2025 INSC 47 R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 116 OF 2011

GOVERDHAN & ANR. ...APPELLANT(S)

VERSUS

STATE OF CHHATTISGARH …RESPONDENT(S)

J U D G M E N T

NONGMEIKAPAM KOTISWAR SINGH, J.

1.The present appeal has been preferred against judgement and

order dated 30.11.2009 passed by the Division Bench of the High

Court of Chhattisgarh at Bilaspur in the Criminal Appeal No.

290/2002 whereby the High Court upheld the conviction and sentence

imposed upon the present two appellants under Section 302 read with

Section 34 of the Indian Penal Code (hereinafter referred as ‘IPC’)

while setting aside the conviction of the third accused and thus,

acquitting him.

2.As the two appellants are seeking reversal of the concurrent

findings by two courts, the Sessions Court and the High Court, this

Court has to tread very cautiously as observed by this Court on

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numerous occasions including in Mekala Sivaiah v. State of Andhra

Pradesh, (2022) 8 SCC 253 wherein it has been held that unless the

findings are perverse and rendered in ignorance of material evidence,

this Court should be slow in interfering with concurring findings. Thus

it was, observed in Mekala Sivaiah (supra) as follows:

“15. It is well settled by judicial pronouncement that Article

136 is worded in wide terms and powers conferred under the

said Article are not hedged by any technical hurdles. This

overriding and exceptional power is, however, to be exercised

sparingly and only in furtherance of cause of justice. Thus,

when the judgment under appeal has resulted in grave

miscarriage of justice by some misapprehension or misreading

of evidence or by ignoring material evidence then this Court is

not only empowered but is well expected to interfere to promote

the cause of justice.

16. It is not the practice of this Court to re-appreciate the

evidence for the purpose of examining whether the findings of

fact concurrently arrived at by the trial court and the High

Court are correct or not. It is only in rare and exceptional cases

where there is some manifest illegality or grave and serious

miscarriage of justice on account of misreading or ignoring

material evidence, that this Court would interfere with such

finding of fact.”

In the above case, this Court, while dealing with a criminal

appeal against an order of the High Court of Judicature of Andhra

Pradesh upheld the conviction of the accused by the Sessions Court,

and declined to interfere with the conviction.

3. Keeping the aforesaid principle in mind, this Court would

proceed to decide the appeal at hand to examine whether there is some

manifest error or illegality and if any grave and serious miscarriage of

justice on account of misreading or ignoring material evidence has

occurred in the present case. This invariably would require a proper

examination of the facts and context of the case, for which we must

revisit the background facts of the case and evidence adduced.

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4. It may be noted that since the State has not preferred any appeal

against the acquittal of the third accused, Chintaram, the father of the

two appellants, we may not burden ourselves in detail with the

evidence relating to the initial conviction and the subsequent acquittal

of the third accused Chintaram except those as may have ramifications

for the present two appellants.

5. The case of the prosecution in brief is that on 23.09.2001, at

about 7.00 am, the complainant, Santosh Kumar Mandle (PW-6), who

was employed by the parents of the deceased, namely Shatrughan

Sharma (PW5) and Lata Bai (PW-10), while washing utensils at the

house of the deceased Suraj, heard a cry for help from Suraj. Upon

hearing, he came out of the house and saw the three accused

Goverdhan, Rajendra and Chintaram assaulting Suraj with an axe

(tangiya) and iron pipe. Chintaram was also hitting the deceased with

fists and kicks and urging his two sons, Goverdhan and Rajendra, the

present appellants to kill Suraj. Santosh (PW-6) immediately informed

Shatrughan Sharma (PW-5) and Smt. Lata Bai (PW-10) about the

incident. Santosh also mentioned about the altercation between

Chintaram and Suraj the previous night about ganja.

6. Soon, thereafter, an FIR was lodged by Santosh which was

registered u/s 307 IPC vide Ex. P/12 at around 7.30 am on the same

day i.e. 23.09.2001.

7. The injured Suraj was immediately rushed to the local

hospital and was examined by the doctor, Dr. G.R. Agarwal (PW-1)

who found as many as nine injuries on the deceased, which were as

follows :

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i) One contusion of 6 cm x 5 cm with active bleeding, and

fracture of under beneath bone over right temporal region.

ii) One incised wound of ½ cm x ½ cm x screen deep just above

right ear.

iii) One incised wound over occipital region of 5 cm x 1 cm x

skin deep.

iv) One incised wound over frontal region of 4 cm x 1 cm x skin

deep.

v) One incised wound of 4 cm x 1 cm x skin deep 10 cm from

injury No.3.

vi) One lacerated wound over right hand of 7 cm x 3 cm x skin

deep.

vii) One incised wound over left hand of 2 cm x ½ cm x skin

deep.

viii) One lacerated wound over right hand of 3 cm x 2 cm x skin

deep.

ix) One lacerated wound over right elbow of 3 cm x 2 cm x skin

Deep. Active bleeding was present over the injury.

In view of the seriousness of the injuries, the victim was

referred to the Medical College Hospital, Raipur and thereafter, shifted

to MMI Hospital where he succumbed to his injuries on 25.09.2001 at

about 9.22 pm. The cause of death was mentioned as coma as a result

of injuries received and death was opined to be homicidal in nature.

Subsequently, charge under Section 302 IPC was added to the FIR.

Necessary investigation was carried out by the Investigating Officer.

8. Based on the disclosure statement made by Goverdhan,

Appellant No. 1 on the same day on 23.9.2001, two blood-stained axes

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were recovered at his instance from his father's room vide Ex.P/6.

Appellant No. 2 Rajendra also made a disclosure statement on

23.9.2001 at about 3.45 p.m. relating to iron pipe vide Ex.P/4, and the

same was recovered from his father's room vide Ex.P/5. Blood-stained

soil and plain soil were recovered from the place of incident vide

Ex.P/7. Blood-stained clothes were seized from Shatrughan Sharma

(PW-5) vide Ex.P/10. Spot map was prepared by the Patwari (PW-8)

vide Ex.P/16 as witnessed by Santosh (PW-6), Kanhaiya (PW-11) and

Shailu (PW-2). Goverdhan and Rajendra were arrested on 23.9.2001

vide Exs. P/23 and P/24. Seized articles were examined by Dr. G.R.

Agrawal (PW-1) vide Ex.P/2. The seized articles were sent for medical

analysis. The presence of blood over two axes recovered at the

instance of Goverdhan and iron pipe recovered at the instance of

Rajendra, was confirmed vide Ex.P/30. The Investigating Officer (IO)

recorded the statements of the witnesses under Section 161 CrPC.

9. To prove the guilt of the accused, the Prosecution examined as

many as 15 witnesses. Statements of the accused were also recorded

under Section 313 of the Code, where they denied the circumstances

appearing against them and claimed innocence by pleading false

implication in the crime in question. The accused had also produced

two defence witnesses, Ramlal Yadav (DW-1) and Lakhan Lal Sahu

(DW-2) to prove that the police pressurised the mother of the deceased

Suraj, Lata Bai (PW-10) to give evidence against the accused persons.

10. The Court of the Second Additional Sessions Judge, Raipur, on

appreciation of the evidence before it and after hearing the parties,

convicted all the three accused persons under Section 302 read with

Section 34 of the IPC, and sentenced them to undergo rigorous

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imprisonment for life along with a fine of 10,000, and in default of

₹

payment of such fine, each accused was directed to undergo additional

rigorous imprisonment for 3 years in terms of the judgment dated

06.03.2002.

11. In the statutory appeal preferred by the three accused persons,

the High Court affirmed the conviction of the present two appellants

while acquitting the third accused, Chintaram, by the impugned

judgment dated 30.11.2009.

12.Before the High Court, the appellants had taken various pleas,

including that the convictions were not based on cogent evidence, the

sole eye witness account of Lata Bai (PW-10) was uncorroborated and

wholly unreliable as her initial statement under Section 161 CrPC, was

recorded belatedly after 5 days of the incident and that all the

remaining non-official witnesses had turned hostile, including the

Complainant (PW-10) and the father of the deceased (PW-5) who were

cited to be eye-witnesses by the Prosecution, and seizure witnesses.

13.On the other hand, it was contended on behalf of the

Prosecution before the High Court that there was no reason to

disbelieve the testimony of the mother of the deceased, Lata Bai (PW-

10) merely because her statement was recorded belatedly as her name

finds place in the FIR filed by Santosh (PW-6) which was filed within

half an hour of the incident and the filing of the FIR was proved by the

evidence of the hostile witness Santosh (PW-6), and there were other

corroborating evidence. The Prosecution also relied on the decision of

this Court in State of U.P. v. Satish, (2005) 3 SCC 114 in submitting

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that mere delay in examination of witnesses would not be fatal if

plausible and acceptable explanations are offered.

14. The High Court, after a detailed analysis of the evidence on

record, repelled the contentions of the appellants and convicted them

while acquitting Accused No. 3, their father, Chintaram, giving him

benefit of doubt about his participation in the crime.

15.Thus, the two appellants before us are impugning the judgment

passed by the High Court upholding their conviction.

16.The pleas of the appellants before us summarized as below:

(i) Since the third accused namely Chintaram, who is the father of

the two appellants had been acquitted by the High Court on the

same set of evidence on which the two appellants had been

convicted, the two appellants should have also been acquitted

on the ground of parity since there is no material difference in

the nature and quality of evidence qua all the three accused.

(ii) That otherwise also, conviction could not have been sustained

on the basis of the uncorroborated testimony of a sole eye

witness, who is also an interested witness namely, Lata Bai

(PW10), the mother of the deceased.

(iii) The Sessions Court had convicted the appellants primarily on

the testimony of the Lata Bai (PW-10), the alleged eyewitness,

though she could not have been an eye witness, as Santosh (PW-

6), in his FIR mentioned that he informed about the incident to

the mother and father of Suraj, which shows that Lata Bai (PW-

10) only after being informed of the incident after the incident

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had occurred, came to know of the incident and hence, could not

have seen the incident.

(iv) Further, the statement of Lata Bai (PW-10) was recorded after

5 days of the incident and the Prosecution has not explained the

delay in recording her statement under Section 161 of the Code

and in absence of a proper explanation, her statement is not

reliable in connection with which the defence relied upon on the

decision of this Court in State of Orissa v. Brahmananda

Nanda, (1976) 4 SCC 288 wherein this Court held that failure

to mention the names of the accused for one and half days is

fatal.

(v) It was also contended that according to the Prosecution, the

mother (PW-10) and father (PW-5) of the deceased were present

but they made no attempt to intervene or try to rescue the victim

which shows that, they did not witness the incident and hence

the statement of Lata Bai is highly doubtful. In this regard, the

defence had cited the decision of this Court in State of Punjab

v. Sucha Singh, (2003) 3 SCC 153 wherein, it was observed by

this Court that any father, worth the name, who was claiming to

be present at the place of incident would not remain a mute

spectator when his son is being inflicted as many as twenty-four

injuries under his very nose.

(vi) It was also contended that there have been improvements, and

embellishments in the testimony of Lata Bai (PW-10), thus

rendering her evidence unreliable and not credible.

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(vii) The appellants also have contended that almost all the non-

official prosecution witnesses, except the mother, had turned

hostile and had not supported the prosecution case including the

informant Santosh (PW-6) and seizure witnesses, PW-2 and

PW-12.

17. On the other hand, before us also, it has been contended on

behalf of the Prosecution that as far as the two appellants are

concerned, it can be said that the conclusion drawn by the Trial Court

as well as the High Court is based on admissible and relevant evidence

and as such their conviction cannot be said to be suffering from any

illegality, and since there is no perversity in the finding arrived at by

the two courts below, this Court ought not interfere with the judgment

of the High Court.

