Madhya Pradesh High Court
State Of M.P. vs Dinesh Singh Yadav on 31 October, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia, Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
&
HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
ON THE 31st OF October, 2022
CRIMINAL APPEAL NO.912 of 2011
Between:-
HARIOM YADAV, S/O SHRI
BHAGWANSINGH YADAV, AGED 46
YEARS, OCCUPATION
AGRICULTURIST, RESIDENT OF
VILLAGE JADERUA KALAN,
DISTRICT GWALIOR MADHYA
PRADESH.
........APPELLANT
(BY SHRI V.D. SHARMA WITH SHRI
RAVINDRA DIXIT - ADVOCATES)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION
GOLA KA MANDIR, DISTRICT
GWALIOR MADHYA PRADESH.
2. DINESH SINGH YADAV, S/O
AMARSINGH YADAV, AGED 28
YEARS, RESIDENT OF
GHASMANDI, SATYANARAYAN KA
2
MOHALLA, DISTRICT GWALIOR
MADHYA PRADESH.
........RESPONDENT
(SHRI C.P. SINGH - PANEL LAWYER FOR
RESPONDENT NO.1/STATE)
(SHRI KTS TULSI, SENIOR ADVOCATE WITH
SHRI A. FARAZ KHAN, SHRI R.K. SINGH,
SHRI AJAY CHOUDHARY, SHRI SANJEEV
BANSAL, SHRI AMRIT SINGH, SHRI ATUL
GUPTA, SHRI RAJMANI BANSAL AND SHRI
AYUSH SAXENA - ADVOCATES FOR
RESPONDENT NO.2/ACCUSED)
CRIMINAL APPEAL NO.181 of 2012
Between:-
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION
GOLE KA MANDIR, GWALIOR,
MADHYA PRADESH.
........APPELLANT
(BY SHRI C.P. SINGH - PANEL LAYWER)
AND
DINESH SINGH YADAV, S/O AMAR
SINGH YADAV, AGED - 28 YEARS,
R/O GHASMANDI SATYANARAYAN
KA MOHALLA, DISTRICT
GWALIOR, MADHYA PRADESH.
........RESPONDENT
(BY SHRI KTS TULSI, SENIOR ADVOCATE
WITH SHRI A. FARAZ KHAN, SHRI R.K.
SINGH, SHRI AJAY CHOUDHARY, SHRI
SANJEEV BANSAL, SHRI AMRIT SINGH,
3
SHRI RAJMANI BANSAL AND SHRI AYUSH
SAXENA - ADVOCATES)
----------------------------------------------------------------------------------------
Reserved on : 8th September, 2022
Delivered on : 31st of October 2022
This appeal coming on for final hearing this day, Hon'ble Shri
Justice G.S. Ahluwalia, passed the following:
JUDGMENT
1. Cr.A. No. 181 of 2012 has been filed by the State whereas Cr.A. No. 912/2011 has been filed by the complainant against the judgment dated 26-9-2011 passed by Ms. Shobha Porwal, 1 st Additional Sessions Judge, Gwalior, in S.T. No.216/2007 (Supplementary) by which the respondent Dinesh Singh Yadav has been acquitted of the charges under Sections 302 for murder of Sughar Singh, Jagdish Kushwaha and Sintu, under Section 307 for attempting to kill Yuvraj, 120B, 147, 148 and 149 of IPC.
2. The facts necessary for disposal of present appeal in short are that the complainant Hariom (P.W.2) lodged a Dehati Nalishi on 17-7-2006 at 1:00 A.M. in the night on the allegations that, Sughar Singh is his younger brother and was a Councillor from Ward No. 25, Jaderua. An enmity had developed between his family and the family of Rustam Singh Yadav on the question of elections. During the elections, Rustam Singh had fired at his brother and from thereafter, Rustam, Mahendra and their father Sitaram had shifted from the village and were hatching 4 conspiracy for killing Sughar Singh. About 4-5 months back, Sughar Singh had come to know about the conspiracy hatched by Sitaram, Rustam and Mahendra, and accordingly, he had a dispute with Sitaram. Day before yesterday, Cheeku, Mohar Singh and Kallu had come to the house on a Cream colour Scorpio jeep and had collected information about Sughar Singh. This witness had warned Sughar Singh. At about 8:30 in the night, the complainant had gone towards Pinto Park and was standing near Bajrang Kirana Store. He heard the noise of gun shots and saw that gun shots were being fired on his Safari vehicle. Rustam, Mohar Singh, Kallu, Cheeku @ Mohan Singh, Balli son of Shivcharan came down from the cream coloured Scorpio. Cheeku, Balli and Kallu were having .315 bore guns, whereas Mohar Singh was having .12 bore and Rustam was having .315 mouzer. They started indiscriminate firing and attacked on his brother Sughar Singh as a result, Jagdish, the driver lost his life on the spot itself, whereas he took his brother to the hospital, where he was declared dead, Yuvraj is getting himself treated as he is injured and one more person namely Sintu has also died in shootout. 3-4 more persons were with Rustam Singh who had also deboarded from the vehicle and were armed with firearms and had also fired. Thereafter, all the accused persons went away in their Scorpio vehicle. It was also alleged that this incident has been committed by Rustam Singh and his companions at the instigation of and in conspiracy with Sitaram Yadav, Mahendra Yadav. It was also stated that he would disclose the names of other unknown persons after collecting information in this regard.
3. On the basis of above mentioned Dehati Nalishi, the police registered the FIR for offence under Sections 302,307,147,148,149,129- 5 B IPC and under Section 25-27 Arms Act against Rustam Singh, Mahendra Singh, Sitaram, Mohar Singh, Kallu, Cheeku @ Mohan Singh and Balli.
4. It is not out of place to mention here, that since, the incident took place on the public place which was just 1 ½ Km away from the Police Station Gola Ka Mandir, therefore, immediately after the shoot out, the police also reached on the spot after getting telephonic information which was reduced in Rojnamcha Sanha. They prepared the spot map. The injured Yuvraj was taken to hospital by his friends. The Safari car was also seized from the spot on 16-7-2006 itself and as many as 16 bullet marks were found on the front and right side of the vehicle. Blood stained pieces of flesh were found on the seats. One .315 bore rifle was also found in the jeep. The rifle was in a damaged condition due to gun shot. One Black wrist watch in damaged condition was also found which had stopped at 20:17. Blood stained earth from the place where Sughar Singh was lying, blood stained earth from the place where Sintu was lying, plain earth 2 empty cartridges of .315 bore, on empty brass cartridge, one live cartridge of .12 bore were also seized from the spot. The dying declaration of Yuvraj was recorded by the Doctor. In the meanwhile, the deceased Sughar Singh was also taken to hospital, where he was declared dead. The dead body of Jagdish was also removed. The injured was operated upon in the night of 16-7-2006 itself.
5. After the FIR was registered, the police recorded the statements of witnesses. The statement of injured Yuvraj was recorded on 17-7-2006. The post-mortem of the dead bodies of Sughar Singh, Jagdish and Sintu was got done. The accused persons were arrested. Weapons of offence 6 were seized from some of the accused persons. The police after completing the investigation filed charge sheet for offence under Sections 147,148,149,307,302,120-B of IPC and under Sections 25/27 of Arms Act against 10 persons namely Mahendra Singh, Sitaram, Dinesh Jat, Ghanshyam, Bablu @ Ballu, Kaptan Singh, Rustam, Balli @ Balveer, Cheeku @ Sohan Singh and Amar Singh. Mohar Singh was not charge sheeted on the ground that he was not present on the spot. However, the Magistrate took cognizance against Mohar Singh under Section 190 of Cr.P.C. The respondent Dinesh Singh Yadav was initially absconding and was subsequently arrested on 11-4-2008 and accordingly, supplementary charge sheet was filed for offence under Sections 302,307,147,148,149,120-B of IPC and under Section 25/27 of Arms Act. Since, the Trial of co-accused persons had already reached to an advanced stage, therefore, the respondent was tried separately.
6. The Trial Court by order dated 19-8-2008, framed charges under Sections 302 for murder of Sughar Singh, Jagdish and Sintu, 307 for making an attempt to kill Yuvraj, 147,148,149 of IPC.
7. The Respondent abjured his guilt and pleaded not guilty.
8. The prosecution examined Raghvendra Singh (P.W.1), Hariom (P.W.2), Deep Singh Sengar (P.W.3), Umesh Singh Yadav (P.W.4), Dinesh Singh (P.W.5), Mahesh Singh Kaurav (P.W.6), Yuvraj (P.W. 7), Dr. J.S. Soni (P.W. 8), Dr. Pushpendra Singh (P.W.9), R.S. Bhadoriya (P.W.10), Muneesh Rajoria (P.W.11), Hotam Singh (P.W. 12)and R.B. Sharma (P.W.13).
9. The Respondent did not examine any witness in his defence.
10. The Trial Court by the impugned judgment has acquitted the 7 respondent Dinesh Singh Yadav.
11. It is submitted by the Counsel for the Appellants that the Trial Court has given undue importance to minor contradictions. The incident took place in a ghastly manner. The people must be running helter- skelter. The entire incident took place within 1-2 minutes and thereafter, looking for minute to minute corroboration is unwarranted. Muneesh Rajoria (P.W. 11) has already explained the circumstances under which the spot map was prepared. His explanation that Hariom (P.W.2) after narrating the incident to him went to hospital along with his injured/deceased brother Sughar Singh is plausible. Umesh (P.W.4) has seen the incident and both the witnesses are reliable and the evidence of Yuvraj (P.W.7) also corroborates the evidence of Hariom (P.W.2) and Umesh (P.W.4) to a large extent.
12. Similar arguments were advanced by the Counsel for the complainant/Appellant.
13. Per contra, the Counsel for the respondent has submitted that unless and until the findings of facts recorded by the Trial Court are found to be perverse, the judgment of acquittal should not be reversed and when two views are possible, then the view which has already been taken in favor of the respondent/accused should not be disturbed. Hariom (P.W.2) and Umesh (P.W.4) have been rightly disbelieved by the Trial Court. Yuvraj (P.W.7) who is an injured eye-witness has not supported the prosecution case on the question of identity of the assailants. No weapon of offence has been seized by the Police. Even otherwise, the statement of Umesh (P.W.4) was recorded belatedly. The investigation had started much prior to lodging of FIR.
814. Heard the learned Counsel for the parties.
15. Before adverting to the facts of the case, this Court would like to consider that under what circumstances, the Appellate Court can interfere with the judgment of acquittal.
16. The Supreme Court in the case of State (Delhi Admn.) v. Laxman Kumar, reported in (1985) 4 SCC 476 has held as under :
45.....Mr Singh has pleaded forcefully that we should not interfere with the judgment of acquittal as it is based on a reasonable view of the matter merely by reappreciating the evidence. The scope of an appeal against acquittal and the scope of this Court's jurisdiction in such a matter are well settled. The preponderance of judicial opinion in this Court is that there is no difference between an appeal against conviction and an appeal against acquittal except that when dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set on the materials on record, the acquittal may not be interfered with.....
17. The Supreme Court in the case of Jaisingh v. State of Karnataka, reported in (2007) 10 SCC 788 has held as under :
2. It has been argued by Mr Sushil Kumar, the learned counsel for the accused-appellants that the trial court had acquitted the accused on a minute appreciation of the evidence and arrived at conclusions clearly possible on that evidence and in this circumstance the High Court was not justified in reversing the acquittal. He has submitted that though the jurisdiction of the High Court in an appeal against acquittal was as wide and unfettered as in the case of a conviction appeal yet the presumption that an accused was innocent until proved guilty was further strengthened when the trial court made an order of acquittal and in this view of the matter extra care and caution was required if the acquittal was to be reversed. He has in this connection placed reliance on the judgment in Chandrappa v.9
State of Karnataka.
* * * *
4. We have considered the arguments advanced by the learned counsel. From a perusal of the judgment in Chandrappa case we observe that though the powers of the High Court in an acquittal appeal are not circumscribed and are clearly unfettered, the situation under which they should be resorted to have been spelt out. The broad principle is that the presumption of innocence is strengthened if an accused is acquitted by the trial court and that a reversal of the trial court's judgment should be made in cases where the view taken was not possible on the evidence or perverse with the broad understanding that if two views were possible, the one taken by the trial court in favour of the accused should be retained.
18. The Supreme Court in the case of Anil Kumar v. State of U.P., reported in (2004) 13 SCC 257 has held as under :
9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and 10 convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi v.
State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha v. State of Bihar, State of Punjab v. Karnail Singh, State of Punjab v. Phola Singh and Suchand Pal v. Phani Pal.
