCC 475 has held as under :
50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits.
93. The Supreme Court in the case of Mahesh Vs. State of Maharashtra reported in (2008) 13 SCC 271 has held as under : 46
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
55......It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim, that fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny.
94. The Supreme Court in the case of Ashok Kumar Chaudhary Vs. State of Bihar reported in (2008) 12 SCC 173 has held as under :
7. We are not impressed with the argument. Though it is true that the incident having taken place near the market around 6 p.m. on 17-7-1988, the prosecution should have attempted to secure public witnesses who had witnessed the incident, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence. In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise creditworthy, cannot be relied upon unless corroborated by public witnesses.
8. Insofar as the question of creditworthiness of the evidence of relatives of the victim is concerned, it is well settled that though the court has to scrutinise such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterised as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive.
9. In Dalip Singh v. State of Punjab this Court had the occasion to deal with the question as to whether a relative is 47 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) per se an "interested" witness. Dispelling the general impression that relatives were not independent witnesses, speaking for the Court, Vivian Bose, J., observed thus: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
10. In Masalti v. State of U.P. a four-Judge Bench of this Court had observed that though the evidence of an interested or partisan witness has to be weighed by the court very carefully but it would be unreasonable to contend that evidence given by a witness should be discarded only on the ground that it is evidence of a partisan or interested witness. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. (Also see Guli Chand v. State of Rajasthan and State of Punjab v. Jagir Singh.)
11. To the same effect is the decision in Rizan v. State of Chhattisgarh, wherein this Court has observed that relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal the actual culprit and make allegations against the innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
12. Very recently in Namdeo v. State of Maharashtra, one of us (C.K. Thakker, J.) has said that a close relative cannot be characterised as an "interested" witness. He is a natural witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased 48 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.
95. Thus, it is clear that the evidence of a "related witness" cannot be discarded only on the ground that he is "related witness". Nothing has been brought on record to show that the witnesses were "interested witnesses", and they were out and out to falsely implicate the appellants in place of true assailants. Thus, the evidence of Malkhan (P.W.3) and Raghuvar (P.W.4) cannot be discarded only on the ground that they are related witnesses.
96. Further, as the independent witnesses do not come forward as they might be apprehensive of going to the Police Station, or might be apprehensive of appearing before the Court of law or might be apprehensive of picking up enmity with the accused persons, therefore, it cannot be said as an universal principle that non- examination of independent witness would make the prosecution story unreliable.
Absence of Motive
97. When the prosecution case is based on direct evidence, then absence of motive loses its significance. The Supreme Court in the case of Bikau Pandey Vs. State of Bihar reported in (2003) 12 SCC 616 has held as under :
13. Therefore, Section 149 has been rightly applied when the factual position as highlighted by the eyewitnesses is considered. Even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime.
The first information report was lodged almost immediately 49 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) and whatever elaboration has been done is really very minor in nature. Mere seemingly inconsistencies which are not contradictions or omissions or are of trivial nature do not affect the substratum of the prosecution version. That is the situation in the case at hand. The number of injuries even if not correlated to the number of assailants is not material. (See Leela Ram v. State of Haryana.)
98. The Supreme Court in the case of Saddik Vs. State of Gujarat reported in (2016) 10 SCC 663 has held as under :
20. The contention of the counsel for the appellants that there was no reason for Accused 1 to commit assault on the deceased, is liable to be dismissed as unsustainable in view of the evidence of the eyewitnesses, namely, PW 1, PW 2 and PW 3.
21. It is settled legal position that even if the absence of motive, as alleged, is accepted, that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence cannot be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. (See Hari Shanker v. State of U.P.; Bikau Pandey v. State of Bihar; Abu Thakir v. State of T.N.; State of U.P. v.
Kishanpal and Bipin Kumar Mondal v. State of W.B.) Change in place of incident
99. It is submitted by the Counsels for the appellants, that the injured/Deceased in his F.I.R., Ex. P.14 and all the witnesses have stated that the incident took place in the field, whereas in Dying Declaration, Ex. P.8, it is mentioned that the injured/deceased was assaulted near his well and according to the spot map, Ex. P.3, the well is situated at a distance of 60-70 mt.s and no blood was found near the well, therefore, the witnesses have changed the place of 50 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) incident, therefore, the entire prosecution story is unreliable.
