Madhya Pradesh High Court
Nathu Singh vs State Of M.P. on 13 January, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
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Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
DEEPAK KUMAR AGARWAL J.J.
Cr.A. No. 515 of 2010
Nathu Singh
Vs.
State of M.P.
Shri R.K. Shrivastava Counsel for the Appellant
Shri C.P. Singh Counsel for the State
Date of Hearing : 04-01-2022
Date of Judgment : 13-01-2022
Approved for Reporting :
Judgment
13th- January -2022
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 29-6-2010 passed by 3 rd Additional Sessions Judge, Bhind in S.T. No. 177/1993, by which the appellant has been 302/34 of I.P.C. and sentenced to undergo Life Imprisonment and a fine of Rs. 2000/- in default 2 years R.I. 2 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010)
2. It is not out place to mention here that initially, the present appellant Nathu Singh was also arrested and charge sheet was also filed against him along with other co-accused persons. It appears that the appellant Nathu Singh was granted bail, but later on by order 28- 2-1994, an order under Section 439(2) of Cr.P.C. was passed and the bail granted to him was cancelled. The appellant Nathu Singh also filed a revision before this Court, which was registered as Cr.R. No. 71/1994 and by order dated 30-4-1994, the operation of order dated 27-4-1992 was stayed. Thereafter, the revision filed by the appellant Nathu Singh was dismissed by order dated 25-7-1994. However, the appellant Nathu Singh did not appear before the Trial Court, accordingly, by order dated 9-8-1994, the Trial Court issued perpetual warrant of arrest. However, the appellant Nathu Singh neither appeared nor he could be arrested. and the remaining co-accused persons namely Surendra Singh, Vishram Singh, Babu Singh and Jagat Singh were tried in S.T. No.177/1993 and by judgment and sentence dated 23-3-1999, the co-accused Surendra Singh, Vishram Singh and Jagat Singh were convicted under Section 302/34 of I.P.C., whereas Babu Singh was acquitted of all the charges.
3. The co-accused Surendra Singh, Vishram Singh and Jagat Singh filed Cr.A. No. 171/1999, which was dismissed by judgment dated 13-10-2005. The co-accused persons, filed S.L.P. (Criminal) No. 2224 of 2006 which too was dismissed by Supreme Court by order dated 10-5-2006.
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Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010)
4. The appellant Nathu Singh was re-arrested and was produced before the Trial Court on 10-5-2007. A separate trial was conducted against the appellant Nathu Singh. In the light of the judgment passed by Supreme Court in the case of A.T. Mydeen Vs. The Asstt. Commissioner, Customs Department on 29-10-2021 in Cr.A. No. 1306/2021, this Court would decide the appeal of the appellant on the basis of evidence recorded in his trial, and the evidence recorded in the Trial of co-accused persons shall not be looked into.
5. According to the prosecution case, the complainant Bhan Singh lodged an FIR on 21-8-1992 at about 16:05, that he was grazing his buffaloes along with Sagar Singh. His brother Rajendra Singh had gone to Bhind to purchase parts of watch. It was around 3-3:30 P.M. Rajendra Singh was coming back. From Bhopatpura culvert he heard the screams of Rajendra Singh. He was asking for help. He and Sagar Singh rushed to the place of incident and found that Jagat Singh had stopped his brother and had forced him to come down from the scooter. Surendra Singh gave a Farsa blow on the head of Rajendra. Nathu and Vishram assaulted on legs of Rajendra by Lathi. The complainant shouted that Rajendra (deceased) should not get scared as he has come. Then all the persons ran away towards Jeesakpura. The complainant enquired from Rajendra Singh (deceased) who informed that Nathu by sitting on his chest had pierced some pointed object in his eyes and has also taken away his Rs. 1000 and parts of watch. Thereafter, Rajendra (deceased) fell 4 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) unconscious. On this report, the police registered FIR in crime no. 191/1992.
6. The injured was shifted to hospital. He was medically examined. His dying declaration was recorded by Naib-Tahsildar. The injured was referred to G.R. Medical College, Gwalior, where he died during treatment. The post-mortem was got done. The statements of the witnesses were recorded. The appellant and other accused persons were arrested. The police after completing the investigation filed charge sheet for offence under Section 302,394,34 of IPC
7. The Trial Court initially order dated 20-11-1993, also framed charges against the appellant for offence under Sections 148,149,394, and 302/34 of I.P.C. However, the appellant Nathu Singh absconded immediately. After his re-arrest, the Trial Court once again by order dated 18-3-2008 framed charges under Sections 148, 302/149, 394 of IPC.
8. The Appellant abjured his guilt and pleaded not guilty.
9. The prosecution examined Jai Singh (P.W.1), Satya Narayan Pandey (P.W.2), Bhan Singh (P.W.3), Ram Akhtar (P.W.4), Sagar Singh (P.W.5), Pan Singh (P.W.6), Dr. R.K. Taneja (P.W.7), Dr. Vijay Kumar Diwani (P.W.8), Raja Bhaiya (P.W.9), Mehtab Singh (P.W.10), Omkar Lal Agrawal (P.W.11) Lakhan Singh (P.W. 12) and Ashok Tiwari (P.W. 13).
10. The Appellant examined Jagdish Prasad Sharma (D.W.1), and 5 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) Banwari Singh (D.W.2), in his defence.
11. The Trial Court by the impugned judgment and sentence, acquitted the appellant for offence under Section 394, 147 and 302/149 I.P.C. and convicted under Section 302/34 of IPC.
12. Challenging the judgment and sentence passed by the Court below, it is submitted by the Counsel for the appellant that the dying declaration of the deceased is not reliable. Bhan Singh (P.W. 3) has resiled in his cross-examination and clearly stated that the appellant Nathu Singh is not known to him and he cannot identify him. Bhan Singh (P.W.3) has further stated that he had not seen Nathu Singh in Mehgaon. He also expressed that he doesnot know the residential address of the appellant Nathu Singh. So far as Pan Singh (P.W. 6) is concerned, it is submitted by the Counsel for the appellant that he is a related and interested witness, therefore, his evidence should not be relied upon.