ANALYSIS BY THIS COURT

18. In case of a crime committed, upon completion of investigation

by the investigation agency, the accused are brought before the court

to face trial. Under our criminal jurisprudence, the court ordinarily is

not privy to the evidence collected during the investigation by the

investigation agency. After completion of the investigation, what is

brought before the trial court is an array of evidence, both

documentary and oral, collected by the investigating agency against

the accused which are required to be marshalled and analyzed by the

court to arrive at appropriate conclusions. The prosecution seeks to

recreate the incident of crime before the court in sequence, based on

the evidence so collected, linking the accused with the commission of

crime. Such recreation of crime by the prosecution before the court is

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akin to putting the evidence together as in a jigsaw puzzle whereby all

the relevant pieces of evidence are put together to complete the picture

of the crime. The prime responsibility of the court is to see whether

this jigsaw puzzle has been properly placed by the prosecution from

which a clear picture emerges as to the happening of the incident with

the assigned role of the accused as part of the aforesaid jigsaw puzzle.

Only, thereafter, the role of the accused in perpetrating the offence can

be properly ascribed and proved and accordingly, criminal liability

fastened on the accused.

19.As per Section 3 of the Indian Evidence Act, 1872, a fact can be

said to have been proved when, after considering the matters before it,

the court either believes it to exist or considers its existence so

probable that a prudent man ought, under the circumstances of the

particular case, to act up on the supposition that it exists. The court

undertakes this exercise of examining whether the facts alleged

including the particular criminal acts attributed to the accused are

proved or not.

20. It is also to be noted that the law does not contemplate stitching

the pieces of evidence in a watertight manner, for the standard of proof

in a criminal case is not proof beyond all doubts but only beyond

reasonable doubt. In other words, if a clear picture emerges on piecing

together all evidence which indicates beyond reasonable doubt of the

role played by the accused in the perpetration of the crime, the court

holds the accused criminally liable and punishes them under the

provisions of the penal code, in contradistinction to the requirement of

proof based on the preponderance of probabilities as in case of civil

proceedings.

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21. It will be relevant to discuss, at this juncture, what is meant by

“reasonable doubt”. It means that such doubt must be free from

suppositional speculation. It must not be the result of minute

emotional detailing, and the doubt must be actual and substantial and

not merely vague apprehension. A reasonable doubt is not an

imaginary, trivial or a merely possible doubt, but a fair doubt based

upon reason and common sense as observed in Ramakant Rai v.

Madan Rai, (2003) 12 SCC 395 wherein it was observed as under :

“24. Doubts would be called reasonable if they are free from a

zest for abstract speculation. Law cannot afford any favourite

other than the truth. To constitute reasonable doubt, it must be free

from an overly emotional response. Doubts must be actual and

substantial doubts as to the guilt of the accused persons arising

from the evidence, or from the lack of it, as opposed to mere vague

apprehensions. A reasonable doubt is not an imaginary, trivial or

a merely possible doubt; but a fair doubt based upon reason and

common sense. It must grow out of the evidence in the case.”

22.While applying this principle of proof beyond reasonable doubt

the Court has to undertake a candid consideration of all the evidence

in a fair and reasonable manner as observed by this Court in State of

Haryana v. Bhagirath (1999) 5 SCC 96 as follows:

“8. It is nearly impossible in any criminal trial to prove all the

elements with a scientific precision. A criminal court could be

convinced of the guilt only beyond the range of a reasonable

doubt. Of course, the expression ‘reasonable doubt’ is incapable of

definition. Modern thinking is in favour of the view that proof

beyond a reasonable doubt is the same as proof which affords

moral certainty to the Judge.

9. Francis Wharton, a celebrated writer on criminal law in the

United States has quoted from judicial pronouncements in his book

Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as

follows:

‘It is difficult to define the phrase “reasonable doubt”. However,

in all criminal cases a careful explanation of the term ought to be

given. A definition often quoted or followed is that given by Chief

Justice Shaw in the Webster case [Commonwealth v. Webster, 5

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Cush 295 : 59 Mass 295 (1850)] . He says:“It is not mere possible

doubt, because everything relating to human affairs and

depending upon moral evidence is open to some possible or

imaginary doubt. It is that state of the case which, after the entire

comparison and consideration of all the evidence, leaves the

minds of the jurors in that consideration that they cannot say they

feel an abiding conviction to a moral certainty of the truth of the

charge.”’

10. In the treatise The Law of Criminal Evidence authored by H.C.

Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:

‘The doubt to be reasonable must be such a one as an honest,

sensible and fair-minded man might, with reason, entertain

consistent with a conscientious desire to ascertain the truth. An

honestly entertained doubt of guilt is a reasonable doubt. A vague

conjecture or an inference of the possibility of the innocence of the

accused is not a reasonable doubt. A reasonable doubt is one

which arises from a consideration of all the evidence in a fair and

reasonable way. There must be a candid consideration of all the

evidence and if, after this candid consideration is had by the

jurors, there remains in the minds a conviction of the guilt of the

accused, then there is no room for a reasonable doubt.’

23.The concept of reasonable doubt has to be also understood in

the Indian context, keeping in mind the social reality and this principle

cannot be stretched beyond a reasonable limit to avoid generating a

cynical view of law as observed by this Court in Shivaji Sahebrao

Bobade v. State of Maharashtra, (1973) 2 SCC 793 as follows:

“6. Even at this stage we may remind ourselves of a necessary

social perspective in criminal cases which suffers from insufficient

forensic appreciation. The dangers of exaggerated devotion to the

rule of benefit of doubt at the expense of social defence and to the

soothing sentiment that all acquittals are always good regardless

of justice to the victim and the community, demand especial

emphasis in the contemporary context of escalating crime and

escape. The judicial instrument has a public accountability. The

cherished principles or golden thread of proof beyond reasonable

doubt which runs through the web of our law should not be

stretched morbidly to embrace every hunch, hesitancy and degree

of doubt. The excessive solicitude reflected in the attitude that a

thousand guilty men may go but one innocent martyr shall not

suffer is a false dilemma. Only reasonable doubts belong to the

accused. Otherwise any practical system of justice will then break

down and lose credibility with the community. The evil of

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acquitting a guilty person light heartedly as a learned Author

[ Glanville Williams in ‘Proof of Guilt’.] has sapiently observed,

goes much beyond the simple fact that just one guilty person has

gone unpunished. If unmerited acquittals become general, they

tend to lead to a cynical disregard of the law, and this in turn leads

to a public demand for harsher legal presumptions against

indicted “persons” and more severe punishment of those who are

found guilty. Thus, too frequent acquittals of the guilty may lead to

a ferocious penal law, eventually eroding the judicial protection of

the guiltless. For all these reasons it is true to say, with Viscount

Simon, that “a miscarriage of justice may arise from the acquittal

of the guilty no less than from the conviction of the innocent .…”

In short, our jurisprudential enthusiasm for presumed innocence

must be moderated by the pragmatic need to make criminal justice

potent and realistic. A balance has to be struck between chasing

chance possibilities as good enough to set the delinquent free and

chopping the logic of preponderant probability to punish marginal

innocents. We have adopted these cautions in analysing the

evidence and appraising the soundness of the contrary conclusions

reached by the courts below. Certainly, in the last analysis

reasonable doubts must operate to the advantage of the appellant.

In India the law has been laid down on these lines long ago.”

24.Further, what would be the standard degree of “proof” which

would be required in any particular case was also discussed in the

aforesaid case of Ramakant Rai (supra) in the following words:

“23. A person has, no doubt, a profound right not to be convicted

of an offence which is not established by the evidential standard of

proof beyond reasonable doubt. Though this standard is a higher

standard, there is, however, no absolute standard. What degree of

probability amounts to “proof” is an exercise particular to each

case. Referring to (sic) of probability amounts to “proof” is an

exercise, the interdependence of evidence and the confirmation of

one piece of evidence by another, as learned author says : [see The

Mathematics of Proof II : Glanville Williams, Criminal Law

Review, 1979, by Sweet and Maxwell, p. 340 (342)]

“The simple multiplication rule does not apply if the

separate pieces of evidence are dependent. Two events are

dependent when they tend to occur together, and the

evidence of such events may also be said to be dependent.

In a criminal case, different pieces of evidence directed to

establishing that the defendant did the prohibited act with

the specified state of mind are generally dependent. A

juror may feel doubt whether to credit an alleged

confession, and doubt whether to infer guilt from the fact

that the defendant fled from justice. But since it is

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generally guilty rather than innocent people who make

confessions, and guilty rather than innocent people who

run away, the two doubts are not to be multiplied

together. The one piece of evidence may confirm the

other.”

24. ………………..

………………..

25. The concepts of probability, and the degrees of it, cannot

obviously be expressed in terms of units to be mathematically

enumerated as to how many of such units constitute proof beyond

reasonable doubt. There is an unmistakable subjective element in

the evaluation of the degrees of probability and the quantum of

proof. Forensic probability must, in the last analysis, rest on a

robust common sense and, ultimately, on the trained intuitions of

the judge. While the protection given by the criminal process to the

accused persons is not to be eroded, at the same time, uninformed

legitimisation of trivialities would make a mockery of the

administration of criminal justice. This position was illuminatingly

stated by Venkatachaliah, J. (as His Lordship then was) in State of

U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928 :

AIR 1988 SC 2154] .”

25. At this point, it may be also relevant to mention an observation

made by Lord Denning, J. in Miller v. Miller of Pensions (1947) 2 All

ER 372, 373 H:

“That degree is well settled. It need not reach certainty, but it must

carry a high degree of probability. Proof beyond reasonable doubt

does not mean proof beyond the shadow of a doubt. The law would

fail to protect the community if it admitted fanciful possibilities to

deflect the court of justice….”

26. Thus, the requirement of law in criminal trials is not to prove

the case beyond all doubt but beyond reasonable doubt and such doubt

cannot be imaginary, fanciful, trivial or merely a possible doubt but a

fair doubt based on reason and common sense. Hence, in the present

case, if the allegations against the appellants are held proved beyond

reasonable doubt, certainly conviction cannot be said to be illegal.

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27. In the present case, as far as the death of the deceased is

concerned, there is no dispute about the same. The appellants have not

contested the case of the Prosecution that the deceased died on

account of grievous injuries caused by sharp weapons. Their plea is

that of ignorance of the death and also alibi, that they were in another

village. As such, it may be unnecessary for us to go into detail as

regards the nature of injuries received by the deceased which has been

already described in the earlier part of the judgment and the cause of

the injury, except for corroboration of the evidence of the sole eye

witness.

28. Since the appellants have contended that the non-official

prosecution witnesses, except for one, have not supported the

prosecution case, it would be necessary for us to revisit the evidence

and testimonies of the prosecution witnesses and to see whether

appreciation of the same by the Trial Court and the High Court suffers

from any material illegality.

29.For this, it may be appropriate to commence our analysis of the

evidence of the complaint filed by Santosh (PW-6) which triggered the

criminal process and his testimony in the court in which he resiled

from his previous incriminating statement made against the appellants

under Section 161 CrPC as well as the FIR.

30.Though the FIR is not a piece of substantive evidence,

especially, when the Complainant, i.e., PW-6 did not fully support the

contents of the FIR, yet, it cannot be totally ignored and is to be

treated as a relevant circumstance if the same is proved by other

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prosecution witness, in this case by PW-14, the SHO who recorded the

report in the form of FIR as stated to him by the complainant.

In this regard, we may profitably refer to the decision of this

Court in Bable v. State of Chhattisgarh, (2012) 11 SCC 181 wherein

it was observed as follows:

“14. Once registration of the FIR is proved by the police and the

same is accepted on record by the court and the prosecution

establishes its case beyond reasonable doubt by other admissible,

cogent and relevant evidence, it will be impermissible for the

Court to ignore the evidentiary value of the FIR. The FIR, Ext. P-

1, has duly been proved by the statement of PW 10, Sub-Inspector,

Suresh Bhagat. According to him, he had registered the FIR upon

the statement of PW 1 and it was duly signed by him. The FIR was

registered and duly formed part of the records of the police station

which were maintained in the normal course of its business and

investigation. Thus, in any case, it is a settled proposition of law

that the FIR by itself is not a substantive piece of evidence but it

certainly is a relevant circumstance of the evidence produced by

the investigating agency. Merely because PW 1 had turned hostile,

it cannot be said that the FIR would lose all its relevancy and

cannot be looked into for any purpose.”