19. As a judgment of acquittal is in favor of the accused, then a presumption of his innocence can be drawn, however, while considering the appeal against acquittal, the High Court exercises the same power which are exercised while considering the appeal against conviction. However, the golden thread is that if two views are possible, then while deciding the appeal against acquittal, the Court should not disturb the view which was taken in favor of the accused. The judgment of acquittal can be reversed only when it is based on perverse findings.
20. Therefore, this Court would consider the facts of the case in the light of law as mentioned above.
21. Before adverting to the facts of the case, this Court would like to find out as to whether the death of Sughar Singh, Jagdish and Sintu was homicidal in nature or not?
22. Dr. Jai Narayan Soni (P.W.8) had conducted post-mortem of deceased Sughar Singh and found following injuries on his body :
Ante-mortem injuries present over the body
(a) Blast wound right side of neck 15 x 18 cm vertical blood vessels muscle, right clavicle,right 1 st to 3rd ribs and lung right lacerated. A deformed bullet and wad recovered from right side of 3rd thoracic vertebra;
(b) Gun shot entry wound below left mastoid 1 cm diameter.11
It extends below mandible after damaging lower border and extends exit out on lower margin of chin 1.5 x 1cm transverse;
(c) Gun Shot entry wound 1 cm in diameter, 6 cm below right shoulder tip. It extends right lung through 4 th intercostal (illegible) heart and left lung and exit out 10 cm below posterior axilla line left side;
(d) Gun Shot entry wound left hand (Palmar aspect ) through and through 4th metacarpal fractured. 2 1 cm vertical both side;
(e) Gutter wound superior aspect of right knee 5 x 7.5 cm transverse flapping interiorly;
(f) Gutter wound 6 x 4 cm left forearm lower third radius bone fractured into pieces at this site;
(g) Blast wound 36 cm below suprasternal 12x 8 cm vertical skin tags present on margin, loops of intestine (illegible) protruded through wound, a deformed bullet and wad recovered from wound and 6 cm right to midline lower costal border underneath skin;
(h) Gun shot entry wound two in number anteriorly one through big wound and another 4 cm left to main abdominal wound 2 cm in diameter.
Clothings and 3 wad and 5 fragments of deformed bullet and ball recovered sealed and handed over to P.S. concerned. Death was due to shock and hemorrhage as a result of multiple firearm injuries. Some are fired from contact (Short range) and some from distant shot. Death is homicidal in nature. Duration of Death is within 6 hours to 24 hours since P.M. 12 Examination.
The Post-mortem report is Ex. P.17C.
23. Dr. Jai Narayan Soni (P.W.8) conducted post-mortem of the dead body of Jagdish and found following injuries :
Ante-mortem injuries present over the body :
(a) Gun shot entry wound present 4 cm above right sub costal region (flank) 2 cm in diameter having abrasion all around for 2 mm;
It extends after damaging 6th rib liver, lung heart and left side 4th ribs a big ball recovered from left side postero (illegible) at 4th rib level under skin and a wad in the liver;
(b) Blast wound right side of head 4 cm above the ear lacerated scalp skull bone fractured and brain lacerated in 15 x 13 cm area.
Clothings wad and balt (bullet) sealed and handed over to P.S. concerned;
Death was due to shock and hemorrhage as a result of firearm injury, firearm injury caused from contact shot on head and different shot on chest;
Nature of death is homicidal;
Duration of death is within 6 hours to 24 hours since P.M. Examination.
The post-mortem report is Ex. P. 18C.
24. This witness was cross-examined. In cross-examination, he stated that along with the dead bodies, he had not received the copy of FIR or Merg Intimation. He had received both the dead bodies at 8:30 A.M. on 13 17-7-2006. He did not receive any weapon thereafter. He had found total 8 gun shot injuries on the body of Sughar Singh. Injury no. 1 and 7 were blast injuries. Injuries no. 1 and 7 were caused by fire arm and cardboard and wad were found. It is true that one deformed bullet was also found inside the injury no.1. He was not in a position to say that whether that deformed bullet was round in shape or was cylindrical. Blast injury can be caused only when a gun shot is fired from a very-very close range. It is true that when gun powder and gases directly enter inside the body, only then a blast injury is caused. Injuries no. 1 and 7 could not have been caused by only one weapon. Wad is found only when a gun shot is fired from a distance of 4 ft.s or from a very-very close range. He admitted that except around injury no. 1 and 7, blackening or tattooing, or burning were not found. He clarified that the meaning of gutter wound is that entry and exit wound are parallel to each other. If a person is sitting in the car and gut shots are fired from three sides, and if the injured remains seated in the same posture, then the gutter injuries can be caused. However,if the injured changes his position, then the injuries can be caused by gun shots fired from one direction. Injury no.8 could have been caused from behind, but thereafter clarified that it can be caused by gun shot fired from right side. Gun shot injury to Jagdish was also caused from a very close range. He could not specify that how many wads were removed from the body of Sughar Singh but clarified that he had handed over 3 wads to Police. The direction of injury no. 2 was downwards and the direction of injury no.3 was also downward.
25. Dr. Pushpendra Singh (P.W. 9) conducted post-mortem of dead 14 body of Sintu @ Raja Balmik and found following injuries on his body :
Ante-mortem injuries evident on body surface :
(a) Gun shot entry wound evident on back 8 cm below the 7th cervical vertebra and 8 cm below left to midline 1 cm in diameter margins inverted forming track forwardly anteriorly, a lacerated upper lobe of left lung pierced and blood vessels of neck and subcutaneous tissues and exit wound evident left to midline of neck above cervical in 3 x 2 cm size, margins everted.
No singing, blackening and tattooing;
contused margin and signs of bleeding evident.
Bundle of clothes as mentioned on page 3 packed and sealed and handed over to police constable.
Cause of death is hemorrhage and shock by firearm fired from distance range.
Duration of death within 6 to24 hours since P.M. Examination; Nature of death is homicidal.
The post-mortem report is Ex. P.16C.
26. This witness was cross-examined. In cross-examination, he stated that firearms were not sent to him for query. The copy of FIR and merg intimation were not sent to him. He was not in a position to tell the nature of weapon used for causing injury to the deceased Sintu and the distance from which the gun shot was fired. However, he clarified that the distance was more than 3 ft.s. Looking to the entry and exit wound, he stated that the direction was downwards.
27. Thus, from the evidence of Dr. J.N. Soni (P.W.8) and Dr. 15 Pushpendra Singh (P.W.9), it is clear that the death of Sughar Singh, Jagdish and Sintu was homicidal in nature.
28. Now the next question is that who is the author of offence.
29. The prosecution has examined Hariom (P.W.2), Umesh Singh Yadav (P.W.4) and injured witness Yuvraj (P.W.7). Yuvraj (P.W.7)
30. Yuvraj (P.W.7) is an injured witness, but he has turned hostile on the question of identity. He has stated that the respondent Dinesh Singh Yadav is known to him. The deceased Sughar Singh, Jagdish and Sintu were also known to him. The incident took place on 16-6-2006 at 8:30 P.M. He, the deceased Sughar Singh, Jagdish were coming from Deendayal Police Outpost and were going to Jaderua. They were going in a Safari Car. As soon as their vehicle reached in front of Bajrang Grocery Shop, one silver coloured bolero jeep came and a gun shot was fired. Remaining assailants also fired gun shots after deboarding from the Bolero jeep. The assailants were not known to him but the respondent Dinesh Singh Yadav was not there. He had also suffered gun shot injuries. This witness was declared hostile.
31. In cross-examination by the public prosecutor, he stated that his police statement, Ex. D.15 in which he had stated that the respondent was having.12 bore gun, was given under the pressure of Hariom (P.W.2). However, he did not make any complaint in this regard. He is stating for the first time in the Court. He admitted that in the same incident, his evidence has already been recorded earlier, but stated that thereafter, he filed a criminal complaint. He admitted that in his previous evidence also, he did not disclose that he was under the pressure of Hariom 16 (P.W.2). He stated that his brother was in captivity of Hariom (P.W.2). He admitted that when he had come to Court for giving his evidence, his brother was with him. He admitted that he had seen the entire incident. At present he is residing in Jhansi and his family is not residing in Jaderua. He denied that he is afraid of Dinesh Singh Yadav.
32. He was also cross-examined by the respondent. In cross- examination, he denied that there was no light on the spot. He admitted that his brother had also come on the spot and he took him to Sahara Hospital. He admitted that Umesh (P.W.4) and Mukesh did not take him to Sahara Hospital. He had not seen Hariom (P.W.2) on the spot. Hariom (P.W.2) is the brother of deceased Sughar Singh and is an influential person of Pinto Park. He is also a Councillor from Pinto Park. Hariom (P.W.2) had not got him treated. The expenses were borne by his brother Parmanand. Hariom (P.W.2) had extended a threat that in case if the evidence is not given as per his wishes, then he would keep his family members in his captivity. He had not seen Mohar Singh, Cheeku, Kallu, Balli, Ballu, Autar, Kaptan etc. on the spot. He also admitted that above mentioned persons had also not fired at his vehicle. He had not seen Dinesh Yadav, therefore, he did not disclose his name to the Doctor.
33. It is not out of place to mention here that neither the MLC of Yuvraj (P.W.7) has been got exhibited nor the treating Doctor has been examined. Although, Yuvraj (P.W.7) has stated in his evidence that he had sustained gun shot injuries, but in absence of any documentary/medical evidence, it would not be safe to hold that Yuvraj (P.W.7) had sustained gun shot injuries.
34. Thus,it is clear from the evidence of Yuvraj (P.W.7) that although 17 he had sustained gun shot injuries, and he has also spoken about the manner in which gun shots were fired, but he has turned hostile on the question of identify of assailants. Even his injuries have not been proved by the prosecution in the present case.
35. It is well established principle of law that the entire evidence of a hostile witness would not stand effaced off and the part of his evidence, which finds corroboration, can be relied upon.
36. The Supreme Court in the case of Gura Singh v. State of Rajasthan, reported in (2001) 2 SCC 205 has held as under :
11. There appears to be a misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v.
State of Haryana held that merely because the Court gave permission to the Public Prosecutor to cross-examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa it was observed that by giving permission to cross- examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross- examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.
1812. The terms "hostile", "adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English law. The rule of not permitting a party calling the witness to cross-examine are relaxed under the common law by evolving the terms "hostile witness and unfavourable witness". Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India the right to cross-examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading question cannot be put to the witness in examination-in-chief or in re-examination except with the permission of the court. The court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross- examination by the adverse party. The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. Extensively dealing with the terms "hostile, adverse and unfavourable witnesses" and the object of the provisions of the Evidence Act this Court in Sat Paul v. Delhi Admn. held: (SCC pp. 741-43 & 745-46, paras 38-40 &
52) "38. To steer clear of the controversy over the meaning of the terms 'hostile' witness, 'adverse' witness, 'unfavourable' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those 19 terms so that, in India, the grant of permission to cross- examine his own witness by a party is not conditional on the witness being declared 'adverse' or 'hostile'. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath Chattorji v. Prasannamoyi Debya. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of 'hostility'. It is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as 'declared hostile', 'declared unfavourable', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English courts.
39. It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. Under the English Act of 1865, a party calling the witness can 'cross-examine' and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse'. As already noticed, no such 20 condition has been laid down in Sections 154 or 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the court, the exercise of which is not fettered by or dependent upon the 'hostility' or 'adverseness' of the witness. In this respect, the Indian Evidence Act is in advance of the English law. The Criminal Law Revision Committee of England in its Eleventh Report, made recently, has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Act, 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character.
40. The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for interpreting and applying the Indian Evidence Act, has been pointed out in several authoritative pronouncements. In Praphullakumar Sarkar v. Emperor an eminent Chief Justice, Sir George Rankin cautioned, that 'when we are invited to hark back to dicta delivered by English Judges, however eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact'.
It was emphasised that these departures from English law 'were taken either to be improvements in themselves or calculated to work better under Indian conditions'.
* * *
52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the 21 witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
37. The Supreme Court in the case of Bhajju v. State of M.P., reported in (2012) 4 SCC 327 has held as under :
35. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant-accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-
examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.
36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the 22 person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.
37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled canon of criminal jurisprudence that the part which has been allowed to be cross- examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the following cases:
(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat,
(b) Prithi v. State of Haryana,
(c) Manu Sharma v. State (NCT of Delhi) and
(d) Ramkrushna v. State of Maharashtra.
38. Thus, the evidence of Yuvraj (P.W.7) can be relied upon to the extent that some assailants had fired at the vehicle, thereby causing injuries to him and causing death of Sughar Singh, and Jagdish. This witness has not spoken about the death of Sintu. Therefore, the manner of incident has been proved by this witness. However, he has turned hostile on the question of identity of the assailants and the description of vehicle used in the offence, because in his police statement, Ex. D.8, he had stated that the assailants had come on a cream colour Scorpio car, but in Court evidence, he has stated that the assailants had come on a Bolero Jeep.
