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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     2488     OF     2009    

Kuria & Anr. … Appellants

Versus

State of Rajasthan … Respondent

J     U     D     G     M     E     N     T   

Swatanter     Kumar,     J  .

1. At the outset, we may notice that 15 accused persons had  

faced trial for offences under Sections 302 and 364 read with  

Section 34 of the Indian Penal Code, 1860 (for short “IPC”)  before  

the Court of the Additional Sessions Judge, Banswara  

(Rajasthan).  Vide its judgment dated 5th September, 2003,  

learned Trial Court acquitted all the accused persons except  

Laleng son of Bajeng, Laleng son of Dalji and Kuriya son of  

Laleng.  These three accused were convicted for both these  1

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offences and were directed to undergo rigorous imprisonment for  

life with a fine of Rs.4,000/- each and in default to further  

undergo rigorous imprisonment for four months under Section  

302/34 IPC and to undergo rigorous imprisonment for ten years  

with a fine of Rs.1000/- each and in default to undergo further  

rigorous imprisonment for one month under Section 364/34 IPC.  

2. All the three accused persons preferred separate appeals  

before the High Court, impugning the judgment of the Trial  

Court.  Unfortunately, during the pendency of the appeal before  

the High Court, Laleng son of Bajeng died.  Vide its judgment  

dated 25th May, 2008, the Division Bench of the High Court of  

Rajasthan at Jodhpur confirmed the judgment of conviction and  

order of sentence against the remaining two accused, i.e., Kuria  

son of Laleng and Laleng son of Dalji.   

3. Aggrieved from the judgment of the High Court, both the  

accused have filed the present appeal. The State did not  

challenge the acquittal of the 12 accused persons by the Trial  

Court before the High Court.  Thus, in the present appeal, we are  

only concerned with the appeal of the aforementioned two  

accused.   

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4. Now, we may notice the case of the prosecution in brief.  

Laleng, son of Mogji Patidar went to the Police Station, Garhi on  

28th January, 2001 and lodged a written report (Exhibit P3) to the  

effect that his father had gone to some other place as a guest.  At  

about 5.30 in the evening, he was returning to his house.  The  

informant (who was also going in the same direction), was at  

some distance behind him.  Along with him were two persons,  

namely, Dhulji and Bapulal.  When his father reached near the  

house of Yatendra, son of Shivaji and was standing on the road,  

Laleng and Dalji started assaulting his father and on their hands,  

took him inside their house.  According to Laleng, who was  

examined as PW3, Laleng son of Dalji, the accused, was carrying  

an axe in his hand.   The other accused, Laleng s/o Wajeng, was  

carrying a ‘kash’  and Kuriya was carrying a ‘lath’  in his hands  

and others were also carrying ‘laths’.  PW3 and the others with  

him could not interfere because of the large number of accused  

and, due to fear, they ran to the village to get help.  Once this  

fact was disclosed, Dhulji son of Gotam, Bajeng son of Pemji and  

Dalji son of Gotam had also arrived at the place of incident.  In  

their presence, Laleng and his son Kuria, Laleng son of Dalji,  

Dhulji son of Bajeng, Kuber son of Jasu and Bhemji son of Nathu  

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were beating his father and while assaulting him, dragged and  

threw him on the road in front of the house of Laleng, the  

accused.  When the informant and the others came near his  

father, they saw that he had expired.  The body of the deceased  

was lying at the spot.  According to this witness, there was rivalry  

between these persons and the deceased.  PW3, thus, had seen  

the incident.  The FIR was registered under Sections 147, 148,  

149 and 302 of the IPC vide Exhibit P/4.  The Investigating  

Officer commenced his investigation, went to the place of  

occurrence, prepared the site plan (Exhibit P/5) and recorded  

statement of the witnesses vide panchnama (Exhibit P/2).  The  

body of the deceased was taken into custody.  The clothes worn  

by the deceased were also taken into possession vide Exhibit P/7.  

The body of the deceased was subjected to post mortem which  

was prepared by Dr. S.K. Bhatnagar, PW6 being Exhibit P/11.  

From the house of the accused Laleng, blood stained Dahli (piece  

of wood of the door of the house) was taken into possession vide  

Exhibit P/9.  In furtherance to the statement of the accused, the  

recoveries of iron kash, axe and laths were made and the same  

were taken into possession vide Exhibits P/13 to P/18.  The  

recovered articles were sent to the Forensic Science Laboratory,  

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Udaipur (FSL) vide Exhibit P/30 for which permission was  

granted by the Superintendent of Police vide Exhibit P/29  

[Acknowledgment receipt (Exhibit P/31)].  The report of the FSL  

was received and accepted as Exhibit P/43.  Based upon the oral  

statements and the documentary evidence collected during the  

course of the trial and the statements recorded during  

investigation, the Investigating Officer (PW16) completed his  

investigation and submitted chalan under Section 173(3) of the  

Code of Criminal procedure, 1973 (for short, the Cr.P.C.) to the  

court of competent jurisdiction.