31. In the present case, PW-14, Ram Krishna Dubey who was the

SHO of the Police Station, Newra at the relevant time testified that on

23.09.2001 he registered the FIR No. 125 of 2001 under Section 307

IPC against the three accused persons at 7:30 am on oral information

of the informant Santosh Mandley (PW-6), and proved the FIR (Ex-

P/12) and his signature and the signature of the informant PW-6 which

was marked as ‘A’ to ‘A’ on Ex P/12. Therefore, we have no reason to

doubt the filing of the FIR which stands proved by the evidence of

PW-14, the SHO.

32.It is to be noted that the informant PW-6 in his testimony did

not deny the filing of the FIR, though denied having mentioned the

names of the accused in the FIR during his testimony. Under the

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circumstances, it must be considered as to how far his denial can be

believed contrary to his complaint and his previous statement made

under Section 161 CrPC.

33. For better appreciation, the relevant portions of the FIR

registered based on the statement of Santosh, PW-6 are reproduced

below:

“I am residing near to the house of Shatrughna Sharma at

Shikshak Colony and work as a dishwasher in their house. It is

about an incident that has occurred on 23.9.01 at about 7 A.M. As

usual, when I was clearing and washing the household utensils,

from outside the house I could hear the shouts "Rescue me, Rescue

me" and on alerted as such, I came out of the house from my work

spot and saw that Suraj was being assaulted by Govardhan,

Rajendra and their father Chintaram Sahu by using Pipe, Tangia

etc. due to which Suraj's body was drenched in blood. Govardhan

hit with Tangia whereas Rajendra hit Suraj's with pipe and

Chintaram Sahu was kicking and giving first blows to Suraj and

were instigating the other assaulters to beat Suraj to death by·

abusing him meanwhile by calling the victim as "harlot's son".

Immediately I informed Suraj's parents about the said incident by

alerting them. Guru, Bhau's mother, and neighbouring residents

have also witnessed the said incident. At 11 P.M. on the previous

night, Suraj visited the house of Chintaram Sahu for asking him

some Ganja Seeds where they had a quarrel there too when

Chintaram has asked him why he visited his house for procuring

Ganja. In the attack upon· Suraj that has occurred in the morning

Suraj suffered serious injuries on head, both his hands, on the eyes

which bleed too, thereby Suraj has become unconscious after

which I am reporting this matter to you and request you to take

necessary proceeding further.”

34.From the aforesaid Complaint/FIR, it can be inferred that the

informant who was examined by the prosecution as PW-6 would be an

eyewitness. However, during the trial, he resiled from his narration

and turned hostile by not mentioning the names of any of the three

accused in his testimony though he had specified them as the

assailants in the FIR.

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35. Since PW-6, who was declared hostile is vital to understanding

of the real picture that unfolded before the trial court, it may be

appropriate to reproduce the relevant portions of the same as per

records as follows:

“ 1. I know all the three members of the accused party present

before me in this Court. Of them, one person's name is known to

me as Chintaram and the other two are his sons, but I don't know

their names .. I am not literate. I am staying in the house of

Shatrughna Sharma _since past 2 -.2.5 years. I know Suraj, he is

1 - 2 years elder to me. It's about an incident that occurred before

about three months back. It was about 7 A.M. on that day. I was

engaged in dish washing at that time. In that particular house

where I was washing the dishes at the relevant house of which the

residents are 'papa' Shatrughna Sharma, 'mummy' Lata

Sharma,'sister' Anju Sharma. When I was thus engaged in washing

dishes of the said hold, these residents of the said house were

sleeping. It that time, suddenly I heard the shouts "Rescue me,

Rescue me", I thought that Suraj is calling from outside and went

outside, but could not see anybody present there, but Suraj was

only lying on the ground flat. Then I went near him and saw that

he was lying there unconscious. His temple and back portion of the

head had injuries and blood was even scattered on the ground.

2. It is correct to say that I have reported the matter in the Police

Station and got it recorded in writing there. The report got dictated

by me is marked Ex. P-12. On the said report my signature is 'A to

A'. The incident narrated to the police was told to them as seen by

me. The police too recorded my statement. Although I am not a

literate, but I know to write my signature. Whatever I knew, I have

informed the same to the police.”

(emphasis

added)

Because of the aforesaid discrepant testimony before the trial

court where he omitted to mention the presence of any of the

accused/appellants as the assailants, PW-6 was declared hostile by the

Prosecution.

Page 18 of 62

36. We will also reproduce the remaining part of the testimony of

PW-6 in the course of the cross-examination as recorded which will

indicate the nature of his evidence which are as follows:

“In the 'B to B' part of my police report Ex. P-12 I have not told

them "I came out and saw .......... Killed him". I have also dictated

the police in my said report that the said incidence has also been

witnessed by Bhuru Bai's mother and neighborhood residents. In

my Police Station I have not said that in the night at 11 o'clock

Suraj went to the house of Chintaram to ask for ganja seeds

regarding which Chintaram came to the house of Suraj and

indulged in a brawl with him. But if in Ex. P-12, if it has not been

mentioned the 'C to C' portion - "In the night, Suraj ........... why

went to ask Ganja" has not been said to the police, but I do not

know the reason for the police mentioning as such in Ex. P-12.

4. In my police report, I have not told them that when went out of

the house I saw Suraj was being beaten by the accused party

members with pipe, tangiya. Ex. P-8 map too contains my

signature. I have showed the place where Suraj was found lying to

the Patwari. It is correct to say that on either sides of the road

houses exist in Shikshak Colony.

5. It is correct to say that the houses of Shatrughan Sharma, Ram

Kumar Sahu, Govardhan Sahu, Ramesh Kumar Varma and

Pramila Pandey exist adjoining each other. It is· also correct to

say that all these houses exist within a circumference of 30 - 40

foot. The distance between the place where I was washing the

dishes and where the victim Suraj fell down was approximately 30

- 35 feet. It is also correct to say that if one shouts from the very

spot where Suraj's body was lying, the 'call' can be heard at the

house of Shatrughan Sharma. After I started shouting, the

neighbors woke-up.

6. In my Police station Ex. P-12, how police could write about the

assault related matter of Suraj is not known to me or I do not even

know the reason why they have written as such. On being

persuaded the police, I put my signature· on 'A to A' part of Ex. P-

12. I am not a literate, but still able to put my own signature. It is

wrong to say that whatever I narrated to the police have been

recorded by them as it is. I have not informed the police that the

accused party members have assaulted Suraj. I can't give any

reason for the action of the Police who wrote like that on this own

in Ex. P-12 as I do not know to read what they have written in it

except putting my own signature. A copy of my report has not been

issued to me by -the Police. The police have also not read over the

Page 19 of 62

contents of my report back to me. I have not come to know only

later that the brawl of Suraj occurred with the accused party

members due to hearsay discussions going in our village. The

accused party members too stay at a very short distance from the

house of Shatrughan Sharma. The accused Chintaram never came

to or visited the house of Shatrughan Sharma for Ganja usage. Not

even to Suraj too.

8. It. is wrong to say that in order to protect the accused persons, I

am not deposing correctly before the Court.

(emphasis

added)

37.From the above, the following important aspects of the evidence

of PW-6 emerge :

(a)In paragraph no. 2 of his evidence in the cross examination PW-

6 categorically states that, it is correct to say that he had reported the

matter at the Police Station and got it recorded in writing there and

also proved it which was marked as Ex. P/12 (FIR). He admitted the

signature on Ex P/12 as his and he also testified that the incident was

narrated to the police as seen by him. He also states that it was

mentioned in the report that the incident was seen by Bhuri Bai and

other passers-by. Thus, filing of the FIR by PW-6 is proved, though

there is some controversy about its actual contents.

(b) It may be also noted that when asked, PW-6 merely states that

he cannot tell the reason as to how the statement in respect of causing

of assault to Suraj was recorded by the police in his statement in Ex

P/12 and states that he had not stated the fact of assault by the

appellants. From this, it is clear that he did not allege any coercion or

threat meted out by the police to him to implicate the appellants

falsely by naming them in the FIR, as alleged by some other witness

(PW-2). Shailu, PW-2 who was produced by the Prosecution as a

Page 20 of 62

seizure memo witness to Ex-P/3 had claimed that the police obtained

his signature by threatening him. As far as putting his signature on the

FIR is concerned, he states that he was persuaded to do so. Thus, there

can be no inference of wrongdoing or coercion by the police, if the

police asked him to put his signature on the complaint, as the

complainant is required to put the signature if present in the police

station. After all it is not a statement recorded under Section 161

CrPC which does not require signature to be put, but the first

information report is expected to be signed by the informant.

(c)PW-6 also states that if anyone shouts from the very spot where

Suraj's body was lying, the 'call' can be heard at the house of

Shatrughan Sharma and as he shouted, on the day of the incident, the

neighbours woke up. This indicates that when the incident happened,

people were alerted. Hence, it was very natural for the mother of the

victim, Lata Bai (PW-10) who was already in the house, being alerted

and to witness the incident.

(d) PW-6 also stated that he came to know only later that a brawl

occurred between Suraj and the accused party due to hearsay

discussions going on in the village. He admitted that the accused

persons were staying at a very short distance from the house of the

deceased. Even if it is assumed that he did not know the identity of

the assailants and came to know from the talk in the village about the

involvement of the accused, the fact that there was no talk of

involvement of others who were not the appellants assumes

significance. The fact that there was no discussion of involvement of

persons other than the appellants speaks volumes about what had

Page 21 of 62

happened. Further, no defence witness was produced from the village

about the absence of the accused from the village on the fateful day or

their non involvement in the incident. There was no witness

categorically stating that the accused persons were not the assailants.

The non official prosecution witnesses merely feigned ignorance of

this incident. We are, however, not suggesting that merely because no

one came forward to testify in defence of the accused, it should go

against them, inasmuch as the onus is always on the prosecution to

prove the charge and not the other way round. However, this is a

circumstance which does not diminish the credibility of the eyewitness

account of Lata Bai (PW-10) or prejudices the prosecution case.

(e)Thus, in our view, during the cross-examination, even if the

PW-6 had denied mentioning the names of the appellants to the police,

it will be difficult to believe that he did not mention their names to the

police when he himself stated that he informed the police what he saw

and the police recorded the same in the FIR. We find it hard to believe

that the police somehow wrote the names of the appellants in the FIR

on their own within such a short period of the occurrence by falsely

implicating the appellants. The incident happened at about 7 am as

mentioned in the FIR and the complaint was lodged at 7:30 am within

half an hour of the incident on the basis of which the FIR was

registered. Apparently, there was also a talk in the village of the

assault by the appellants as also stated by PW-6.

38.From the above discussion, we have no reason to question the

reliance placed on the FIR (Ex-P/12) by the trial court as well as the

High Court as corroborating the prosecution case.

Page 22 of 62

39. As discussed above, since the complainant (PW-6) who filed the

FIR was initially projected as the eye witness but later turned hostile

during the trial and it is only Lata Bai (PW-10) who claims to be the

eye witness, it would be necessary to examine the evidence of Lata

Bai (PW-10), as the prosecution case and the conviction by the

Sessions Court and High Court are primarily based on her account.

40. PW-10, Lata Bai is the mother of the deceased who was an eye

witness as per the Prosecution. If it is established that this eye-witness

testimony is credible and is corroborated by the other evidence on

record as held by the trial court as well as the High Court, the

conviction of the appellants cannot be said to be illegal and would not

warrant interference from this Court. On the other hand, if her

evidence is found to be not credible and not reliable as contended on

behalf of the appellants, they would certainly be entitled to the benefit

of doubt and would warrant reversing the decision of the courts below.

Therefore, it is necessary to examine the evidence of the PW 10 in

more detail.

41. PW-10, Lata Bai deposed to have witnessed the three accused

including the present appellants assaulting the deceased, her son, on

the fateful day as narrated below:

“I recognize all the three accused present in the court. Name of

old man is Chintaram and the name of two sons are Govardhan

and Raju. Accused persons reside at some distance from my house.

Suraj was my son, he was running small shop from the house. It

was incident of Sunday at 7:00 O’clock in the morning on 23

September. I was standing near the door with broom and my

husband Shatrughan Sharma and daughter Anju Sharma were

sleeping. My servant Santosh was cleaning utensil near the door of

house. Santosh and Suraj went outside for excretion and come

back from there. Suraj asked me to get the tea ready, he said that I

am coming from Verma’s house. After 5 minute son of Verma came

Page 23 of 62

to me in my house and told that brother Suraj is sitting with father

and has demanded Chilam, then the boy take Chilam and went

away. After some time the same boy come to return the Chilam.

