Madhya Pradesh High Court
Bhoop Singh vs State Of M.P. on 22 August, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia, Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
&
HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
ON THE 22nd OF AUGUST, 2022
CRIMINAL APPEAL No. 405 of 2012
Between:-
BHOOP SINGH
SON OF MAYARAM YADAV, AGE 35
YEARS, OCCUPATION AGRICULTURIST,
RESIDENT OF VILLAGE KAMAYA,
POLICE STATION BANMORE, DISTRICT
MORENA (MADHYA PRADESH).
........APPELLANT
(BY SHRI ANOOP NIGAM - ADVOCATE)
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION
BANMORE, DISTRICT MORENA
(MADHYA PRADESH).
......RESPONDENT
(BY SHRI A.K. NIRANKARI- PUBLIC PROSECUTOR)
(SHRI ASHISH SARASWAT - ADVOCATE FOR
COMPLAINANT)
Reserved On : 3rd August, 2022
Delivered On : 22nd August, 2022
________________________________________________________
2
This criminal appeal coming on for final hearing this day, Hon'ble
Shri Justice G.S. Ahluwalia, passed the following:
JUDGEMENT
1. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 8-5-2012 passed by IVth Additional Sessions Judge, Morena in S.T. No.309/2010 by which the Appellant has been convicted 302 of IPC and has been sentenced to undergo the Life Imprisonment and a fine of Rs.5,000/-, in default 6 months R.I.
2. It is not out of place to mention here that the police after completing the investigation had filed charge sheet for offence under Sections 307, 326 of IPC and charges were also framed for offence under Section 307 of IPC. However, during the pendency of the Trial, the deceased Jagman Singh died on 8-12-2010 and accordingly, the charge was altered and by order fated 18-1-2011, charge under Section 302 of IPC was framed.
3. Further, on 14-7-2022, a statement was made by Shri Ashish Saraswat, Counsel for the complainant, that the Appellant Bhoop Singh has jumped parole and has not surrendered. Further, an information has also been received from the Central Jail, Gwalior, that the Appellant is not in jail. Now the only question for consideration is that whether the Appeal can be heard on merits or not?
4. The Supreme Court in the case of Dhananjay Rai @ Guddu Rai by Judgment dated 14/7/2022 passed in Cr.A. No.803 of 2017 has held as under :
7. We may note here that the High Court relied upon its earlier decision in the case of Daya Shankar Singh3 which was based 3 on Rule 8 of Chapter XII of the Patna High Court Rules which predicates that no appeal against conviction shall be heard for admission unless the accused has surrendered to the order of the Court below convicting him to a sentence of imprisonment except in a case where the appellant has been released on bail by the trial court after convicting him. In the case in hand, the appeal was already admitted on 29th October 2009. Therefore, the said rule, which applies to the pre-admission stage, was not applicable in this case.
8. The anguish expressed by the Division Bench about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits. Therefore, the impugned judgment will have to be set aside and the appeal will have to be remanded to the High Court for consideration on merits.
Accordingly, this Appeal is heard on merits, although the Appellant is absconding after having jumped parole.
5. The necessary facts for disposal of present appeal in short are that on 22-5-2010 at about 21:55, Dhruv Singh, son of Jagman Singh lodged a Dehati Nalishi in the J.A. Hospital, Gwalior, alleging therein that his father Jagman Singh had left his house for going to a market. Thereafter, he along with his mother Ganga reached in front of Clinic of Bengali Doctor on A.B. road. He heard the screams of his father which were coming from the side of the house of Arvind and Raghuvir. He and his mother rushed towards the place of incident. He saw that his maternal uncle Bhoop Singh was running away along with an axe in his hand. He reached near to his father where Sonu Rathore was already there. His father was bleeding from his head, near nose and eyes. Sonu told him that the Appellant had assaulted his father by an axe and has run away towards Gangarampura. There was an enmity between the Appellant and 4 his father on the question of land, therefore, the Appellant has assaulted his father, with an intention to kill him. The police had also reached on the spot and accordingly, he has brought his father to J.A. Hospital for treatment.