5. As already noticed, the accused-appellants faced trial before  

the Trial Court and were convicted.  Their conviction and order of  

sentence was confirmed by the High Court.  

6. The prosecution, in order to prove its case, had examined as  

many as 17 witnesses.  PW1, PW3, PW5 and PW15 were  

projected by the prosecution as eye-witnesses.  However, during  

the course of their examination, PW1 and PW5 were declared  

hostile as they did not support the case of the prosecution and  

the case of the prosecution primarily hinges upon the statements  

of PW3 and PW15 coupled with the post mortem report, the  

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report of the FSL, statement of PW6 and the attendant  

circumstances.   

7. While impugning the concurrent judgments before this  

Court, the contentions raised on behalf of the appellants are :   

(1) PW1 is not a reliable eye-witness, inasmuch as from his  

statement and the attendant circumstances, it is clear that  

he has not seen the occurrence.

(2) Presence of PW15 at the place of occurrence is doubtful  

inasmuch as PW3 in his report to the Police, Exhibit P/3  

did not name him.  Thus, the presence of PW15 is very  

doubtful.

(3) No specific role or use of a particular weapon in causing  

injuries by the respective accused has been seen by PW3 or  

any other witness.

(4) There is clear contradiction between the ocular and  

medical evidence inasmuch as, according to PW3 and  

PW15, axe and kash were used for inflicting injuries upon  

the deceased, while, according to the post mortem report  

(Exhibit P/11), all the injuries were caused with blunt  

weapons and there was no bleeding injury.  Furthermore,  6

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the question of collecting the blood from the dahli of the  

accused did not arise as the deceased was not bleeding as  

per the version given by the eye-witnesses.  Consequently,  

there are serious holes in the case of the prosecution.

(5) The statement of hostile witnesses or unreliable witnesses  

cannot be used for the purposes of corroboration of other  

witnesses.  A statement which is otherwise untrustworthy  

cannot be corroborated by another piece of unreliable  

evidence.  Deliberate and unbelievable improvements have  

been made in the statements of the witnesses between  

their recording of statement under Section 161 of the  

Cr.P.C. and statements in the Court.  Statements of the  

witnesses are not sterling worthy and the entire case of the  

prosecution is based upon suspicion.  Lastly, the  

provisions of Section 34 IPC are not attracted in the  

present case, as it was not a case of common intention and  

object.   

8. First of all, we may deal with the argument advanced on  

behalf of the appellant that there is clear conflict between the  

medical evidence and the ocular evidence in relation to the  

manner in which injuries were inflicted and the consequences  

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thereof.  Even the cause of death is not evident from the post  

mortem report and once the cause of death is not proved, the  

accused would be entitled to an order of acquittal.

9. In order to examine the merit of this contention, it is  

necessary for us to refer to the post mortem report at the very  

threshold.  The post mortem report had been exhibited as Exhibit  

P/11 and the relevant part thereof reads as under :

“1. Bruse 2 x 2 cm above RT eye

2. Bruse 3 x 2 cm on Pissa Rt ear

3. Bruse 9x3 cm near Rt side Nose

4. Bruse 3x2 cm Rt cheek near ear

5. Bruse 25x20 cm in front of chest and  extending to the base of left side of  Abdomen

6. Brine 7x2 cm

7. Bruse 5x4 cm Rt lower back

8. Bruse 7x4 cm Rt upper arm

9. Bruse 4x2 cm Left Elbow

10. Bruse 7x2 cm back of left hand

11. Barne Entire back from lateral bone both  side superior border should interior  border till lower left of last lib

12. Brune 4 x 4 cm Rt leg

13. Burn 5x5 cm left leg

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14. Burne 5x5 cm left thigh

15. Burne 4x4 cm left thigh

All are simple except 5&11 only two & all  are caused by blunt object & within 24 hrs  duration.

dissection at the neck shows Oedema &  haemorahage at the base of neck of  muscles & is underlying soft tissue and at  the base & antemortem of both enclo of  hyoid bones.

II. CRANIUM AND SPINAL CORD

Note   The Spinal need not be examined  unless any indication on disease or injury  exist.

Healthy  

III THORAX

1.  Walls, Rab and Cartines Healthy

2. Pleaurae Healthy – Pleaural cavity both full  of blood

3. Tharynx and Trachea Healthy except  congestion at Trachsea & barynx

4. Right Lung Voluminous cut section shows  blood stained

5. Left Lung Voluminous cut section show  blood stained froth

6. Periartium health There are #s of 3rd to vth  ribts

7. Heath Rt side Posteriorly precing in  between tissue causing  

8. Large vessel.   Lacurateen of lung (RT)  similarly there is # of V to Viithy ribs  

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posters only causing piefcyr & Lacuratren  of in between tissue & Lungs on left side.  However nonstravenatic segments of both  lungs are voluminous as disabible above  Pericardium & large vessels & Heart is  Healthy all four chambers of heart are  empty.