13. Per contra, the Counsel for the State has supported the prosecution case as well as the findings recorded by the Trial Court.
14. Heard the learned Counsel for the parties.
15. Before adverting to the facts of the case, this Court would like to consider as to whether the deceased Rajendra died a homicidal death or not?
16. Dr. R.K. Taneja (P.W 7) had medically examined the injured Rajendra and found the following injuries on his body :
(i)` Incised wound 8 cm x 1.5 cm cutting the scalp skin 6 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) muscle and bone. Placed over left occipital area, obliquely placed, bleeding present, Tailing outward and laterally. Advised x-ray, skull, Anterior, Posterior and Lateral;
(ii) Incised wound 1 cm x .5 cm muscle deep horizontally placed 1 inch below left eye bleeding present. Tailing outward, right to left;
(iii) Incised wound 2 cm x 1 cm, 5 mm deep placed just below right eye on medial side. Bleeding present, tailing laterally;
(iv) Incised wound 1 c x .5 cm skin deep muscle placed below right eye on lateral side, tailing outward;
(v) Incised wound 2 cm x 1 cm bone deep bleeding profusely placed on lateral malleolus of left leg, tailing outward and laterally, crepitus felt at ankle joint. Advised x- ray, left foot, anterior, posterior and lateral;
(vi) Incised wound 1.5 cm x 1 cm bone deep placed obliquely above medial malleolus of left leg tailing downward bleeding and crepitus present;
(vii) Incised wound 1 cm x .5 cm bone deep over wrist. Wrist joint laterally and dorsally bleeding present;
(viii) Incised wound 2 cm x 1 cm bone deep placed over lateral malleolus of right leg, tailing downward. Advised x- ray, right foot, anterior, posterior and lateral;
(ix) Eyes are red congested pupil reacting light. There is injury on lower part of right bulbing conjunctiva, oozing present;
(x) Abrasion 1 x ½ below right knee;
(xi) Abrasion 6 cm ½ cm above right knee;
Patient general condition is poor Pulse 74 per minute. pupil reacting to light, B.P.100/70, and patient responding questions.
The patient was referred to G.R. Medical College, Gwalior for admission and treatment and for eyes examination. The M.L.C. report is Ex. P.1.
17. This witness was cross-examined. He admitted that injuries no.1 to 8 could have been caused by one object. Injury no.1 is sufficient to cause death. A question was put to the Doctor that after sustaining injury no.1, the patient would not have remained conscious, then it was replied that nothing can be said with certainty. The above question was repeated then it was replied by this witness 7 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) that on number of occasions it was seen that the patient had not become unconscious. The injuries no. 9 to 11 were caused by hard and blunt object. The M.L.C. of the injured started at 4:30 P.M. He took 20 minutes to examine the injured, and took 15 to prepare the M.L.C. It is true that lot of blood must have lost and there was bleeding from injury no.1. He admitted that immediately after examining the injured, he was referred to Gwalior. The general condition of the injured was not good. Some family members of the injured were present at the time of medical examination. The police did not sent the weapons to verify as to whether the injuries could have been caused by those weapons or not?
18. The injured Rajendra died during his treatment and accordingly, the post-mortem of his dead body was performed by Dr. Vijay Kumar Diwani (P.W.8) who found the following injuries :
(i) Stitched wound left side of occipital region 5.5cm.
(ii) Abrasion over left side of forehead 5.5cm.x5cm.
(iii) Hematoma in right forearm and hand 27cm x 10cm. size. with fracture of right ulna.
(iv) Abrasion right foot dorsum 3cm.x1.5cm. and abrasion 2cm.x1cm. posterialy right leg.
(v) Laceration over left leg posterialy 3.5cm. x 2.5 cm. with fracture left tibia.
(vi) Abrasion right ankle medially 2cm x 2cm.
(vii) Lacerated wound over left ankle medially 3.5cm. x.
2.5cm. and laterally 2cm. x .5cm. Fracture right lower end of fibula and left lower end of fibula.
(viii) Abrasion left gluteal region 4cm.x1cm. Cause of death - Shock due to multiple injuries and hemorrhage.
Mode of death - Homicidal Duration of death - within 6 hours since death. The Post-mortem report is Ex. P.11.
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Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010)
19. This witness was cross-examined and in cross-examination, this witness admitted that he had neither treated the deceased nor had attended him in alive condition. The injuries no. 4 to 7 could have been caused due to fall on rough surface. Similarly injuries no. 2,3 and 8 also could have been caused due to fall on rough surface. The injury no.1 was on head which had caused damage to the brain and after sustaining such injury, the possibility of remaining conscious was weak. However, he is not in a position to say as to whether he had remained conscious or not? Since, the injury no.1 was a stitched wound, therefore, this witness was not in a position to say that by which weapon, the said injury was caused.
20. Thus, from the evidence of Dr. R.K. Taneja (P.W.7) and Dr. Vijay Kumar Diwani (P.W.8), it is clear that the death of Rajendra was homicidal in nature.
21. Now, the next question for consideration is as to whether the appellant was one of the assailant or not?
22. The case is based on dying declaration as well as direct evidence.
23. Omkar Lal Agrawal (P.W.11) has recorded the dying declaration of the deceased Rajendra. This witness has stated that on 21-8-1992, he was posted as Naib-Tahsildar in Mehgaon. He received an information from the police station through S.D.M., that he has to record the dying declaration of injured Rajendra and accordingly, he reached hospital at about 4:30 P.M. The Doctor on 9 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) duty informed that the injured is in a position to give statement and accordingly, fitness certificate was also obtained, which is at A to A on the dying declaration. Thereafter, he recorded the dying declaration which is Ex. P.16. He obtained the thumb impression of the injured on the dying declaration which is at C to C. The dying declaration is in his handwriting. This witness was cross-examined.