6. On the basis of the Dehati Nalishi, police registered the F.I.R. The blood stained and plain earth were seized from the spot. The Appellant was arrested and blood stained axe was seized. The medical documents and blood stained clothes of injured Jagman Singh were also seized. The statements of witnesses were recorded. Jagman Singh remained unconscious and therefore, his statement could not be recorded. Accordingly, the police filed the charge sheet for offence under Sections 307, 326 of IPC.
7. The Trial Court by order dated 27-10-2010, framed charge under Section 307 of IPC. However, during the pendency of the Trial, the injured Jagman Singh died on 8-12-2010 and accordingly, by order dated 25-2-2011, an alternative charge under Section 302 of IPC was also framed.
8. The Appellant abjured his guilt and pleaded not guilty.
9. The prosecution examined Dhruv Singh Yadav (P.W.1), Shambhudayal (P.W.2), Virendra (P.W.3), Raju Singh (P.W.4), Sarnam Singh (P.W.5), Smt. Ganga Devi (P.W.6), Mohar Singh (P.W.7), Sonu @ Satendra (P.W.8), Ramlakhan @ Papu Ghuraiya (P.W.9), L.R. Khisaniya (P.W.10), Mahendra Dev Singh (P.W.11) and Dr. O.P.S. Chauhan (P.W.12).
10. The Appellant did not examine any witness in his defence.
11. The Trial Court by the impugned judgment and sentence has 5 convicted and sentenced the Appellant for offence under Section 302 of IPC.
12. Challenging the judgment of conviction recorded by the Trial Court, it is submitted by the Counsel for the Appellant that the deceased Jagman died after all most 7 months of the assault due to Septic Shock, therefore, it is clear that no offence under Section 302 of IPC would be made out. There are major contradictions in the evidence of the witnesses and no eye-witness has supported the prosecution case. No blood group was found on the axe seized from the possession of the Appellant and therefore, it cannot be held that the axe seized from the possession of Appellant was used for commission of offence. The Counsel for the Appellant has also relied upon the judgment passed by the Supreme Court in the case of Kansa Behera Vs. State of Orissa reported in (1987) 3 SCC 480.
13. Per contra, the Counsel for the State has supported the prosecution case.
14. Heard the learned Counsel for the parties.
15. Before adverting to the merits of the case, this Court would like to consider as to whether the death of the deceased Jagman Singh was homicidal in nature or not?
16. Dr. O.P.S. Chauhan (P.W. 12) had medically examined the injured Jagman Singh on 22-5-2010 and found following injuries on his body :
(i) Incised wound over mid parietal area towards the left side from mid line 6.2 x 2.5 cm bone deep with bone fracture bleeding present;
(ii) Incised wound forehead obliquely 7.1x1 cm muscle deep 6 bleeding present;
(iii) Incised wound over right face obliquely placed 5.5 x 1 cm muscle deep bleeding present;
(iv) Incised wound over chin transversely placed 3.5 x 1 cm x muscle deep bleeding present;
caused by hard and sharp object within 6 hours. Remark Unconscious advised x-ray of skull and face The M.L.C. report is Ex. P.28. This witness was cross-examined.
17. In cross-examination he stated that he had advised x-ray, but the x- ray report was never placed before him. No other injury was found on his body. He denied that the injured could have sustained injuries in an accident and clarified that in such a case, he should have sustained more injuries on his body. The assault was made from the front side of the injured. He denied that he did not examine the injured.
18. Dr. L.R. Khisaniya (P.W.10) conducted post-mortem of the deceased Jagman. The post-mortem was conducted on 8-12-2010, and found following injuries on his dead body :
"The body is of Adult male, aged about 55 years, average built. He is wearing green check tahmad and ryles tube in left nostril and catheter in urethra. Eyes closed, mouth closed, face pale whole body pole, rigormortis on both side palm upto wrist joint swollen and both side sole, Ankle, Ankle joint upto both side knee swollen.