In abdomen all organs are healthy stomach  & intestine formally both contains  semidigistel food & Large intestine  contains faecial matri

10. Bladder Empty & Healthy

11. Organs and interal Healthy

V. MUSCLES BONES AND JOINT

Healthy

REMARKS AND MEDICAL OFFICER

1. All injuries are within 24 hrs &  antemortem in nature.

2. Examinee expired 6-24 hrs of duration

3. Examinee expired due to injury both Lungs  causing haemothorax associated pressue  on neck causing asphyxia.”

Sd/-          A B C D (Dr. R. Vpaothyarya)”

The     above     report     has     been     copied     from     the    original     Post     Mortem     report     and     no     corrections    have     been     made     thereto.   

10. The doctor was examined as PW6.  According to the doctor,  

the deceased was a healthy person and had suffered the  

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abovestated 15 injuries.  When he dissected the body of the  

deceased, he found that both pleural cavities were full of blood  

and the trachea and lungs were congested.  At the back, ribs  

three to five were fractured and they had perforated the lungs.  

Similarly, on the left side as well ribs from five to seven had been  

fractured and had perforated the lungs even on that side.  The  

cause of death, according to PW6, was as a result of injuries to  

both the lungs and the pleural cavity being full of blood which  

caused pressure on the neck, causing the deceased to suffocate.  

PW6 was subjected to a lengthy cross-examination but nothing  

material has been found.  In his cross examination, he stated  

that he had prepared Exhibit P/11 immediately after examining  

the body of the deceased.   

11. PW3, the son of the deceased, stated that the accused  

persons were beating his father.  Fearing his own death, he ran  

to the village for help and when he along with Bajeng, Dhulji and  

Dalji reached back, they saw that the accused persons threw the  

body of his late father on the road and by the time they got there,  

his father had already died.  He admitted his signatures on the  

report, Exhibit P/3 and also stated that the Police had prepared  

the site plan.  Clothes of the deceased were taken in his presence  

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and he had signed the memo (Ex. P/7).  In his cross-

examination, he stated that despite his screaming, nobody came  

to help.  PW4 corroborated the statement of PW3 and stated that  

he had come screaming that the accused people were beating his  

father.  All of them ran towards the house of the accused along  

with other named persons and saw that the accused persons had  

thrown the body of the deceased on the road.  According to this  

witness, there were 15-16 injuries on the body of the deceased.  

There was an injury on the neck.  According to him, the neck had  

been twisted (marod) whereupon the deceased died.  PW7 is the  

other witness who has stated that they went to the place of  

occurrence running and when they reached, they saw that body  

of the deceased was being dragged by the accused persons and,  

according to him, there was injury on the neck of the deceased  

and neck had been broken and his whole body had injuries.  

PW2 is the other witness who has specifically stated that body of  

the deceased was lying in front of the house of Laleng, the  

accused, when he went to the place of occurrence.  This witness  

clearly stated that when he saw the body of the deceased, he  

noticed that blood was oozing from his body.  In answer to a  

question in his cross-examination, he stated that there were  

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disputes between Khemji and Kachru relating to agricultural  

land.  The inquest report of the body of the deceased is also a  

relevant document in this regard.  The Investigating Officer  

noticed as many as 15 injuries on the body of the deceased which  

completely matched with the post mortem report.  He also  

noticed that on the wrist of the hand and finger (left), there was  

blood.  There were a number of injuries on the right foot of the  

deceased.  There was fresh injury seen on the right foot.  The  

deceased was wearing white tericot jhabba which was blood  

stained.  There is complete consistency between the ocular and  

medical evidence.  The mere fact that no injuries on the body of  

the deceased were found which could have been caused by an  

axe or kash (which are stated to be sharp aged weapons), would  

not ex facie belie the ocular and medical evidence.  There were a  

large number persons (15) who were involved in the commission  

of the crime.  Except two, all were carrying laths and all the  

injuries on the body of the deceased were caused by a blunt  

weapon.  Even an axe or kash could be used from the other side,  

i.e., not the sharp edge to cause such injuries.  Even if they were  

not used, it would not, in any way, cause a dent in the case of  

the prosecution.  All the witnesses have truthfully spoken about  

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the occurrence.  Except PW3, nobody could have actually seen  

the assault on the deceased by the accused persons.  It will be  

unfair to expect a young boy, whose father is being beaten to  

death, to watch with precision as to which of the accused was  

causing which injury and by what weapon.  His entire interest  

would be to somehow save his father.  There was so much of fear  

in his mind that he could not gather the courage of preventing  

the accused persons from assaulting his father as he thought  

that accused persons would kill him as well.  This conduct of  

PW3 cannot be said to be abnormal in the facts and  

circumstances of the present case.  He immediately got other  

persons to help.   