Hariom (P.W.2)
39. Hariom (P.W.2) is the complainant and claims himself to be an eye- witness. He has stated that on 17-7-2006 [correct date of incident is 16- 7-2006], it was about 8:30 P.M. He had gone to Bajrang Grocery Shop.
23As soon as he reached there, he heard the noise of firing. He turned around and saw that his Safari car was stopping and Rustam, Cheeku, Kallu, Balli, Mohar Singh and their four other companions, were deboarding from Cream coloured Scorpio car and were firing at the Safari Car. When the assailants went away, he reached on the spot. Umesh (P.W.4) and Mukesh also reached there. He saw that Yuvraj (P.W.6) was groaning in pain on the middle seat of the car. Therefore, he was taken out by this witness, Mukesh and Umesh (P.W.4) and Umesh (P.W.4) and Mukesh took him to the hospital. Sughar Singh had also sustained gun shot injury. He tried to bring him out of the car, but could not do so and accordingly, he was laid down on the ground. Thereafter, Jaiveer and Narendra also reached on the spot. Thereafter, he Jaiveer and Narendra took Sughar Singh to Sahara Hospital, where he was declared dead by the Doctor. Then they took Sughar Singh to a bigger Hospital. When they were taking Sughar Singh to the hospital, Jagdish was lying on the steering wheel of the Safari car and was dead. In big hospital, the Doctor examined Sughar Singh on a table and informed that he is already dead. At that time, 6-7 more persons had reached there. His cousin brother Mahendra and 2-3 more persons brought him back to his house. Thereafter, the T.I. came to his house and accordingly, Dehati Nalishi, Ex.P.1C was lodged. At 2:00 A.M., Umesh (P.W.4) came back from the hospital and informed that the other assailants were Dinesh (Respondent), Autar, Kaptan and Bablu. His statements were recorded immediately after Dehati Nalishi and another statement was recorded on 25-7-2006. Then he informed the police that Dinesh (Respondent) and Kaptan were having .12 bore gun whereas Autar and Bablu were having .315 bore gun 24 and they too had fired. He also came to know that conspiracy was hatched at Weighing Booth of Mohar Singh. This was informed by Bhajju. He called Bhajju Jatav who informed that on 16 th at about 3:00 P.M. Ghanshyam had come to the house of Mohar Singh, and instructed him to leave him to the weighing booth of Mohar Singh. Accordingly, he went to the weighing booth of Mohar Singh in order to drop Ghanshyam. Mohar Singh called him upstairs and directed him to serve water to all the persons. Ghanshyam Singh, Sitaram, Mahendra, Maharaj Singh, Amar Singh, Rustam, Cheeku, Mohar Singh, Autar, Kallu and Balli were sitting there. Ghanshyam had enquired about the date for killing Sughar Singh. Then Sitaram, Amar Singh, Mahendra and Maharaj Singh replied that he would be killed during the course of the day. Thereafter, Mohar Singh, Rustam, Cheeku etc. said that they would return only after killing Sughar Singh. Thereafter, Dinesh Singh Jat took away Scorpio car of Mohar Singh. This witness was cross-examined. He admitted that Mithya Devi is his sister and her house is in village Barotha which is about 40-45 Km.s away from the house of this witness. He further stated that Umesh (P.W. 4) is the son of Mithya Devi. Dashrath Singh is known to him and his daughter was married to deceased Sughar Singh. Mukesh who is also a witness in this case is nephew of Dashrath Singh. Maharaj Singh (accused) is known to him and he was the leader of Congress Party. Amar Singh and Autar Singh are sons of Maharaj Singh. Dinesh Yadav (Respondent) is the son of Amar Singh. The daughter of Amar Singh is married to Rustam Singh (accused). The Respondent is brother-in-law of Rustam Singh (accused). Sughar Singh (deceased) was tried for murder of Vidhyaram Rajak. Elections of Municipal Corporation were held on 25 15-5-2000 and on the very same day, Vidhyaram Rajak was killed. Rajaram, the brother of Vidhyaram Rajak had lodged a report of murder of Vidhyaram Rajak. During the pendency of said trial, Rajaram had lodged a FIR against this witness, Jaiveer and Sughar Singh on the allegations of threatening. Accordingly, an offence under Section 506B of IPC was registered. He further admitted that he was convicted by Trial Court, but was acquitted by Appellate Court. He also admitted that one criminal case was registered against him and deceased Sughar Singh for firing at co-accused. However, claimed that he was acquitted as the said case was a false one. He also denied about other FIR and complaint case filed by co-accused Sitaram. He admitted that at the time of incident, Bajrang Grocery Shop was opened. Its proprietor Hanumat Singh was present in the shop. Some local personals were also purchasing goods. He had looked at his car only after hearing the gun shot noise. The house of Respondent is about 6-7 Km.s away from the place of incident. He also admitted that Maharaj Singh and Dinesh Yadav were already known to him much prior to the date of incident. The incident took place on a public place and the said road goes towards Bhind from Pinto Park. About 15-20 shops are adjoining to the shop of Bajrang Grocery shop and most of them were opened. He was not aware of the fact that where the deceased was going. In his Dehati Nalishi, Ex P.1, Police Statement, Ex. D.6 and D.7, he had not disclosed to the police that he had gone to Bajrang Grocery Shop for purchasing goods. He on his own clarified that he had told that he was standing at Bajrang Grocery shop [He had stated in his police statement, Ex. D.6 that he was standing at Bajrang Grocery Shop]. He stated that he cannot recollect that whether in Dehati 26 Nalishi,Ex. P.1C he had disclosed to the police that Umesh (P.W.4) and Mukesh had also came on the spot. He could not explain the reason as to why the fact that Yuvraj (P.W.7) was groaning in pain on the middle seat of the Safari car and he was taken out of the vehicle by him and Umesh (P.W.4) and Mukesh is not mentioned in Dehati Nalishi, Ex.P.1C, Police Statements Ex. D.6 and D.7. He also could not explain as to why the fact that Sughar Singh was on the front passenger seat and when he tried to take him out of the car, he could not support him and accordingly, his body was kept on the ground is not mentioned in his Dehati Nalishi, Ex. P.1C, Police Statement, Ex. D.6 and D.7. By the time when Sughar Singh was taken out of the vehicle in an injured condition, the police had not reached on the spot. He denied that Sughar Singh was taken out by the police personals from the car. He denied that neither he took Sughar Singh out of the car, nor he took him to hospital. He denied that he had not gone to Bajrang Grocery Shop for purchasing goods. The front side of the vehicle was towards Pinto Park and rear side was towards Bhind. None of the assailant had fired at this witness. The gun shots were fired from the front and side of the vehicle. He admitted that he had not seen Dinesh on the spot. He stated that he had informed to the police in his police statement, Ex. D.7 that when he came back from the hospital, then he was informed by Umesh (P.W.4) at 2:00 A.M., that Dinesh (Respondent), Autar, Kaptan and Bablu had also fired, but could not explain as to why this fact is not mentioned. He denied that no information was given by Umesh (P.W.4) and Yuvraj (P.W.7). He admitted that rivalry was on the election dispute. He also admitted that he did not inform the police by his mobile. The Dehati Nalishi was 27 written within 20 minutes. He denied that the incident took place at 8:00 P.M. or earlier. He denied that the incident did not take place at 8:30 P.M. He admitted that neither in Dehati Nalishi, Ex. P.1C nor in his police statement, Ex. D.6 which was written immediately thereafter, he had not named Dinesh Yadav(Respondent). He clarified that by that time, he was not aware that Dinesh Yadav (Respondent) was also one of the assailants. He admitted that after the Dehati Nalishi, Ex P.1C was lodged, the T.I. Muneesh Rajoria had requested him to visit the spot and verify the spot map. Thereafter, he went to spot at about 01:30 -1:45 P.M. He admitted that the spot map was not prepared at 9-9:30 P.M. in his presence. He denied that the police had prepared the spot map in his presence, and now he is denying the same. Parmanand, the brother of Yuvraj is known to him and denied that Parmanand took Yuvraj to the hospital. He admitted that when Yuvraj was taken out of the vehicle he was in an injured condition and blood was oozing out, but claimed that his cloths did not get stained with blood of Yuvraj but claimed that his cloths got stained with blood of Sughar Singh. However, claimed that his blood stained cloths were not seized by police. He denied that the Respondent Dinesh Yadav has been falsely implicated as he is the relative of co-accused Rustam Singh.
40. Thus, from the plain reading of evidence of Hariom (P.W.2), it is clear that although he had claimed himself to be an eye-witness, but could not identify the Respondent Dinesh Yadav on the spot and later on, he was informed by Yuvraj (P.W.7) and Umesh (P.W.4). Thus, this witness is a hearsay witness, so far as the Respondent Dinesh Yadav is concerned. However, Yuvraj (P.W.7) has turned hostile on the question of 28 identity. Further more, this witness in para 13 of his cross-examination, has specifically admitted that the Respondent Dinesh Yadav and Maharaj Singh were already known to him much prior to the date of incident. However, this witness has not clarified the reasons for not identifying the Respondent Dinesh Yadav on the spot [Although in Sessions Trial of co- accused persons, he had given detailed explanation, but in the light of judgment passed by Supreme Court in the case of A.T. Mydeen (Supra), the evidence led in the separate Sessions Trial which was conducted against different co-accused persons, cannot be read in the present case]. The Trial Court has disbelieved this witness mainly on the ground that Yuvraj (P.W.7) has not pointed out the presence of this witness on the spot, and secondly, that spot map, Ex. P.20 was not prepared on the instructions of this witness, although, it is mentioned in Spot map, Ex. P.20 that it was prepared on the instructions of this witness, but the spot map, Ex. P.20 also doesnot contain the signatures of this witness.
42. Muneesh Rajoria (P.W. 11) has stated that on 16-7-2006, he was posted in Police Station Gole Ka Mandir. He received a telephonic information that firing is going on. The said information was recorded in Rojnamchasanha no. 908 and thereafter, he went to the spot along with force. The driver of the vehicle had already died, whereas the injured were sent to hospital. Spot map, Ex. P.20 was prepared which bears his signatures. The blood stained, plain earth, empty cartridges of .315 bore, 12 bore round were seized vide seizure memo Ex. P.4C. One rifle from the Safari Car, the Safari car bearing Registration No. MP 07 CA 1171 which was having gun shot marks and its glasses were broken due to gun shots were seized vide seizure memo Ex. P.5C. Vide seizure memo Ex.