(i) Old healed scar 2 cm over right nostril;
(ii) Old healed scar 7 ½ cm central of frontal region upto left side eye brow frontal region;
(iii) Old healed scar 7 ½ cm left side parietal region, horizontally bone calcification present mid parietal region;
(iv) Old healed scar 7 cm over right occipital region;
(v) Old healed scar 6 ½ cm over left side occipital region;7
(vi) Old healed scar 8 ½ cm left temporal region;
(vii) Old healed scar 1 ½ cm x 1 ½ cm over center of neck;
(viii) Infected wound 17 cm x 10 cm centrally x 5 cm deep upper portion right hip joint from upper portion right hip above downward upto middle of right thigh, oval shaped, muscles of right hip joint upper 1/3 of femur septic and distorted femur bone and hip joint (illegible) due to chronic osteomyelitis foul smell coming out 2 cm upper portion of would healed and just near portion of wound ½ is semi healed and lower portion of wound, infected wound.
(ix) Infected wound 15 cm x 10 ½ cm is semi healed and lower portion of wound of femur bone. Septic and distorted.
Oval shaped. Foul smell coming out 2 cm upper portion of wound healed and just near portion, portion of wound ½ cm is semi-healed and power portion of wound, infected wound;
(x) Infected wound 8 cm x 6 cm x ½ cm muscle deep central of sacral region;
(xi) Infected wound 4 cm x 3 cm x muscle deep over middle of right posterior trunk;
(xii) Infected wound 7 cm x 4 cm x muscle deep over middle of left part of trunk;
(xiii) Infected wound 2 cm x ½ cm x muscle deep over medial side of right knee joint;
(xiv) Infected wound 1 ½ cm x ½ cm x muscle deep over medial side left knee joint;
(xv) Infected wound 2 ½ cm x ½ cm x muscle deep over medial side of right ankle joint;
(xvi) Infected wound 2 cm x ½ cm x muscle deep Brain matter is pale, multiple small fibrosed tissues seen in brain matter Opinion From the PM Examination, I am of the opinion that the death in this case is due to cardio-respiratory failure due to septic shock as a result of prolonged Comatose state because of previous head injuries."
The Post-mortem report is Ex. P.26. This witness was cross- examined.
19. In cross-examination, he stated that foul smell was coming from 8 the injuries. The injuries were serious in nature. No smell of antiseptic liquid like dettol etc was found. He denied that the deceased could have sustained the injuries in a vehicular accident. He also stated that the treatment of such injuries cannot be done by a housewife. Such type of patient constantly requires services of Doctor. He also stated that in absence of medical treatment, death was possible. He had not prepared any rough notes.
20. Thus, it is clear that the deceased Jagman Singh died due to septic shock caused by head injuries.
21. It is submitted that since, proper treatment was not given to Jagman Singh, therefore, it is clear that the death of the deceased was not homicidal in nature, but was because of negligence in his treatment.
22. Heard the learned Counsel for the Appellant.
23. Dhruv Singh (P.W.1) has specifically stated that after the assault was made on Jagman Singh, he did not regain consciousness. Even in M.L.C., Ex. P.28, it is mentioned in remark column that the patient is unconscious. Mahendra Dev Singh (P.W.11), has also stated that during investigation, he tried to record the statement of Jagman Singh, but he was unconscious. Even in the post-mortem report, the cause of death was mentioned as septic shock as a result of prolonged comatose state because of previous head injuries. Thus, it is clear that after the assault was made, the deceased Jagman Singh did not regain his consciousness and remained in Coma till his death.
24. It is submitted by the Counsel for the Appellant that no proper treatment was given to the deceased. This submission cannot be accepted. Even no suggestion was given to Dhruv Singh (P.W.1) or Gangadevi 9 (P.W. 6), that they had got the patient discharged inspite of objection by the Doctor. There is nothing on record to suggest that the family members of Jagman Singh were financially sound, and they deliberately did not get him treated. It is not the case of the Appellant that he had provided any financial assistance to the family of the injured for his treatment. On the contrary, Dhruv Singh (P.W.1) has stated that he was constantly taking his father to Dr. Sengar for treatment and some of the prescriptions were also produced by him which are marked as Ex. P.14 to P.16.
25. Section 299 of IPC reads as under :
299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1.--A person who causes bodily injury, to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.--The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
26. From plain reading of Explanation 2 to Section 299 of IPC, it is clear that if the injuries are sufficient to cause death in the ordinary course of nature, then whether the death might have been prevented by resorting to proper remedies and skillful treatment or not cannot be a 10 defence.