12. PW15 stated that at about 5.30 p.m., he was going from the  

bus stand towards his house, when he heard the screams of the  

deceased.  When he went there, the accused persons were  

beating the deceased and while continuing to beat him, took the  

deceased into their house. He also stated that they had brought  

the body of the deceased outside and threw it near the hand  

pump in front of their house and when he saw the deceased he  

was dead and his neck was turned in one direction.  He also  

stated that there was dispute about the agricultural land between  

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the deceased and the accused persons.  In his cross-examination,  

he admitted that he was alone at the place of occurrence when  

the deceased was being beaten by the accused persons.  He also  

stated that he had screamed and raised an alarm but nobody  

came forward to help after which the son of the deceased along  

with others had come there.  In response to a question in his  

cross-examination, he stated another fact that four accused  

persons had brought the dead body of the deceased outside their  

house while dragging it.  However, it had not been recorded and  

the Police has not noticed the same.  He reiterated that body of  

the deceased was dragged and thrown in front of the hand pump.  

13. This Court has consistently taken the view that except  

where it is totally irreconcilable with the medical evidence, oral  

evidence has primacy.  In the case of Abdul Sayeed v. The State  

of Madhya Pradesh [(2010) 10 SCC 259], this Court held as  

under:

“38. In State of U.P. v. Hari Chand, (2009) 13  SCC 542, this Court reiterated the  aforementioned position of law and stated  that: (SCC p. 545, para 13)

‘… In any event unless the oral evidence  is totally irreconcilable with the medical  evidence, it has primacy.’

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39. Thus, the position of law in cases where  there is a contradiction between medical  evidence and ocular evidence can be  crystallised to the effect that though the  ocular testimony of a witness has greater  evidentiary value vis-à-vis medical evidence,  when medical evidence makes the ocular  testimony improbable, that becomes a  relevant factor in the process of the evaluation  of evidence. However, where the medical  evidence goes so far that it completely rules  out all possibility of the ocular evidence being  true, the ocular evidence may be disbelieved.

40. In the instant case as referred to  hereinabove, a very large number of  assailants attacked one person, thus the  witnesses cannot be able to state as how  many injuries and in what manner the same  had been caused by the accused. In such a  fact-situation, discrepancy in medical  evidence and ocular evidence is bound to  occur. However, it cannot tilt the balance in  favour of the appellants.”

14. Similar view was taken by this Court in the case of Baso  

Prasad & Ors. v. State of Bihar [2006 (13) SCC 65] wherein this  

Court held as under :

“27. In some cases, medical evidence may  corroborate the prosecution witnesses; in  some it may not. The court, however, cannot  apply any universal rule whether ocular  evidence would be relied upon or the medical  evidence , as the same will depend upon the  facts and circumstances of each case.  

28. No hard and fast rule can be laid down  therefore. It is axiomatic, however, that when  

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some discrepancies are found in the ocular  evidence vis-a-vis medical evidence, the  defence should seek for an explanation from  the doctor. He should be confronted with the  charge that he has committed a mistake.  Instances are not unknown where the doctor  has rectified the mistake committed by him  while writing the post-mortem report.”

15. In the case of Krishnan v. State [(2003) 7 SCC 56], this  

Court held as under:

“18. The evidence of Dr. Muthuswami (PW 7)  and Dr Abbas Ali (PW 8) do not run in any  way contrary to ocular evidence. In any  event, the ocular evidence being cogent,  credible and trustworthy, minor variance, if  any with the medical evidence is not of any  consequence.  

20. Coming to the plea that the medical  evidence is at variance with ocular evidence,  it has to be noted that it would be erroneous  to accord undue primacy to the hypothetical  answers of medical witnesses to exclude the  eyewitness account which had to be tested  independently and not treated as the  “variable”, keeping the medical evidence as  constant.  

21. It is trite that where the eyewitnesses’  account is found credible and trustworthy,  medical opinion pointing to alternative  possibilities is not accepted as conclusive.  Witnesses, as Bentham said, are the eyes  and years of justice. Hence, the importance  and primacy of the quality of trial process.  Eyewitnesses’  account would require a  careful independent assessment and  evaluation for its credibility which should not  be adversely prejudged making any other  

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evidence, including medical evidence, as the  sole touchstone for the test of such  credibility. The evidence must be tested for  its inherent consistency and the inherent  probability of the story; consistency with the  account of other witnesses held to be credit  worthy; consistency with undisputed facts,  the “credit”  of the witnesses; their  performance in the witness box; their power  of observation etc. Then, the probative value  of such evidence becomes eligible to be put  into the scales for a cumulative evaluation.”  