In cross-examination, this witness stated that the requisition which was received by him, is not before him. He also donot recollect that at what time, he had received the requisition. He also donot recollect the name of the Doctor. Rajendra Singh was not personally known to him. He also admitted that he had not put any question to the injured in order to verify his mental condition. He further admitted that he had not put any remark on the dying declaration, Ex. P.16 regarding his mental condition. The injured had not disclosed the place, date and time of incident. The name of any eye-witness was also not disclosed in dying declaration. He also did not say that he had informed any witness about the incident. The injured had also not disclosed the name of father, caste and address of Nathu Singh. He did not obtain any fitness certificate to the effect that the deceased was in a fit state of mind during the recording of dying declaration. He has not mentioned the time of recording of dying declaration. He was unable to say about his period of posting at Mehgaon. He was also unable to disclose the number of dying declarations recorded by him during his service period. In dying 10 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) declaration, Ex.P.16, he has not mentioned any mark of identification of injured. He was unable to say as to whether there were any other patients around the injured or not? He was unable to say as to whether the injured Rajendra was literate or not. He was also unable to say as to whether he had asked the injured to sign or not? He admitted that there is no endorsement in the dying declaration that the deceased is giving the statement voluntarily. He was also unable to say that on which date, the dying declaration, Ex. P.16 was sent to the Court. He had not obtained the signatures of any witness, Compounder, Nurse etc. on the dying declaration, Ex. P.16. He admitted that there is no endorsement that dying declaration,Ex. P.16 was read over to the witness and thereafter, his signatures were obtained. It is also not mentioned that the thumb impression of which thumb was obtained. He further stated that the injured had put his thumb impression. He denied that he had not recorded the dying declaration of the injured. He denied that the injured was not conscious.
24. It is not out of place to mention here that the incident took place on 21-8-1992, whereas this witness was cross-examined on 11- 3-2010, i.e., after 18 long years of incident. It is not possible for a Govt. Employee to precisely remember the minute details which were put by the defence. Therefore, if this witness could not explain the minute details of the surrounding circumstances, then it would not give any dent to the prosecution story.
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Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010)
25. The Supreme Court in the case of Jeewan Vs. State of Uttarakhand reported in (2012) 13 SCC 598 has held as under :
18. The Court cannot lose sight of the fact that the statement of these witnesses had been recorded more than two years subsequent to the date of occurrence. To expect the witnesses to depose with arithmetical exactitude would not be proper application of rule of evidence, keeping in view the facts and circumstances of the case.
26. From the dying declaration, Ex. P.16, it is clear that the Doctor had given fitness certificate at 4:30 P.M. and the dying declaration was recorded at 4:40 P.M. Dying Declaration, Ex. P.16 reads as under :
eS 'kiFkiwodZ dFku djrk gwa fd eS fHk.M ls LdwVj ls esgxkao tk jgk Fkk A jkLrs es ukFkw flag] foJke flag] lqjsUnz] txr flag] ckcw flag ;s ikaPk yksx [kMs FksA eS LdwVj ij vdsyk FkkA nks lkbfdy okys ftUgs eS ugh igpkurk gwaA ml le; os FksA eq>s jksddj txr falg o ckcwflag us vkxs ls /ksj fy;k rc rd lqjsUnz flag ukFkw flag o foJke flag vk x;saA lqjsUnz us eq> Ikj Qjlk ls geyk fd;kA ukFkw flag o foJke flag us eq>s ykfB;ksa ls cqjh rjg ls ihVkA tc eS csgks'k gks x;kA csgks'k gksus ls igys eq>s iwjk ?;ku gS fd ukFkw flag esjh Nkrh ij p< cSBk rFkk esjh vka[kksa es dqN dksp fn;k ftlls esjh nksuks vka[ks QwV xbZA eS csgks'k gks x;k A csgks'k gksus ds ckn eSus vius vkidks gks'k es vkus ij fpfdRlky;k esgxkao es Ikk;kA eS ,d gtkj :i;s Fks o /kMh dk lkeku ukFkw flag us csgks'k gksus ls igys fudky fy;s FksA os lc yksx eq>s ejk le>dj Hkkx x;sA esjh cka;s iSj es cgqr lka/kkfrd pksV yxh gSA
27. The dying declaration was recorded after obtaining the fitness certificate from the Doctor. Although Omkarlal Agrawal (P.W. 11) was not in a position to disclose the name of the Doctor who had given fitness certificate, but this Court cannot lose sight of the fact that the evidence of this witness was recorded after 18 long years of the incident. The appellant himself is responsible for the delayed 12 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) recording of evidence, as he absconded immediately after the charges were framed against him. Omkarlal Agrawal (P.W. 11) has specifically stated that the injured was conscious at the time of recording of evidence. Further, Dr. R.K. Taneja (P.W. 7) has also mentioned in his MLC, Ex. P.1 that the patient was responding to question. Further, the dying declaration finds full corroboration from the medical evidence. The injured Rajendra had also stated that the appellant after sitting on his chest had pierced something in his eyes. As per the M.L.C., Ex. P.1, three incised wounds were found below both the eyes and injury on lower part of right bulbing conjunctiva was also found and oozing was also present. Further, the appellant Nathu Singh had assaulted the injured by lathis on his legs. Corresponding injuries were also found on the legs of the deceased. Thus, it is clear that the dying declaration is fully corroborated by the medical evidence. Further more, the dying declaration was recorded without any delay.