Then after 10 minutes heard the voice of Suraj calling ‘papa’. My

servant Santosh went outside the house and came inwards in a

disturbed way and stated that they killed brother Suraj. I

immediately came out with broom, Govardhan, Chinta and Raju,

all three were causing attack over my son. Chintaram was armed

with Pipe one accused was armed with small Axe and one with

Adze. All three were assaulting Suraj and he was lying on earth. I

went inside the house calling my husband. I got awaken my

husband by pulling his hand that they had killed Suraj. When I and

my husband reached near Suraj then all three accused person fled

away after assaulting him. All three accused were saying “kill-

kill”.

42. She also stated that she used to visit the house of the appellants

quite frequently but was not aware of occurrence of any fight

involving her husband or her son with the appellants. She also stated

that her husband was already scared as soon as he went out and he told

her to go to the police station and accordingly, she went to the police

station. In the meantime, the appellants Rajendra and Govardhan too

came to the police station and on seeing them she informed the police

that these two persons had killed her son and these two also informed

the police that they had come there after killing Suraj. Then the police

detained both of them at the police station. Thereafter, the police

accompanied her back to the Shikshak Colony, and with the assistance

of police, she immediately took her injured son to the Government

Hospital, Tilda on a rickshaw where he was given treatment and later

was advised to be taken to Specialist Hospital at Mekahari.

43.She also deposed that when Suraj shouted for help, she came

out and saw that many of her neighbours were already present at the

place of the incident namely Verma, Shyam Bai, Bhoori, Bhau,

Govardhan alias Bhuru, Neelu, Kumari etc. and it was Verma (PW-9)

Page 24 of 62

who advised her to take her injured son immediately to the hospital.

She then narrated how she took Suraj to the Government Hospital and

then to the MMI Hospital for his treatment and she was present

throughout the treatment till he expired. She was also present during

the preparation of panchnama of the dead body.

44. Since Lata Bai (PW-10) testified as the eye witness to the

assault and had given a detailed account of the incident, she was

subjected to a lengthy cross-examination by the defence to discredit

her evidence. It is therefore, of utmost importance that her evidence be

analysed minutely to ascertain whether the same is credible and

trustworthy, which the defence has strenuously sought to project as

such.

45.A sustained endeavour was made by the defence counsel to

establish that the deceased son of the PW-10 had a criminal

background having been involved in numerous acts of brawls and

hooliganism because of which he earned the enmity of many, thus

suggesting that he could be a victim of retaliation or vengeance of his

other enemies but not of the appellants.

46.During the cross examination of PW-10, by way of suggestion

there was a specific insinuation that the deceased had a quarrel with

another neighbour, Verma (PW-9) the previous day and it was Verma’s

family who had assaulted the deceased near the house of Verma. We

shall refer to the testimony of the said Verma (PW-9) at a later stage.

47.The following aspects of the statement of the PW-10 during the

cross-examination, deserve to be noticed.

Page 25 of 62

(i) When asked whether the neighbours too had heard her son’s

distress call, she stated,

“I am also not sure whether they have heard the

instigational calls of Chintaram who said "Beat him! Kill

him" as my attention was upon son who was getting

beaten at the relevant time I could not make any other

observation in the surrounding keenly. I rushed out, saw

him, then again rushed back inside and woke my

husband, when any son was being beaten when I saw him,

he has already fallen on the ground with his face too

facing the ground.

(ii) She mentioned about the delayed response of her husband to

the incident and her anger at her husband for not responding

promptly on her urging to come out and abusing him as a

“dog”.

(iii) She stated that she had also gone to the police station and

informed that the accused Goverdhan and Rajendra had

assaulted her son and when they came to the Police Station,

she slapped one of them in the police station.

(iv) She also stated that she did not inform the police that the

accused party held weapons such as pipe, basoola and tangia

as the police did not give any opportunity to tell all these nor

did they enquire from her. She also states that police did not

make a formal enquiry from her as she was in a state of

shock.

(v) Interestingly, when a suggestion was made on behalf of the

appellants during the cross-examination that police told her in

the police station when she went to inform them that the

report will be recorded later and they should visit to spot first,

she admitted it to be correct.

Page 26 of 62

(vi)She reiterates that she had seen with her own eyes the

appellants fleeing away from the spot after assaulting Suraj.

(vii) She admits to have met and talked to Vaishnav, ASI (PW-15)

outside the courtroom but denied her being pressured by him

to give a statement as per their dictation that she did not see

anybody assaulting Suraj.

48. The grounds for questioning the credibility and reliability of the

evidence of the Lata Bai, PW-10 by the appellants may be stated

below: -

(a)Her statement was recorded very belatedly after 5 days on

28.09.2001 after the incident which occurred on 23.09.2001

giving scope for fabrication.

(b)There are material contradictions in the statements made

before the police and the court.

(c)There are improvements, and embellishments in her

testimony before the court over the statement, recorded

during the investigation.

(d)Her presence at the place of occurrence is doubtful as she is

an interested witness who is not supported even by her own

husband (PW5) who was staying with her at the time of the

incident.

(e)Her testimony is contradictory to the testimony of her

husband who also was present in the house when the incident

occurred, who apparently did not see the appellants assaulting

their son.

Page 27 of 62

(f)The name of Lata Bai was not mentioned as an eye-witness in

the complaint/FIR, which would indicate that she was not an

eyewitness.

49.It goes without saying that to be an eyewitness, the witness

must have been at the place of occurrence or in the vicinity within the

range of visibility when the incident occurred.

50.If we critically examine the other evidence on record, it cannot

be said that Lata Bai (PW-10) did not see the incident.

For this, we will first refer to the evidence of Santosh (PW-6). Even

though Santosh (PW-6) had claimed during his court testimony that he

did not see who the assailants were, yet, in the cross-examination he

specifically stated that it is true that the information of the incident

was given immediately by him to the mother (PW-10) and father (PW-

5) of Suraj. Therefore, the presence of Lata Bai near the place of

occurrence cannot be doubted. It is to be noted that in the site map of

the place of occurrence (Ex/16) it is mentioned that the body of the

victim was found very near about 21ft on the lane opposite the house

of the deceased. Thus, it cannot be said that it was impossible on her

part to have witnessed the incident. PW-10 is not a chance witness but

a natural witness. She did not suddenly appear at the place of

occurrence where she was not expected to be present.

If the presence of Lata Bai (PW-10) at the place of occurrence cannot

be doubted, the next consideration will be whether she had witnessed

the incident when the appellants assaulted Suraj.

Therefore, the critical question is whether Lata Bai PW-10 saw the

incident as claimed by her which has been questioned by the

appellants.

Page 28 of 62

51.As we proceed to examine this crucial aspect, it may be

apposite to keep in mind certain observations made by this Court

relating to discrepancies in the account of eye witnesses.

In Leela Ram (Dead) through Duli Chand v. State of Haryana,

(1999) 9 SCC 525 it was observed as follows:

“9. Be it noted that the High Court is within its jurisdiction being

the first appellate court to reappraise the evidence, but the

discrepancies found in the ocular account of two witnesses unless

they are so vital, cannot affect the credibility of the evidence of the

witnesses. There are bound to be some discrepancies between the

narrations of different witnesses when they speak on details, and

unless the contradictions are of a material dimension, the same

should not be used to jettison the evidence in its entirety.

Incidentally, corroboration of evidence with mathematical niceties

cannot be expected in criminal cases. Minor embellishment, there

may be, but variations by reason therefore should not render the

evidence of eyewitnesses unbelievable. Trivial discrepancies ought

not to obliterate an otherwise acceptable evidence. In this context,

reference may be made to the decision of this Court in State of

U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105].

In para 10 of the Report, this Court observed : (SCC pp. 514-15)

‘10. While appreciating the evidence of a witness, the

approach must be whether the evidence of the witness

read as a whole appears to have a ring of truth. Once

that impression is formed, it is undoubtedly necessary

for the court to scrutinise the evidence more

particularly keeping in view the deficiencies,

drawbacks and infirmities pointed out in the evidence

as a whole and evaluate them to find out whether it is

against the general tenor of the evidence given by the

witness and whether the earlier evaluation of the

evidence is shaken as to render it unworthy of belief.

Minor discrepancies on trivial matters not touching

the core of the case, hypertechnical approach by

taking sentences torn out of context here or there from

the evidence, attaching importance to some technical

error committed by the investigating officer not going

to the root of the matter would not ordinarily permit

rejection of the evidence as a whole. If the court before

whom the witness gives evidence had the opportunity

to form the opinion about the general tenor of evidence

given by the witness, the appellate court which had not

this benefit will have to attach due weight to the

appreciation of evidence by the trial court and unless

Page 29 of 62

there are reasons weighty and formidable it would not

be proper to reject the evidence on the ground of minor

variations or infirmities in the matter of trivial details.

Even honest and truthful witnesses may differ in some

details unrelated to the main incident because power

of observation, retention and reproduction differ with

individuals.’

10. In a very recent decision in Rammi v. State of M.P. [(1999) 8

SCC 649 : 2000 SCC (Cri) 26] this Court observed : (SCC p. 656,

para 24)

‘24. When an eyewitness is examined at length it is quite possible

for him to make some discrepancies. No true witness can possibly

escape from making some discrepant details. Perhaps an untrue

witness who is well tutored can successfully make his testimony

totally non-discrepant. But courts should bear in mind that it is

only when discrepancies in the evidence of a witness are so

incompatible with the credibility of his version that the court is

justified in jettisoning his evidence. But too serious a view to be

adopted on mere variations falling in the narration of an incident

(either as between the evidence of two witnesses or as between two

statements of the same witness) is an unrealistic approach for

judicial scrutiny.’

This Court further observed : (SCC pp. 656-57, paras 25-27)

‘25. It is a common practice in trial courts to make out

contradictions from the previous statement of a witness

for confronting him during cross-examination. Merely

because there is inconsistency in evidence it is not

sufficient to impair the credit of the witness. No doubt

Section 155 of the Evidence Act provides scope for

impeaching the credit of a witness by proof of an

inconsistent former statement. But a reading of the

section would indicate that all inconsistent statements

are not sufficient to impeach the credit of the witness.

The material portion of the section is extracted below:

“155.Impeaching credit of witness.—The credit of a witness may

be impeached in the following ways by the adverse party, or, with

the consent of the court, by the party who calls him—

(1)-(2) ***

(3) by proof of former statements inconsistent with any part of his

evidence which is liable to be contradicted;”

26. A former statement though seemingly inconsistent with the

evidence need not necessarily be sufficient to amount to

contradiction. Only such of the inconsistent statement which is

liable to be “contradicted” would affect the credit of the witness.

Page 30 of 62

Section 145 of the Evidence Act also enables the cross-examiner to

use any former statement of the witness, but it cautions that if it is

intended to “contradict” the witness the cross-examiner is

enjoined to comply with the formality prescribed therein. Section

162 of the Code also permits the cross-examiner to use the

previous statement of the witness (recorded under Section 161 of

the Code) for the only limited purpose i.e. to “contradict” the

witness.

27. To contradict a witness, therefore, must be to discredit the

particular version of the witness. Unless the former statement has

the potency to discredit the present statement, even if the latter is

at variance with the former to some extent it would not be helpful

to contradict that witness (vide Tahsildar Singh v. State of U.P.

[AIR 1959 SC 1012 : 1959 Cri LJ 1231] ).’”

52.Further, this Court also cautioned about attaching too much

importance on minor discrepancies of the evidence of the witnesses in

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC

217 as follows:

“5. … We do not consider it appropriate or permissible to enter

upon a reappraisal or reappreciation of the evidence in the context

of the minor discrepancies painstakingly highlighted by the

learned counsel for the appellant. Overmuch importance cannot

be attached to minor discrepancies. The reasons are obvious:

(1) By and large a witness cannot be expected to possess a

photographic memory and to recall the details of an

incident. It is not as if a video tape is replayed on the mental

screen.