29P.6C, one Magzine of .315 bore, five live cartridges from the rifle, one watch were seized. Sughar Singh and Sintu Balmik had already died before they could reach to Hospital. The complainant Hariom (P.W.2) had gone back to his house. On the report of Hariom (P.W.2), Dehati Nalishi, Ex. P.1C was recorded. The statements of Hariom (P.W.2) were recorded on 17-7-2006 and 25-7-2006. This witness also narrated about the conspiracy disclosed by Bhajju. Scorpio bearing Registration No. MP 07BA 1121 was seized from the house of Mohar Singh vide seizure memo Ex. P.3. Sitaram was arrested vide arrest memo Ex. P.7. Mahendra Singh was arrested vide arrest memo Ex. P.30. White coloured seat cover with blood stains were seized from the Safari car, small pieces of bullets found on the seat of Sughar Singh, broken pieces of glasses, three pieces of bullets on the right side of the middle seat vide seizure memo Ex. P.22. Two empty cartridges of .315 bore, Article A-1, one cartridge of .315 bore, Article A2, live cartridge of .12 bore, Article A-3 were seized from the spot. One rifle of .315 bore Article A-4, Wrist watch Article A-5, deformed 5 cartridges of .315 bore rifle are Article A-6 to A-10. 5 live . 315 bore cartridges with piece of copper are Article A-11 to A-16, were also seized from the spot. [It appears that some of exhibits which were marked in the trial of co-accused persons were referred by this witness in his evidence.] During the investigation, he had recorded the statements of Hariom (P.W.2), Umesh (P.W.4), Yuvraj, Urmila, Manu, Sannu, Bhajju, Ramlakhan, Laxman, and Mahesh. This witness was cross-examined. In cross-examination, he admitted that Dehati Nalishi, Ex. P.1C was recorded at 1:00 A.M. and in that Dehati Nalishi, Ex. P.1C, the name of the Respondent was not mentioned. Hariom (P.W.2) had not informed, 30 that after the incident, Mukesh and Umesh (P.W.4) also came on the spot. He also did not disclose that Yuvraj (P.W.7) was groaning in pain. He also did not disclose that Mukesh and Umesh (P.W.4) took Yuvraj (P.W.7) to the hospital. He also did not disclose that when he tried to take out Sughar Singh from the front passenger seat, then he could not support him and accordingly, he was kept on the ground. He also admitted that in police statement, Ex. D.6, the complainant Hariom (P.W.2) had not disclosed the name of the Respondent Dinesh Yadav, but clarified that he had informed that he would inform him after collecting the information. He recorded the statement of Umesh (P.W.4) on 25-7-2006 and prior to that Umesh (P.W.4) had never contacted him to claim that he had seen the incident. The name of Respondent Dinesh Yadav figured for the first time on 25-7-2006. He did not try to find out that owner of the wrist watch. The glass of the watch was broken. The watch was showing 20:17 at the time of seizure, which is also mentioned in the seizure memo. He also admitted that at the time of receipt of information, he was already in the police station. The information was received on his mobile as well as landline of police station. He could not disclose the name of informer. The dead body of Sintu was also found outside the Arti Hospital. Dr. Ramlakhan Sharma in his police statement, had disclosed that he had given the information of incident to the police. The Gola Ka Mandir Police Station is situated on the main road and is about 1- 1 ½ furlong away from the place of incident. R.B. Sharma, Constable Raghvendra and Constable Mukesh had accompanied him in his private vehicle. He admitted that even before recording of Dehati Nalishi, he had started the proceedings and had prepared spot map, Ex. P.20 which was prepared at 31 21:25, seizure vide seizure memo Ex. P.4C was made at 21:30, seizure vide seizure memo Ex. P. 5 were made at 21:35. the seizure memo Ex. P.6C was also prepared at 21:45. The statements of Urmila and Laxman were also recorded and were also sent for medical examination. He did not record the statement of proprietor of Bajrang Grocery Shop. Spot Map, Ex. P20 is not in his handwriting. It is in the handwriting of R.B. Sharma A.S.I. Spot map, Ex. P.20 was prepared on the instructions/information of Hariom (P.W.2). Since, Hariom (P.W.2) was not on spot at the time of completion of spot map, Ex. P.20, therefore, his signatures were not obtained because he had already left the spot by taking Sughar Singh with him. He has started preparing spot map, Ex. P.20 at about 8:30-8:45 P.M. Time mentioned in the spot map, Ex. P.20 is the time of completion. When he started preparing spot map, Ex. P.20, Hariom (P.W.2) was present on the spot and Sughar Singh was also in the vehicle in an injured condition. When he reached on the spot, Jagdish, Sintu and Sughar Singh (All deceased) were present. When he reached on the spot, he saw that Jagdish was lying on the steering wheel in a dead condition, whereas Sughar Singh was being taken out from the vehicle. He had investigated the matter from 16-7-2006 till 31-7-2006. When he reached on the spot, Hariom (P.W.2) was already there on the spot. He took about 5-7 minutes to reach to the spot. He denied that he did not meet with Hariom on the spot. He denied that spot map, Ex. P.20 was not prepared on the spot. He admitted that he had not mentioned the names of the assailants in the spot map, Ex. P.20. He denied that he had not written the Dehati Nalishi, Ex. P.1C at 1:00 A.M. He admitted that in case if any body had informed him that he has witnessed the incident, 32 then he would have recorded the Dehati Nalishi. He did not meet with Umesh (P.W.4) at the place of incident and met him for the first time on 25-7-2006. He admitted that in the spot map, the places where witnesses were standing are not shown. The bullet marks on the Safari car were either on front or on its right side. The front and right side glasses were broken. No bullet mark was found on the rear side of the vehicle.
43. It is well established principle of law that the evidence as a whole should be considered and picking up one sentence from here and there is not the proper way of appreciation of evidence. The Court must not forget the ground realities, the situation at the time and immediately after the incident, the reactions of the witnesses which may differ from one person to another, etc. Minor omissions or contradictions not going to the root of the prosecution case should not be given undue importance, because minor variations in the evidence of witnesses are indicative of fact that they are not giving parrot like evidence. There are bound to be some embellishments in the evidence of witnesses.
44. The Supreme Court in the case of State of U.P. Vs. Krishna Master reported in (2010) 12 SCC 324 has held as under :
73. Reading the evidence of the witness as a whole, this Court points that it has a ring of truth in it. There is nothing improbable if a brother approaches his injured brother and tries to know from him as to how he had received the injuries nor is it improbable that on enquiry being made the injured brother would not give reply/information sought from him. The assertion by witness Jhabbulal that after the incident was over he had gone near his injured brother and tried to know as to who were his assailants, whereupon his injured brother had replied that the appellants (sic respondents) had caused injuries to him, could not be effectively challenged during cross-
examination of the witness nor could it be brought on record 33 that because of the nature of the injuries received by Baburam he would not have survived even for a few minutes and must have died immediately on the receipt of the injuries.
74. The net result of the above discussion is that the High Court has acquitted the respondents who were charged for commission of six murders in a casual and slipshod manner. The approach of the High Court in appreciating the evidence is not only contrary to the well-settled principles of appreciation of evidence but quite contrary to ground realities of life. The High Court has recorded reasons for acquittal of the respondents which are not borne out from the record and are quite contrary to the evidences adduced by the reliable eyewitnesses. The High Court was not justified in upsetting well-reasoned conviction of the respondents recorded by the trial court which after observing demeanour of the eyewitnesses had placed reliance on their testimony.
75. The High Court has not taken into consideration the full text of the evidence adduced by the witnesses and picked up sentences here and there from the testimony of the witnesses to come to a particular purpose. For example, the High Court has not taken into consideration the whole testimony of DW 1 before coming to the conclusion that there was complete darkness in the village which prevented the eyewitnesses from witnessing the incident. The general impression this Court has gathered is that appreciation of evidence by the High Court is cursory and it has done injustice to the prosecution.
45. The Supreme Court in the case of Achhar Singh v. State of H.P., reported in (2021) 5 SCC 543 has held as under :
25. It is vehemently contended that the evidence of the prosecution witnesses is exaggerated and thus false.
Cambridge Dictionary defines "exaggeration" as "the fact of making something larger, more important, better or worse than it really is". Merriam-Webster defines the term "exaggerate" as to "enlarge beyond bounds or the truth". The Concise Oxford English Dictionary defines it as "enlarged or altered beyond normal proportions". These expressions unambiguously suggest that the genesis of an "exaggerated statement" lies in a true fact, to which fictitious additions are made so as to make it 34 more penetrative. Every exaggeration, therefore, has the ingredients of "truth". No exaggerated statement is possible without an element of truth. On the other hand, Advanced Law Lexicon defines "false" as "erroneous, untrue; opposite of correct, or true". Concise Oxford English Dictionary states that "false" is "wrong; not correct or true". Similar is the explanation in other dictionaries as well. There is, thus, a marked differentia between an "exaggerated version" and a "false version". An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it (being the "opposite" of "true"). It is well said that to make a mountain out of a molehill, the molehill shall have to exist primarily. A court of law, being mindful of such distinction is duty-bound to disseminate "truth" from "falsehood" and sift the grain from the chaff in case of exaggerations. It is only in a case where the grain and the chaff are so inextricably intertwined that in their separation no real evidence survives, that the whole evidence can be discarded.
26. The learned State counsel has rightly relied on Gangadhar Behera to contend that even in cases where a major portion of the evidence is found deficient, if the residue is sufficient to prove the guilt of the accused, conviction can be based on it. This Court in Hari Chand v. State of Delhi held that: (Hari Chand case, SCC pp. 124-25, para 24) "24. ... So far as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial especially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon."
(emphasis supplied) 35
27. There is no gainsaid that homicidal deaths cannot be left to judicium dei. The court in its quest to reach the truth ought to make earnest efforts to extract gold out of the heap of black sand. The solemn duty is to dig out the authenticity. It is only when the court, despite its best efforts, fails to reach a firm conclusion that the benefit of doubt is extended.
28. An eyewitness is always preferred to others. The statements of PW 1, PW 11 and PW 12 are, therefore, to be analysed accordingly, while being mindful of the difference between exaggeration and falsity. We find that the truth can be effortlessly extracted from their statements. The trial court apparently fell in grave error and overlooked the credible and consistent evidence while proceeding with a baseless premise that the exaggerated statements made by the eyewitnesses belie their version.
29. As regards the appellants' contention that an appellate court is not justified in reversing the trial court's judgment unless it was found to be "perverse", it is important to point out that in the instant case, the trial court being overwhelmed by many contradictions failed to identify and appreciate material admissible evidence against the appellants. The trial court misdirected itself to wrong conclusions. Suffice it to cite Babu v. State of Kerala where this Court observed that: (SCC p. 196, para 12) "12. ... While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law."
(emphasis supplied)
30. There are numerous later decisions (including Arulvelu v. State, Triveni Rubber & Plastics v. CCE and Basalingappa v. Mudibasappa) where this Court has firmly held that a finding contrary to the evidence is "perverse". The finding of the trial court in ignorance of the relevant material on record was 36 undoubtedly "perverse" and ripe for interference from the High Court.
31. While testing the "possibility" of the conclusion drawn by the trial court, it has to be kept in mind that neither is there a reason on record nor have the appellants led any defence evidence to suggest as to why Netar Singh (PW 1), his wife Meera Devi (PW 11) or his father Beli Ram (PW 12) would allow the real culprits to go scot-free and instead falsely implicate the appellants to settle scores on trivial issues. Rather, from the very beginning (FIR) till their last deposition, the complainant and other two injured/eyewitnesses have been consistently accusing Budhi Singh for committing murder of Swari Devi and Achhar Singh for grievously hurting Beli Ram. Their ocular version is duly corroborated by the medical evidence on record.
32. This Court in Dalip Singh v. State of Punjab opined that:
(AIR p. 366, para 26) "26. ... Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
(emphasis supplied) This decision has been usually followed by this Court in various cases such as, Mohd. Rojali Ali v. State of Assam, Laltu Ghosh v. State of W.B., Khurshid Ahmed v. State of J&K and Shanmugam v. State.
46. The Supreme Court in the case of Bhagwan Jagannath Markad v. State of Maharashtra, reported in (2016) 10 SCC 537 has held as 37 under :
19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth.
A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to 38 error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
47. The Supreme Court in the case of Mallikarjun v. State of Karnataka, reported in (2019) 8 SCC 359 has held as under :
13. While appreciating the evidence of a witness, the approach must be to assess whether the evidence of a witness read as a whole appears to be truthful. Once the impression is formed, it is necessary for the court to evaluate the evidence and the alleged discrepancies and then, to find out whether it is against the general tenor of the prosecution case. If the evidence of eyewitness is found to be credible and trustworthy, minor discrepancies which do not affect the core of the prosecution case, cannot be made a ground to doubt the trustworthiness of the witness.
14. Observing that minor discrepancies and inconsistent version do not necessarily demolish the prosecution case if it is otherwise found to be creditworthy, in Bakhshish Singh v. State of Punjab, it was held as under: (SCC p. 198, paras 32-33) "32. In Sunil Kumar Sambhudayal Gupta v. State of Maharashtra this Court observed as follows: (SCC p. 671, para
30) '30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan.)'
33. ... this Court in Raj Kumar Singh v. State of Rajasthan has observed as under: (SCC p. 740, para 43) '43. ... It is a settled legal proposition that, while 39 appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety.
The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief.'"
(emphasis supplied)
48. The Supreme Court in the case of Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra, reported in (2010) 13 SCC 657 has held as under :
30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial.
Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan.)
31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the 40 court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh.)
32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh v. State of U.P.)
33. In case, the complainant in the FIR or the witness in his statement under Section 161 CrPC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide State v. Sait.)
49. Hariom (P.W.2) has stated that spot map, Ex. P.20 was not prepared in his presence. He stated that after recording of Dehati Nalishi, he was informed by Muneesh Rajoria (P.W.11) that he has prepared the spot map, Ex. P.20 and thus, he can verify the same and accordingly, he went to the spot at about 1:30-1:45 A.M. and saw the spot map, Ex. P.20.
50. Hariom (P.W.2) has stated that he came back to his house at about 12:00 A.M. from J.A. Hospital, and Muneesh Rajoria (P.W.11) came to his house at about 1:00 A.M.
51. Thus, the only question is that whether Spot map, Ex. P.20 was prepared on the instructions of Hariom (P.W.2) and if so then why Dehati Nalishi was not recorded at that time itself and why Dehati Nalishi, Ex. P.1C was recorded at 1:00 A.M.?
52. As already observed in the previous paragraph, the Court must must not forget the ground realities, the situation at the time and immediately after the incident, the reactions of the witnesses which may 41 differ from one person to another.