100. As per the spot map, Ex.P.3, well is also situated in the field of the injured/deceased. In the present case, discrepancy regarding the place of incident is of trivial in nature, which would not belie the prosecution story.
Shivram and Brijesh Kumar not cited as witnesses
101. It is submitted by the Counsel for the appellants, that, Pankaj Shrivastava (P.W. 10) has admitted that he had also recorded the statements of Shivram and Brijesh Kumar who were present in the School, but they had not disclosed anything about the incident. It is submitted that the prosecution has deliberately not filed the copies of their statements along with the charge sheet.
102. Heard the learned Counsel for the appellants.
103. The prosecution is supposed to file all those documents and is supposed to file police statements of all those witnesses on which it wants to place reliance. Section 173(5) of Cr.P.C. reads as under :
Section 173. Report of police officer on completion of investigation (1).......
(2).......
(3).......
(4).......
(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report--
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.51
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
104. Thus, it is not obligatory on the prosecution to file the statements of the witnesses recorded under Section 161 of Cr.P.C., whom the prosecution does not proposes to examine as its witnesses. If the accused is of the view that any document is necessary to prove his defence, then he can summon the same by filing an application under Section 91 of Cr.P.C. and similarly, if the accused is of the view that the evidence of a person is necessary and has not been cited as prosecution witness, then he can examine him as his defence witness. But the prosecution cannot be compelled to file those documents or to file the police statements of those witnesses, whom it do not proposes to examine as its witnesses.
105. Further, during the investigation, if any person had expressed his ignorance about the incident, then the prosecution is not required to file the copy of the said statement along with the charge sheet. Whether the injured/deceased had suffered any injury which could have been caused due to dragging.
106. It is submitted by the Counsels for the appellants that since, the injured/deceased in his F.I.R., Ex. P.14 has stated that he was dragged by Shivraj, Santu, Raju and Rameshwar, therefore, the allegations made against these appellants is false.
107. It is a well established principle of law that when there is minor variance between the ocular and medical evidence, then ocular evidence has to be given preference. The Supreme Court in the case of Krishnan Vs. State reported in (2003) 7 SCC 56 has held as 52 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) under :
20. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".
21. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
108. The Supreme Court in the case of Thaman Kumar Vs. State (UT of Chandigarh) reported in (2003) 6 SCC 380 has held as under:
16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon.
The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn 53 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.
109. Thus, it cannot be said that the F.I.R., Ex. P. 14 is contrary to medical evidence. Further, in the F.I.R., Ex. P.14 it was also mentioned that Shivraj, Raju, Santu and Rameshwar threw the injured on the ground.
Whether the appellants Shivraj, Raju, Santu and Rameshwar were members of unlawful assembly and were sharing common object
110. In F.I.R., Ex. P.14, it is specifically mentioned that all the appellants came together. On the instructions of Santosh, Shivraj, Raju, Santu and Rameshwar threw him by catching hold of his hands and legs. After he was assaulted by Rakesh and Gudda, he was dragged by Shivraj, Raju, Santu and Rameshwar. Thus, it is clear that not only the presence of the above mentioned four appellants is mentioned but some overt act has also been assigned to them. In view of the overt act on the part of the appellants Shivraj, Raju, Santu and Rameshwar, it cannot be said that their presence was an innocent presence or they were not sharing common object. It is well 54 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) established principle of law that Assembly which was initially not unlawful may become unlawful at any point of time. Further common object is to be ascertained from the conduct of the parties, nature of weapons they are carrying etc. Even if a member of Unlawful Assembly knew that the offence is likely to be committed, then it can be said that he was sharing common object.
111. The Supreme Court in the case of Charan Singh Vs. State of U.P., reported in (2004) 4 SCC 205 has held as under :
13. Coming to the others who were armed with double-
barrelled guns and country-made pistols, the question is regarding applicability of Section 149 IPC. Section 149 IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be 55 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly.
14. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words, it can develop during the course of incident at the spot eo instanti.
15. Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in 56 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first part; but offences committed in prosecution of the common object would be generally, if not always, within the second part, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object. (See Chikkarange Gowda v. State of Mysore.) 57 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
112. Thus, it can be said that the appellants Shivraj, Santu, Raju and Rameshwar were not only the members of Unlawful Assembly but were also sharing common object.
