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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2231 OF 2010

Mahavir Singh                                      …Appellant

Versus

State of Haryana                                                           …Respondent  

J U D G M E N T

Dr. B.S. Chauhan,J.

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

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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  

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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.

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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  

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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  

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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  

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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.   

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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  

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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   

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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.  

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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  

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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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