(2) Ordinarily it so happens that a witness is overtaken by

events. The witness could not have anticipated the

occurrence which so often has an element of surprise. The

mental faculties therefore cannot be expected to be attuned

to absorb the details.

(3) The powers of observation differ from person to person.

What one may notice, another may not. An object or

movement might emboss its image on one person's mind,

whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a

conversation and reproduce the very words used by them or

heard by them. They can only recall the main purport of the

conversation. It is unrealistic to expect a witness to be a

human tape-recorder.

Page 31 of 62

(5) In regard to exact time of an incident, or the time

duration of an occurrence, usually, people make their

estimates by guess work on the spur of the moment at the

time of interrogation. And one cannot expect people to make

very precise or reliable estimates in such matters. Again, it

depends on the time-sense of individuals which varies from

person to person.

(6) Ordinarily a witness cannot be expected to recall

accurately the sequence of events which takes place in rapid

succession or in a short time span. A witness is liable to get

confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be

overawed by the court atmosphere and the piercing cross-

examination made by the counsel and out of nervousness mix

up facts, get confused regarding sequence of events, or fill

up details from imagination on the spur of the moment. The

subconscious mind of the witness sometimes so operates on

account of the fear of looking foolish or being disbelieved

though the witness is giving a truthful and honest account of

the occurrence witnessed by him—perhaps it is a sort of a

psychological defence mechanism activated on the spur of

the moment.”

53. To the same effect it was also observed in Appabhai v. State of

Gujarat (1988) Supp SCC 241 as follows:

“13. … The court while appreciating the evidence must not attach

undue importance to minor discrepancies. The discrepancies

which do not shake the basic version of the prosecution case may

be discarded. The discrepancies which are due to normal errors of

perception or observation should not be given importance. The

errors due to lapse of memory may be given due allowance. The

court by calling into aid its vast experience of men and matters in

different cases must evaluate the entire material on record by

excluding the exaggerated version given by any witness. When a

doubt arises in respect of certain facts alleged by such witness, the

proper course is to ignore that fact only unless it goes into the root

of the matter so as to demolish the entire prosecution story. The

witnesses nowadays go on adding embellishments to their version

perhaps for the fear of their testimony being rejected by the court.

The courts, however, should not disbelieve the evidence of such

witnesses altogether if they are otherwise trustworthy.

Jaganmohan Reddy, J. speaking for this Court in Sohrab v. State

of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] observed :

[SCC p. 756, para 8 : SCC (Cri) p. 824, para 8]

‘8. … This Court has held that falsus in uno, falsus in

omnibus is not a sound rule for the reason that hardly one

Page 32 of 62

comes across a witness whose evidence does not contain

a grain of untruth or at any rate exaggeration,

embroideries or embellishments. In most cases, the

witnesses when asked about details venture to give some

answer, not necessarily true or relevant for fear that their

evidence may not be accepted in respect of the main

incident which they have witnessed but that is not to say

that their evidence as to the salient features of the case

after cautious scrutiny cannot be considered….’”

54. We must also remember that the scene of the crime was in a

rural area and the witness being rustic, their evidence has to be

appreciated in the light of the behavioral pattern in the rural

environment. In this regard, we may refer to the decision of this Court

in Shivaji Sahebrao Bobade v. State of Maharashtra, (supra)

wherein it was held that:

“8. Now to the facts. The scene of murder is rural, the witnesses to

the case are rustics and so their behavioural pattern and

perceptive habits have to be judged as such. The too sophisticated

approaches familiar in courts based on unreal assumptions about

human conduct cannot obviously be applied to those given to the

lethargic ways of our villages. When scanning the evidence of the

various witnesses we have to inform ourselves that variances on

the fringes, discrepancies in details, contradictions in narrations

and embellishments in inessential parts cannot militate against the

veracity of the core of the testimony provided there is the impress

of truth and conformity to probability in the substantial fabric of

testimony delivered. The learned Sessions Judge has at some

length dissected the evidence, spun out contradictions and

unnatural conduct, and tested with precision the time and

sequence of the events connected with the crime, all on the

touchstone of the medical evidence and the post-mortem

certificate. Certainly, the court which has seen the witnesses

depose, has a great advantage over the appellate Judge who reads

the recorded evidence in cold print, and regard must be had to this

advantage enjoyed by the trial Judge of observing the demeanour

and delivery, of reading the straightforwardness and doubtful

candour, rustic naiveté and clever equivocation, manipulated

conformity and ingenious inveracity of persons who swear to the

facts before him. Nevertheless, where a Judge draws his

conclusions not so much on the directness or dubiety of the witness

while on oath but upon general probabilities and on expert

evidence, the court of appeal is in as good a position to assess or

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arrive at legitimate conclusions as the court of first instance. Nor

can we make a fetish of the trial Judge's psychic insight.”

55.This Court also reminded that while dealing with the evidence

of witnesses who are rustic, because of minor inconsistencies, the

evidence should not be ignored. It was held in in Prabhu Dayal v.

State of Rajasthan, (2018) 8 SCC 127 wherein dealing with witnesses

from rustic background it was observed as follows;

“18. It is a common phenomenon that the witnesses are rustic and

can develop a tendency to exaggerate. This, however, does not

mean that the entire testimony of such witnesses is falsehood.

Minor contradictions in the testimony of the witnesses are not fatal

to the case of the prosecution. This Court, in State of U.P. v. M.K.

Anthony [State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 : 1985

SCC (Cri) 105], held that inconsistencies and discrepancies alone

do not merit the rejection of the evidence as a whole. It stated as

follows : (SCC p. 514-15, para 10)

“10. While appreciating the evidence of a witness, the

approach must be whether the evidence of the witness read

as a whole appears to have a ring of truth. Once that

impression is formed, it is undoubtedly necessary for the

court to scrutinise the evidence more particularly keeping in

view the deficiencies, drawbacks and infirmities pointed out

in the evidence as a whole and evaluate them to find out

whether it is against the general tenor of the evidence given

by the witness and whether the earlier evaluation of the

evidence is shaken as to render it unworthy of belief. Minor

discrepancies on trivial matters not touching the core of the

case, hyper-technical approach by taking sentences torn out

of context here or there from the evidence, attaching

importance to some technical error committed by the

investigating officer not going to the root of the matter

would not ordinarily permit rejection of the evidence as a

whole. If the court before whom the witness gives evidence

had the opportunity to form the opinion about the general

tenor of evidence given by the witness, the appellate court

which had not this benefit will have to attach due weight to

the appreciation of evidence by the trial court and unless

there are reasons weighty and formidable it would not be

proper to reject the evidence on the ground of minor

variations or infirmities in the matter of trivial details. Even

honest and truthful witnesses may differ in some details

unrelated to the main incident because power of observation,

retention and reproduction differ with individuals. Cross-

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examination is an unequal duel between a rustic and refined

lawyer. Having examined the evidence of this witness, a

friend and well-wisher of the family carefully giving due

weight to the comments made by the learned counsel for the

respondent and the reasons assigned to by the High Court

for rejecting his evidence simultaneously keeping in view the

appreciation of the evidence of this witness by the trial court,

we have no hesitation in holding that the High Court was in

error in rejecting the testimony of witness Nair whose

evidence appears to us trustworthy and credible.”

(emphasis supplied)

19. …………………….

20. The Court can separate the truth from the false statements in

the witnesses' testimony. In Leela Ram v. State of Haryana [Leela

Ram v. State of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222]

, this Court held as follows : (SCC p. 534, para 12)

“12. It is indeed necessary to note that one hardly comes across a

witness whose evidence does not contain some exaggeration or

embellishment — sometimes there could even be a deliberate

attempt to offer embellishment and sometimes in their overanxiety

they may give a slightly exaggerated account. The court can sift

the chaff from the grain and find out the truth from the testimony

of the witnesses. Total repulsion of the evidence is unnecessary.

The evidence is to be considered from the point of view of

trustworthiness. If this element is satisfied, it ought to inspire

confidence in the mind of the court to accept the stated evidence

though not however in the absence of the same.”

21. Moreover, it is not necessary that the entire testimony of a

witness be disregarded because one portion of such testimony is

false. This Court observed thus in Gangadhar Behera v. State of

Orissa [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 :

2003 SCC (Cri) 32] : (SCC p. 392, para 15)

“15. To the same effect is the decision in State of Punjab v. Jagir

Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973

SCC (Cri) 886 : AIR 1973 SC 2407] and Lehna v. State of

Haryana [Lehna v. State of Haryana, (2002) 3 SCC 76 : 2002 SCC

(Cri) 526] . Stress was laid by the appellant-accused on the non-

acceptance of evidence tendered by some witnesses to contend

about desirability to throw out the entire prosecution case. In

essence prayer is to apply the principle of falsus in uno, falsus in

omnibus (false in one thing, false in everything). This plea is

clearly untenable. Even if a major portion of the evidence is found

to be deficient, in case residue is sufficient to prove guilt of an

accused, notwithstanding acquittal of a number of other co-

accused persons, his conviction can be maintained. It is the duty of

the court to separate the grain from the chaff. Where chaff can be

separated from the grain, it would be open to the court to convict

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an accused notwithstanding the fact that evidence has been found

to be deficient to prove guilt of other accused persons. Falsity of a

particular material witness or material particular would not ruin

it from the beginning to end. The maxim falsus in uno, falsus in

omnibus has no application in India and the witnesses cannot be

branded as liars. The maxim falsus in uno, falsus in omnibus has

not received general acceptance nor has this maxim come to

occupy the status of rule of law. It is merely a rule of caution. All

that it amounts to, is that in such cases testimony may be

disregarded, and not that it must be disregarded.”

56.Keeping the aforesaid observations of this Court in mind, we

will examine the evidence of the mother of the deceased, Lata Bai,

PW-10. The High Court had meticulously examined the evidence of

PW-10 before coming to the conclusion that her evidence is reliable

and credible.

57. Much emphasis was laid on the plea of delayed recording of the

statement of PW-10 by the defence, which was duly considered by the

High Court. The High Court observed that the Investigating Officer

(IO) was not questioned as to why there was a delay in the

examination of the witness, failing which the defence cannot gain any

advantage therefrom.

In this regard, we may refer to the decision of this Court in the State

of U.P. v. Satish, (supra), wherein it was held that,

“18. As regards delayed examination of certain witnesses, this

Court in several decisions has held that unless the investigating

officer is categorically asked as to why there was delay in

examination of the witnesses the defence cannot gain any

advantage therefrom. It cannot be laid down as a rule of universal

application that if there is any delay in examination of a particular

witness the prosecution version becomes suspect. It would depend

upon several factors. If the explanation offered for the delayed

examination is plausible and acceptable and the court accepts the

same as plausible, there is no reason to interfere with the

conclusion. (See Ranbir v. State of Punjab [(1973) 2 SCC 444 :

1973 SCC (Cri) 858 : AIR 1973 SC 1409] , Bodhraj v. State of

J&K [(2002) 8 SCC 45 : 2003 SCC (Cri) 201] and Banti v. State

of M.P. [(2004) 1 SCC 414 : 2004 SCC (Cri) 294] )

Page 36 of 62

19. ……………………………………..

20. It is to be noted that the explanation when offered by the IO on

being questioned on the aspect of delayed examination by the

accused hhas to be tested by the court on the touchstone of

credibility. If the explanation is plausible then no adverse

inference can be drawn. On the other hand, if the explanation is

found to be implausible, certainly the court can consider it to be

one of the factors to affect credibility of the witnesses who were

examined belatedly. It may not have any effect on the credibility of

the prosecution's evidence tendered by the other witnesses.”

58.In the present case, we have also noted that, no such question

was asked by the defence from the IO about the delayed recording of

the statement of PW-10. The witness was also not asked about it,

which would have afforded an opportunity to the witness to explain

the reason for such a delayed recording of her evidence. Hence, such a

plea could not be taken now to discredit PW-10.