53. It is the evidence of Hariom (P.W.2) that he had gone to Bajrang Grocery shop and there he heard the noise of gun shots and then he saw that gun shots were being fired on his vehicle. Muneesh Rajoria (P.W.11) has stated that when he reached on the spot, Hariom (P.W.2) was present. The spot map, Ex. P.20 was prepared on the instructions of Hariom (P.W.2), but before the spot map, Ex. P.20 could be concluded, Hariom (P.W.2) had left for hospital along with his injured/deceased brother Sughar Singh. Thus, it is clear that when Muneesh Rajoria (P.W.11) reached on the spot, Hariom (P.W.2) was in the process of taking out injured/deceased Sughar Singh out of the Safari Car, and after informing Muneesh Rajoira (P.W.11), Hariom (P.W.2) went to Hospital along with the injured/deceased Sughar Singh and thus, the signatures of Hariom (P.W.2) could not be obtained on the spot map, Ex. P.20.
54. Now the question is that whether the spot map, Ex. P.20 contains any information which was within personal knowledge of Hariom (P.W.2) or the spot map, Ex. P.20, merely contains the description of situation which was visible to anybody including the investigating officer?
55. Spot map, Ex. P.20, merely contains the sketch of the spot which was visible to the investigating officer, namely Muneesh Rajoria (P.W.11) and it doesnot contain any description, which was in the personal knowledge of Hariom (P.W.2). The spot map, Ex. P.20 contains the situation prevailing on the spot. One car is shown on the road. Shops are shown on one side of the road. On the other side of the road, Panchayat Bhavan and temple are shown and one road is shown which is 42 also known as C.P. Industries road. It is also mentioned in the spot map, Ex. P.20 that deceased Jagdish is in dead condition whereas injured Yuvraj and his rifle are on middle row. The accused persons had chased the Safari Car from the side of Pinto Park Triangle and fired from place G and H. Empty cartridges have also been found at that place. Thus, except the information that the assailants had chased the victims from the side of Pinto Park Triangle and gun shots were fired from G and H, no other information is mentioned which could not have been noticed by the investigating officer, Muneesh Rajoria (P.W.11). This limited information regarding the manner in which offence was committed supports the evidence of Muneesh Rajoria (P.W.11) that Hariom (P.W.2) after informing him about the incident, left for hospital along with his brother Sughar Singh.
56. Further more, the conduct of Hariom (P.W.2) in rushing to the hospital along with injured/deceased Sughar Singh, cannot be said to be an unnatural act. The first attempt of every body would be to take the injured to hospital, as early as possible, so that the life of the injured can be saved. Hariom (P.W.2) is the real brother of deceased Sughar Singh. Thus, it was not expected from him that instead of taking his brother to hospital, he should have stayed back on the spot for completing the formalities specifically when it was not known to this witness that whether Sughar Singh has actually died or is alive.
57. Further Raghvendra (P.W.1) who is a police constable and was along with Muneesh Rajoria (P.W.11) has specifically stated in para 11 of his cross-examination, that initially Muneesh Rajoria (P.W.11) made arrangements for sending Sughar Singh to the hospital and only 43 thereafter, he prepared the spot map. Thus, the explanation given by Muneesh Rajoria (P.W.11) that Hariom (P.W.2) took his brother Sughar Singh to Hospital after giving information of incident appears to be correct. Thus, it is clear that absence of signatures of Hariom (P.W.2) on the spot map, Ex. P.20 and the preparation of spot map on the instruction of Hariom (P.W.2) has been plausibly explained by Muneesh Rajoria (P.W.11).
58. However, it is submitted by the Counsel for the Appellants that when Hariom (P.W.2) has stated that spot map, Ex. P.20, was not prepared on his instructions then the evidence of Muneesh Rajoria (P.W.11) and R.B. Sharma (P.W.13) cannot be reconciled with the evidence of Hariom (P.W.2).
59. Considered the submissions made by the Counsel for the Appellants.
60. Hariom (P.W.2) is right in deposing that spot map, Ex. P.20 was not prepared on his information, because according to him the spot map, Ex. P.20 was not prepared in his presence, whereas the evidence of Muneesh Rajoria (P.W.11) is that after giving initial information, Hariom (P.W.2) went to hospital along with his injured brother Sughar Singh. Further from the spot map, Ex. P.20, it is clear that except the remark that the assailants came chasing from the side of Pinto Park and gun shots were fired from G and H, no other personal information is shown/mentioned in spot map, Ex. P.20. However, it is submitted by the Counsel for the Respondent that since R.B. Sharma (P.W.13) has stated in his evidence that at the time of preparation of spot map, Ex. P.20, Hariom (P.W.2) was informing Muneesh Rajoria (P.W.11) and on 44 dictations of Muneesh Rajoria (P.W.11), R.B. Sharma (P.W.13) had prepared the spot map, Ex. P.20, therefore, it is clear that Hariom (P.W.2) was present on the spot till 21:25, but still no FIR was lodged, which clearly means that Hariom (P.W.2) had not witnessed the incident.
61. Considered the submissions made by the Counsel for the Respondent.
62. As already held, the evidence of natural witness may contain some element of embellishment. A witness in order to make his evidence more authentic and reliable, may exaggerate some part of his evidence. R.B. Sharma (P.W.13) in order to make spot map, Ex. P.20, more authentic may have exaggerated his evidence by deposing that the entire spot map, Ex. P.20 was prepared on the information which was being given by Hariom (P.W.2) to Muneesh Rajoria (P.W.11), but as already held that almost all the information contained in the spot map, Ex. P.20, is based on the situation which was seen by the investigating officer, Muneesh Rajoria (P.W.11) himself.
63. Even otherwise, any detail/information mentioned in the spot map on the information given by a witness is hit by Section 162 of Cr.P.C. and can be used only for omission and contradiction purposes and only that part of spot map is admissible, which has been prepared by the investigating officer after watching on his own on the spot.
64. The Supreme Court in the case of Tori Singh Vs. State of U.P. reported in (1962) 3 SCR 580 has held as under :
8. This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of offence, the draftsman put down the places in the map, in Santa Singh v. State of 45 Punjab. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by Section 162 of the Code of Criminal Procedure. In that case there was another sketch prepared by the Sub-Inspector which was ruled out as inadmissible under Section 162. The sketch-map in the present case has been prepared by the Sub-
Inspector and the place where the deceased was hit and also the places where the witnesses were at the time of the incident were obviously marked by him on the map on the basis of the statements made to him by the witnesses. In the circumstances these marks on the map based on the statements made to the Sub-Inspector are inadmissible under Section 162 of the Code of Criminal Procedure and cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch-map.
65. The Supreme Court in the case of Sant Kumar Vs. State of Haryana reported in (1974) 3 SCC 643 has held as under :
11.....It is clear that this site plan, which shows Mark No. 1 as the place of occurrence, is in consequence of a statement made during investigation to the ASI by some witness whose name even has not been disclosed. Since the ASI had already registered the case under Section 154 of the Criminal Procedure Code, after obtaining the first information report from Suraj Bhan and proceeded to the spot in the course of investigation, any statement made by witnesses during the course of investigation would be hit by Section 162(1) of the Criminal Procedure Code, and inadmissible in evidence except for the purpose of contradiction of the witness when examined in Court either by the accused or by prosecution with the leave of Court. A plan prepared in the way done showing the place of occurrence cannot be admissible in law and no reliance can be placed on the place of occurrence as indicated therein....
66. The Supreme Court in the case of State of Rajasthan Vs. Bhawani reported in (2003) 7 SCC 291 has held as under :
11...Many things mentioned in the site plan have been noted by 46 the investigating officer on the basis of the statements given by the witnesses. Obviously, the place from where the accused entered the nohara and the place from where they resorted to firing is based upon the statement of the witnesses. These are clearly hit by Section 162 CrPC. What the investigating officer personally saw and noted alone would be admissible......
67. The Supreme Court in the case of Rameshwar Dayal Vs. State of U.P. Reported in (1978) 2 SCC 518 has held as under :
36......In our opinion, the argument of the learned counsel is based on misconception of law laid down by this Court. What this Court has said is that the notes in question which are in the nature of a statement recorded by the Police Officer in the course of investigation would not be admissible. There can be no quarrel with this proposition. Note No. 4 in Ex. Ka-18 is not a note which is based on the information given to the Investigating Officer by the witnesses but is a memo of what he himself found and observed at the spot. Such a statement does not fall within the four corners of Section 162 CrPC. In fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section. For these reasons, therefore, we are of the opinion that the decision cited by the counsel for the appellants has no application to this case.
68. Further, the Trial Court in para 44 of its judgment has held that Hariom (P.W.2) has not stated that spot map, Ex. P20 was prepared in his presence and even there is no cross-examination on this issue. However, Hariom (P.W.2) was cross-examined by the defence in this regard in para 30 of his cross-examination. Thus, this Court is of the considered 47 opinion, the evidence of Hariom (P.W.2) cannot be rejected only the ground that when he was already present on the spot, then why Dehati Nalishi/FIR was not lodged by him.
69. Another ground for disbelieving the evidence of Hariom (P.W.2) was that his presence has not been pointed out by Yuvraj (P.W.7). This Court has already held that evidence of a hostile witness would not get wiped out in its entirety. That part of his evidence can always be relied upon, which is corroborated by other evidence available on record. The evidence of a hostile witness cannot be used for discarding the other evidence available on record. Thus, merely because Yuvraj (P.W.7) did not support the prosecution case, would not be a good ground to discard the evidence of Hariom (P.W.2).
70. Thus, Hariom (P.W.2) is an eye-witness and is a reliable witness, but according to him, he is a hearsay witness with regard to the Respondent Dinesh Yadav. Further, he has admitted that he knew the Respondent much prior to the incident, but did not name him in the Dehati Nalishi, Ex. P.1C and in his police statement, Ex. D.6 [Although in the Sessions Trial of co-accused persons, he had explained the reason for not identifying the four persons including the Respondent, but the evidence led in the case of co-accused who were separately tried, cannot be read in this case]. Even otherwise, since, the evidence of Hariom (P.W.2) is based on information given by Yuvraj (P.W.7) and Umesh (P.W.4), therefore, the next question for consideration is that whether Umesh (P.W.4) is a reliable witness or not, because Yuvraj (P.W.7) has already turned hostile on the question of identity. Umesh (P.W.4) 48
71. Umesh (P.W.4) has stated that the Respondent is known to him. The deceased Sughar Singh was also known to him. This witness was working in Hina Bread Factory. On 16-7-2006, at about 8:30 in the night, he was coming back from the Factory. He met with Mukesh at Pinto Park and accordingly, they both were talking to each other under a Sheesham tree. At that time, he saw that the vehicle of Sughar Singh was coming from the side of Tanki Triangle. Kaptan Singh with his .12 bore gun and Autar Singh with his .315 bore gun were moving ahead of the vehicle on their motor cycle. In the street light, every thing was clearly visible. The vehicle of Sughar Singh gave a horn, therefore, Autar gave a signal to turn. At that time, one cream coloured Scorpio car came by the side of Safari car of deceased Sughar Singh. Accused Rustam was sitting on the front passenger seat. He shot the driver of Safari Car as a result, the Safari car came to a halt. Thereafter, Mohar Singh with his .12 bore gun, Cheeku with his .315 bore gun, Kallu with his .315bore gun, Rustam with his .315 bore gun, Balli with his .315 bore gun, Dinesh (Respondent) with his .12 bore gun came down from the Scropio. Bablu was having .315 bore gun. Thereafter, Mohar Singh, Cheeku, Rustam, Balli and Kallu started firing at Safari vehicle from the front. Autar, Kaptan, Bablu and Dinesh (Respondent) were firing from the driver side of the Safari vehicle. As soon as firing started, he took shelter of Sheesham tree. The driver of Scorpio vehicle took the vehicle slightly further and parked the same on the S. Petrol Pump Road. Thereafter, the assailants escaped on the Scorpio Vehicle and their motor cycle. Mohar Singh, Cheeku, Balli, Kallu, Dinesh (Respondent), Rustam and Bablu escaped on the Scorpio vehicle, whereas Autar and Kaptan escaped on 49 their motor cycle. Thereafter, he and Mukesh went to the Safari Car. Hariom (P.W.2) also came there. Thereafter, he and Mukesh, took out Yuvraj out of the Safari vehicle and took him to the hospital. Two days prior to the incident, Sughar Singh had informed Yuvraj that Mohar Singh, Cheeku, Rustam, sitaram, Mahendra, Maharaj Singh, Amar Singh and Ghanshyam are planning to kill him. However, he stated that he is a representative of the public therefore, cannot stay back in his house and also expressed that he is unable to understand as to how he should protect himself.