16. In light of the above principles, we may revert to the  

evidence in the present case.  A large number of persons had  

attacked one person.  These witnesses cannot be expected to  

explain the role in the inflicting of injuries by each one of them  

individually and the weapons used.  Such conduct would be  

opposed to the normal conduct of a human being.  The fear for  

his own life and anxiety to save the victim would be so high and  

bothersome to the witness that it will not only be unfair but also  

unfortunate to expect such a witness to speak with precision  

with regard to injuries inflicted on the body of the deceased and  

the role attributable to each of the accused individually.  In the  

present case, the result of the blunt injuries is evident from the  

report of the post mortem (Exhibit P/11), the ribs of the deceased  

were broken and they had punctured the lungs.  The pleural  

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cavities were full of blood and his body was dragged causing  

injuries on his back.  In these circumstances, some blood would  

but naturally ooze out of the body of the deceased and his clothes  

would be blood stained.  The post mortem report (Exhibit P/11),  

the inquest report, the statements of PW2, PW3, PW4, PW7 and  

PW15 are in line with each other and there is no noticeable  

conflict between them.  The injuries on the body of the deceased  

were so severe that they alone could be the cause of death and  

the statement of PW6 in relation to cause of death is definite and  

certain.  Thus, we see no merit in this contention raised on  

behalf of the accused.

17. The other submission on behalf of the appellant relates to  

contradictions and improvements in the statements of the  

witnesses.  It is contended that Exhibit P/4 does not confine  

itself to the lodging of the FIR.  PW3 has not mentioned the  

presence of PW15 at the place of occurrence while, according to  

PW15, he was present at the site.  The witnesses had also stated  

that the neck of the deceased was broken, while according to  

PW6, it was not so.  The witnesses, including PW3, PW7 and  

PW15 have made definite improvements in their statements  

before the Court in comparison with their statements recorded  

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under Section 161 of the Cr.P.C. by the Investigating Officer, with  

which they were even confronted.  The counsel has then argued  

that the witnesses have to be of ‘sterling worth’, otherwise the  

case of the prosecution would fall.

18. ‘Sterling worth’  is not an expression of absolute rigidity.  

The use of such an expression in the context of criminal  

jurisprudence would mean a witness worthy of credence, one  

who is reliable and truthful.  This has to be gathered from the  

entire statement of the witnesses and the demeanour of the  

witnesses, if any, noticed by the Court.  Linguistically, ‘sterling  

worth’ means ‘thoroughly excellent’ or ‘of great value’.  This term,  

in the context of criminal jurisprudence cannot be of any rigid  

meaning.  It must be understood as a generic term.  It is only an  

expression that is used for judging the worth of the statement of  

a witness.  To our mind, the statements of the witnesses are  

reliable, trustworthy and deserve credence by the Court.  They do  

not seem to be based on any falsehood.

19. As far as absence of the name of PW15 from the FIR (Exhibit  

P/4) is concerned, it is clear that PW3 was following his father  

from behind and the moment the accused persons, who were  

large in number, started assaulting his father with weapons that  

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they were carrying, for fear of his own life and to bring people to  

save his father, he ran from the site.  Obviously, PW15 appeared  

at the scene at that time and PW3 had not seen him at that  

juncture.  Afterwards, when he came to the site along with other  

witnesses, i.e., PW2, PW4 and PW7, he saw his father’s body  

being thrown near the hand pump in front of the house of the  

accused.  The death of his father would have perturbed him so  

much that his priorities would be only to take his father to the  

hospital and inform the police, rather than viewing as to who was  

there around him besides the persons who had come with him.  

The presence of PW15, thus, cannot be doubted at the site in  

question.  He was going from the bus stand to his house and had  

stopped on the way after seeing the incident.  This behavior of  

PW15 is very normal behavior and does not call for the raising of  

any unnecessary doubts.  Similarly, in the post mortem report,  

no bleeding injury was noticed, which obviously means that there  

was no open cut injury which was bleeding.  In the inquest  

report, the injuries of the deceased have been noticed and it had  

also been noticed that blood was coming from the body of the  

deceased which could be very possible when examined in  

conjunction with the statement of the witnesses including PW3,  

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PW7 and PW15 that the clothes of the deceased were blood  

stained and his body was dragged from inside the house of the  

accused to the outside near the hand pump.  No doubt, the eye  

witnesses have stated that the neck of the deceased was broken,  

while according to other witnesses, it was lying in a twisted  

condition.  According to the post mortem report (Exhibit  P/11)  

and statement of PW6, there were bruises on the entire back  

including shoulders.  However, no apparent external injury was  

noticed on the neck of the deceased.  But after dissecting the  

neck, the doctor came to know that there was swelling in the  

neck muscles and hard bone edges had fractures which were  

prior to the death of the deceased.  In Exhibit P/2, when the  

Investigating Officer under Item No.8 examined the neck of the  

deceased, he also noticed that the neck was not stable and was  

loosely turning both sides with external aid.  This clearly shows  

that the neck of the deceased was badly injured and even had a  

fracture.  It is obvious that there is also no contradiction between  

the statement of the witnesses and the medical evidence even in  

this regard.