Moreover, what we have noticed, as also observed by the High Court

is that PW-10 being the mother and on seeing the serious condition of

her injured son was more concerned about his well-being and survival

and rushed to the Police Station for informing the police about the

incident, and thereafter, she immediately went to the government

hospital taking her injured son and thereafter to other specialist

hospitals for treatment. She was throughout with the injured son for

his treatment till he succumbed to the injuries. Thus, she was busy in

getting proper treatment of her injured son and was not in the village

till she returned after the death of her son and she was present also

when the post-mortem examination was conducted. Therefore, if PW-

10 was preoccupied with the treatment of her son soon after the

incident and her statement under Section 161 CrPC could not be

recorded earlier, it could not render her evidence untrustworthy, more

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so when her presence in the house when the incident occurred was

proved by the evidence of PW-6, the informant, who is not a member

of the family of the deceased.

59.PW-10 claimed that she had rushed to the Police Station to

inform about the incident and the police told her that they would go to

the place of occurrence first and would later record her evidence. That

she went to the Police Station is also supported by the evidence of her

husband (PW-5), who testified that after he and his wife (PW-10)

came out of the house and saw their injured son, he immediately sent

his wife to the police station. It may be also noted that the defence did

not cross examine PW-5 at all including on this aspect, perhaps in

view of his non mentioning the names of the accused as assailants,

because of which he was declared a hostile witness by the court at the

instance of the Prosecution.

As mentioned above, PW-10 agreed to the suggestion made on

behalf of the appellants during the cross-examination that police told

her in the police station when she went to inform them that the report

will be recorded later and they should visit to spot first. Her response

was in the following words:

“It is true to say that police person asked me that your report

will be recorded later, let's visit the spot first.”

This suggestion from the defence neutralises the very plea of the

defence on the issue of delay in recording the statement of PW-10.

This is also natural for the reason that since PW-10, the mother was in

a state of shock and was more interested in the treatment of her son, if

the police did not record the statement of PW-10 at that time, it could

not be said to be abnormal. We are of the view that under the

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circumstances, the delay in recording the statement of PW-10 under

Section 161 CrPC can not be said to be a deliberate act on the part of

the Investigating Officer to manipulate or fabricate evidence to falsely

implicate innocent persons. Accordingly, we are of the view that the

decision in State of Orissa vs. Brahmanada Nanda (supra) relied

upon by the appellants is not applicable in the present case. In the said

case, the High Court as well as this Court did not find the evidence of

the sole eye witness trustworthy for not mentioning the name of the

accused for one and a half day and declined to accept her plea of fear

of the accused by not naming him as the police and her nephew had

already arrived at the scene and that the accused was not known to be

a gangster or a confirmed criminal of whom people would be afraid.

In the said case this Court also found that there were many other

reasons assigned by the High Court in not believing the evidence of

the said sole witness.

60.We have also considered the evidence of Shatrughan Sharma,

PW-5, the father of the deceased who denied having seen the

appellants assaulting his son on whose evidence, the defence has

harped much to contend that he being the father of the victim did not

support his wife’s evidence. He stated in the examination-in-chief that

on the fateful day when he was sleeping he was woken up by his wife,

Lata Bai (PW-10) informing that there was a quarrel outside the house

and when he came out he saw blood spread everywhere and his son

drenched in blood and he then immediately sent his wife to the police

station. He also saw some other neighbours standing near the body of

his son. During the cross examination he denied having mentioned the

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names of the appellants in his statement recorded under Section 161

CrPC.

61.What is to be noted is that his wife Lata Bai (PW-10) stated

that after seeing the assault of her son by the appellants, she went

inside the house and woke up her husband and came out pulling his

hands and when both of them reached the place of occurrence, all the

assailants had fled.

It may be also noted that PW-10 in the cross-examination stated that

after her husband was woken up, he rather than rush to the scene, was

looking for his shoes to which the PW-10 abused him calling him a

“dog” and only then he came out in his underwear. Thus, from this

statement of PW-10, it can be clearly inferred that PW-5 could not

have seen the assailants. Thus, there is no question of his testimony

being contrary to the evidence of PW-10, since PW-5 did not witness

the assault. Thus, the evidence of PW-5 does not contradict the

evidence of PW-10 and supports her on certain critical areas as

discussed above.

62.What we have also noted is that Shatrughan Sharma, PW-5 in

the cross examination clearly admits his close association with the

father of the appellants, Chintaram on account of smoking of ganja.

PW-5 admits that he used to consume ganja and liquor. He also stated

that he and Chintaram, the acquitted father of the appellants, were

regular smokers of ganja.

It may be also noted that in the cross-examination by the

Prosecution after PW-5 was declared a hostile witness, he stated (as

per the case court records) as follows:

Page 40 of 62

“ (8) …… It is true that I and Chintaram had smoked Ganja

several times together. It is true that I also came to the court

yesterday. It is true that I and Chintaram hugged each other. It is

also true that all the three accused obeisance my leg. ………….”

Thus, in spite of denials to the suggestion that due to old

friendship he was not giving statements against accused persons, it is

apparent that he was won over, as otherwise, there was no reason for

the accused to be so warm to him and all the three accused pay

obeisance to him by touching his feet.

63.If we examine the evidence of PW-10 in the light of other

evidence brought on record and proved by the Prosecution, it can be

seen that the evidence of PW-10 stands corroborated and hence, we

have no reason to disbelieve the evidence of PW-10.

64.We have taken note of the fact that the High Court had noticed

that the victim Suraj was examined by Dr G.R. Agarwal (PW-1) on

23.9.2001 at about 8 a.m. which is about one hour after the assault

vide Ex.P/1 and in the said document, the names of the two appellants,

Goverdhan and Rajendra were mentioned as the ones who had

assaulted the victim by axe and iron pipe but the name of the third

accused Chintaram was not mentioned. Though mere mention of the

names of the two appellants in the said medical record may not be the

basis to implicate the two appellants, yet, it provides the circumstances

in which the victim came to be brought to the hospital and thus, lends

credence to the truthfulness of the contents of the FIR in which the

appellants were named as the assailants.

65.The noting made by the doctor on the medical record that the

appellants, Goverdhan and Rajendra were the ones who assaulted the

victims can partake the character of hearsay evidence, yet, this was

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recorded within about half an hour of the filing of the FIR in the police

station and within about one hour of incident and is directly related to

the incident. Though the medical report was not made immediately

after the incident, it was made without much time gap and it was made

almost contemporaneously with the incident. Further, the medical

record was in conformity with the FIR filed by the complainant, PW-

6, thus corroborating the contents of the FIR in which the appellants

were named as the assailants. In our opinion, since the FIR was filed

soon after the incident occurred and the names of the appellants were

again mentioned in the medical record as the assailants within a very

short span of time, there was hardly any scope for fabrication of

evidence and falsely implicating the appellants in the case, as they

were already named in the FIR. The matter would have been

otherwise, if the names of the appellants were not mentioned in the

FIR but subsequently mentioned in the medical record in which event,

a valid plea could be taken by the defence that it was an afterthought.

However, such is not the situation in the present case.

66.We must also keep in mind that in a trial, the assessment of

evidence cannot be made in a technical manner and the realities of

life must be kept in mind for arriving at the truth as observed by this

Court in State of H.P. v. Lekh Raj (2000) 1 SCC 247 as follows;

“10. The High Court appears to have adopted a technical

approach in disposing of the appeal filed by the respondents. This

Court in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973

SCC (Cri) 886] held: (SCC pp. 285-86, para 23)

‘23. A criminal trial is not like a fairy tale wherein one is free to

give flight to one's imagination and fantasy. It concerns itself with

the question as to whether the accused arraigned at the trial is

guilty of the crime with which he is charged. Crime is an event in

real life and is the product of interplay of different human

emotions. In arriving at the conclusion about the guilt of the

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accused charged with the commission of a crime, the court has to

judge the evidence by the yardstick of probabilities, its intrinsic

worth and the animus of witnesses. Every case in the final analysis

would have to depend upon its own facts. Although the benefit of

every reasonable doubt should be given to the accused, the courts

should not at the same time reject evidence which is ex facie

trustworthy on grounds which are fanciful or in the nature of

conjectures.’

The criminal trial cannot be equated with a mock scene from a

stunt film. The legal trial is conducted to ascertain the guilt or

innocence of the accused arraigned. In arriving at a conclusion

about the truth, the courts are required to adopt a rational

approach and judge the evidence by its intrinsic worth and the

animus of the witnesses. The hypertechnicalities or figment of

imagination should not be allowed to divest the court of its

responsibility of sifting and weighing the evidence to arrive at the

conclusion regarding the existence or otherwise of a particular

circumstance keeping in view the peculiar facts of each case, the

social position of the victim and the accused, the larger interests of

the society particularly the law and order problem and degrading

values of life inherent in the prevalent system. The realities of life

have to be kept in mind while appreciating the evidence for

arriving at the truth. The courts are not obliged to make efforts

either to give latitude to the prosecution or loosely construe the

law in favour of the accused. The traditional dogmatic

hypertechnical approach has to be replaced by a rational, realistic

and genuine approach for administering justice in a criminal trial.

Criminal jurisprudence cannot be considered to be a utopian

thought but have to be considered as part and parcel of the human

civilisation and the realities of life. The courts cannot ignore the

erosion in values of life which are a common feature of the present

system. Such erosions cannot be given a bonus in favour of those

who are guilty of polluting society and mankind.”

67.As regards the seizure of the weapons of crime, the

Investigating Officer (IO) Ram Kumar Vaishnav, (PW-15) testified

that at the instance of the Appellant No. 1 (Goverdhan), the small axe

was recovered and the Panchanama was prepared (Ex-P/3). Similarly,

one iron pipe was recovered at the instance of Appellant No.2,

Rajendra and the Panchanama (Ex-P/5) was prepared. Both the

seizures were witnessed by Shailu (PW-2) and Kanhaiya (PW-12).

Though the IO (PW-15) proved his signature and preparation of the

Page 43 of 62

aforesaid two seizure memos, both the witnesses turned hostile

claiming that they merely put their signatures at the instance of the

police and they put their signatures on blank forms.

What is important to note is that these two witnesses, however,

did admit putting their signatures on the seizure memos. What they

pleaded is that they did so at the instance/threat of the police and they

did not know what was written on these documents. They also stated

that the seizure was not preceded by any enquiry by the police from

the accused persons.

It is also to be noted that while both the witnesses, Shailu (PW-

2) and Kanhaiya (PW-11) were from the same village, Tilda where the

murder took place and both of them claimed that they had no

knowledge of this case, both of them admitted that they knew the

appellants. Shailu (PW-2) stated that he knew the appellants and they

resided at some distance from his house. In the cross-examination,

Shailu, PW-2 claims that he had no knowledge of the case.

Kanhaiya, PW-11, the other seizure witness, admits that the

seizure memo was prepared in his presence, and the police asked him

to put his signature on the same and admitted his signature, though he

also stated that no seizure was made from the Appellant Rajendra in

his presence. He also states that the police seized the small axe and

showed it to both the witnesses and police informed that the axe was

found in the house of the appellants.

In his cross-examination by the Prosecution after being

declared hostile, PW-11, admitted that he used to smoke ganja with the

appellants often and whenever he used to pass through the Teachers

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Colony, he used to stay with Chintaram, the acquitted accused and

father of the two appellants for smoking ganja and admitted being

familiar with Chintaram. He, however, denied the suggestion of the

Prosecution that he was not telling the truth as he was well acquainted

with Chintaram.

68. Thus, what emerges from the above is that both the seizure

witnesses have not denied their signatures on the seizure memo and

admitted putting their signatures. PW-11 even goes to the extent that

the police showed to them a small axe which the police said was

seized from the house of the appellants.

Though both the witnesses have denied having any

knowledge of the actual recovery of the weapons at the instance of the

appellants, their denials do not appear convincing. However, since the

IO of the case, PW-15 had proved the said seizure memos, we find no

reason to hold that there was no seizure that was affected merely

because the two seizure witnesses had turned hostile.

It may be noted that the axes were seized on the same day

of the incident on 23.0.2001 at 4:45 pm and these were blood stained

as recorded in Ex-P/6 and also mentioned by Dr. G.R. Agarwal, PW-1

while forwarding these items for chemical examination.