72. This witness was cross-examined. In cross-examination, he admitted that Sughar Singh and Hariom (P.W.2) are brother. He also admitted that his mother Mithya Devi is the sister of Sughar Singh and Hariom (P.W.2). He further admitted that wife of Mukesh is the cousin sister of Sughar Singh. Hine Factory is about ½ km.s away from the place of incident. His statement was recorded after 7-8 days of incident. His statement was recorded in the house of Hariom (P.W.2), his maternal uncle. He claimed that he had disclosed in his police statement,Ex. D.8 that he was working in Hina Bread Factory and was coming back, but could not explain as to why said fact was not mentioned in the said police statement. He is the resident of village Barotha which is about 45 Km.s away from Gwalior. His parents are residing in village Barotha and has agricultural fields in village Barotha. Prahlad Tulsani is the owner of Hina Bread Factory. He was working in the factory from 6-7 months prior to the date of incident. His shift was from 8:30 in the morning to 8:30 in the night. He had signed the attendance register. He was working on the post of Guard. No appointment letter was ever issued by 50 Hina Bread Factory. He denied that he was not working in Hina Bread Factory. He has seen Bajrang Grocery Shop. Bajrang Grocery Shop is about 30-35 ft.s from the main road. He was not in a position to disclose the name of proprietor of Bajrang Grocery Shop. He was standing near the Sheesham tree which is opposite to the shop of Mishra Ji. The place of incident was visible from the shop of Mishra Ji. Mukesh is known to him for the last 10 years. The registration no. of Safari car is MP 07 CA 1171. The Safari car of the deceased Sughar Singh was coming from the direction of Deen Dayal Nagar and he had seen the vehicle from a distance of 100-120 ft.s. The Safari car was facing towards Pinto Park whereas its rear side was towards Bhind. The entire incident took place within 1-1 ½ minute. During this period he had seen the assailants and their weapons. He did not see any injured suffering gun shot injury outside the vehicle. He could not disclose the total numbers of gun shots fired. He did not see any lathi or iron rod in the hands of any assailants. He and Mukesh were watching the entire incident by standing at one place only. He had informed the police that his maternal uncle Hariom (P.W.2) had also come, but could not explain as to why this fact is not mentioned in his police statement, Ex. D.8. He denied that Hariom (P.W.2) was not present on the spot. He also stated that he had informed the police that he and Mukesh took the injured Yuvraj to Sahara Hospital and got him admitted, but could not explain as to why this fact is not mentioned in police statement, Ex. D.8. The police had not reached to the spot, by the time, when he and Mukesh took Yuvraj to the hospital. He denied that it was the police who shifted Yuvraj to Hospital by taking out him from the vehicle. This witness was driving the motor cycle, 51 whereas Mukesh was the pillion rider, and the injured Yuvraj was sitting between both of them. His cloths had got stained with blood, but the police did not ask for his blood stained cloths. In Sahara Hospital, they met with the Doctors and at that time, police was not there. He did not sign on any paper in the hospital. He on his own clarified that by that time, Parmanand, the brother of Yuvraj had also reached the hospital. He stayed back in the hospital for 20-25 minutes. 25-30 persons of Jaderua village were also there. When he was in the Sahara Hospital, then he was informed by villagers that Sughar Singh has been declared dead by Doctors, therefore, he went to J.A. Hospital. The Respondent Dinesh belongs to Yadav Caste. His residence is about 7-8 Km.s away from the place of incident. He was unable to disclose that which person had sustained the gun shot fired by the Respondent Dinesh. He denied that Respondent Dinesh was not present on the spot. The Respondent Dinesh is the brother-in-law of co-accused Rustam. No registration number was written on the Scorpio car. He went to the hospital on the motor cycle belonging to Hariom (P.W.2). Yuvraj was in pains while he was on his way to Hospital. In the night itself, he went to Gangotri and Yamnotri for taking Jaiveer and Ramveer. He left his job after the incident. He denied that he had never worked in Hina Bread Factory. He denied that there was load shedding.
Delayed recording of statement of Umesh (P.W.4)
73. It is submitted by the Counsel for the Respondent that the police statement of this witness was recorded belatedly on 25-7-2006, whereas the incident took place on 16-7-2006, therefore, his evidence is not reliable.
5274. Considered the submissions made by the Counsel for the Respondent.
75. It is well established principle of law that mere delay in recording of police statement under Section 161 of Cr.P.C. cannot be ground to reject the testimony of a witness, provided a plausible explanation is given and accordingly, the Accused must seek explanation from the witness and investigating officer in this regard.
76. The Supreme Court in the case of V.K. Mishra v. State of Uttarakhand, reported in (2015) 9 SCC 588 has held as under :
26. It cannot be held as a rule of universal application that the testimony of a witness becomes unreliable merely because there is delay in examination of a particular witness. In Sunil Kumar v. State of Rajasthan, it was held that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a core of witness to falsely support the prosecution case. As such there was no delay in recording the statement of PW 2 and even assuming that there was delay in questioning PW 2, that by itself cannot amount to any infirmity in the prosecution case.
77. The Supreme Court in the case of John Pandian v. State, reported in (2010) 14 SCC 129 has held as under :
44. Other criticism levelled against these witnesses was that the statements of Selvaraj (PW 14) and Paramasivam (PW 15) were not recorded immediately. While the statement of Selvaraj (PW
14) was recorded on 20-8-1993, Paramasivam (PW 15) became available for the statement after about 15 days. It is true that the criminal courts would expect the statements of the eyewitnesses to be recorded immediately or with least possible delay. The early recording of the statement gives credibility to the evidence of such witnesses. But then it is not an absolute rule of appreciation that where the statement is recorded late, 53 the witness is a false witness or a trumped-up witness. That will depend upon the quality of the evidence of the witness.
78. The Supreme Court in the case of Sheo Shankar Singh v. State of Jharkhand, reported in (2011) 3 SCC 654 has held as under :
65. Mr Lalit contended that Mr Prasant Banerjee (PW 6) was not an eyewitness as he had come to the place of occurrence 7- 8 minutes after the occurrence. He also argued that the witness had not made any statement to the police till 2-6-2000 which renders his story suspect. There is no doubt a delay of one-and-
half months in the recording of the statement of Prasant Banerjee (PW 6). The question is whether the same should by itself justify rejection of his testimony. Our answer is in the negative.
66. The legal position is well settled that mere delay in the examination of a particular witness does not, as a rule of universal application, render the prosecution case suspect. It depends upon the circumstances of the case and the nature of the offence that is being investigated. It would also depend upon the availability of information by which the investigating officer could reach the witness and examine him. It would also depend upon the explanation, if any, which the investigating officer may offer for the delay. In a case where the investigating officer has reasons to believe that a particular witness is an eyewitness to the occurrence but he does not examine him without any possible explanation for any such omission, the delay may assume importance and require the court to closely scrutinise and evaluate the version of the witness but in a case where the investigating officer had no such information about any particular individual being an eyewitness to the occurrence, mere delay in examining such a witness would not ipso facto render the testimony of the witness suspect or affect the prosecution version.
67. We are supported in this view by the decision of this Court in Ranbir v. State of Punjabwhere this Court examined the effect of delayed examination of a witness and observed: (SCC pp. 447-48, para 7) "7. ... The question of delay in examining a witness 54 during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is, therefore, essential that the investigating officer should be asked specifically about the delay and the reasons therefor."
68. Again in Satbir Singh v. State of U.P. the delay in the examination of the witness was held to be not fatal to the prosecution case. This Court observed: (SCC p. 800, para 32) "32. Contention of Mr Sushil Kumar that the investigating officer did not examine some of the witnesses on 27-1-1997 cannot be accepted for more than one reason; firstly, because the delay in the investigation itself may not benefit the accused; secondly, because the investigating officer (PW 8) in his deposition explained the reasons for delayed examination of the witnesses."
69. The investigating officer has, in the instant case, stated that Prasant Banerjee (PW 6) had met him for the first time on 2-6- 2000 and that he recorded his statement on the very same day. He has further stated that prior to 2-6-2000 he had no knowledge that Prasant Banerjee (PW 6) was a witness to the occurrence. Even Prasant Banerjee has given an explanation as to how the investigating officer reached him. According to his deposition the Inspector had told him that he had come to record his statement after making an enquiry from the person who was sitting on the pillion of his motorcycle on the date of occurrence. Ravi Ranjan, the pillion rider had also informed him that his statement had been recorded by the police. The trial court and the High Court have accepted the explanation offered by the investigating officer for the delay. We see no reason to take a different view or to reject the testimony of this witness only because his statement was recorded a month and half after the occurrence.
79. From the evidence of this witness, it is clear that no question was put with regard to delayed making of his police statement, Ex. D.8. On the contrary, it is clear that at the time of incident, Jaiveer and Ramveer were in Gangotri and Yamunotri, and therefore, this witness immediately 55 left for bringing them back.
80. Thus, merely because the police statement of Umesh (P.W.4) was recorded on 25-7-2006, would give any dent to the evidence of this witness, because no questions were put either to this witness or to the Investigating Officer, seeking their explanation in this regard. Non-mention of name of Umesh (P.W.4) in Dehati Nalishi, Ex. P.1C.
81. It is submitted by the Counsel for the Respondent that the name of Umesh (P.W.4) is not mentioned in the Dehati Nalishi, Ex. P.1C, therefore, the presence of this witness on the spot is not reliable.
82. Merely because the name of this witness was not mentioned in the Dehati Nalishi, Ex. P.1C, would not mean that the evidence of this witness has to be discarded. Mentioning of names of all the eye- witnesses in the FIR/Dehati Nalishi is not required. FIR is not an encyclopedia of the incident. FIR is required to contain the basic ingredients of commission of cognizable offence. Minute details are not required to be mentioned in the FIR. The Supreme Court in the case of Satpal v. State of Haryana, reported in (2018) 6 SCC 610 has held as under :
83. 7......An FIR is not to be read as an encyclopedia requiring every minute detail of the occurrence to be mentioned therein. The absence of any mention in it with regard to the previous altercation, or the presence of the milk can, cannot affect its veracity so as to doubt the entire case of the prosecution......
84. The Supreme Court in the case of S. Sudershan Reddy v. State of A.P., reported in (2006) 10 SCC 163 has held as under :
18....It is well settled that the FIR is not an encyclopaedia of the facts concerning the crime merely because the minutest details of occurrence were not mentioned in the FIR the same 56 cannot make the prosecution case doubtful. It is not necessary that the minutest details should be stated in the FIR. It is sufficient if a broad picture is presented and the FIR contains the broad features. For lodging the FIR, in a criminal case and more particularly in a murder case, the stress must be on prompt lodging of the FIR.....
85. The Supreme Court in the case of Subhash Kumar v. State of Uttarakhand, reported in (2009) 6 SCC 641 has held as under :
12. FIR as is well known is not to be treated to be as an encyclopaedia. Although the effect of a statement made in the FIR at the earliest point of time should be given primacy, it would not probably be proper to accept that all the particulars in regard to commission of offence must be furnished in detail.
86. Thus, a witness cannot be disbelieved merely on the ground that his name is not mentioned in the Dehati Nalishi/FIR. Non-mention of name of Umesh (P.W.4) in police statement of Hariom (P.W.2), Ex. D.6.
87. It is next contended by the Counsel for the Respondent, that Hariom (P.W.2) in his police statement, Ex. D.6 had also not named Umesh (P.W.4) as a witness, therefore, it is clear that Umesh (P.W.4) was introduced at a later stage with an intention to concoct the story.
88. Consider the submissions made by the Counsel for the Respondent.
89. It has come on record that deceased Sughar Singh was sitting Councillor having contested the election as a candidate of Ruling Party, whereas the accused party was follower of Congress Party. Therefore, it is clear that there was political fraction between the complainant party and accused party. The public disturbance after the murder of a sitting Councillor can be presumed. Further more, the first police statement of 57 Hariom (P.W.2), Ex. D.6 was recorded on the very same day, immediately after recording of Dehati Nalishi, Ex. P.1C. The incident had taken place in a most heinous manner, where the vehicle of sitting Councillor was stopped in the mid of the market and multiple gun shots were fired at the vehicle resulting in death of three persons and injuries to Yuvraj who also suffered paraplegia. The gruesome incident must have shaken the even tempo of the Society. The incident must have created a disturbance in Public Order and it appears from the order-sheets of the Trial Court, that some of the accused persons were detained under National Security Act. Thus, it is clear that the case in hand was not a simple case of murder having no impact on Public Order. Therefore, the evidence has to be appreciated in the light of the surrounding circumstances. Further more, the mental condition of witness is also to be kept in mind while appreciating his post incident conduct.
90. The Supreme Court in the case of State of M.P. v. Mansingh, reported in (2003) 10 SCC 414 has held as under :
10. One of the circumstances highlighted by the High Court to discard the evidence of PW 8 is non-mention of his name in the FIR. As stated by this Court in Chittar Lal v. State of Rajasthan evidence of the person whose name did not figure in the FIR as a witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eyewitnesses, should be indicated in the FIR.
As was observed by this Court in Shri Bhagwan v. State of Rajasthan mere non-mention of the name of an eyewitness does not render the prosecution version fragile.