28. It is submitted by the Counsel for the appellant, that since, the General Condition of the injured was poor, therefore, he was not in a position to make dying declaration and Dr. Vijay Kumar Diwani (P.W.8) has specifically stated that generally a patient would become unconscious after sustaining injury no.1. The aforesaid contention cannot be accepted in the light of the evidence of Dr. R.K. Taneja (P.W. 7), who had specifically stated that at the time of medical examination, the injured was responding to the questions. This fact is 13 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) also mentioned in MLC, Ex. P.1. No suggestion was put to this witness in his cross-examination in this regard but a general question was put that after injury no.1, the injured must have become unconscious, but it was specifically replied by Dr. R.K. Taneja (P.W.
7) that on some occasions it is also observed that the patients donot get unconscious. Thus, it is clear that the injured Rajendra was conscious and was well oriented at the time of recording of dying declaration. Fitness certificate was also issued by the Doctor. Further, Omkar Lal Agrawal (P.W.11) has also stated that the injured was conscious. Thus, it is held that the dying declaration, Ex. P.16 is a reliable piece of evidence.
29. The Supreme Court in the case of Laxman v. State of Maharashtra, reported in (2002) 6 SCC 710 has held as under :
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. (at SCC p.
701, para 8) to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the 14 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) 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.
30. The Supreme Court in the case of Govindappa v. State of Karnataka, reported in (2010) 6 SCC 533 has held as under :
24.......What is essentially required is that the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind. The certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise.
31. The Supreme Court in the case of Jagbir Singh v. State (NCT of Delhi), reported in (2019) 8 SCC 779 has held as under :
39. We can proceed on the basis that even absence of the certificate by a doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.
32. Thus, it is clear that obtaining fitness certificate is merely by way of caution, but if the person recording dying declaration is satisfied that the maker of the dying declaration is in fit state of mind, then such satisfaction is sufficient for recording the dying declaration.
33. Further, the dying declaration, can be a sole basis for conviction, provided the same is found to be reliable. The Supreme Court in the case of Ravi kumar v. State of T.N., reported in (2006) 15 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) 9 SCC 240 has held as under :
5. Section 32 of the Evidence Act, 1872 is an exception to the general rule against hearsay. Sub-section (1) of Section 32 makes the statement of the deceased admissible which is generally described as "dying declaration". The dying declaration essentially means statements made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense of impending death produces in man's mind the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.
Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The court has always to be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The court has also to see and ensure 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 itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on the dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely the rule of prudence. These well-settled principles have been recognised and reiterated by this Court in Paniben v. State of Gujarat; Uka Ram v. State of Rajasthan; Laxman v. State of Maharashtra; P.V. Radhakrishna v. State of Karnataka; State of Maharashtra v. Sanjay; Muthu Kutty v. State.
34. The Supreme Court in the case of Laltu Ghosh Vs. State of W.B. reported in (2019) 15 SCC 344 has held as under : 16
Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010)
18. The courts cannot expect a victim like the deceased herein to state in exact words as to what happened during the course of the crime, inasmuch as it would be very difficult for such a victim, who has suffered multiple grievous injuries, to state all the details of the incident meticulously and that too in a parrot-like manner. The trial court assumed that the investigating officer in collusion with the doctor wilfully fabricated the dying declaration. It is needless to state that the investigating officer and the doctor are independent public servants and are not related either to the accused or the deceased. It is not open for the trial court to cast aspersions on the said public officers in relation to the dying declaration, more particularly when there is no supporting evidence to show such fabrication.
19. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.
35. The Supreme Court in the case of Kalawati Vs. State of Maharashtra, reported in (2009) 4 SCC 37 has held as under :
14. "12. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination.
The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is 17 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat: (SCC pp. 480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.)
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.)
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.)
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.)
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred of course, if the plurality of the dying declaration 18 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)"* See also Mohan Lal v. State of Haryana, at SCC pp. 153-55, para 10.
36. The Supreme Court in the case of Ramilaben Hasmukhbhai Khristi v. State of Gujarat, reported in (2002) 7 SCC 56 has held as under :
28. Under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.
37. Considering the totality of the facts and circumstances of the case, it is held that the dying declaration, Ex. P.16 is a reliable piece of documentary evidence.
38. Another set of evidence against the appellant is direct evidence.
39. The prosecution examined Bhan Singh (P.W.3), Sagar Singh (P.W. 5), Pan Singh (P.W.6), and Mehtab Singh (P.W.10). It is not out of place to mention here that Sagar Singh (P.W.5), and Mehtab Singh (P.W. 10) have not supported the prosecution case.
40. Bhan Singh (P.W.3), who is the complainant also has stated 19 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) against the appellant in his examination-in-chief, but he turned hostile in his cross-examination. However, one thing is very important. The examination-in-chief of Bhan Singh (P.W. 3) was recorded on 19-11-2009, but he was not cross-examined by the defence and at the request of the Counsel for the appellant, the cross- examination of this witness was deferred. The witness was cross- examined on 19-3-2010 i.e., after 4 months of his examination-in- chief. The Supreme Court in the case of Khujji Vs. State of M.P. reported in (1991) 3 SCC 627 has held as under :
7........He stated that he had inferred that the other two persons were the appellant and Gudda. On the basis of this statement Mr Lalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification by such a wavering witness. The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-
chief.
41. Therefore, the evidence of Bhan Singh (P.W. 3) shall be considered in the light of the judgment passed by the Supreme Court in the case of Khujji (Supra).