69.Even assuming that the seizure of the weapons was effected

without meticulously following the procedures and thus doubtful, in

the view of the medical evidence which clearly showed that the

deceased died because of the injuries caused by sharp weapon which

was seen by a direct eye witness, namely, Lata Bai (PW-10), in our

opinion, it would not prejudice the prosecution case. The doctor (PW-

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1) who examined the victim testified that he examined the weapons of

crime on 29.9.2001 which were brought to him by the police in a

sealed packet and he opined that the injuries no. (ii), (iii), (iv), (vi) and

(vii) may be caused by the sharp edge of an axe and injuries no. (i),

(vi), (viii) and (ix) may be caused by the iron pipe. There was no cross

examination of this witness PW-1 by the defence on this crucial

medical evidence. Thus, this medical opinion remained unshaken,

which supports the prosecution case and evidence of Lata Bai, PW-10.

70.It is now well settled that non recovery of the weapon of crime

is not fatal to the prosecution case and is not sine qua non for

conviction, if there are direct reliable witnesses as held in Rakesh v.

State of U.P., (2021) 7 SCC 188, wherein it was observed as follows:

“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 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. PW 1 and PW 2, as observed hereinabove, are

reliable and trustworthy eyewitnesses to the incident and they have

specifically stated that A-1 Rakesh fired from the gun and the

deceased sustained injury. The injury by the gun has been

established and proved from the medical evidence and the

deposition of Dr Santosh Kumar, PW 5. Injury 1 is by gunshot.

Therefore, it is not possible to reject the credible ocular evidence

of PW 1 and PW 2 — eyewitnesses who witnessed the shooting. It

has no bearing on credibility of deposition of PW 1 and PW 2 that

A-1 shot deceased with a gun, particularly as it is corroborated by

bullet in the body and also stands corroborated by the testimony of

PW 2 and PW 5. Therefore, merely because the ballistic report

shows that the bullet recovered does not match with the gun

recovered, it is not possible to reject the credible and reliable

deposition of PW 1 and PW 2.

(emphasis added)

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71.In this context one may also refer to the decision of this Court

in Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291 in which

it was observed that the testimony of the police personnel involved in

recovery of articles need not be disbelieved and testimony of police

personnel is to be treated similarly as testimony of any other witness.

It was held that,

“8. Shri Sinha, learned Senior Counsel for the appellant, has

vehemently urged that all the witnesses of recovery examined by

the prosecution are police personnel and in the absence of any

public witness, their testimony alone should not be held sufficient

for sustaining the conviction of the appellant. In our opinion the

contention raised is too broadly stated and cannot be accepted.

The testimony of police personnel should be treated in the same

manner as testimony of any other witness and there is no principle

of law that without corroboration by independent witnesses their

testimony cannot be relied upon. The presumption that a person

acts honestly applies as much in favour of a police personnel as of

other persons and it is not a proper judicial approach to distrust

and suspect them without good grounds. It will all depend upon

the facts and circumstances of each case and no principle of

general application can be laid down. ……………………..”

(emphasis added)

Thus, we do not find any reason to doubt the testimony of the

police/I.O. (PW-15).

72. It is to be noted that the plea of the defence is of total denial.

The appellants also claimed complete ignorance of the incident. They

have taken the plea that they were not in the village during the time of

the incident and had gone on 22.9.2001 to another place at Nayapara,

to attend the housewarming ceremony of one Champa Lal Sahu on

23.09.2001 and returned only in the evening of 23.09.2001. However,

the defence did not lead any evidence about the plea of alibi.

Page 47 of 62

The appellants also sought to put the blame of assault to Ramesh

Kumar Verma, PW-9 which miserably failed.

They also took the plea that the prosecution witnesses, more

particularly PW-10, were coerced by the police to falsely implicate the

accused in support of which the appellants had adduced two defence

witnesses. However, we find their evidence unconvincing as also held

by the High Court.

73.We have also noted the testimonies of other neighbours, which

we consider to be highly unnatural and untruthful and they appear to

be reluctant to come up with the truth in order to protect the

appellants.

Shyam Bai, PW-3, who was mentioned by PW-6, the

complainant and both the husband and wife, PW-5 and PW-10

(parents of the deceased) to have been present at the place of

occurrence feigned ignorance of the cause of the death of Suraj and

did not support her previous statement recorded under Section

161CrPC where she had named the appellants as the assailants. In the

cross -examination, she stated that when she came after bath, she saw

the mother and father of Suraj taking the injured in a rickshaw and

saw blood on the body, but she did not ask how the injured suffered

the injuries. It defies logic and appears to be contrary to human

instinct and nature that when a person sees a neighbour in a seriously

injured condition, no query is made about the injury. PW-3 obviously

is not telling the truth.

74. Same is the case with Ramesh Kumar Verma, PW-9, in front of

whose house the incident occurred and an immediate neighbour of the

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deceased. He was also named by both PW-5 and PW-10 to be present

at the place of occurrence and at the time of occurrence. However, he

categorically states that, he was having no knowledge of the incident

and that he had neither seen nor heard of what happened to the victim.

It is very strange and rather unbelievable that though he admitted

seeing blood spread over in the corner of his garden, he did not make

any query about it. He states that he read about the news of the death

of a boy in the newspaper and he came to know about the injuries

received by Suraj from the newspaper and that he did not have any

knowledge as to who had killed Suraj. He also admits that he drinks

liquor and that Chintaram used to drink liquor with him and had good

terms with Chintaram till date.

Interestingly, the appellants made unsubstantiated suggestion to

PW-10 that Verma (PW-9) and his family had in fact assaulted the

deceased.

The only inference we can draw is that the statement of PW-9 is

untrue, being highly unnatural and defying normal human instinct and

behaviour and he appears to have been influenced by Chintaram

because of his close acquaintance as a comrade in arms in drinking,

which relationship he admitted in the cross examination.

75.Because of the unnaturalness of the testimonies of these

neighbours before the court, which defy human behaviour, the

reasonable inference one can draw is that these witnesses have been

won over. The fact that all these witnesses had close association with

Chintaram on account of consumption of ganja also clearly indicates

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the influence Chintraram, the acquitted father of the present two

appellants may have on these witnesses.

76.However, it is also to be noted that merely because the

witnesses turn hostile does not necessarily mean that their evidence

has to be thrown out entirely and what is supportive of the prosecution

certainly be used. In Gangadhar Behera v. State of Orissa (2002) 8

SCC 381, it was observed as following:-

“15. To the same effect is the decision in State of Punjab v. Jagir

Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886] and Lehna v.

State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] . Stress

was laid by the appellant-accused on the non-acceptance of

evidence tendered by some witnesses to contend about desirability

to throw out the entire prosecution case. In essence prayer is to

apply the principle of falsus in uno, falsus in omnibus (false in one

thing, false in everything). This plea is clearly untenable. Even if a

major portion of the evidence is found to be deficient, in case

residue is sufficient to prove guilt of an accused, notwithstanding

acquittal of a number of other co-accused persons, his conviction

can be maintained. It is the duty of the court to separate the grain

from the chaff. Where chaff can be separated from the grain, it

would be open to the court to convict an accused notwithstanding

the fact that evidence has been found to be deficient to prove guilt

of other accused persons. Falsity of a particular material witness

or material particular would not ruin it from the beginning to end.

The maxim falsus in uno, falsus in omnibus has no application in

India and the witnesses cannot be branded as liars. The maxim

falsus in uno, falsus in omnibus has not received general

acceptance nor has this maxim come to occupy the status of the

rule of law. It is merely a rule of caution. All that it amounts to, is

that in such cases testimony may be disregarded, and not that it

must be disregarded. The doctrine merely involves the question of

weight of evidence which a court may apply in a given set of

circumstances, but it is not what may be called ‘a mandatory rule

of evidence’. (See Nisar Ali v. State of U.P. [AIR 1957 SC 366 :

1957 Cri LJ 550] ) Merely because some of the accused persons

have been acquitted, though evidence against all of them, so far as

direct testimony went, was the same does not lead as a necessary

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corollary that those who have been convicted must also be

acquitted. It is always open to a court to differentiate the accused

who had been acquitted from those who were convicted. (See

Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 : 1956 Cri

LJ 827] .) The doctrine is a dangerous one especially in India for

if a whole body of the testimony were to be rejected, because a

witness was evidently speaking an untruth in some aspect, it is to

be feared that administration of criminal justice would come to a

dead stop. Witnesses just cannot help in giving embroidery to a

story, however, true in the main. Therefore, it has to be appraised

in each case as to what extent the evidence is worthy of

acceptance, and merely because in some respects the court

considers the same to be insufficient for placing reliance on the

testimony of a witness, it does not necessarily follow as a matter of

law that it must be disregarded in all respects as well. The

evidence has to be sifted with care. The aforesaid dictum is not a

sound rule for the reason that one hardly comes across a witness

whose evidence does not contain a grain of untruth or at any rate

exaggeration, embroideries or embellishment. (See Sohrab v. State

of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] and Ugar Ahir

v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .) An

attempt has to be made to, as noted above, in terms of felicitous

metaphor, separate the grain from the chaff, truth from falsehood.

Where it is not feasible to separate the truth from falsehood,

because grain and chaff are inextricably mixed up, and in the

process of separation an absolutely new case has to be

reconstructed by divorcing essential details presented by the

prosecution completely from the context and the background

against which they are made, the only available course to be made

is to discard the evidence in toto. (See Zwinglee Ariel v. State of

M.P. [(1952) 2 SCC 560 : AIR 1954 SC 15 : 1954 Cri LJ 230] and

Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC

(Cri) 601] .) As observed by this Court in State of Rajasthan v.

Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593] normal

discrepancies in evidence are those which are due to normal

errors of observation, normal errors of memory due to lapse of

time, due to mental disposition such as shock and horror at the

time of occurrence and those are always there however honest and

truthful a witness may be. Material discrepancies are those which

are not normal, and not expected of a normal person. Courts have

to label the category to which a discrepancy may be categorised.

While normal discrepancies do not corrode the credibility of a

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party's case, material discrepancies do so. These aspects were

highlighted recently in Krishna Mochi v. State of Bihar [(2002) 6

SCC 81 : 2002 SCC (Cri) 1220] . Accusations have been clearly

established against the appellant-accused in the case at hand. The

courts below have categorically indicated the distinguishing

features in evidence so far as the acquitted and the convicted

accused are concerned.”

77.To the same effect it was held in Raja v. State of Karnataka,

(2016) 10 SCC 506 as follows:

“32. That the evidence of a hostile witness in all eventualities

ought not stand effaced altogether and that the same can be

accepted to the extent found dependable on a careful scrutiny was

reiterated by this Court in Himanshu [Himanshu v. State (NCT of

Delhi), (2011) 2 SCC 36 : (2011) 1 SCC (Cri) 593] by drawing

sustenance of the proposition amongst others from Khujji v. State

of M.P. [Khujji v. State of M.P., (1991) 3 SCC 627 : 1991 SCC

(Cri) 916] and Koli Lakhmanbhai Chanabhai v. State of Gujarat

[Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC

624 : 2000 SCC (Cri) 13] . It was announced that the evidence of

a hostile witness remains admissible and is open for a court to rely

on the dependable part thereof as found acceptable and duly

corroborated by other reliable evidence available on record.”

78.We are also mindful of the position of law that the prosecution

must stand or fall on its own legs and it cannot derive any strength

from the weakness of the defence. However, in the present case,

inspite of the untruthful and evasive testimony of the neighbours, the

prosecution has been able to prove its case beyond reasonable doubt

and the false plea of the appellants only strengthens the case of the

prosecution.

79.There is no compelling reason or such material on record on the

basis of which this Court should take the view that Lata Bai (PW-10),

did not really witness the assault of the victim by the appellants.

Merely because her statement under Section 161 CrPC was recorded

belatedly i.e. after five days which have been duly considered by the

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High Court and there are some inconsistencies and embellishments in

her testimony before the trial court, we are not persuaded to take the

view that PW-10 cannot be an eye-witness and her testimony not

credible.

PW-10 was subjected to intense and extensive cross-examination by

the defence, yet her testimony could not materially be shaken, except

for pointing out minor discrepancies.

No material contradiction between the statement made by her

before the court and the previous statement recorded under Section

161 CrPC could be shown by the defence under Section 162 (1) and

Explanation thereto as to render her testimony doubtful.