Falsus in uno Falsus in Omnibus
113. It is submitted by the Counsel for the appellants, that although in the F.I.R., Ex. P.14, it was specifically alleged that firstly Santosh, Nawab and Dhirendra had come and insisted that the injured/deceased must compromise a previously instituted case, and when he refused to do so, then they went back by extending a threat. Thereafter, all the appellants and Santosh, Nawab and Dhirendra came on the spot. It is submitted that now the witnesses have turned hostile so far as Santosh, Nawab and Dhirendra are concerned, therefore, it is clear that the witnesses are not trustworthy.
114. Considered the submissions made by the Counsel for the appellants.
115. The Latin Maxim Falsus in Uno Falsus in Omnibus has no application in India. The Supreme Court in the case of Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, reported in (2003) 7 SCC 749 has held as under :
25. It is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be 58 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P.)
26. The doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate an exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. and Ugar Ahir v. State of Bihar.) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v.
State of M.P. and Balaka Singh v. State of Punjab.) As observed by this Court in State of Rajasthan v. Kalki normal discrepancies in the evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar, Gangadhar Behera v. State of Orissa and Rizan v. State of Chhattisgarh.
59
Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004)
116. Merely because the witnesses decided not to support the prosecution case in respect of three acquitted accused persons, would not make their entire evidence unreliable.
Plea of Alibi
117. The appellants have examined Raghunath (D.W.1) in support of their plea of alibi. It is stated that he had gone to a place which is about 1 Kos (dksl) from his village for doing labour work and the appellants Shivraj, Raju, Rameshwar and Santu had also gone with him for labour works and they were also doing labour work with him. However, this witness has not clarified that who had employed them for labour works and at which place they were doing labour work. However, in the cross-examination, this witness has stated that he had come to know that the deceased has died due to injuries sustained by him from a spade. If the post-mortem report is considered, then it is clear that deceased cannot sustain multiple injuries on his head as well as amputation of his one leg due to his fall on a spade.
118. The burden to prove the plea of alibi is on the accused to dislodge the prosecution evidence. The Supreme Court in the case of Jitender Kumar Vs. State of Haryana reported in (2012) 6 SCC 204 has held as under :
71.........The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives. (Ref. Sk.
Sattar v. State of Maharashtra) The Supreme Court in the case of Mukesh v. State (NCT of 60 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) Delhi), reported in (2017) 6 SCC 1 has held as under :
257. While weighing the plea of "alibi", the same has to be weighed against the positive evidence led by the prosecution i.e. not only the substantive evidence of PW 1 and the dying declarations, Ext. PW-27/A and Ext. PW-
30/D-1, but also against the scientific evidence viz. the DNA analysis, fingerprint analysis and bite marks analysis, the accuracy of which is scientifically acclaimed......... The Supreme Court in the case of Binay Kumar Singh Vs. State of Bihar reported in (1997) 1 SCC 283 has held as under :
22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration
(a) given under the provision is worth reproducing in this context:
"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter- evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the 61 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P.; State of Maharashtra v. Narsingrao Gangaram Pimple.
119. As the burden to prove the plea of alibi is heavy on the accused in order to dislodge the prosecution story, and having failed in doing so, this Court is of the considered opinion, that the appellants have failed to prove their defence.
120. Thus, in view of discussion above, this Court is of the considered opinion, that there is no discrepancy in the F.I.R., Ex. P.14 and Dying Declaration Ex. P.8 and the variation in total number of accused would not render the prosecution case untrustworthy.
121. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion, that the prosecution has succeeded in establishing the guilt of the appellants for offence under Section 302, 302/149 of I.P.C. beyond reasonable doubt, and hence they are held guilty.
122. Since, the minimum sentence for offence under Section 302 of I.P.C. is Life Imprisonment, therefore, the sentence awarded to each of the appellant is hereby affirmed.
123. Consequently, the Judgment and Sentence dated 25-6-2004 62 Rakesh & Ors. Vs. State of M.P. (Cr.A. No. 450 of 2004) passed by Add. Sessions Judge, Karera, Distt. Shivpuri in S.T. No. 265/2001 is hereby affirmed.
124. All the appellants are on bail. Their bail bonds are hereby cancelled. They are directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
125. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.08.10 15:01:17 +05'30'