27. The Supreme Court in the case of Khokan v. State of Chhattisgarh, reported in (2021) 3 SCC 365 has held as under :
13......There is no absolute proposition of law laid down by this Court in the said decision that in all cases where the deceased died due to septicaemia, the case would fall under Section 304 Part I IPC. In the present case, though the deceased died due to septicaemia, however, it is required to be noted that he died while taking treatment in the hospital and that too he died within three days from the date of occurrence of the incident. Therefore, on facts, the said decision shall not be applicable.
28. The Supreme Court in the case of State of Rajasthan v. Arjun Singh, reported in (2011) 9 SCC 115 has held as under :
31. Finally, the learned Senior Counsel for the accused pointed out that inasmuch as Himmat Raj Singh died after 35 days due to septicaemia, the courts below are not justified in convicting the accused persons for an offence under Section 302 IPC for his death. Considering the medical evidence that Himmat Raj Singh sustained 7 gunshot injuries which were sufficient to cause death in the ordinary course, we are satisfied that the death of Himmat Raj Singh undoubtedly falls within the ambit of Section 302 IPC.
29. The Supreme Court in the case of Antram v. State of Maharashtra, reported in (2007) 13 SCC 356 has held as under :
13. Coming to the question as to applicability of Section 302 IPC, great emphasis was laid on the evidence of Dr. S.K. Shinde (PW 7). It was contended that the death was due to medical negligence and therefore the accused could not have been convicted under Section 302 IPC. It was submitted that had the patient been given proper care, there was a possibility of removing thick mucus and food particles from trachea and bronchi by using certain instruments and with proper medicines, she could have survived. The High Court noted that the throwing out of the vomit by the deceased was not a natural 11 course but it was a result of two injuries i.e. Injuries 3 and 4.
The High Court found that the presence of mucus and food particles in the trachea and bronchi cannot be totally delinked from the injuries inflicted by the accused. It was the stand of the accused that the death was due to septicaemia and, therefore, it is not referable to cause of death in the ordinary course of nature due to ante-mortem injuries.
14. In State of Haryana v. Pala it was noted as follows: (SCC pp. 52-53, para 3) "... In answering the question whether a wound is dangerous to life, the danger must be assessed on the probable primary effects of the injury. Such possibilities as the occurrence of tetanus or septicaemia, later on, are not to be taken into consideration."
15. In Sudershan Kumar v. State of Delhi it was noted as follows: (AIR p. 2328) "The fact that the deceased lingered for about 12 days would not show that the death was not the direct result of the act of the accused in throwing acid on her. So also the fact that the deceased developed symptoms of malaena and respiratory failure and they also contributed to her death could not in any way affect the conclusion that the injuries caused by the acid burns were the direct cause of her death."
16. As noted above it was emphasised by learned counsel for the appellant that with proper medical care the deceased could have survived and therefore Section 302 IPC has no application. The plea clearly overlooks Explanation 2 to Section 299 IPC, which reads as follows:
"Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented."
30. The Supreme Court in the case of Jagtar Singh v. State of Punjab, reported in (1999) 2 SCC 174 has held as under :
7. Having given our anxious consideration to the first 12 contention of Mr Gujral, we do not find any substance in it. It is true that Naib Singh died 16 days after the incident due to septicaemia, but Dr M.P. Singh (PW 1), who held the post-
mortem examination, categorically stated that the septicaemia was due to the head injury sustained by Naib Singh and that the injury was sufficient in the ordinary course of nature to cause death. From the impugned judgment, we find that the above contention was raised on behalf of the appellants and in rejecting the same, the High Court observed:
"It is well settled that culpable homicide is not murder when the case is brought within the five exceptions to Section 300 Penal Code, 1860. But even though none of the said five exceptions is pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses, firstly to fourthly, of Section 300 Penal Code, 1860, to sustain the charge of murder. Injury 1 was the fatal injury. When this injury is judged objectively from the nature of it and other evidence including the medical opinion of Dr M.P. Singh (PW 1), we are of the considered view that the injury was intended to be caused with the intention of causing such a bodily injury by Harbans Singh, the appellant on the person of Naib Singh which was sufficient in the ordinary course of nature to cause death...."
On a perusal of the evidence of PW 1 in the light of Explanation 2 to Section 299 IPC, we are in complete agreement with the above-quoted observations of the High Court.