20. These cannot be termed as contradictions between the  

statements of the witnesses.  They are explainable variations  

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which are likely to occur in the normal course and do not, in any  

way, adversely affect the case of the prosecution.  Thus, there are  

no material contradictions in the statement of the witnesses or  

the documents, nor can the presence of PW15 be doubted at the  

place of occurrence.   

21.   For instance PW15, in his cross-examination, had stated  

before the Court that Laleng had twisted the neck of the  

deceased.   According to the accused, it was not so recorded in  

his statement under Section     161,     Exhibit     D/2     upon     which     he    

explained     that     he     had     stated     before     the     police     the     same     thing,    

but     he     does     not     know     why     the     police     did     not     take     note     of     the    

same.    Similarly, he also said that he had informed the police  

that the four named accused had dragged the body of the  

deceased and thrown it near the hand pump outside their house,  

but he does not know why it was not so noted in Exhibit D/2.  

There are some variations or insignificant improvements in the  

statements of PW3 and PW7.   According to the learned counsel  

appearing for the appellants, these improvements are of such  

nature that they make the statement of these witnesses  

unbelievable and unreliable.   We are again not impressed with  

this contention.   The witnesses have stated that they had  

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informed the police of what they stated under oath before the  

court, but why it was not so recorded in their statements under  

Section 161 recorded by the Investigating Officer would be a  

reason best known to the Investigating Officer. Strangely, when  

the Investigating Officer, PW16, was being cross-examined, no  

such question was put to him as to why he did not completely  

record the statements of the witnesses or whether these  

witnesses had made such afore-mentioned statements.  

Improvements or variations of the statements of the witnesses  

should be of such nature that it would create a definite doubt in  

the mind of the court that the witnesses are trying to state  

something which is not true and which is not duly corroborated  

by the statements of the other witnesses.   That is not the  

situation here.    These improvements do not create any legal  

impediment in accepting the statements of PW3, PW4, PW7 and  

PW15 made under oath.    This Court has repeatedly taken the  

view that the discrepancies or improvements which do not  

materially affect the case of the prosecution and are insignificant  

cannot be made the basis for doubting the case of the  

prosecution.   The courts may not concentrate too much on such  

discrepancies or improvements.    The purpose is to primarily  

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and clearly sift the chaff from the grain and find out the truth  

from the testimony of the witnesses.  Where it does not affect the  

core of the prosecution case, such discrepancy should not be  

attached undue significance.   The normal course of human  

conduct would be that while narrating a particular incident,  

there may occur minor discrepancies.    Such discrepancies may  

even in law render credential to the depositions.   The  

improvements or variations must essentially relate to the  

material particulars of the prosecution case.   The alleged  

improvements and variations must be shown with respect to  

material particulars of the case and the occurrence.   Every such  

improvement, not directly related to the occurrence, is not a  

ground to doubt the testimony of a witness.   The credibility of a  

definite circumstance of the prosecution case cannot be  

weakened with reference to such minor or insignificant  

improvements.    Reference in this regard can be made to the  

judgments of this Court in Kathi Bharat Vajsur and Another v.  

State of Gujarat [(2012) 5 SCC 724], Narayan Chetanram  

Chaudhary and Another v. State of Maharashtra [(2000) 8 SCC  

457], D.P. Chadha v. Triyugi Narain Mishra and Others [(2001) 2  

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SCC 205], Sukhchain Singh v. State of Haryana and Others  

[(2002) 5 SCC 100].

22. What is to be seen next is whether the version presented in  

the Court was substantially similar to what was said during  

investigation.  It is only when exaggeration fundamentally  

changes the nature of the case, the Court has to consider  

whether the witness was stating truth or not.   {Ref. Sunil Kumar  

v. State Govt. of NCT of Delhi [(2003) 11 SCC 367]}

23. These are variations which would not amount to any serious  

consequences.   The Court has to accept the normal conduct of a  

person.   The witness who is watching the murder of a person  

being brutally beaten by 15 persons can hardly be expected to a  

state minute by minute description of the event.  Everybody, and  

more particularly a person who is known to or is related to the  

deceased, would give all his attention to take steps to prevent the  

assault on the victim and then to make every effort to provide  

him with the medical aid and inform the police.    The statements  

which are recorded immediately upon the incident would have to  

be given a little leeway with regard to the statements being made  

and recorded with utmost exactitude.   It is a settled principle of  

law that every improvement or variation cannot be treated as an  

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attempt to falsely implicate the accused by the witness.    The  

approach of the court has to be reasonable and practicable.  

