Madhya Pradesh High Court
Lal @ Virochanlal vs The State Of Madhya Pradesh on 31 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 31 st OF MAY, 2024
CRIMINAL APPEAL No. 63 of 2014
BETWEEN:-
1. LAL @ VIROCHANLAL S/O SHAMBHU LODHI,
AGED ABOUT 35 YEARS, VILLAGE MADAIYAM
BEHRASAR P.S. GUNNOUR, DISTRICT PANNA
(MADHYA PRADESH)
2. NATTHU LAL S/O SHAMBHU LODHI, AGED ABOUT
42 YEARS, VILL MADAIYAN BEHRASARP.S.
G U N N O U R , DISTRICT PANNA (MADHYA
PRADESH)
3. JAIRAM S/O SHAMBHU LODHI, AGED ABOUT 38
Y E A R S , VILL MADAIYAN BEHRASARP.S.
G U N N O U R , DISTRICT PANNA (MADHYA
PRADESH)
4. PREM LAL S/O NATTHU LODHI, AGED ABOUT 25
Y E A R S , VILL MADAIYAN BEHRASA RP.S.
G U N N O U R , DISTRICT PANNA (MADHYA
PRADESH)
5. PANNALAL S/O SHAMBHU LODHI, AGED ABOUT
26 YEARS, VILL MADAIYAN BEHRASAR P.S.
G U N N O U R , DISTRICT PANNA (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI RAMESH TAMKRAKAR - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THRO P.S. GUNOUR,
DISTRICT PANNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SHIV KUMAR SHRIVASTAVA - GOVERNMENT ADVOCATE)
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 6/3/2024
7:17:26 PM
2
This appeal coming on for hearing this day, Justice Vivek Jain passed
the following:
JUDGMENT
The present appeal under Section 374 (2) of Code of Criminal Procedure (for brevity "Cr.P.C.") has been filed by the appellants against the judgment of conviction and sentence dated 16.12.2013 passed by the Sessions Judge, Panna in Sessions Trial No.121/2012, whereby the appellant No.1 has been convicted for offence under Section 302 of I.P.C. and the appellant Nos.2 to 5 have been convicted for offence under Section 302/34 of I.P.C. All the appellants have been sentenced to undergo Life Imprisonment with fine of Rs.5,000/-, with default stipulations.
2 . T h e prosecution case in brief is that on 09.08.2012, deceased Mahendra @ Maddhu, who was son of complainant Beta Lal had taken lunch and then left to graze buffaloes at Patha Har. After the deceased left, complainant Beta Lal (PW-16) along with his wife Ramkali (PW-15) also left for Patha Har to take fodder for cattle. The complainant Beta Lal saw the deceased Mahendra grazing buffaloes near field of Bhudar Lodhi at Patha Har. The complainant PW-16 was preparing fodder in the same field. At that time, the complainant heard cries of distress of deceased and then saw that the appellant No.1 - Lal @ Virochan was assaulting the deceased with lathi. The complainant ran to rescue the deceased. Deceased was crying and running towards Simri and the appellant No.1- Lal @ Virochan was following him and hitting him repeatedly with lathi. The deceased fell down near the field of Lakkhu Gadari and at that time the other accused persons also reached the spot. When the complainant PW-16 and his wife PW-15 reached the spot, all the accused persons left the spot and appellant No.1 - Lal @ Virochan left for his home with Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 3 lathi. Sitaram Gadari (PW-18) and Sunita (PW-17) were stated to be eye witnesses of the incident.
3. The deceased was taken for treatment by motorcycle to Pawai, but as his condition was critical, he was referred to Katni, but he expired on the way.
4. Merg intimation (Exhibit P-8) was lodged by Parsad Lodhi, who is grand father of the deceased. Thereafter, FIR (Exhibit P-6) was lodged under Section 307/34 I.P.C. against appellant No.1 - Lal @ Virochan and other unnamed persons. This FIR was registered as "zero". Thereafter, FIR (Exhibit P-7) at Crime No.95/2012 was registered on 10.08.2012 against Lal @ Virochan (appellant No.1) and other unnamed persons.