91. The Supreme Court in the case of Nirpal Singh v. State of Haryana, reported in (1977) 2 SCC 131 has held as under :
10.....Counsel for the appellants vehemently contended that as the name of Rattan Singh was not mentioned in the first 58 information report, although the eyewitnesses Sadhu Ram and Inder Kaur have categorically stated that another Rattan Singh of Siria was present at the occurrence, the Court should hold that Rattan Singh is a made-up witness. To begin with, this is essentially a question of fact which was fully noticed by the two courts of fact and in spite of that the courts of fact have believed the evidence of PW 22 Rattan Singh. Secondly, the mere fact that his name was not given in the FIR, though of some relevance, would not be sufficient by itself to entail rejection of the testimony of this witness. We must realise that five persons had been killed and the informant Sadhu Ram must have been stunned and stupefied at the ghastly murders that took place in his presence and had picked up sufficient courage to run to the Police Station to lodge the FIR. It may be that in view of that agitated mental condition he may have omitted to mention the name of Rattan Singh. The mere fact that Rattan Singh s/o Siri, Ram is not mentioned in the FIR does not establish that Rattan Singh PW 22 could not have seen the occurrence. It is possible that both these persons may have witnessed the occurrence and the informant mentioned the name of one and not the other. Other comments were also made against Rattan Singh which have been considered by both the trial court and the High Court. Both the courts have held that the evidence of this witness inspires confidence.
Strong reliance was placed on the conduct of the witness in not reporting to the police officer immediately when he came to the spot. The witness was, according to the findings of the Sessions Judge and the High Court, an independent one and was not at all connected with the litigations between the appellants and the deceased. He, therefore, must have disclosed the version before the police only when he was asked to do so, because he had no interest in the matter at all. For these reasons, we do not see any reason to take a view different from the one taken by the Courts below regarding the credibility of this witness.
(Underline supplied)
92. The Supreme Court in the case of Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, reported in (2003) 9 SCC 322 has held as under :
597. Coming to the plea that the name of PW 3 does not appear in the first information report, it has to be noted that death took place, according to medical records, at about 4.45 a.m. and the first information report was lodged at about 5.15 a.m. In other words, the first information report was lodged almost immediately after the occurrence. As observed by this Court in Shri Bhagwan v. State of Rajasthan the mental condition of the person who has just seen a close relative, the bread earner lose his life cannot be lost sight of. The psychic trauma cannot be ignored. Merely because PW 3's name did not figure in the first information report, that is not a suspicious circumstance.
Evidence of PWs 1 and 3 has been analysed by both the trial court and the High Court minutely and found to be credible and cogent. Nothing infirm therein could be shown to weaken their acceptability and reliability. The trial court and the High Court were justified in placing reliance thereon.
93. The Supreme Court in the case of Dilip Premnarayan Tiwari v. State of Maharashtra, reported in (2010) 1 SCC 775 has held as under :
26. Though in his evidence Balan (PW 1) insisted that he had also told the names of Dilip (A-1), Manoj (A-3) and Sunil (A-
2), the names of Manoj and Sunil are not to be found in the FIR. Though there was a reference that Dilip (A-1) was accompanying three other associates, the witness was specific in asserting that from the spot of occurrence he did not go directly to the dispensary but went to the police station first.
27. The further significant thing about the FIR is that there is no reference to the death of Abhayraj who had also lost his life. It is slightly unusual that though this witness as per his admission knew Abhayraj, there is no reference to the name of Abhayraj in the FIR. Shri Gaurav Agrawal, learned counsel tried to take advantage of this and pointed out that the name of Manoj (A-3) was not to be found in the FIR and that advantage must go to Manoj on that account. It is also seen that the witness had also failed to speak about the body of Abhayraj. In our opinion, though the omission of names of Manoj and Sunil is significant, much importance cannot be given to this omission. The FIR was after all given by a person who had seen the body of his young son having been brutally murdered.
60He had also seen the dead body of his brother-in-law and had also come to know that the other three members of the family of Krishnan were also seriously injured in the incident. The witness is bound to be excited and some scope would have to be given to the mental state of the witness at that time. The significance of this omission will be considered when we individually consider the case of each accused. The trial court as well as the High Court have not attached much importance to this omission and rightly so.
94. This Court can imagine the mental condition of Hariom (P.W.2) the real brother of deceased Sughar Singh, who had not only witnessed the incident, but had also seen the dead body of his brother which was riddled with bullets, apart from the fact that two more persons including one driver of the Safari car and one innocent by-passer had also lost their lives and one person was seriously injured. Therefore, if Umesh (P.W.4) was not named by Hariom (P.W.2) in his police statement, Ex. D.6, then it cannot be said to be such a major omission, thereby giving an impression that Umesh (P.W.4) was a created witness. Who reached first on the spot, whether Umesh (P.W.4) or Hariom (P.W.2) ?
95. It is further submitted by the Counsel for the Respondent, that there is a major variance in the evidence of Hariom (P.W.2) and Umesh (P.W.4) with regard to the fact that who reached first on the spot.
96. The entire incident took place within 1 - 1 ½ minute. Thereafter, Umesh (P.W.4) and Hariom (P.W.2) reached on the spot within minutes. Whether Umesh (P.W.4) reached first or Hariom (P.W.2) was first in time would not make much difference, as there is absolutely no difference in timings.
97. It is well-settled principle of law that minor variations would not 61 give any dent to the prosecution case.
98. The Supreme Court in the case of Radhey Shyam Narendra v. State of Orissa, reported in (1980) 1 SCC 585 has held as under :
9. It may be noted that PW 3 had lodged the FIR with great promptitude at 11.00 a.m. within three hours of the occurrence in the police station which is 13 kilometres from the spot. In the FIR also, barring minor variations, he substantially gave the same story which he later narrated at the trial.
10. Mr Garg points out some omissions in the FIR. For instance, in the FIR he did not say that on receiving the information about the assault, he first went to his house and from there along with his younger brother Bijoy, ran to the spot.
These are minor variations which no way detract from the substratum of his story.........
99. The Supreme Court in the case of Sukhdev Yadav v. State of Bihar, reported in (2001) 8 SCC 86 has held as under :
12. The evidence on record does not, however, lend any credence to the submissions of Mr Tulsi. There may be some variations but there exists no major contradiction on record.
Modi's house and Rahar field are the two places which have been mentioned by the accused persons but the factum of being surrounded and the firing done at the instance of Appellant 1 stands uncontradicted. As noticed above, minor variations may be there but if on a perusal of the evidence in its entirety, it appears to be otherwise trustworthy, question of the evidence being non-trustworthy would not arise. As noticed above, the court can sift the chaff from the grain and find out the truth from the evidence itself. The evidence tendered lends credence to the prosecution case as regards the involvement of the appellant herein in the murder. It is in this context, the High Court observed:
"As they were deposing in court after more than five years of the occurrence, there might be some inconsistency ... but being minor in nature they have to be ignored. The evidence of eyewitnesses being consistent, we have no reason to disbelieve the 62 prosecution case."
100. Thus, the evidence of Umesh (P.W.4) and Hariom (P.W.2) cannot be rejected merely on the ground that there is a variance in their evidence as to whether Umesh (P.W.4) and Mukesh reached first or Hariom (P.W.2) reached on the spot prior to Umesh (P.W.4) and Mukesh. Whether Umesh (P.W.4) was in a position to witness the incident or not?
101. It is next contended by the Counsel for the respondent that this witness has stated that immediately after the firing started, he took shelter of Sheesham Tree, therefore, it is clear that it was not possible for him to witness the incident.
102. Considered the submissions made by the Counsel for the respondent.
103. According to Umesh (P.W.4) he took shelter of Sheesham Tree, after the firing started. Thus, it is clear that beginning of firing by the assailants was clearly seen by this witness. Thereafter, if he took shelter of a tree, then it would not mean, that his vision was completely blocked and was not in a position to see the remaining part of incident. The width of stem of a tree is not such, that it would completely block the vision of a witness. The stem of a tree would certainly act as a shield for the body of the witness, but the witness can always see the incident from the side of the tree, by keeping his body behind the tree. Thus, merely because the witness took shelter of the tree after the firing had started, therefore, it cannot be held that this witness was not in a position to witness the entire incident. Further more, he took shelter of the tree after the firing started. Thus, for the initial part of the incident, there was no obstruction 63 in front of this witness.
Related Witnesses
104. It is next contended by the Counsel for the respondent that Hariom (P.W.2) is the maternal uncle of Umesh (P.W.4), thus he is an interested witness.
105. Considered the submissions.
106. Relationship cannot be a ground to discard the evidence of a witness. There is a difference between "Related witness" and "Interested witness".
107. The Supreme Court in the case of State of U.P. v. Kishan Chand, reported in (2004) 7 SCC 629 has held as under :
9. The submission of the counsel for the accused that the testimony of PWs cannot be acted upon as they are interested witnesses is to be noted only to be rejected. By now, it is well-
settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence.....
108. So far as the related witness is concerned, it is suffice to mention that Relationship alone cannot be a ground to disbelieve a witness. There is a difference between a "Related witness" and "Interested witness".
109. The Supreme Court in the case of Harbeer Singh v. Sheeshpal, reported in (2016) 16 SCC 418 has held as under :
19. In Darya Singh v. State of Punjab, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said: (AIR p. 331, para 6) "6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the 64 murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. ... But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. ... If the criminal court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised."
20. However, we do not wish to emphasise that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly interested witnesses. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.
21. Further, in Raghubir Singh v. State of U.P., it has been held that: (SCC p. 84, para 10) "10. ... the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redundant multiplication of witnesses. ... In this connection general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when spirits on both sides are running high has to be borne in mind."
110. The Supreme Court in the case of Vijendra Singh v. State of U.P., 65 reported in (2017) 11 SCC 129 has held as under :
31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
111. The Supreme Court in the case of Raju v. State of T.N., reported in (2012) 12 SCC 701 has held as under :
20. The first contention relates to the credibility of PW 5 Srinivasan. It was said in this regard that he was a related witness being the elder brother of Veerappan and the son of Marudayi, both of whom were victims of the homicidal attack.
It was also said that he was an interested witness since Veerappan (and therefore PW 5 Srinivasan) had some enmity with the appellants. It was said that for both reasons, his testimony lacks credibility.
21. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki. It was held that: (SCC p. 754, para 7) "7. ... True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to 66 the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be 'interested'."
22. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, the view that a "natural witness" or "the only possible eyewitness" cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was "concerned in the success of the trap". The Constitution Bench held: (AIR p. 506, para 15) "15. ... The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person."
23. The wife of a deceased (as in Kalki), undoubtedly related to the victim, would be interested in seeing the accused person punished--in fact, she would be the most interested in seeing the accused person punished. It can hardly be said that she is not an interested witness. The view expressed in Kalki is too narrow and generalised and needs a rethink.
24. For the time being, we are concerned with four categories of witnesses--a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished 67 and also having some enmity with the accused. But, more than the categorisation of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.
25. In the present case, PW 5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinised with great care and caution.
26. In Dalip Singh v. State of Punjab this Court observed, without any generalisation, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused
--each case has to be considered on its own facts. This is what this Court had to say: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
27. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab. This 68 Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the "enemy" of the victim. This is what this Court said: (AIR p. 331, para 6) "6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. ... [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that 69 he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
28. More recently, in Waman v. State of Maharashtra this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, Balraje v. State of Maharashtra, Prahalad Patel v. State of M.P., Israr v. State of U.P., S. Sudershan Reddy v. State of A.P., State of U.P. v. Naresh, Jarnail Singh v. State of Punjab and Vishnu v. State of Rajasthan it was held: (Waman case, SCC p. 302, para 20) "20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care."
29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words: (Sarwan Singh case, SCC p. 376, para
10) "10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
112. The Supreme Court in the case of Jodhan v. State of M.P., 70 reported in (2015) 11 SCC 52 has held as under :
24. First, we shall deal with the credibility of related witnesses.
In Dalip Singh v. State of Punjab, it has been observed thus:
(AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan."
In the said case, it has also been further observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. In Hari Obula Reddy v. State of A.P., the Court has ruled that evidence of interested witnesses per se cannot be said to be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduce a passage from the said authority: (SCC pp. 683-84, para 13) "13. ... an invariable rule that interested evidence can never form the basis of conviction unless corroborated 71 to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
26. The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the court before relying upon his testimony should seek corroboration in regard to material particulars.
113. The Supreme Court in the case of Yogesh Singh v. Mahabeer Singh, reported in (2017) 11 SCC 195 has held as under :
24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v. State of Punjab is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh v. State of Punjab, this Court held: (SCC p. 455, para 4) 72 "4. ... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy v. State of A.P., a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13) "13. ... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai v. Jagdish Singh, the following observations were made by this Court: (SCC p. 501, para 7) "7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-
settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground 73 that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar, State of U.P. v. Jagdeo, Bhagaloo Lodh v. State of U.P., Dahari v. State of U.P., Raju v. State of T.N., Gangabhavani v. Rayapati Venkat Reddy and Jodhan v. State of M.P.)