42. Bhan Singh (P.W. 3) has stated in his examination-in-chief that the appellant Nathu Singh is known to him. His brother Rajendra had gone to Bhind for purchasing parts of watches. He and Sagar Singh 20 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) were grazing their cattles by the side of the road. This witness also reached near Bhopatpura culvert while grazing his cattles. At that time, he heard the screams of Rajendra Singh. He saw towards Rajendra Singh and saw that Jagat Singh and Babu Singh had waylaid him and Surendra assaulted by farsa which landed on the head of Rajendra Singh. Nathu Singh and Vishram Singh were armed with lathi. Nathu Singh also assaulted Rajendra. When he reached on the spot, then all the accused persons ran away towards Jisakpura. He and Sagar Singh reached near Rajendra, whereas Pan Singh and Mehtab Singh also came there from Gyanendrapura. When he enquired from Rajendra Singh, then he informed that he was waylaid by Babu Singh, and Jagat Singh. Surendra assaulted by farsa. Nathu and Vishram Singh assaulted by lathi. Nathu Singh sat on his chest and by piercing nail, his both eyes were ruined. An amount of Rs. 1,000 kept in his pocket and parts of watch were taken away. He went to police station after leaving Pan Singh, Mehtab Singh, Sagar Singh on the spot, and lodged FIR. The FIR is Ex. P.6. The complainant party and the accused party were already on inimical terms, therefore, the offence was committed. The spot map, Ex. P.7 was prepared. Lash Panchnama Ex. P.4 was prepared and Safina form is Ex. P.3. Rajendra was treated in Mehgaon Hospital, and from there he was referred to Gwalior, where he died during treatment. The cross-examination was deferred at the request of the Counsel for the appellant and was cross-examined on 19-3-2010 i.e., after 4 21 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) months.
In cross-examination, this witness turned hostile on the question of identity of Nathu Singh and started claiming that Nathu Singh mentioned in his examination-in-chief is not the appellant, but he is some different person, and this witness can identify him. The Appellant Nathu Singh is not known to him.
43. As already mentioned earlier, the cross-examination of this witness was done after 4 months of the examination-in-chief, therefore, it is clear that some thing must have transpired, which persuaded this witness to turn hostile. However, the question of identity of Nathu Singh shall also be considered in the light of evidence of other witnesses.
44. Sagar Singh (P.W. 5) also turned hostile on the question of identity of the appellant Nathu Singh. This witness was cross- examined by the Public Prosecutor, but nothing could be elicited from his cross-examination, which may support the prosecution case.
45. Pan Singh (P.W.6) has stated that Nathu Singh is known to him. The deceased Rajendra was the brother of this witness. On the date of incident, he had gone to purchase bricks but he did not find any body at brick klin therefore, he was coming back. When he reached near the culvert, he saw that the appellant and Vishram, Jagat Singh, Babu Singh, all five persons were running away. The appellant had pierced some pointed object in the eyes of his brother after sitting on his chest. They also took away the money and parts of 22 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) watches. The incident was seen by him. Bhan Singh (P.W.3) is his real brother and was grazing cattles. Rajendra fell unconscious on the spot itself. His brother was killed on account of old enmity. Thereafter, his brother Bhan Singh went to lodge the report. The injured was taken to hospital. When this witness was asked to identify as to whether Safina form, Ex. P.3 and Naksha Panchayatnama, Ex. P.4 contains his signatures or not, then it was replied by him that he has not brought his glasses. Rajendra Singh had told that Vishram Singh, Babu Singh, Jagat Singh and Surendra Singh were also there. This witness was cross-examined.
In cross-examination, this witness specifically stated that the appellant Nathu Singh had given evidence against them in the murder case of Than Singh. He further admitted that even today, he is in jail in connection with murder of Than Singh but clarified that he is on parole and has come along with his brother Bhan Singh. He further stated that when he reached on the spot, Rajendra was speaking. He further stated that the police had not recorded his statement. However, he once again expressed that he is not in a position to understand the question of the defence lawyer. He stated that he had not informed the police that he had seen all the five accused persons running away from the spot. He further stated that he had not informed the police that the accused persons had pierced some pointed object in the eyes of Rajendra. He also stated that he had not informed the police that Bhan Singh was grazing cattles. He further 23 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) stated that his brother had sustained multiple injuries. He admitted that after Dhan Singh dispute, Rajendra had started his shop at Gormi. He further stated that Rajendra had no enmity with anybody. He further stated that Nathu Singh was residing in Mehgaon.
46. As already pointed out, the evidence of this witness was recorded after 18 years of the incident. Therefore, minor contradictions are natural. Thus, if this witness could not recollect that his police statement was recorded, then it cannot be said that it was a major contradiction. But one thing is clear that the appellant himself gave a suggestion to this witness about the enmity, who admitted that Nathu Singh was a witness against this witness in a murder case of Dhan Singh. Thus, it is clear that the appellant Nathu Singh is already known to this witness. If the cross-examination of Bhan Singh (P.W.3) is considered in the light of the suggestion given to Pan Singh (P.W. 6) regarding enmity, it is clear that the appellant Nathu Singh was very well known to Bhan Singh (P.W.3) also, which was claimed by him in his examination-in-chief, but since, his cross- examination was done after 4 months of his examination-in-chief, therefore, something must have transpired, which persuaded Bhan Singh (P.W.3) to say that the appellant Nathu Singh is not known to him.
47. Further, the Counsel for the appellant could not point out anything from the cross-examination of Pan Singh (P.W. 6) which may make his evidence unreliable. Thus, it is held that Pan Singh 24 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) (P.W.6) is a trustworthy and reliable witness. Similarly, the denial of Bhan Singh (P.W.3) about the identity of appellant Nathu Singh in his cross-examination is hereby ignored as it was a clear attempt to wriggle out of what was said in the examination-in-chief.. Thus, it is held that Bhan Singh (P.W.3) and Pan Singh (P.W. 6) have proved beyond reasonable doubt that the appellant Nathu Singh was also one of the assailants, and he also pierced some pointed object in the eyes of Rajendra and the ocular evidence is supported by medical evidence as injuries were found around and in the eyes of the deceased Rajendra.