31. Thus, under the facts and circumstances of the case, this Court is of the considered opinion, that the death of the deceased Jagman was homicidal in nature caused on account of prolonged comatose state due to previous head injuries.
32. The next question for consideration is that whether the Appellant is the author of the offence or not?
13Whether Dhruv Singh Yadav (P.W.1) and Ganga Devi (P.W.6) are eye-witnesses or they are the witness of circumstance that immediately after the incident, the Appellant was seen running away from the spot along with an axe.
33. Dhruv Singh Yadav (P.W.1), Ganga Devi (P.W. 6) have supported the prosecution case, whereas Shambhudayal (P.W.2), Virendra Singh (P.W.3), Raju Singh (P.W.4), Sarnam Singh (P.W.5), Sonu @ Satendra (P.W.8), Ramlakhan @ Pappu Ghuraiya (P.W.9), have turned hostile and did not support the prosecution case.
34. Dhruv Singh Yadav (P.W.1) is the son of the deceased. He has stated that on 22-5-2010 at about 6:15 P.M., he was going to market for treatment of his mother. As soon as he reached in front of the clinic of Bangali Doctor, he heard the screams of his father which were coming from the side of the house of Arvind and Raghuvir Goud. He went there and saw that the Appellant was assaulting his father by axe. He had assaulted on his head as well as on nose, as a result, his one lip sustained cut injury. The incident was witnessed by his mother and other persons. After noticing this witness, the appellant ran toward Gangaram Ka Pura. After some time, the police party also reached there and accordingly he took his father to J.A. Hospital in the police vehicle. His father was treated in J.A. Hospital. He lodged Dehati Nalishi, Ex. P. 1 in J.A. Hospital. On 7-6-2010, the blood stained clothes of his father i.e., Dhoti, Kurta, and Baniyan were seized vide seizure memo Ex. P.2. The treatment of his father continued till 8 th July 2010. [It is not out of place to mention here that this witness was examined prior to the death of deceased and after the death, this witness was recalled.] 14
35. In cross-examination, he stated that the Appellant is his step maternal uncle. However, he claimed that he had informed the police that he had seen the Appellant assaulting the injured, but could not explain as to why this fact is not mentioned in Dehati Nalishi, Ex. P.1 and police statement, Ex. D.1. He further stated that his father is still not in a position to speak and food is being given through ryles tube. In para 6 of his cross-examination, he stated that he had disclosed to the police that when he went to the spot, he saw that the Appellant was assaulting his father by an axe and had assaulted on his head, face and nose, but could not explain as to why this fact is not mentioned in his Dehati Nalishi, Ex. P.1 and police statement, Ex.D.1. It is not out of place to mention here that in Dehati Nalishi, Ex. P.1 and Police Statement, Ex. D.1, this witness had stated that after hearing the screams of his father, when he reached on the spot, then he was informed by Sonu that the Appellant has assaulted his father and he saw that the Appellant was running away from the spot along with an Axe.
36. After this witness was examined and cross-examined, the deceased breathed his last and accordingly, this witness was recalled and he was further examined and cross-examined in respect of death of his father Jagman Singh. In further examination, he proved the documents relating to treatment of his father. In cross-examination, he stated that he and his mother were looking after his father. He had taken his father to the residence of Dr. Sengar thrice for his treatment, but stated that Dr. Sengar had never visited his house for the treatment of his father. Safina Form, Ex. P.10 was prepared. Lash Panchnama, Ex. P.11 was prepared. The dead body was handed over vide panchnama, Ex. P.12. He was 15 consulting the Doctor and was giving medicines as per prescriptions. He had not kept any nurse. The medicines were being given through ryles tube. In his absence, his brother and Bhabhi also used to come to look after his father. His father was discharged from the hospital, as the Doctors had advised him to take him to his house as it was not advisable to keep him in hospital for long. He denied that his father would have survived in case regular treatment was given.