5. The medico legal examination of the deceased was carried out by Dr. M.L. Choudhary (PW-14). Incidentally, the same Doctor (PW-14) carried out the postmortem examination. As per postmortem report (Exhibit P-26), the cause of death was stated to be multiple injuries on skull, upper arm and forearm and the death was stated to be homicidal in nature. As per the postmortem report, there were nine injuries on the body of the deceased, which included five lacerated wounds with fractures in skull.
6. There was bleeding in the brain and the brain was full of blood. Apart from that there were two fractures in both the arms. All the injuries were stated to be ante-mortem in nature. On the basis of statement recorded and material collected during the course of investigation by the Police, charge sheet was filed before the Magistrate against appellants under Sections 307, 302, 120-B and 34 of the I.P.C. The case was committed to the Sessions Court and the Sessions Court framed charges under Sections 302/34 of I.P.C.. The appellants denied t h e charges and claimed to be tried. After trial, the appellants have been convicted of charges and awarded sentence as mentioned in para 1 of the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 4 judgment above.
7. Learned counsel for the appellant while pressing the case of appellants submits that the prosecution story is doubtful. It is, however, fairly admitted that the case of the appellant No.1 is on different footing from that of appellant Nos.2 to 5.
8. It is argued that as per Merg Intimation (Exhibit P-8), which has been registered by Parsad (PW-6), who is grand father of the deceased, it is mentioned that the deceased has been assaulted by appellant No.1 - Lal @ Virochan. It is further mentioned in the Merg Intimation that the deceased had sustained injuries on head and arms. It is argued that the Merg Intimation mentions the name of appellant No.1 only and not the names of appellant Nos.2 to 5.
9. Learned counsel for the appellants further submits that Sunita (PW-17) and Sitaram (PW-18), who are stated to be independent eye witnesses have both turned hostile. It is further argued that Ramkali (PW-15), who is mother of the deceased has also not supported the prosecution story in toto and looking to deposition of PW-15, there is nothing incriminating against the appellant Nos.2 to 5. It is further argued that even looking to deposition of Beta Lal (PW-
16), who is father of the deceased, the deceased was being hit by appellant No.1 while the others were following. At no point of time, Beta Lal (PW-16) has saw other appellants hitting or assaulting the deceased. It is further submitted that Ram Charan (PW-8) and Ram Kishore (PW-9), who were described as eye witnesses by the prosecution have also turned hostile and have not at all supported the prosecution story.
10. It is further argued that PW-6, who is grand father of the deceased Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 5 h a s deposed that the appellant Nos.2 to 5 had cooperated for arranging treatment of the deceased, though they are brothers and other close relatives of appellant No.1. It is argued that if appellant Nos.2 to 5 had complicity in the matter and had indeed inflicted so many injuries on the body of the deceased or had common intention, then they would not have cooperated in treatment of the deceased. It is argued that looking to deposition of Parsad (PW-6), it is the appellant Nos.2 to 5, who have arranged vehicle and taken the deceased for treatment to Pawai and then to the District Headquarter, District Katni.
11. Learned counsel for the appellants has made two fold arguments. Firstly that looking to the evidence brought on record, there is no evidence against the appellant Nos.2 to 5 and whatever evidence has been recorded by Beta Lal (PW-16) against the appellant Nos.2 to 5 is unbelievable, the entire prosecution version must go on the principle of "falsus in uno, falsus in omnibus". In the alternative, it has argued by learned counsel for the appellants that the appellant Nos.2 to 5 are entitled to be acquitted as there is no evidence against the appellant Nos.2 to 5.
12. It is also pointed out by learned counsel for the appellant that there is no seizure of any weapon or blood stained clothes from the appellant Nos.2 to
5. Thus, on the aforesaid submissions, it is prayed to allow the appeal and acquit the appellants.
13. Per contra, learned Government Advocate for the State submits that the prosecution has duly proved the case against the appellants and the guilt of t h e appellants has been duly proved beyond reasonable doubt. Learned Government Advocate has vehemently defended the judgment passed by the trial Court. It is argued that the Merg Intimation was promptly lodged and there is no afterthought in lodging the Merg Intimation and the FIR. The prosecution Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 6 version is duly supported by PW-15 and PW-16, who are eye witnesses and there is nothing glaringly inconsistent in the versions of eye witnesses, i.e. PW- 15 and PW-16. Learned Government Advocate has referred to various paragraphs of the impugned judgment to defend the said judgment and to point out that the guilt of the present appellants has been proved to hilt. It is submitted that the findings recorded by the trial Court are well reasoned and based on due appreciation of material available on record. Learned Government Advocate further submits that no two views are possible in the matter and appreciation of evidence in the present matter would lead to only one view and that view points to guilt of the present appellants. Thus, learned Government Advocate submits to confirm the impugned judgment of conviction and sentence by dismissing the present appeal.