48. Raja Bhaiya (P.W.9) has stated that the appellant Nathu Singh is not known to him. He has not seen any incident. He went to the spot along with Bhan Singh and Pan Singh. Lot of persons were standing there. The police had seized blood stained and plain earth from the spot, vide seizure memo Ex. P.10. One scooter was also seized vide seizure memo Ex. P.9. In cross-examination, this witness claimed that at about 4:30-5 P.M., the police gave an information that Rajendra is lying dead, accordingly he, Bhan Singh and Pan Singh went to the spot. Rajendra Singh was lying dead. However, when his body was shifted to Hospital, then Doctor declared him alive and was referred to Gwalior. He also went to Gwalior and came back on the next day. Rajendra had not spoken during this period.
Although this witness was not declared hostile, but one thing is clear that he had claimed that Rajendra was already dead and an 25 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) information was given by police that Rajendra is dead. This part of his evidence cannot be accepted, because not only Dr. R.K. Taneja (P.W.7) conducted MLC and specifically mentioned that injured is responding to questions, but the dying declaration of Rajendra was also recorded and neither Dr. R.K. Taneja (P.W.7) nor Omkarlal Agrawal (P.W.11) Naib-Tahsildar, had any axe to grind against the appellant.
49. Mehtab Singh (P.W.10) has turned hostile and did not support the prosecution case.
50. Lakhan Singh (P.W. 12) also turned hostile and did not support the prosecution case.
51. Ashok Tiwari (P.W. 13) is the investigating officer. He stated that the complainant Bhan Singh lodged FIR, Ex. P. 6. Thereafter, he prepared spot map, Ex. P.7. The blood stained earth and plain earth were seized vide seizure memo Ex. P.1. Scooter No. MKH 2530 was seized vide seizure memo Ex. P.2. On 21-8-1992, the injured Rajendra was sent to Hospital. The statements of Pan Singh, Bhan Singh, Sagar Singh, Mehtab Singh were recorded. This witness was cross-examined.
In cross-examination, he stated that Bhan Singh had come all alone to lodge the FIR. The FIR, Ex. P.6 was written at 16:05 and it was sent to concerning Magistrate on the next day. He denied that FIR, Ex. P.6 was not lodged on 21-8-1992. He denied that the FIR, Ex. P.6 is an ante-dated and ante-timed document. He could not say 26 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) that for how much time, he remained on the spot. He further stated that after coming back to Police Station, he had mentioned in Rojnamchasanha, but was not in a position to disclose the time and number of Rojnamchasanha. He went to the spot on the official vehicle. He admitted that the place of incident is 2 ½ Km.s away from police station. He admitted that Sagar Singh and Bhan Singh had not disclosed the place from where they had seen the incident. He had enquired from other witnesses, who expressed that they were not present on the spot and had not seen the incident, therefore, their statements were not recorded. He did not verify that from which shop, Rajendra had purchased the goods. He admitted that he had not recorded the statements of wife and child of Rajendra. He was unable to tell the sequence in which he had recorded the statements of witnesses. He denied that he had not prepared the spot map, Ex. P.7. He denied that he had prepared safina form, Ex. P.1 and Naksha Panchanama, Ex. P.2 in the police station. He denied that he had not recorded the statement of Bhan Singh on the spot. He admitted that none of the witness had informed that Nathu Singh is the resident of Gitor. He further admitted that in FIR, Ex. P.6, it is not mentioned that Nathu Singh is the resident of Gitor.
No suggestion was given to this witness that the police had given information to Bhan Singh, Pan Singh and Raja bhaiya that Rajendra Singh is lying dead on the spot. Thus, the claim of Raja Bhaiya (P.W.5) that information was given by police that Rajendra 27 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) was lying dead on the spot is false and not corroborated by this witness also.
52. Jai Singh (P.W.1) did not support the prosecution case and turned hostile.
53. Satya Narayan Pandey (P.W.2) has stated that he went to Dead house and called the panchas. Safina form Ex. P.5 was prepared and Naksha Panchayatnama, Ex. P.4 was prepared. In cross-examination, this witness stated that nobody had informed the names of the assailants.
54. It is submitted that Naksha Panchnama was prepared in the presence of Bhan Singh (P.W.3), but even then he did not disclose the names of the assailants, which clearly show that he is not a reliable witness.
55. Considered the submissions made by the Counsel for the appellant.
56. The purpose of inquest is to find out the cause of death. It is not the requirement of law that the manner of incident and names of assailants should also be mentioned in the Naksha Panchanama. The Supreme Court in the case of Brahm Swaroop Vs. State of U.P. reported in (2011) 6 SCC 288 has held as under :
8. Undoubtedly, there are five blanks in the inquest report.
The crime number and names of the accused have not been filled up. The column for filling up the penal provisions under which offences have been committed is blank. The time of incident and time of dispatch of the special report have not been mentioned. Therefore, Shri Tulsi has submitted that the FIR is ante-timed and there is 28 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) manipulation in the case of the prosecution.
9. The whole purpose of preparing an inquest report under Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the investigating officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings under Section 174 CrPC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned.
10. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery, etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses cannot be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. (See Pedda Narayana v. State of A.P., Khujji v. State of M.P., George v. State of Kerala, Sk. Ayub v. State of Maharashtra, Suresh Rai v. State of Bihar, Amar Singh v. Balwinder Singh, Radha Mohan Singh v. State of U.P. and Aqeel Ahmad v. State of U.P.)
11. In Radha Mohan Singh, a three-Judge Bench of this Court held: (SCC p. 460, para 11) "11. ... No argument on the basis of an alleged discrepancy, overwriting, omission or contradiction in the inquest report can be entertained unless the attention of the author thereof is drawn to the said fact and he is given an opportunity to explain when he is examined as a witness in court."