114. 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.
115. 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.............
116. 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 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 74 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 a fallacy common to many criminal cases and one which another 75 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.
117. 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 76 direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and 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 77 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 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."
118. Thus, the evidence of Umesh (P.W.4) cannot be discarded merely on the ground that he is a related witness. However, his evidence is to be scrutinized minutely. This Court has already considered the evidence of this witness in detail and could not find anything which may make his evidence untrustworthy or unreliable. Therefore, Umesh (P.W.4) is a reliable witness.
Non-Examination of Independent Witnesses
119. It is next contended by the Counsel for the respondent that no independent witness was examined.
120. Considered the submissions made by the Counsel for the respondent.
121. The manner in which incident took place must have sent shock waves to the Society. The panic in the society can be inferred. When a situation is surcharged with tension then it cannot be expected from an independent witness to come forward and depose in the matter. The Supreme Court in the case of Mahesh v. State of Maharashtra, reported in (2008) 13 SCC 271 has held as under :
55. As regards non-examination of the independent witnesses who probably witnessed the occurrence on the roadside, suffice it to say that testimony of PW Sanjay, an eyewitness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses. The High Court has held in its 78 judgment and, in our view, rightly that the reasons given by the learned trial Judge for discarding and disbelieving the testimony of PWs 4, 5, 6 and 8 were wholly unreasonable, untenable and perverse. The occurrence of the incident, as noticed earlier, is not in serious dispute. PW Prakash Deshkar has also admitted that he had lodged complaint to the police about the incident on the basis of which FIR came to be registered and this witness has supported in his deposition the contents of the complaint to some extent. It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim, that fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny.
122. The Supreme Court in the case of Nagarjit Ahir v. State of Bihar, reported in (2005) 10 SCC 369 has held as under :
12. It was then submitted that in spite of the fact that a large number of persons had assembled at the bank of the river at the time of occurrence, the witnesses examined are only those who are members of the family of the deceased or in some manner connected with him. We cannot lose sight of the fact that four of such witnesses are injured witnesses and, therefore, in the absence of strong reasons, we cannot discard their testimony.
The fact that they are related to the deceased is the reason why they were attacked by the appellants. Moreover, in such situations though many people may have seen the occurrence, it may not be possible for the prosecution to examine each one of them. In fact, there is evidence on record to suggest that when the occurrence took place, people started running helter- skelter. In such a situation it would be indeed difficult to find out the other persons who had witnessed the occurrence. In any event, we have the evidence of as many as 7 witnesses, 4 of 79 them injured, whose evidence has been found to be reliable by the courts below, and we find no reason to take a different view.
123. The Supreme Court in the case of State of A.P. v. S. Rayappa, reported in (2006) 4 SCC 512 has held as under :
8. Regarding non-examination of an independent witness PW 9 K. Bhupal Singh, the investigating officer stated that on that day he went to the place of incident and inquired about the witness but none came forward to reveal about the case due to fear. He has also stated that due to double murder in the town in a single day there was terror in public and he imposed Section 144. In such a situation surcharged with tension and fear psychosis it is not expected of any witness to come and depose about the incident even though they may have seen.
Non-examination of independent witnesses, in such a situation, would be no ground to discard the otherwise creditworthy testimony of PW 1 and PW 2, which inspires confidence.
124. The Supreme Court in the case of Sadhu Saran Singh v. State of U.P., reported in (2016) 4 SCC 357 has held as under :
29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.
125. Thus, it is clear that non-examination of Independent witnesses cannot be said to be always fatal to the prosecution case and the facts and 80 circumstances of each and every case are to be considered. No universal rule can be laid down to the effect that in absence of independent witnesses, the evidence of related witnesses cannot be accepted. Non-recovery of weapon of offence
126. It is next contended by the Counsel for the respondent, that since, no weapon was seized from the possession of the respondent, therefore, it is clear that the prosecution has failed to connect an important link.
127. Considered the submissions made by the Counsel for the respondent.
128. The incident took place on 16-7-2006, whereas the Respondent was arrested on 11-4-2008, i.e., more than 22 months of incident. Under these circumstances, if the police could not recover the weapon of offence, then it cannot be said that there was any failure on the part of the investigating agency. Even otherwise, non-recovery of weapon of offence would not give any dent to the ocular and direct evidence. Further more, the recovery of a weapon is dependent on the mercy of the accused. If the accused has decided that he would not disclose or would not co-operate with investigating agency in recovery of weapon of offence, then he cannot take advantage of his own act.
129. The Supreme Court in the case of Rakesh Vs. State of U.P. reported in (2021) 7 SCC 188 has held as under :
12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing 81 can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non.........
130. The Supreme Court in the case of Gulab Vs. State of U.P. by order dated 9-12-2021 passed in Cr.A. No. 81/2021 has held as under :
17. The deceased had sustained a gun-shot injury with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution.....
131. The Supreme Court in the case of Krishna Gope v. State of Bihar, reported in (2003) 10 SCC 45 has held as under :
8. Learned counsel further pointed out that the country-made firearm alleged to have been used by the appellant was not recovered by the police and the same was not sent to the police station. The learned counsel submitted that the investigation was not properly done and that the appellant is entitled to the benefit of doubt. In our view, this plea is not tenable. The house of the appellant was searched immediately after the incident, but the police could not recover the weapon of offence from his house. It appears that the appellant had succeeded in concealing the weapon before the police could search his house. In our opinion, the fact of non-recovery of the weapon from the house of the appellant does not enure to his benefit.
132. Thus, non-recovery of weapon of offence would not make the direct ocular evidence vulnerable.
Whether investigation had started prior to registration of FIR?
133. It is further submitted by the Counsel for the respondent, that the investigation had started even prior to registration of FIR.
134. Considered the submissions made by the Counsel for the respondent.
135. According to the prosecution case, when the police reached on the spot, they found the ill fated Safari Car with multiple gun shot marks and 82 the deceased Jagdish was lying on the steering wheel, whereas the injured/dead Sughar Singh was also on the spot. One dead body was lying in front of a shop. The incident took place on a public place. Immediately after the incident, there must be helter-skelter. It was necessary for the police to protect the scene of crime. Therefore, if the articles lying on the spot were seized in order to avoid destruction of evidence, and a spot map was prepared, before lodging of Dehati Nalishi, Ex. P.1C, then it cannot be said that the investigation had already started much prior to registration of FIR. The two proceedings i.e., seizure of incriminating articles from the spot and preparation of spot map, would not vitiate the entire investigation. Further the police had reached to the spot only after getting a telephonic information which was recorded in the Rojnamcha Sanha. It is true that the telephonic information received by the police was a cryptic one and cannot be treated as FIR, but in view of the telephonic information received by the police about the information, it cannot be said that there was no information at all to the police about the incident. Further more, when an information was already received with regard to firing, then on the basis of that anonymous complaint, the police can always conduct a preliminary enquiry. Thus, the preparation of spot map, Ex.P.20, and seizure of incriminating articles from the spot, vide seizure memos Ex. P.4C, P.5C and P.6C cannot be said to bad in law.
136. The Supreme Court in the case of Sambhu Das @ Bijoy Das and another Vs. State of Assam reported in AIR 2010 SC 3300 has held as under :
20. Section 157 of the Code says that if, from the information received or otherwise an officer in charge of a police station 83 has reason to suspect the commission of an offence which he is empowered to investigate, he shall forthwith send a report of the same to the Magistrate concerned and proceed in person to the spot to investigate the facts and circumstances of the case, if he does not send a report to the Magistrate, that does not mean that his proceedings to the spot, is not for investigation.
In order to bring such proceedings within the ambit of investigation, it is not necessary that a formal registration of the case should have been made before proceeding to the spot. It is enough that he has some information to afford him reason even to suspect the commission of a cognizable offence. Any step taken by him pursuant to such information, towards detection etc., of the said offence, would be part of investigation under the Code.
21. In Maha Singh v. State (Delhi Administration), [(1976) 1 SCC 644] : (AIR 1976 SC 449), this court considered a case in which police officer arranged a raid after recording a complaint, but before sending it for registration of the case. It was held in that case that "the moment the Inspector had recorded a complaint with a view to take action to track the offender, whose name was not even known at that stage, and proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into investigation under the Code.
22. In State of U.P. v. Bhagwant Kishore, [AIR 1964 SC 221], this court stated that "Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation."
23. The principles now well settled is that when information regarding a cognizable offence is furnished to the police that information will be regarded as the FIR and all enquiries held by the police subsequent thereto would be treated as investigation, even though the formal registration of the FIR takes place only later.
137. No other argument was advanced by the Counsel for the parties.
138. Considering the totality of the facts and circumstances of the case, 84 this Court is of the considered opinion, that Umesh (P.W.4) is a reliable witness. Yuvraj (P.W.7) is an injured witness, however, he has turned hostile on the question of identity, but he has proved the manner in which the incident took place, therefore, to that extent, his evidence can be relied upon. So far as Hariom (P.W.2) is concerned, although, he is also an eye-witness, but he could not identify the Respondent Dinesh Yadav on the spot, but he was lateron informed by Umesh (P.W.4). Therefore, he is a hearsay witness with regard to Respondent Dinesh Yadav, but since, Umesh (P.W.4) is a reliable witness, therefore, the evidence of Hariom (P.W.2) would corroborate the evidence of Umesh (P.W4).
139. The Trial Court has disbelieved the reliable evidence on flimsy grounds and thus committed a material illegality by recording acquittal of the Respondent Dinesh Yadav. Accordingly, the acquittal of Respondent Dinesh Singh Yadav is hereby set aside.
140. The respondent Dinesh Singh Yadav is held guilty of committing murders of Sughar Singh, Jagdish and Sintu. It is also held that the Respondent, Dinesh Singh Yadav was also the member of Unlawful Assembly and is guilty of rioting with deadly weapon. Thus, he is held guilty of offence under Section 302/149 (On three Counts), 147 and 148 of IPC. So far as offence under Section 307 of IPC is concerned, since, the prosecution has not proved the injuries sustained by Yuvraj (P.W.7), therefore, the acquittal of respondent Dinesh Yadav for offence under Section 307 of IPC is hereby affirmed.
140. The case is deferred for hearing on the question of sentence.
(G.S. AHLUWALIA) (RAJEEV KUMAR SHRIVASTAVA)
JUDGE JUDGE
85
Later on :
141. Heard the Counsel for the Appellant/State Counsel as well as Counsel for complainant and Counsel for the Respondent Dinesh Singh Yadav on the question of sentence.
142. It is submitted by the Counsel for the State that the manner in which the offence was committed which resulted in death of three persons, had sent a shock wave in the society, and therefore, the respondent should be awarded death sentence, but fairly conceded that the similarly situated 6 co-accused persons were awarded Life Sentence by the Trial Court, and no appeal for enhancement of their sentence was filed. Further more, the Counsel for the State also could not point out that how the role played by the respondent Dinesh Singh Yadav was distinguishable from the case of Rustam Singh, Balli @ Balveer Singh, Cheeku @ Sohan Singh, Mohar Singh and Kaptan Singh who were awarded Life Sentence by the Trial Court.
143. Since, the Counsel for the State could not point out that how the case in hand would fall within the category of rarest of rare and further in absence of any distinction in the role played by the respondent Dinesh Singh Yadav and other convicted accused persons, the following sentence is awarded to the respondent Dinesh Singh Yadav :
Conviction under Section Sentence 302/149 of IPC on three counts Life Imprisonment and fine of Rs. 15,000/- in default 1 year R.I. (3 counts) 147/148 of IPC No separate sentence for offence under Section 147 IPC as it is lessor offence 86 1 year R.I. for offence under Section 148 IPC All the sentences shall run concurrently.
144. The Respondent Dinesh Singh Yadav is on bail. His bail bonds are hereby cancelled. He is directed to immediately surrender before the Trial Court for undergoing remaining jail sentence.
145. Let a copy of this judgment be provided to the Respondent Dinesh Singh Yadav free of cost.
146. Let the record of the Trial Court be sent back immediately along with a copy of this judgment for necessary information and compliance.
147. Cr.A. No. 912/2011 (Hariom Vs. State of M.P. and another) and Cr.A. No. 181/2012 (State of M.P. Vs. Dinesh Singh Yadav) are hereby Allowed.
(G.S. AHLUWALIA) (RAJEEV KUMAR SHRIVASTAVA)
JUDGE JUDGE
ARUN KUMAR MISHRA
2022.10.31 19:16:51 +05'30'