In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2231 OF 2010
Mahavir Singh
Versus
State of Haryana
Citation; 2014(3) Crimes 416 SC,(2014) 6 SCC 716
1. This appeal has been preferred against the impugned judgment and
order dated 20.1.2010, passed by the High Court of Punjab & Haryana at
Chandigarh in Criminal appeal No.499-DB of 2001, affirming the
judgment and order of the learned Additional Sessions Judge, Panipat
dated 4.9.2001/7.9.2001, passed in Sessions Trial No.49 of 2000 by
which and whereunder the appellant alongwith one Jagbir Singh stood
convicted under Sections 302 and 120B of the Indian Penal Code, 1860
(hereinafter referred to as ‘IPC’) and sentenced to imprisonment for
life and a fine of Rs.5,000/- each. They had further been convicted
under Section 201 IPC and sentenced to undergo two years RI and a fine
of Rs.1,000/- each. In default of payment, further undergo RI of six
months.
2. Facts and circumstances giving rise to this appeal are:
A. That one Ram Chander (PW.13), brother of Suraj Mal (since
deceased) alleged that his brother Suraj Mal was missing from
21.6.1995 and his dead body was found on 26.6.1995 floating in the
canal after recovery of his chappal on the path to canal near the
bridge. Initially, the report in this respect was lodged on 25.6.1995
as a missing person by the mother of the deceased, namely, Smt. Bharto
Devi (PW.8) at Police Station, Mathlauda, Panipat. On 28.6.1995, an
FIR was lodged at 8 A.M. under Sections 302/201/120B/34 IPC on the
basis of complaint made by Shri Ram Chander (PW.13), brother of
deceased alongwith one Balbir Singh who had also gone to search the
deceased on a motorcycle and that on reaching canal bridge of Kavi
village, they saw one chappal, one saw, two pieces of blade, some
blood and two pieces of meat lying on the path and the dead body lying
on the surface of the river.
B. Pursuant to the registration of FIR, the matter was investigated
and during investigation it is alleged that Jagbir Singh, co-accused
had illicit relationship with Sudesh Rani (wife of deceased) and
deceased’s wife was also involved and all of them had conspired to
remove the deceased from the way. The appellant also had a grudge on
account of marriage of Sudesh Rani with the deceased and there had
also been incident of “maar peet” between them and some cases are
pending also. Thus, investigation revealed that the deceased was
killed on intervening night of 21.6.1995/22.6.1995 by the appellant
and Jagbir Singh, co-accused at the instance of Sudesh Rani and threw
away the dead body in the canal.
C. After conclusion of the investigation, a chargesheet was filed
under Sections 302/201/120B IPC against the appellant, Jagbir Singh,
co-accused and Sudesh Rani. The proceedings were committed to the
Sessions Court and charges were framed vide order dated 17.1.1996.
D. To prove its case, the prosecution examined 15 witnesses and on
conclusion of the trial, the learned Sessions Judge, Panipat convicted
the appellant alongwith Jagbir Singh, co-accused for the offences
referred to hereinabove and sentenced them accordingly. However,
Sudesh Rani was acquitted of all the charges.
E. Aggrieved, the appellant filed Criminal Appeal No.499-DB of 2001
before the High Court while Jagbir Singh, co-accused filed Criminal
Appeal No.520-DB of 2001. Both the appellants were heard together and
their appeals had been dismissed by way of impugned judgment and
order.
Hence, this appeal.
3. So far as co-accused Jagbir Singh is concerned, he has filed
separate appeal in this court, i.e. Criminal Appeal No.2232 of 2010,
but his advocate refused to argue the case. So we have adjourned the
matter to be heard in ordinary course. In such a fact-situation, the
appeal of Mahavir Singh – appellant is heard.