14. Heard learned counsel for the parties and perused the record.
15. The argument was raised by learned counsel for the appellant that in view of the legal principle "falsus in uno, falsus in omnibus" , once it is established that the prosecution version in relation to appellant Nos.2 to 5 was false, the entire prosecution story put up by the prosecution should be discarded.
16. The legal principle "falsus in uno, falsus in omnibus" is well established in law. However, the said principle is not applicable to criminal trial. In criminal trial a witness may be partly truthful and partly false in the evidence he gives to the Court. The role of each accused has to be seen in criminal case and the testimony of a witness cannot be disregarded in totality. In the case of Ranjit Singh v. State of M.P., AIR 2011 SC 255 , the Hon'ble Supreme Court has held as under:-
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 7"15. In Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] this Court observed as under:
(SCC p. 517, para 8) "8. ... It is true that, as laid down by this Court in Zwinglee Ariel v. State of M.P. [(1952) 2 SCC 560 : AIR 1954 SC 15 : 1954 Cri LJ 230] and other cases which have followed that case, the court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."
16. In Ugar Ahir v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] this Court held as under : (AIR p. 279, para 6) " 6. The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
17. A similar view was taken in Nathu Singh Yadav v. State of M.P. [(2002) 10 SCC 366 : 2003 SCC (Cri) 1461]
18. The maxim has been explained by this Court in Jakki v. State [(2007) 9 SCC 589 : (2007) 3 SCC (Cri) 574] , observing : (SCC p. 591, para 8) "8. '51. ... 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 disregarded, and not that it must be Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 8 [discarded]. 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".' [Ed. : As observed in Krishna Mochi v. State of Bihar, (2002) 6 SCC 81, pp.
113-14, para 51.]"
19. It is well settled in law that the maxim falsus in uno, falsus in omnibus (false in one, false in all) does not apply in criminal cases in India, as a witness may be partly truthful and partly false in the evidence he gives to the court. (Vide Kulwinder Singh v. State of Punjab [(2007) 10 SCC 455 : (2008) 1 SCC (Cri) 51] , Ganesh v. State of Karnataka [(2008) 17 SCC 152 : (2010) 4 SCC (Cri) 474] , Jayaseelan v. State of T.N. [(2009) 12 SCC 275 : (2010) 1 SCC (Cri) 224] , Mani v. State [(2009) 12 SCC 288 : (2010) 1 SCC (Cri) 563] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 :
(2010) 3 SCC (Cri) 211]
20. This position of law has been reiterated by this Court in Prem Singh v. State of Haryana [(2009) 14 SCC 494 : (2010) 1 SCC (Cri) 1423] wherein the Court clearly held as under : (SCC p. 498 para 14) " 14. It is now a well-settled principle of law that the doctrine 'falsus in uno, falsus in omnibus' has no application in India."
21. In view of the above, the law can be summarised to the effect that the aforesaid legal maxim is not applicable in India and the court has to assess as to what extent the deposition of a witness can be relied upon. The court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chaff because they are inextricably mixed up, that the whole evidence of such a witness can be discarded."
17. Thus, no benefit can be granted to appellant No.1 on the aforesaid aspect even if case against other appellants is taken to be weak and the case of the appellant No.1 has to be seen independently.
18. Looking to the deposition of Dr. M.L. Choudhary (PW-14), it is clear that the deceased has sustained 9 injuries which includes fracture in skull and arms. The death is undeniably homicidal in nature. The prosecution had Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 9 projected 6 eye witnesses. Out of these Ram Charan Lodhi (PW-8), Raj Kishore Lodhi (PW-9), Sunita (PW-17) and Sitaram (PW-18) have turned hostile, they have not supported the prosecution version at all. Nothing has been extracted in their cross-examination by the public prosecutor during the course of trial which would support the prosecution version. Thus, the prosecution case rest only on the version of Ramkali (PW-15) and Beta Lal (PW-16) who are the mother and father of the deceased.