A careful perusal of the testimony of PW-10 shows that her

narration of the incident was natural, and trustworthy.

80. The appellants had also contended that the PW-10 was an

interested witness and her testimony may not be believable. In this

regard, it must be noted that PW-10, the mother of the deceased

though was related to the victim cannot by any stretch of imagination

be said to be an interested witness. As to who is an “interested

witness” and the “related witness” has been succinctly explained by

this Court in the case of Mohd. Rojali Ali Vs. The State of Assam,

(2019) 19 SCC 567, wherein it was held that:

“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

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the witness has a 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 [State of Rajasthan v. Kalki, (1981) 2 SCC

752 : 1981 SCC (Cri) 593] ; Amit v. State of U.P. [Amit v. State of

U.P., (2012) 4 SCC 107 : (2012) 2 SCC (Cri) 590] ; and

Gangabhavani v. Rayapati Venkat Reddy [Gangabhavani v.

Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri)

182] ). Recently, this difference was reiterated in Ganapathiv.

State of T.N. [Ganapathi v. State of T.N., (2018) 5 SCC 549 :

(2018) 2 SCC (Cri) 793] , in the following terms, by referring to

the three-Judge Bench decision in State of Rajasthan v. Kalki

[State of Rajasthan v. Kalki, (1981) 2 SCC 752 : 1981 SCC (Cri)

593] : (Ganapathi case [Ganapathi v. State of T.N., (2018) 5 SCC

549 : (2018) 2 SCC (Cri) 793] , 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 [Dalip Singh v. State of Punjab,

(1953) 2 SCC 36 : 1954 SCR 145 : AIR 1953 SC 364 : 1953 Cri LJ

1465] , 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) [Jayabalan v. State (UT of

Pondicherry), (2010) 1 SCC 199 : (2010) 2 SCC (Cri) 966] : (SCC

p. 213, para 23)

“23. We are of the considered view that in cases where the court is

called upon to deal with the evidence of the interested witnesses,

the approach of the court, while appreciating the evidence of such

witnesses must not be pedantic. The court must be cautious in

appreciating and accepting the evidence given by the interested

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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.”

81.As also observed by the High Court, we do not see any reason

why the mother of the victim should falsely implicate the appellants

without any rhyme or reason more so when apparently there was no

previous animosity of the mother Lata Bai with any of the appellants.

Lata Bai, PW-10 is certainly not an interested witness even though she

was related to the victim and her testimony cannot be impeached on

this ground.

82.We must also remember that, while recording the testimony of

Lata Bai PW-10, the trial court noted the demeanour of the witness.

Section 280 of the CrPC enjoins upon the Judge to record such

remarks as he thinks material respecting the demeanour of the witness

while under examination since the demeanour can provide insights

into the witness's truthfulness and reliability, which are critical for the

court's assessment of the evidence presented, which ought not be

ignored by the Appellate Court.

It was noted by the trial court in para 2 of her examination-in-chief,

that the witness was crying while deposing that there were several

injuries on her son’s body and that he sustained grievous injuries over

the right auricle and was bleeding. She stated that she then carried him

on her lap with the help of the police and took him to the hospital in a

rickshaw.

83.The trial court after recording the testimony of the PW-10 and

on consideration of the same found her evidence trustworthy and

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credible. We see no reason to question the assessment about the

credibility of the witness by the Trial Court which had the advantage

of seeing and hearing above the witness and all other witnesses.

Nothing has been brought to our notice of any serious illegality or

breach of fundamental law so as to warrant taking a different view of

the evidence of PW-10.

In this regard we may keep in mind the valuable observations

made by this Court in Jagdish Singh v. Madhuri Devi, (2008) 10

SCC 497 in the following words:

“28. At the same time, however, the appellate court is expected,

nay bound, to bear in mind a finding recorded by the trial court on

oral evidence. It should not forget that the trial court had an

advantage and opportunity of seeing the demeanour of witnesses

and, hence, the trial court's conclusions should not normally be

disturbed. No doubt, the appellate court possesses the same

powers as that of the original court, but they have to be exercised

with proper care, caution and circumspection. When a finding of

fact has been recorded by the trial court mainly on appreciation of

oral evidence, it should not be lightly disturbed unless the

approach of the trial court in appraisal of evidence is erroneous,

contrary to well-established principles of law or unreasonable.

29. …………………………………..

30. In Sara Veeraswami v. Talluri Narayya [(1947-48) 75 IA 252 :

AIR 1949 PC 32] the Judicial Committee of the Privy Council,

after referring to relevant decisions on the point, stated [ Quoting

from Watt v. Thomas, (1947) 1 All ER 582, pp. 583 H-584 A.] : (IA

p. 255)

“… but if the evidence as a whole can reasonably be regarded as

justifying the conclusion arrived at at the trial, and especially if

that conclusion has been arrived at on conflicting testimony by a

tribunal which saw and heard the witnesses, the appellate court

will bear in mind that it has not enjoyed this opportunity and that

the view of the trial Judge as to where credibility lies is entitled to

great weight. This is not to say that the Judge of first instance can

be treated as infallible in determining which side is telling the

truth or is refraining from exaggeration. Like other tribunals, he

may go wrong on a question of fact, but it is a cogent circumstance

that a Judge of first instance, when estimating the value of verbal

testimony, has the advantage (which is denied to courts of appeal)

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of having the witnesses before him and observing the manner in

which their evidence is given.”

84.In view of the above, we are of the opinion that even if there are

certain embellishments and improvements and contradictions which

are of minor nature, the evidence of PW-10 on the whole does appear

to be consistent and we do not see any cogent reason to disbelieve her

claim that she had witnessed the incident. Thus, we are of the opinion

that there appears to be no patent illegality in the view taken by the

trial court and the High Court.

85. We also hold that just because the Chintaram, father of the

Appellants was acquitted will not warrant their acquittal as there is

sufficient and cogent material evidence against them to prove the case

beyond reasonable doubt whereas the case against the acquitted

Chintaram is doubtful.

Since there is no appeal against the acquittal of the father, we

do not wish to go into the subsequent acquittal of Chintaram.

The High Court had noted that, on close scrutiny of the

evidence on record, there is no clinching evidence of the said

Chintaram taking part in the assault and his name does not figure in

the Ex-P/1 which was prepared soon after the incident by the police

for referring the injured to the Community Hospital, Tilda and also the

evidence of PW-10 that she did not mention his presence in the police

station while naming the appellants. We are of the opinion that the role

of Chintaram does not come out clearly as to fasten criminal liability

on him along with the appellants. Thus, the present two appellants

cannot be placed at par with the case of the acquitted accused,

Chintaram.

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86.As regards applicability of the case of State of Punjab vs.

Sucha Singh (supra) is concerned wherein this court found the

inaction of the father to come to the rescue of the victim son is

concerned, it is to be noted that, unlike in the said case, the evidence

which has emerged is that the father PW-5 came to the scene after the

assailants appellants had fled. Hence, the question of his intervening

does not arise. If the said case of Sucha Singh (supra) is to be

applicable as contended by the appellant, it would mean that the

father, PW-5 would have witnessed which goes against their own case.

As far as the mother PW-10 is concerned, on seeing the assault

she ran inside to wake up her husband and when they came out, the

assailants had fled. It cannot be considered to be highly unnatural for a

woman not rushing to intervene and instead seek the help of a male

member (her husband) when there were two persons with deadly

weapons assaulting her.

87. In conclusion, we are of the view that, the evidence of the sole

eye witness, a hapless rustic illiterate woman visited with the

vicissitude and tragedy of her son being fatally assaulted by co-

villagers before her own eyes, has withstood intensive cross

examination and judicial scrutiny. She has answered the questions put

to her during her cross examination with spontaneity without any

jitteriness and her response was natural and not elusive and

prevaricating, which all are signs of truthfulness of the witness. We,

therefore, have no hesitation to hold that her testimony is trustworthy

and reliable. Her evidence finds corroboration from the admissible

part of the evidence of the complainant, and her husband even though

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they had turned hostile, and the medical evidence, evidence of the

Investigating Officer and other official witnesses.

88.In the present case, we are satisfied that in the facts and

circumstances as evident from the records, the Prosecution has been

able to establish beyond reasonable doubt that the appellants were

responsible for the death of the deceased, Suraj for which they were

convicted by the trial court under Section 302 of the IPC.

89.We do not see any glaring illegality or perversity in the findings

arrived at the trial court and the High Court causing any grave

miscarriage of justice to the appellants.

90.However, in spite of our finding that the appellants had

assaulted the deceased with deadly weapons causing the death of the

deceased, we have noted that the death of the deceased was not

instantaneous. He survived the brutal attack for a few days and later

succumbed to his injuries. The deceased was assaulted in the morning

of 23.9.2001 and died on the night of 25.9.2001.

The doctor, Dr. G. R. Agarwal, PW-1, opined that the injuries

no. (i), (vi), (viii) and (ix) might be caused by the iron pipe and these

were not described as grievous. On the other hand, the other injuries

no. (ii), (iii), (iv), (v) and (vii) were described as grievous head

injuries which might be caused by the axe. The deceased later

succumbed because of the accumulated effect of these head injuries as

testified by PW-13, Dr. Arvind Neralwar who conducted the post

mortem examination of the body of the deceased. According to him

the cause of death was coma due to head injuries. If we closely

examine these injuries, it is seen that though the injuries on the head

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were identified as grievous, these are shown as skin deep injuries and

no particular injury was identified as being the fatal one. Since the

cause of death is attributed to coma because of the head injuries and it

was opined that the injuries are sufficient in ordinary course of nature

to cause death, it appears that it is the cumulative effect of these head

injuries.

What is also observable is that he did not succumb to the injuries

immediately and he died on the third day of the incident.

It is also noticeable that the circumstances under which the

assault took place and the reason for causing the injuries by the

appellants and the motive behind their assault has not come out

clearly. Even the sole eye witness, Lata Bai (PW-10), the mother of

the deceased testified that her son was having visiting terms with the

accused persons as they were residing in the same locality and she

cannot tell why the quarrel occurred suddenly. It has not been

established clearly that it was premeditated and the assault was

preplanned with the intention to kill the deceased. Any prior enmity

between the appellants and the deceased has not been established.

Thus, the motive for committing the crime has not been clearly

established and proved.

91. However, it is established beyond reasonable doubt that the

appellants had caused the death of the deceased fully knowing that the

bodily injuries caused by the appellants were likely to cause death as

the appellants were armed with deadly weapons, we are inclined to

convert the conviction of the appellants from Section 302 IPC to Part I

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of Section 304 IPC. Accordingly, we convict the appellants under Part

I of Section 304 IPC.

92.Having convicted the appellants under Part I of Section 304

IPC, the next consideration is the quantum of punishment that may be

imposed on them.

93.Under Part I of Section 304 IPC, whoever commits

culpable homicide not amounting to murder shall be

punished with imprisonment for life, or imprisonment of

either description for a term which may extend to ten

years, and shall also be liable to fine, if the act by which the

death is caused is done with the intention of causing death,

or of causing such bodily injury as is likely to cause death.

As per the records, the appellants have already undergone 10

years 3 months of incarceration during the trial and pendency of the

appeals before the High Court and this Court.

This Court by an order dated 06.01.2012 had enlarged the

appellants on bail during the pendency of this appeal and the appeal

has remained pending before this Court since 2011.

94.Under the facts and circumstances discussed above, we are of

the view that interest of justice will be served if the appellants are

sentenced to the period already undergone by them and impose a fine

of Rs.50,000/- each on the appellants, which shall be paid to the

family of the deceased through his mother, namely Lata Bai (PW-10),

failing which the appellants will undergo additional 6 (six) months

simple imprisonment. In the event of the appellants paying the

amount, as ordered above, the bail bonds shall stand discharged. In the

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event of non-payment, the bail bonds shall stand discharged after

undergoing the default sentence.

95.For the reasons discussed above, the appeal is partly allowed as

above.

.…………………………J.

(B. R. GAVAI)

……………………………J.

(K.V. VISWANATHAN)

………………………………………………J.

(NONGMEIKAPAM KOTISWAR SINGH)

New Delhi:

January 09, 2025.

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