4. Shri Sanjay Sharawat, learned counsel appearing for the
appellant has submitted that there could be no motive for committing
the offence so far as the appellant is concerned. It was alleged that
co-accused Jagbir Singh has developed illicit relations with the wife
of deceased. The courts below committed an error in applying the last
seen theory. There is evidence on record to the extent that the
appellant and Jagbir Singh, co-accused had been in the company of
deceased on 21.6.1995, but the missing person report was lodged on
25.6.1995, and an FIR had been lodged at a subsequent stage i.e. on
27.6.1995. When there is such a long gap in the last seen and the
recovery of the dead body, such a doctrine has no application
whatsoever. The recovery of the clothes of the appellant as well as
other incriminating material had not been proved in accordance with
law. No independent witness had been examined. Therefore, the appeal
deserves to be allowed.
5. Per contra, Ms. Nupur Choudhary, learned counsel for the
respondent has opposed the appeal contending that there was sufficient
motive on the part of the appellant’s also as the appellant’s family
was not happy with the marriage of Sudesh Rani with the deceased as
she belonged to their original village and earlier there had been
criminal case between the parties wherein the appellant had thrashed
the family of the deceased. As far as the question of missing
independent witness is concerned, no question has been put to the
Investigating Officer in this regard. Had such an issue been raised
he ought to have furnished some explanation. Not only the recovery of
incriminating material, but the clothes of the appellant had been
recovered beneath the canal bridge on the basis of disclosure
statement made by the appellant himself. The concurrent findings
recorded by two courts below do not warrant any interference. Thus,
the appeal is liable to be dismissed.
6. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
7. There is ample evidence on record and particularly the
deposition of Jai Singh (PW.6) that the appellant and Jagbir Singh,
co-accused had been seen last alongwith deceased on 21.6.1995. The
dead body was recovered after several days and post-mortem was
conducted after about a week. However, Dr. P.K. Dhaliwal (PW.1) had
opined that the deceased was murdered one week prior to conducting the
post-mortem. We do not see any reason to disbelieve the said opinion.
In such a fact-situation, it is evident that deceased has been done
away in close proximity of time of last seen. None of the accused
could furnish any explanation in their statement under Section 313 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
‘Cr.P.C.’) as where did they drop him or where he had gone. In fact,
Bharto Devi (PW.8), mother of deceased had deposed that one Nafe Singh
(PW.9) had last seen deceased with the appellant and Jagbir Singh, co-
accused on 21.6.1995. Nafe Singh (PW.9) was a family member of
deceased family and he had informed Bharto Devi (PW.8) that the
deceased was seen with them. Mahavir Singh, appellant and his younger
brother have assaulted Suraj Mal, deceased with a lathi and a matter
was reported to the police. She has further deposed about the illicit
relation between her daughter-in-law and Jagbir Singh, co-accused.
The actual narration about the last seen as per Bharto Devi (PW.8) had
been that Suraj Mal (deceased) had gone with Nafe Singh (PW.9) for
irrigating the agricultural land, however, he returned alone. On
being asked by Bharto Devi (PW.8), Nafe Singh (PW.9) replied that
Suraj Mal (deceased) had been talking with Jagbir Singh and Mahavir
Singh at the outskirt of the village and in the morning when deceased
did not return, she called Jagbir Singh and she was told by him that
there was strike and Suraj Mal was taken away by the police alongwith
others, so, it may take some time for him to come back.
?8. As per the medical report, there were various grievous injuries
on the neck and scalp of the deceased. There were multiple fractures
on skull of the body of deceased.
9. So far as recovery is concerned, it was made vide Ex.PM, Ex.PN,
Ex.PQ, Ex.PR and in the presence of the witnesses. At the disclosure
statement of co-accused, Jagbir Singh and the appellant the recovered
material also contained the chappal of deceased, blood stained shirt
and pant of appellant which were found in a polythene under the
bridge in Bhusalana Road on 3.7.1995. Again in Ex.PL there was
another recovery memo of blood stained clothes of Mahavir Singh hidden
up near the village in a pulia which had been recovered on his own
disclosure statement. The said clothes were sent for FSL and as per
the report it contained human blood. Blood was also found on Hexa
blade, frame of Aari (saw) and traces of blood were also found on the
pant recovered at the instance of the appellant.