Reference in this regard can be made to Ashok Kumar Vs. State of  

Haryana [(2010) 12 SCC 350] and Shivlal and Another v. State of  

Chhattisgarh [(2011) 9 SCC 561].

24. Next contention is that the presence of PW3, PW4, PW7 and  

PW15 at the place of occurrence is doubtful.   Secondly,  

according to the accused, PW15 is the only eye-witness and it is  

submitted that his statement is not reliable and, therefore,  

cannot be made the foundation for their conviction.   We have  

already held that the presence of these witnesses at the place of  

occurrence is neither unnatural nor improbable.   In fact, their  

statements are trustworthy and their presence at the place of  

occurrence at different timings is plausible and fully fits into the  

case of the prosecution.  The version given by these witnesses is  

fully corroborated by documentary and medical evidence.   PW3  

is an eye-witness to the assault on the deceased.   He had run  

away from the site to save his life and call his friends and then it  

was PW15 who appeared at the scene and saw the victim being  

assaulted by the accused and being taken into the house of the  

accused from where, after sometime, they dragged out the body  

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of the deceased and threw it near the hand pump in the street.  

The eye account given by these witnesses fully finds support from  

the statement of the Investigating Officer, the inquest report  

Exhibit P/2, post-mortem report Exhibit P/11 as well as the  

recoveries effected from the place of occurrence including the  

blood stained earth and wood from the door of the house of the  

accused.  PW9 and PW17 are the witnesses to the recovery (of  

weapons) while PW10 and PW11 are the witnesses to the seizure  

of the blood stained cloth of the deceased.   PW3 was coming  

from a different place, while his father, the deceased, was coming  

from a different place.  He was just following his father at a  

distance and after he saw the incident and found his father dead,  

he lodged an FIR with the police without any delay.   Eye account  

given by these witnesses is trustworthy and is duly corroborated  

as well.   The Court has stated the principle that, as a general  

rule, the Court can and may act on the testimony of a single eye-

witness provided he is wholly reliable and base the conviction on  

the testimony of such sole eye-witness.  There is no legal  

impediment in convicting a person on the sole testimony of a  

single witness.   

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25. The testimony of an eye-witness, if found truthful, cannot  

be discarded merely because the eye-witness was a relative of the  

deceased.   Where the witness is wholly unreliable, the court may  

discard the statement of such witness, but where the witness is  

wholly reliable or neither wholly reliable nor wholly unreliable (if  

his statement is fully corroborated and supported by other ocular  

and documentary evidence), the court may base its judgment on  

the statement of such witness.    Of course, in the latter category  

of witnesses, the court has to be more cautious and see if the  

statement of the witness is corroborated.   Reference in this  

regard can be made to the case of Sunil Kumar (supra), Brathi  

alias Sukhdev Singh Vs. State of Punjab [(1991) 1 SCC 519] and  

Alagupandi @ Alagupandian  v. State of Tamil Nadu [2012 (5)  

SCALE 595].  

26. In light of these principles, it can safely be recorded that  

firstly all these witnesses were present at the place of occurrence  

and their statements are reliable.   In the alternative, if we rely  

upon the statement of PW15 (according to the accused, the sole  

eye witness) whose statement, according to the accused, is  

unreliable, then this Court should have no hesitation in basing  

the conviction on the statement of PW15, as the statement of that  

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witness is trustworthy, reliable and is completely corroborated by  

other ocular and documentary evidence.  

27. The learned counsel appearing for the appellants laid  

emphasis on the fact that PW5 was an eye-witness but had been  

declared hostile by the court.    Thus, the entire case of the  

prosecution is based on a mere suspicion and falls to the ground.  

.This argument does not impress us at all.   No doubt PW5 had  

been declared hostile by the prosecutor and he was subjected to  

some cross-examination.   In his statement, he stated that at  

about 5.30 p.m., he was coming from the village Bajawan Bus  

Stand towards his house.    On the way, in the street and lying in  

front of Laleng’s house, he saw the dead body of Mogji. He  

claimed that he did not see anything else.   He denied that he  

knew who had killed Mogji.   From the statement of this witness,  

it is clear that he saw the dead body of the deceased at the same  

place where PW3, PW4, PW7 and PW15 had seen.   Even his  

statement to this extent fully corroborates the statement of other  

eye-witnesses.   We fail to understand, much less appreciate, as  

to what advantage the accused/appellants wish to draw from  

PW1 and PW5 being declared hostile.   Whatever doubt these  

witnesses could cause to the case of the prosecution stands fully  

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supplied and erased by the statement of other eye-witnesses and  

the other medical and expert evidence.    Another very material  

piece of evidence which directly links the accused to the offence  

is that when the blood stained cloths of the deceased and other  

articles were recovered, sealed and sent for serological  

examination to the FSL and the Chemical Analyst had submitted  

its report Exhibit P/43 after such serological examination,  

human blood of blood group ‘O’, which was also the blood group  

of the deceased, was found on all the three articles namely  

jhabba, baniyan and blood stained dahli.