37. Ganga Devi (P.W.6) has also stated that on 22-5-2010, She was going along with her son Dhruv Singh (P.W.1) for her treatment. As soon as they reached in front of the clinic of Bengali Doctor, they heard the screams of her husband. They immediately rushed to the spot. They saw that the Appellant was assaulting her husband by an axe. It was 18:00. When they moved forward, then the appellant ran away along with axe. When they reached near her husband, Sonu Rathore and Pappu Ghuraiya were standing. In the meanwhile, the police Diwan also reached there along with police vehicle. Accordingly, her husband was shifted to J.A. Hospital. After the assault, her husband is not speaking and food and medicine is being given through ryles tube. Her husband remained hospitalized for 1 ½ month and thereafter, he was discharged and his treatment of Dr. Sengar continued in her house itself. They used to take her husband to the residence of Dr. Sengar in four wheeler. Her husband has expired on 8-12-2010 on account of injuries. After the assault, her husband never regained consciousness. This witness was cross- examined.
38. In para 8 of cross-examination, she denied that She had not seen the Appellant assaulting her husband, but could not explain as to why 16 this fact is not mentioned in her police statement, Ex. D.2. It is not out of place to mention here that in her police statement, Ex. D.2, She had stated that when She reached on the spot, her husband was lying on the spot, and the Appellant was running away from the spot along with an axe. Thus, in her police statement, Ex. D.2, She had not stated that She had seen the Appellant assaulting her husband.
39. Thus, it is clear that neither Dhruv Singh Yadav (P.W.1) had stated about witnessing the assault by the Appellant either in his Dehati Nalishi, Ex.P.1 or in his police statement, Ex. D.1, nor Ganga Devi (P.W.6) had stated about the assault by the Appellant in her police statement, Ex. D.2. Whereas, originally these witnesses had stated that when they reached on the spot, they saw that the Appellant was running away along with an axe.
40. Thus, the moot question for consideration is that whether the above mentioned improvement is a major contradiction or not?
41. The Supreme Court in the case of Tomaso Bruno v. State of U.P., reported in (2015) 7 SCC 178 has held as under :
39. It is a settled proposition of law recently reiterated in the following cases viz. Dayal Singh v. State of Uttaranchal, Radhakrishna Nagesh v. State of A.P., Umesh Singh v. State of Bihar that there is possibility of some variations in the exhibits, medical and ocular evidence and it cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused.
Where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused.
42. The Supreme Court in the case of Achhar Singh v. State of H.P., reported in (2021) 5 SCC 543 has held as under :
1726. The learned State counsel has rightly relied on Gangadhar Behera to contend that even in cases where a major portion of the evidence is found deficient, if the residue is sufficient to prove the guilt of the accused, conviction can be based on it.
This Court in Hari Chand v. State of Delhi held that: (Hari Chand case, SCC pp. 124-25, para 24) "24. ... So far as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial especially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon."
(emphasis supplied)
43. Originally, Dhruv Singh (P.W.1) and Ganga Devi (P.W6) were not the eye-witnesses, but they were the witnesses of circumstance that the Appellant was seen running away from spot along with an Axe. In the Court evidence, both the witnesses have stated that they had seen the Appellant assaulting the injured/deceased and thereafter he ran away along with his axe. Thus, in Court evidence, these witnesses apart from reiterating the circumstance of running away along with an axe, have also improved their version and deposed as if they had seen the actual assault also.
44. This improvement of seeing the actual assault, by both the witnesses would certainly amount to major contradiction and can be 18 ignored while appreciating their evidence. But, now the only question is that whether their evidence that they had seen the Appellant running away from the spot along with an axe can be relied upon or not?
45. It is well established principle of law that the Latin Maxim Falsus in uno falsus in omnibus has no application in India. The Courts must try to remove the grain from the chaff. The Supreme Court in the case of Sohrab v. State of M.P. reported in (1972) 3 SCC 751 has held as under:
8......This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though where the substratum of the prosecution case or material part of the evidence is disbelievable it will not be permissible for the Court to reconstruct a story of its own out of the rest.....
46. Thus, this Court is of considered opinion, that the prosecution has succeeded in establishing the circumstance that immediately after the incident, the Appellant was seen running away from the spot along with an axe.