19. Ramkali (PW-15) is mother of the deceased and in her examination in chief, she has submitted that she saw only appellant No. 1-Lal assaulting the deceased by lathi. Thereafter she fell unconscious and did not see anything. She was not declared hostile by the prosecution. In para 6 of her cross- examination, she has specifically denied the presence of appellant Nos. 2 to 5 on the spot. In para 4 of her cross-examination, it has been stated by PW/15 that whatever knowledge she has of the incident has been as per the information given to her by Sunita (PW-17). She stated that Sunita had told her that deceased - Mahendra was assaulted by appellant No. 1-Lal. Most importantly in the same para 4 of her cross-examination she stated that she did not saw Beta Lal (PW-16) at the spot at the time of occurrence thus, this witness PW-15 has caused serious doubts on the prosecution version and doubt is created on the presence of Beta Lal (PW-16) at the time of occurrence. The deposition of Ramkali (PW-15), who is mother of the deceased cannot be taken lightly because she cannot be presumed to be an interested witness in favour of the appellants.
20. Coming to deposition of Beta Lal (PW-16) who is father of the deceased and is stated to be eye witness of the incident, it is stated by him in Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 10 para 1 of his deposition that appellant No.1 - Lal @ Virochan was assaulting the deceased by lathi and all the other appellants were following. When he went to rescue the deceased, some of the appellants fled towards river and appellant No.1 went to his home. He then took the deceased to Pawai where he was stated to be critical and then he was taken to Katni but he expired on the way. In para 7 of his cross-examination he admitted that he cannot see things from distance. He specifically admitted in para 8 of his deposition that he did not see any of the other appellants, except appellant No.1 - Lal @ Virochan assaulting the deceased.
21. Thus, looking to the deposition of this witness PW-16, it is evident that even if this witness is to be believed despite deposition of Ramkali (PW-
15), who has doubted the presence of this witness at the spot, even than the deposition of this witness goes only against appellant No.1 - Lal @ Virochan and not against other appellants. By referring to deposition of Parsad (PW-6), it is evident that this witness is grandfather of the deceased and in para 1 of his deposition he had stated that he heard some boys saying that Mahendra has been assaulted by Lal @ Virochan, then, he saw appellant Nos.3 and 4 taking the deceased from motor cycle. The deceased was hit and blood was oozing out, then he was taken to Pawai Police Station, then to hospital, then to Katni but he expired in the way. Most importantly in paragraph 10 of his deposition, PW-6 has stated that appellant No.2 is the person who has made entire arrangement for treatment of the deceased. He took jeep on rent and took the deceased to Katni. He also admitted that prior to incident there was no animosity between the parties, he admitted that relations between the parties were cordial. They used to visit each other.
22. Looking to the deposition of PW-6 the possibility cannot be ruled Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 11 out that the appellant No.1 was the person who had assaulted the deceased and the appellant Nos.2 to 5 were following to stop the appellant No. 1 and despite that when appellant No.1 had succeeding in assaulting the deceased, then they took all efforts to get the deceased to have good medical treatment. The arguments of learned counsel for appellants seems to have some substance, that a person brutally assaulting the deceased would not take so many steps for getting the deceased treated.
23. From the ocular evidence of PW-15 and PW-16 brought on record, the prosecution case against the appellant Nos.2 to 5 comes in serious doubts. It is settled in law that burden of proof is on the prosecution and this general burden never shifts. The conviction cannot be awarded on the basis of surmises and conjectures or suspicion. The Hon'ble Supreme Court in the case o f Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 has held as under:-
"14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.
24. This Court in the case of Jaharlal Das v. State of Orissa [Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 : 1991 SCC (Cri) 527], has held that even if the offence is a shocking one, the gravity of offence cannot Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 12 by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof.
The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused."
25. The Hon'ble Supreme Court in the case of Subhash v. State of U.P., (2022) 6 SCC 592 has held that contradictions of fundamental nature that go to roof of prosecution case cannot be ignored. The following has been held therein:-
"19. The entire case of the prosecution, as noticed earlier, was that all the accused who were alleged to be wielding country-made pistols had fired upon the deceased. This case of the prosecution is substantially diluted in the cross-examination of PW 1 as well as in the cross-examination of PW 2. Significantly, the post-mortem report indicates only one firearm injury, which is not consistent with the case of the prosecution that all the accused had fired upon the deceased. That apart, the post-mortem report indicates one injury on the neck of the deceased which again is inconsistent with the deposition of PW 1 and PW 2 that both Shiv Dayal armed with a farsa and Gyanvati (A-6) who was allegedly armed with a knife had assaulted the deceased on the neck.