(emphasis added) 29 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010)
12. Even where the attention of the author of the inquest is drawn to the alleged discrepancy, overwriting, omission or contradiction in the inquest report and the author in his deposition has also admitted that through a mistake he omitted to mention the crime number in the inquest report, this Court has held that just because the author of the report had not been diligent did not mean that reliable and clinching evidence adduced by the eyewitnesses should be discarded by the Court. [Vide Krishna Pal (Dr.) v. State of U.P.]
13. In view of the law referred to hereinabove it cannot be held that any omission or discrepancy in the inquest is fatal to the prosecution's case and such omissions would necessarily lead to the inference that FIR is ante-timed. Shri N.K. Sharma, Sub-Inspector (PW 7), had denied the suggestion made by the defence that till the time of preparing the report the names of the accused persons were not available. He further stated that the column for filling up the nature of weapons used in the crime was left open as it could be ascertained only by the doctor what weapons had been used in the crime. Thus, the submissions made in this regard are preposterous.
57. It is next contended by the Counsel for the appellants, that the deceased Rajendra in his dying declaration, Ex. P.16 as well as Bhan Singh (P.W.3) and Pan Singh (P.W.4) have stated that Babu Singh was also one of assailant, but the Trial Court while trying Babu Singh, accepted his plea of alibi, therefore, it is clear that the allegations against Babu Singh were not correct. Thus, if the witnesses can allege falsely against Babu Singh, then no reliance can be placed on such witnesses in respect of other accused persons.
58. Considered the submissions made by the Counsel for the appellant.
59. The Maxim Falsus in Uno Falsus in ominbus has not application in India. Merely because a witness has been disbelieved 30 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) in respect of one accused, then it cannot be held that he has deposed falsely against other accused persons. The Supreme Court in the case of Rai Singh v. State of Haryana, reported in (1972) 4 SCC 289 has held as under :
14. Now we proceed to deal with the contentions on the merits. The argument that the witnesses who have been disbelieved in respect of the acts imputed to Ram Gopal and Jai Pal cannot be relied upon for convicting the present appellant has merely to be stated to be rejected. It is now well settled that in each case the Court has to appraise the evidence to see to what extent it is worthy of acceptance and merely because in one respect the Court considers it unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects as well. Experience in this country has shown that in cases like the present there is a tendency on the part of interested witnesses to exaggerate the guilt of the opposite party and then the imperfection of human memory and of observation also shows that the broad rule canvassed on behalf of the appellant cannot be laid down as a safe guide for all cases. The Court has to sift the evidence with care in each case and on full consideration of all the relevant material circumstances to come to a decision, which part of the testimony of the witness to accept and which to reject.
60. 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 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, 31 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) 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.
61. The Supreme Court in the case of Ranjit Singh v. State of 32 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) M.P., reported in (2011) 4 SCC 336 has held as under :
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.
62. It is next contended by the Counsel for the appellant, that the Trial Court has not appreciated the defence evidence led by the appellant, in proper perspective.
63. The appellant has examined Jagdish Prasad Sharma (D.W.1) and Banwari Singh (D.W.2) to show that the 13 th day ceremony of the mother-in-law of the appellant was held in village Khirauli, P.S. Noorabad and the appellant had attended the same and was in the village till 22-8-1992.
64. Considered the submissions made by the Counsel for the appellant.
65. It is well established principle of law that the plea of alibi should be proved by cogent and reliable evidence. The Supreme Court in the case of Jitender Kumar v. State of Haryana, reported in (2012) 6 SCC 204 has held as under :
71. Once PW 10 and PW 11 are believed and their statements are found to be trustworthy, as rightly dealt with by the courts below, then the plea of abili raised by the accused loses its significance. The burden of establishing the plea of alibi lay upon the appellants and the appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea 33 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) of alibi. 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.)
66. The Supreme Court in the case of Sk. Sattar v. State of Maharashtra, reported in (2010) 8 SCC 430 has held as under :
34. Except for making a bald assertion about his absence from his rented premises, the appellant miserably failed to give any particulars about any individual in whose presence, he may have read the namaz in the morning. He examined no witness from Chikalthana before whom he may have read the Koran in the evening prior to the incident. He examined nobody, who could have seen him in the masjid during the night of the incident. Therefore, the trial court as also the High Court concluded that this plea of being away from the rented premises at the relevant time was concocted.
35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana as follows: (SCC p. 27, para 20) "20. ... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the above noted concurrent finding of fact."
36. But it is also correct that, even though the plea of alibi of the appellant is not established, it was for the prosecution to prove the case against the appellant. To this extent, the submission of the learned counsel for the appellant was correct. The failure of the plea of alibi would not necessarily lead to the success of the prosecution case which has to be independently proved by the prosecution 34 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) beyond reasonable doubt. Being aware of the aforesaid principle of law, the trial court as also the High Court examined the circumstantial evidence to exclude the possibility of the innocence of the appellant.
67. The Supreme Court in the case of Mukesh v. State (NCT of Delhi), reported in (2017) 6 SCC 1 has held as under :
247. Presently, we shall deal with the plea of alibi as the same has been advanced with immense conviction. It is well settled in law that when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. In this context, we may usefully reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar: (SCC p. 293, paras 22-23) "22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 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:
'(a) 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 35 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) 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 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. ..."
(emphasis supplied) The said principle has been reiterated in Gurpreet Singh v. State of Haryana, Sk. Sattar v. State of Maharashtra, Jitender Kumar v. State of Haryana and Vijay Pal.
68. Banwari Singh (D.W.2) is the Secretary, of Gram Panchayat. He has produced the death certificate of Chirojabai, Ex. D.6 according to which She died on 9-8-1992. However, it is also clear from the said certificate that it was issued on 2-3-2002. Why the death certificate was issued after 10 years of death of Chirojabai? Further, the appellant has not examined any of his in-laws including his wife to prove, that the name of his mother-in-law was Chirojabai and She died on 9-8-1992 and the appellant had attended her 13 th day ceremony on 21-8-1992. Thus, it is clear that the appellant has failed to prove that his mother-in-law had expired on 9-8-1992 and he attended her 13th day ceremony on 21-8-1992.