Recovery of Axe
47. Mohar Singh (P.W. 7) is a witness of seizure. He has stated that on 5-6-2010, the police had arrested the appellant vide arrest memo Ex. P.18. His memorandum, Ex.19 was prepared and on his information, an axe was seized vide seizure memo Ex. P.20. The police had also seized the clothes of the injured vide seizure memo Ex. P.2. The Safina form is 19 Ex. P.10 and Lash Panchayatnama is Ex. P.11. This witness was cross- examined.
48. In cross-examination, he stated that at the time of arrest of the Appellant, he was called in the police station. The documents were prepared in his presence. He denied that no axe was seized in his presence.
49. Mahendra Dev Singh (P.W.11) has stated that he had arrested the Appellant and also recorded his memorandum and on his information, an axe was seized vide seizure memo Ex. P.20.
50. Thus, it is clear that the prosecution has proved the seizure of an axe on the information and possession of the Appellant.
51. According to seizure memo, Ex. P.20, blood stains were found on the seized axe, F.S.L. report
52. As per F.S.L. report, Ex. .33, Human Blood was found on the Axe, however, the blood was found to be inconclusive.
53. Thus, it is clear that Human blood was found on the axe which was seized from the possession of the Appellant.
54. It is submitted by the Counsel for the Appellant, that since, the blood group on the axe could not be ascertained, therefore, mere presence of human blood would not be an indicative of circumstance, that it was the blood of the injured/deceased.
55. Heard the learned Counsel for the Appellant.
56. The Appellant has not explained the presence of human blood on the axe which was seized from his possession. He did not claim that the said blood stains were of him.
2057. The Supreme Court in the case of Khujji Vs. State of M.P. reported in (1991) 3 SCC 627 has held as under :
10. Mr Lalit, however, argued that since the report of the serologist does not determine the blood group of the stains on the weapon and the pant of the appellant, the mere find of human blood on these two articles is of no consequence, whatsoever. In support of this contention he placed strong reliance on the decisions of this Court in Kansa Behera v.
State of Orissa and Surinder Singh v. State of Punjab. In the first mentioned case the conviction was sought to be sustained on three circumstances, namely, (i) the appellant and the deceased were last seen together; (ii) a dhoti and a shirt recovered from the possession of the appellant were found to be stained with human blood; and (iii) the appellant had made an extra-judicial confession to two witnesses when arrested. There was no dispute in regard to the first circumstance and the third circumstance was held not satisfactorily proved. In this backdrop the question for consideration was whether the first and the second circumstances were sufficient to convict the appellant. This Court, therefore, observed that a few small blood stains could be of the appellant himself and in the absence of evidence regarding blood group it cannot conclusively connect the blood stains with the blood of the deceased. In these circumstances this Court refused to draw any inference of guilt on the basis of the said circumstance since it was not 'conclusive' evidence. This Court, however, did not go so far as to say that such a circumstance does not even provide a link in the chain of circumstances on which the prosecution can place reliance. In the second case also this Court did not consider the evidence regarding the find of human blood on the knife sufficient to convict the appellant in the absence of determination of blood group since the evidence of PW 2 was found to be uninspiring and there was no other circumstance to connect him with the crime. In this case we have the direct testimony of PW 1 Komal Chand, besides the testimony of PWs 3 and 4 which we have considered earlier. The find of human blood on the weapon and the pant of the appellant lends corroboration to the testimony of PW 1 Komal 21 Chand when he states that he had seen the appellant inflicting a knife blow on the deceased. The appellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of the accused is of no consequence. We, therefore, see no substance in this contention urged by Mr Lalit.
58. The Supreme Court in the case of Rameshbhai Mohanbhai Koli v. State of Gujarat reported in (2011) 11 SCC 111 :
31. We have already observed that the prosecution has established that FSL report has clearly certified that the blood found on the knife was of human origin. This question fell for consideration in State of Rajasthan v. Teja Ram and this Court held that it would be an incriminating circumstance if the blood on the weapon was found to be of human origin. The same view has been reiterated in Molai v. State of M.P.
59. The Supreme Court in the case of Molai v. State of M.P. reported in (1999) 9 SCC 581 has held as under :
27.....As far as the knife recovered at the instance of Molai (A-
2), it did have human blood but the blood group could not be determined. These incriminating articles connect the accused with the crime in question. Mr Shukla, the learned Senior Counsel, however, urged that it would be unsafe to connect the said knife with the crime in question and attribute the use of the same by the accused persons in the absence of determination of the blood group. This argument does not appeal to us because FSL's report has clearly certified that the blood found on the knife was of human origin. This question fell for consideration in State of Rajasthan v. Teja Ram and this Court held that it would be an incriminating circumstance if the blood on the weapon was found to be of human origin......