20. On this state of the record, we are of the considered view that the presence of both PW 1 and PW 2 at the spot is gravely in doubt. There are material contradictions in the evidence of both PW 1 and PW 2, which ought to have been, but have not been noticed either by the learned Sessions Judge or by the High Court. The High Court was of the view that the contradictions which have been pointed out by the defence are of a minor nature. Having evaluated the evidence, we are unable to sustain that conclusion given that the contradictions were of fundamental nature which go to the root of the case of the prosecution. It is true that the prosecution was not obligated to examine every witness who is alleged to have been present at the site or the scene of the offence, Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 13 yet in the context of the facts as they have emerged before this Court, the failure to examine Chetram, who was the father of the deceased and was allegedly sitting in close proximity, assumes significance."
26. The Hon'ble Supreme Court in the case of Kailash Gour v. State of Assam, (2012) 2 SCC 34 has held as under:-
" 3 9 . It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence" which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away. See Narendra Singh v. State of M.P. [(2004) 10 SCC 699 : 2004 SCC (Cri) 1893] and Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [(2005) 5 SCC 294 : 2005 SCC (Cri) 1057].
27. To the same effect is the decision of this Court in the case of S. Ganesan v. Rama Raghuraman [(2011) 2 SCC 83 : (2011) 1 SCC (Cri) 607] where this Court observed:-
"39. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India." The above views were reiterated by this Court in State of U.P. v. Naresh [(2011) 4 SCC 324 :
(2011) 2 SCC (Cri) 216]."
28. Further, it is settled position of law that where two views are possible then view pointing to the innocence of the accused should be adopted. (See:-
Kalyan v. State of U.P., (2001) 9 SCC 632 and Kali Ram v. State of H.P., (1973) 2 SCC 808).
2 9 . T he prosecution has failed to establish any common intention of appellant Nos.2 to 5 with appellant No.1 so as to implicate them even with aid Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 14 of Section 34 I.P.C. The presence of PW-16 comes in serious doubt in view of para 6 of PW-15. Thus, the prosecution version against appellant Nos.2 to 5 becomes seriously doubtful.
30. The impugned judgment of conviction, when tested on the anvil of aforesaid background and standard of proof required in criminal trial to hold the accused guilty of offence, cannot be given stamp of approval as against appellant Nos. 2 to 5. The appellants No. 2 to 5 are entitled to benefit of doubt.
31. So far as the appellant No.1 is concerned, it is consistently stated by PW-15 and PW-16, that it is appellant No.1 - Lal @ Virochan, who actually assaulted the deceased. Even PW-6 has stated that he heard some boys saying that appellant No.1 - Lal @ Virochan has assaulted the deceased.
32. Apart from this, as per FSL report (Exhibit P-31), it is evident that the lathi (Article-C) recovered from the appellant No.1 was stained with blood. The Shirt (Article-D) recovered from appellant No. 1 was also stained with blood. The blood grouping and source of blood could not be conclusively determined because the blood had disintegrated by the time it was put to forensic examination, however, the facts remain that the blood was found on the lathi recovered from the appellant No.1 as well as the shirt of the appellant No.1. The presence of blood was confronted with the appellant No.1 under Section 313 Cr.P.C. in question No. 67. However, he expressed ignorance about presence of blood on his shirt and lathi, the appellant No.1 failed to explain the presence of blood, of whatever nature found on his shirt and lathi recovered from him.