10. Undoubtedly, it is a settled legal proposition that last seen
theory comes into play only in a case where the time gap between the
point of time when the accused and the deceased were seen alive and
when the deceased was found dead. Since the gap is very small there
may not be any possibility that any person other than the accused may
be the author of the crime. In the instant case, if we examine the
medical report minutely, it becomes evident that the deceased Suraj
Mal had been murdered one week prior to the post mortem. Thus, it
becomes evident that he had been killed in a very proximity of time
when the deceased was seen alive with the appellant and Jagbir Singh,
co-accused.
It has been pointed out that there had been some discrepancies
in the inquest report as well as in the depositions of the witnesses.
However, no material contradictions could be brought to our notice.
Minor discrepancies are bound to occur in every case.
11. This Court in A. Shankar v. State of Karnataka, AIR 2011 SC 2302
held:
“17. In all criminal cases, normal discrepancies are bound to
occur in the depositions of witnesses due to normal errors of
observation, namely, errors of memory due to lapse of time or
due to mental disposition such as shock and horror at the time
of occurrence. Where the omissions amount to a contradiction,
creating a serious doubt about the truthfulness of the witness
and other witnesses also make material improvement while
deposing in the court, such evidence cannot be safe to rely
upon. However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters which do not
affect the core of the prosecution case, should not be made a
ground on which the evidence can be rejected in its entirety.
The court has to form its opinion about the credibility of the
witness and record a finding as to whether his deposition
inspires confidence. "Exaggerations per se do not render the
evidence brittle. But it can be one of the factors to test
credibility of the prosecution version, when the entire evidence
is put in a crucible for being tested on the touchstone of
credibility." Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as improvements as the
same may be elaborations of the statement made by the witness
earlier. "Irrelevant details which do not in any way corrode the
credibility of a witness cannot be labelled as omissions or
contradictions." The omissions which amount to contradictions in
material particulars, i.e., materially affect the trial or core
of the prosecution's case, render the testimony of the witness
liable to be discredited. Where the omission(s) amount to a
contradiction, creating a serious doubt about the truthfulness
of a witness and other witness also make material improvements
before the court in order to make the evidence acceptable, it
cannot be safe to rely upon such evidence.
(See also: State of Rajasthan v. Rajendra Singh, AIR 1998 SC 2554;
State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009
SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v.
State of Uttar Pradesh, (2009) 11 SCC 334; Vijay alias Chinee v. State
of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh & Ors., (2011) 4
SCC 324; Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280; and
Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra,
(2010) 13 SCC 657).
In view of the above, we do not see any force in the submissions
so advanced on behalf of the appellant.
12. A large number of issues have been raised by learned counsel for
the appellant particularly that independent witness had not been
examined. Various issues have been raised regarding recovery of
clothes of Suraj Mal, recovery of V-shaped chappals, serious
discrepancies in the inquest report and recovery of the cloth of the
appellant. In the trial court, no question had been put to Ramphal
(PW.15), the Investigating Officer or Lakhpal Singh (PW.11), ASI or
any other material witness who could furnish explanation for such
discrepancies.
13. It is a settled legal proposition that in case the question is
not put to the witness in cross-examination who could furnish
explanation on a particular issue, the correctness or legality of the
said fact/issue could not be raised. (Vide: Atluri Brahmanandam (D),
Thr. LRs. v. Anne Sai Bapuji, AIR 2011 SC 545; and Laxmibai (dead)
Thr. L.Rs. & Anr. v. Bhagwantbuva (dead) Thr. L.Rs. & Ors., AIR 2013
SC 1204).
14. In the instant case, we had gone through the cross-examination
of witnesses who could furnish an explanation for the discrepancies
pointed out by learned counsel for the appellant. However, we came to
the conclusion that the defence had never put any question in these
regards to the material witness who could furnish the explanation for
the same. So the chain of all the circumstantial evidence is complete
and no link is missing and the accused persons had an opportunity to
commit the murder of the deceased.
15. Both the courts below after appreciating the evidence on record
held the appellant guilty of the offences.
In view of the above, the appeal is devoid of merit and it is
accordingly dismissed.
....…….……………………..J.
(Dr. B.S. CHAUHAN)
.....……………………………J.
(A.K. SIKRI)
New Delhi,
May 23, 2014
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