69. It is next contended by the Counsel for the appellant, that admittedly, Bhan Singh (P.W.3) and Pan Singh (P.W. 6) are the real brothers of the deceased and therefore, they are related and interested witnesses. Further, Pan Singh (P.W.6) has admitted that Nathu Singh 36 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) had deposed against him in the murder case of Dhan Singh, therefore, the witnesses had motive to falsely implicate the accused.
70. Heard the learned Counsel for the parties.
71. It is undisputed fact that Bhan Singh (P.W.3) and Pan Singh (P.W.6) are the real brothers of the deceased Rajendra. However, there is a difference between "Related Witness" and "Interested Witness".
72. It is well established principle of law that the evidence of a "related witness" cannot be discarded only on the ground of relationship. The Supreme Court in the case of Rupinder Singh Sandhu v. 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.
73. The Supreme Court in the case of Shamim Vs. State (NCT of Delhi) reported in (2018) 10 SCC 509 has held as under :
9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit.............
74. The Supreme Court in the case of Rizan v. State of Chhattisgarh, reported in (2003) 2 SCC 661 has held as under :
6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect 37 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an 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.
7. In Dalip Singh v. State of Punjab it has been laid down as under: (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 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 generalization. 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."
8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (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 38 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- 'Rameshwar v. State of Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
10. Again in Masalti v. State of U.P. this Court observed:
(AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hardand- fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
11. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana.
75. Why a "related witness" would spare the real culprit in order to falsely implicate some innocent person? There is a difference between "related witness" and "interested witness". "Interested witness" is a witness who is vitally interested in conviction of a person due to previous enmity. The "Interested witness" has been defined by the Supreme Court in the case of Mohd. Rojali Ali v. State of Assam, reported in (2019) 19 SCC 567 as under :
13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested"
witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and 39 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki; Amit v. State of U.P.; and Gangabhavani v. Rayapati Venkat Reddy). Recently, this difference was reiterated in Ganapathi v. State of T.N., in the following terms, by referring to the three- Judge Bench decision in State of Rajasthan v. Kalki:
(Ganapathi case, SCC p. 555, para 14) "14. "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"."
14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v.
State of Punjab, wherein this Court 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."
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry): (SCC p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The 40 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
76. Thus, if a witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and has a strong motive to falsely implicate the accused, then he would be called an "interested witness".
77. It is submitted by the Counsel for the appellant that since, Nathu Singh had deposed against Pan Singh (P.W.6) in the murder case of Dhan Singh, therefore, he has a strong reason to falsely implicate the appellant.
78. Considered the submissions made by the Counsel for the appellant.
79. Motive is a double edged weapon. If on one side, it provides a reason to falsely implicate an accused then at the same time, it provides a strong reason to commit the offence.
80. The Supreme Court in the case of State of U.P. Vs. Moti Ram reported in (1990) 4 SCC 389 has held as under :
On a careful analysis of the evidence, we have no reservation in holding that there was bitter animosity between the prosecution and accused parties and as such there was sufficient motive on the part of the accused party to attack the prosecution party. But at the same time, one should not lose sight of the fact that the prosecution party which was also entertaining the same amount of animosity against the accused party had sufficient motive to implicate all the leading persons of the accused party with the offence in question. As repeatedly said, motive is a double-edged weapon and that it could be made use of by either party to wield that weapon of motive against each other. Therefore, the key question for consideration is whether the 41 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) prosecution had convincingly and satisfactorily established guilt of all or any of the accused beyond all reasonable doubt by letting in reliable and cogent evidence.
81. Therefore, in case of animosity between the parties, the Court must try to find out as to whether the prosecution has proved the guilt of accused convincingly or not?
82. If the facts of the present case are seen, then it is clear that not only the FIR, Ex. P.6 was immediately lodged by Bhan Singh (P.W.3) who is an eye-witness, but the dying declaration of the deceased Rajendra, Ex. P.16 was also recorded. The role assigned to the appellant Nathu Singh, finds full corroboration from medical evidence. Further, the appellant absconded during trial after obtaining temporary bail from the High Court and was ultimately re- arrested only in the year 2007 i.e., after 14 long years. Further, this Court has found that the dying declaration, Ex. P.16 and the evidence of Bhan Singh (P.W.3) and Pan Singh (P.W. 6) are trustworthy and reliable. Therefore, merely because Bhan Singh (P.W.3) and Pan Singh (P.W.6) are the real brothers of the deceased Rajendra, it cannot be said that they are not reliable witnesses. On the contrary, it appears that since, the complainant party had killed one Dhan Singh, therefore, the appellant and others must have retaliated by killing Rajendra, brother of Bhan Singh (P.W.3) and Pan Singh (P.W.6).
83. Considering the totality of the facts and circumstances of the case, it is held that the appellant in furtherance of common intention, is guilty of committing murder of Rajendra. Accordingly, his 42 Nathu Singh Vs. State of M.P. (Cr.A. No. 515 of 2010) conviction under Section 302/34 of IPC is hereby affirmed.
84. So far as the question of sentence is concerned, the minimum sentence is Life Imprisonment, therefore, the sentence awarded by the Trial Court doesnot call for any interference.
85. Ex Consequenti, the judgment and sentence dated 29-6-2010 passed by 3rd Additional Sessions Judge, Bhind in S.T. No. 177 of 1993 is hereby Affirmed.
86. The appellant is in jail. He shall undergo the remaining jail sentence.
87. Let a copy of this judgment be immediately provided to the appellant, free of cost.
88. The record of the Trial Court be immediately sent back along with copy of this judgment for necessary information and compliance.
89. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
ARUN KUMAR MISHRA
2022.01.13 16:50:55 +05'30'