33. So far as the blood on the shirt having disintegrated and its group not having been ascertained, it settled in law that accused is not entitled to any benefit only on the ground that blood grouping not being determined and origin Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 15 of blood not being ascertained on account of blood having disintegrated. In the case of State of Rajasthan Vs. Tejaram and others 1999(3)SCC 507 , it has been held by Hon'ble Apex Court 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. "
34. Further in the case of Sunil Clifford Daniel Vs. State of Punjab 2012(11) SCC 205, the Hon'ble Apex Court has held as under:-
"41. Most of the articles recovered and sent for preparation of FSL and serological reports contained human blood. However, on the rubber mat recovered from the car of Dr Pauli (CW 2) and one other item, there can be no positive report in relation to the same as the blood on such articles had disintegrated. All other material objects, including the shirt of the accused, two T-shirts, two towels, a track suit, one pant, the brassiere of the deceased, bangles of the deceased, the undergarments of the deceased, two tops, dumb-bell, gunny bag, tie, etc. were found to have disintegrated (sic blood).
42. A similar issue arose for consideration by this Court in Gura Singh v. State of Rajasthan [(2001) 2 SCC 205 : 2001 SCC (Cri) 323 : AIR 2001 SC 330] , wherein the Court, relying upon earlier judgments of this Court, particularly in Prabhu Babaji Navle v. State of Bombay [AIR 1956 SC 51 : 1956 Cri LJ 147] , Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 :
(1963) 1 Cri LJ 70] and Teja Ram [(1999) 3 SCC 507 : 1999 SCC (Cri) 436 : AIR 1999 SC 1777] (SCC p. 514, para 25) observed Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 16 that a failure by the serologist to detect the origin of the blood due to disintegration of the serum, does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it is possible, either because the stain is too insufficient, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain, with some objectivity, no benefit can be claimed by the accused, in this regard.
43. The learned counsel for the appellant has placed very heavy reliance on the judgment of this Court in Sattatiya v. State of Maharashtra [(2008) 3 SCC 210 : (2008) 1 SCC (Cri) 733 : AIR 2008 SC 1184] , wherein it was held that in case the forensic science laboratory report/serologist report is unable to make out a case, that the blood found on the weapons/clothes recovered, is of the same blood group as that of the deceased, the same should be treated as a serious lacuna in the case of the prosecution. The appellant cannot be allowed to take the benefit of such an observation in the said judgment, for the reason that in the aforementioned case, the recovery itself was doubted and, in addition thereto, the non-matching of blood groups was treated to be a lacunae and not an independent factor deciding the case.
44. A similar view has been reiterated in a recent judgment of this Court in Jagroop Singh v. State of Punjab [(2012) 11 SCC 768] , decided on 20-7-2012 wherein it was held that, once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group(s) loses significance.
45. In John Pandian v. State [(2010) 14 SCC 129 : (2011) 3 SCC (Cri) 550] this Court held : (SCC p. 153, para 57) "57. ... The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case."
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 6/3/2024 7:17:26 PM 1746. In view of the above, the Court finds it impossible to accept the submission that, in the absence of the report regarding the origin of the blood, the accused cannot be convicted, upon an observation that it is only because of lapse of time that the classification of the blood cannot be determined. Therefore, no advantage can be conferred upon the accused, to enable him to claim any benefit, and the report of disintegration of blood, etc. cannot be termed as a missing link, on the basis of which, the chain of circumstances may be presumed to be broken. "
35. In the present case, the articles were seized from the accused- appellant No.1 on 11.08.2012, but were put to forensic examination on 08.01.2013. Due to long lapse of time disintegration of blood is possible and it cannot be presumed that the blood was not human blood. Even otherwise, appellant No.1 has not explained the presence of blood of whatever nature found on the articles. Even if presence of PW-16 is doubted, then also, deposition of PW-15 clearly implicates appellant No.1.
36. In view of the above, no error can be found in the conviction of the appellant No.1 under Section 302 of I.P.C., looking to the ocular evidence of PW-15 as well as the forensic evidence on record.
37. Consequently, the judgment under appeal dated 16.12.2013 passed in S . T. No.121/2012 is modified. The appeal as regards appellant No.1 is dismissed and his conviction and sentence is confirmed. However, appellants No. 2 to 5 are acquitted of offence under Section 302/34 of IPC by giving benefit of doubt. As a natural consequence, if presence of appellants No. 2 to 5 in custody is not required in any other matter, they may be released forthwith.
38. The appeal is partly allowed in the manner as indicated above.
(RAJ MOHAN SINGH) (VIVEK JAIN)
JUDGE JUDGE
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 6/3/2024
7:17:26 PM
18
rj/MISHRA
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 6/3/2024
7:17:26 PM