28. This clearly shows that the body of the deceased was  

dragged from inside the house of the accused and then thrown  

near the hand pump.  This scientific report fully corroborates the  

statement of PW15.   Another very important piece of evidence is  

the statement of DW-1, the sole witness who was examined by  

the defence.   In fact, it was Kuria himself who stepped into the  

witness box.    According to him, there were serious disputes in  

relation to the agricultural land between the deceased’s family  

and the family of the accused.   Such disputes were there for  

nearly two years.  According to this witness, there was animosity  

between the parties regarding this issue.   There were cases  

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pending in the court. Though he denied the suggestion that they  

had murdered Mogji due to this reason, but he does provide a  

motive for the accused persons to commit the offence.   In all  

likelihood, that was the cause for murdering the deceased.   In  

face of this unimpeachable evidence, ocular and documentary,  

the question of corroboration by unreliable evidence does not  

arise in the present case.   The reliance placed by the accused on  

the judgment of this Court in the case of State of Punjab v.  

Parveen Kumar [(2005) 9 SCC 769] is completely misplaced on  

facts and in law both.     

29. In these circumstances, the cumulative effect of the  

prosecution evidence is that the prosecution has been able to  

prove its case beyond reasonable doubt.  

30. Lastly, it was contended that the provisions of Section 34,  

IPC are not attracted in the present case.    It is contended on  

behalf of the appellant that they had no common intention to kill  

the deceased and it was not a case of pre-meditated murder.  

This argument is noticed only to be rejected.

31. It has come in evidence that all the accused persons had  

come with weapons, assaulted the deceased and taken him  

inside the house where he was again assaulted by the accused  32

Page 33

persons and after sometime, his body was dragged by the  

accused persons, including the appellant and thrown near the  

hand pump.   If this is not a case of common intention and  

object, it is really doubtful as to which cases can fit into that  

category.    There was motive for the accused persons to kill the  

deceased, they had come out with common intention and object  

to assault and kill the deceased in which they succeeded.    In  

the cases where it is not possible to attribute a specific role to a  

particular accused, like the present case, recourse to this  

provision is appropriately made by the prosecution.     

32. According to PW3, Kuria was carrying lath while accused  

Laleng, son of Bajeng was carrying axe (kulhari) which as  

appeared from the statements of the witnesses, could have been  

used from the other end.    In relation to dragging the body, the  

question of use of any weapon would not arise.   It was a  

communal intended act, in which the accused persons  

participated accused with the object of killing deceased Mogji.  

The soul of section 34, IPC is the joint liability in doing a criminal  

act.   The section is a rule of evidence and does not create a  

substantive offence.    The distinctive feature of the section is the  

element of participation in action.    The liability of one person for  

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an offence committed by the other in the course of criminal act  

perpetrates to all other persons, under Section 34 IPC, if such  

criminal act is done in furtherance of the common intention of  

the person who joins in committing the crime.  The Court has to  

examine the prosecution evidence in regard to application of  

Section 34 cumulatively and if the ingredients are satisfied, the  

consequences must follow.    It is difficult to state any hard and  

fast rule which can be applied universally to all cases.  It will  

always depend on the facts and circumstances of the given case  

whether the person involved in the commission of the crime with  

a common intention can be held guilty of the main offence  

committed by them together.   The provisions of Section 34 IPC  

come to the aid of law while dealing with the cases of criminal act  

and common intention.   Its basic essentials are : that the  

criminal act is committed by several persons, such act is done in  

furtherance of common intention of all and each of such persons  

is liable for that act in the same manner as if it were done by him  

alone.   Reference in this regard can be made to the cases of  

Shyamal Ghosh v. State of West Bengal [2012 (6) SCALE 381],  

Hemchand Jhas alias Hemchandra Jha v. State of Bihar [(2008)  

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11 SCC 303] and Nand Kishore v. State of Madhya Pradesh  

[(2011) 12 SCC 120].

33. The above-stated ingredients are fully satisfied in the  

present case.   Undoubtedly, all the accused had committed  

criminal acts punishable under the provisions of the IPC.  They  

had done so with common intention, as is evident from the  

statement of the witnesses and the documents on record.    And  

lastly, each one of them, whether he actually made any assault  

on the body of the deceased or not, dragged him and threw his  

body in the gully or not, shall all be deemed to have committed  

the said offences with the aid of Section 34 IPC.   Thus, this  

contention also has no merit and is rejected.

34. For the reasons afore-recorded, the appeal is dismissed.  

………...….…………......................J.                                           (Swatanter Kumar)

………...….…………......................J.                                          (Fakkir Mohamed Ibrahim Kalifulla)

New Delhi, September 13, 2012  

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