60. The Supreme Court in the case of State of Rajasthan v. Teja Ram 22 reported in (1999) 3 SCC 507 has held as under :
25. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-
fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.
61. Thus, even in absence of blood group on the axe seized from the possession of the Appellant, it can be held that the seizure of an axe with human blood on it, is an incriminating circumstance against the Appellant.
Circumstances found proved against the Appellant.
62. Thus, from the above discussion, the following circumstances are found to be proved against the Appellant :
(a) That immediately after the incident, the Appellant was seen running away from the spot along with an axe.
(b) Human blood was found on the axe. (c) The Appellant has not offered any explanation regarding presence of human blood on the axe.
63. So far as the circumstance of running away from the spot is concerned, the same is an incriminating circumstance against the Appellant. The Appellant is the step brother-in-law of the deceased (Step maternal uncle of Dhruv Singh Yadav [P.W.1]). Now whether the act of 23 running away from the spot along with an axe can be said to be an apprehensive conduct of the Appellant or he was running away with guilty mind?
64. In certain circumstances, the act of running away without any weapon, by itself may not be an incriminating circumstance. A person may also run away from the spot under some unfounded apprehensions.
But, in the present case, the Appellant was the close relative of the deceased. The deceased was lying on the ground in an injured condition. The normal conduct of the Appellant in such a situation would have been to help out Dhruv Singh Yadav (P.W.1) and Ganga Devi (P.W.6) in taking the injured to the hospital. But, instead of doing so, he ran away along with the weapon of offence, which was ultimately found to be stained with blood. This conduct of the Appellant clearly shows his guilty mind and is a relevant fact.
65. Section 8 of Evidence Act, 1872, reads as under :
8. Motive, preparation and previous or subsequent conduct.--Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1.--The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2.--When the conduct of any person is relevant, 24 any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Illustrations
(a) ..........
(b) ..........
(c) ..........
(d) ..........
(e) ..........
(f) ...........
(g) ..........
(h) ..........
(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.
(j) ..........
(k) .........
66. "Proof beyond Reasonable doubt" has been explained by Supreme Court in the case of Bhagwan Jagannath Markad v. State of Maharashtra reported in (2016) 10 SCC 537 as under :
18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions--(i) when a person feels absolutely certain of a fact
--"believes it to exist", and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree 25 of proof need not reach certainty but must carry a high degree of probability.
19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility.
The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of 26 the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.
67. Thus, looking to the conduct of the Appellant in running away from the spot along with an axe immediately after the incident, and as the axe was found to be stained with human blood, therefore, it is sufficient to hold that it was the Appellant who had assaulted the injured repeatedly on his head which resulted in his death.
68. Accordingly, the conviction of the Appellant for offence under Section 302 of IPC is hereby affirmed.
69. So far as the question of sentence is concerned, since the minimum sentence is Life Imprisonment, therefore, it does not call for any interference.
70. Accordingly, the judgment and sentence dated 8-5-2012 passed by IVth Additional Sessions Judge, Morena in S.T. No.309/2010 is hereby affirmed.
71. On 14-7-2022, a statement was made by Shri Ashish Saraswat, Counsel for the complainant, that the Appellant Bhoop Singh has jumped parole and is not in jail. An information has also been received from the Jail, that the Appellant Bhoop Singh is not in jail. Therefore, the Trial Court is directed to issue perpetual warrant of arrest against the Appellant Bhoop Singh for his arrest, so that he can undergo the 27 remaining jail sentence.
72. Let a copy of this judgment be provided immediately to the Appellant, free of cost.
73. The record of the Trial Court be sent back along with a copy of this judgment for necessary information and compliance.
74. The Appeal fails and is hereby Dismissed.
(G.S. AHLUWALIA) (RAJEEV KUMAR SHRIVASTAVA)
JUDGE JUDGE
ARUN KUMAR MISHRA
2022.08.22 18:15:08 +05'30'