REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 339 of 2008

Rakesh & Another                              …Appellants

Versus

State of Madhya Pradesh           …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This criminal appeal has been preferred against the judgment and  

order  dated  15.12.2006  passed  by  the  High  Court  of  Judicature  at  

Jabalpur in Criminal Appeal Nos. 518 and 890 of 1997.   

2. Facts as explained by the prosecution have been that:

A.    On 5.3.1996, on the  day of  `Holi’  at  around 11.30 a.m.,  one  

Kailash  @ Killu  was  assaulted  by  the  appellants  alongwith  another

accused  in  front  of  the  house  of  one  Rama Tailor.   Anil  (PW.11),  

nephew of the deceased, who had been following Kailash (deceased),  

raised an alarm and the assailants were caught at  the spot.  Various  

persons gathered at the place of occurrence but the assailants managed  

to flee.  The injured Kailash was taken to the hospital but succumbed to  

his injuries.  In view of the above, an FIR was lodged under Section  

302  of  Indian  Penal  Code,  1860  (hereinafter  called  as  `IPC’)  and  

Section 25 of the Arms Act, 1959, within one hour of the incident at  

12.30 p.m., wherein both the appellants and other accused were named.  

In  the  FIR it  was  also  stated  that  two  policemen,  namely,  Ramdas  

Havaldar and Pannalal Sainik came at the scene and got the accused  

persons released from the mob and, thus, they succeeded in running  

away.   

B.      Dr. R.K. Singhvi (PW.8), conducted the post-mortem on the  

body of the deceased on the same day.  In his opinion, there were three  

incised wounds found  on his body, one on the neck, one on the chest  

and another in the abdomen. All the injuries had been caused by sharp  

edged weapons and Kailash had died within  three to six hours prior to  

conducting the post-mortem examination.   

2

C. During the course of investigation, the appellants were arrested  

and the weapons used in the offence were recovered on their disclosure  

statements.  After concluding the investigation, chargesheet was filed.   

D. The  case  was  committed  for  Sessions  trial.   The  prosecution  

examined a large number of witnesses in support of its case. One Halle  

(DW.1) was examined in defence and after conclusion of the trial, all  

the  three  accused  were  convicted  for  the  offence  punishable  under  

Section 302 IPC vide judgment and order dated 21.2.1997 and were  

awarded sentence of rigorous imprisonment for life and a fine of Rs.  

2,000/- each, in default thereof, to serve  further sentence of one year.   

E. Being  aggrieved,  all  the  three  accused/convicts  preferred  two  

appeals i.e. Criminal Appeal Nos. 518 & 890 of 1997 before the High  

Court of Judicature at Jabalpur, which were decided by judgment and  

order dated 10.2.2005 in absence of their counsel.   

F. Being aggrieved, the present  two appellants preferred criminal  

appeals before this Court i.e. Criminal Appeal Nos. 1463-64 of 2005  

which were allowed vide judgment and order dated 20.7.2006 and this  

Court after setting aside the judgment and order dated 10.2.2005 of the  

3

High Court of Judicature at Jabalpur, remanded the appeals to be heard  

by the High Court afresh.  

G. In pursuance of the said judgment and order of this Court dated  

20.7.2006,  the  appeals  have  been  heard  afresh  and  dismissed  vide  

judgment and order dated 15.12.2006 by the High Court.  

Hence, this appeal.  

3. Before proceeding with the case on merit, it may be pertinent to  

mention  here  that  so  far  as  the  case  of  the  appellant  Rakesh  is  

concerned, he had already served the sentence of more than 14 years  

and has been granted premature release by the State.  Appellant Rajesh  

has served about  7  -1/2  years  and is  still  in  jail.   The third  person  

Dinesh did not prefer any appeal so we are not concerned with him so  

far as this appeal is concerned.  

4. Shri  Siddharth  Aggarwal,  learned  counsel  appearing  for  the  

appellants, has submitted that the Trial Court had placed very heavy  

reliance upon the alleged eye-witnesses Khemchand (PW.10) and Anil  

(PW.11)  who,  in  fact,  could  not  be  the  eye-witnesses  at  all.  The  

deposition of other witnesses examined by the prosecution, falsify the  

prosecution’s case in entirety. There have been material inconsistencies  

4

in the depositions of Khemchand (PW.10) and Anil (PW.11), and  their  

entire evidence has to be discredited.  The High Court after considering  

the circumstances, did not find the evidence of Khemchand (PW.10)  

trustworthy,  however,  failed  to  appreciate  that  the  evidence  of  Anil  

(PW.11) was also liable to be treated similarly.  The ocular evidence is  

contradictory to the medical evidence as the incident had occurred at  

11.30  a.m.,  FIR   had  been  lodged  at  12.30  p.m.  The  post-mortem  

examination was conducted at 1.00 p.m. on the same day i.e. 5.3.1996.  

The Doctor opined that Kailash @ Killu had died within 3 to 6 hours  

before the post-mortem examination. Anil (PW.11) relied upon by the  

High Court,  is  closely related to the deceased Kailash @ Killu and  

none  of  the  independent  witnesses  examined  by  the  prosecution  

supported its case to the extent that Anil (PW.11) could be present on  

the place of occurrence at the relevant time. Thus, the appeal deserves  

to be allowed.  

5. Per contra, Ms. Vibha Dutta Makhija, learned counsel appearing  

for the State, has vehemently opposed the appeal contending that there  

is no rule of law prohibiting reliance upon the evidence of the close  

relatives  of the victims, however,  such evidence has to be carefully  

scrutinised. The medical evidence may not be conclusive regarding the  

5

time of death as the physical condition of a body after death depends  

upon various factors i.e. age, geographical and climatic conditions of  

the place of occurrence etc.  The facts and circumstances of the case do  

not  warrant  interference  with  the  concurrent  findings  of  the  facts  

recorded by the courts below. The appeal lacks merit and is liable to be  

dismissed.  

6. We have considered the rival submissions made by the learned  

counsel for the parties and perused the record.  

7. According to the prosecution case, Rakesh hit on the right side of  

the neck with knife, Rajesh on the right portion of the chest by gupti  

and Dinesh hit by ‘Katarna’ (Axe having long wooden handle of 42  

inches)  on  the  right  portion  of  the  stomach  of  Kailash  @  Killu,  

deceased.   This  evidence  stands  duly  supported  by  the  medical  

evidence as Dr. R.K. Singhvi (PW.8), on conducting the post-mortem  

examination found the following injuries on his person:  

i) Incised wound on the right portion of right clerical bone of  

1.5x2x5 cms with regular edges. Faciea muscle, blood vessel lungs  

was torn, blood was deposited in the chest.  

6

ii) Incised wound on the right chest on third inter-coster space  

of 5 cm x 1.5 cm x 5 cm. Faciea muscle and blood vessels had  

been cut.  

iii) Incised wound in the right chest on ninth intercoster space of  

4 cms x 2 cm x 4 cms.  

In the opinion of Doctor Singhvi, all the injuries appeared  

to have  been caused within 3 to 6 hours by sharp edged weapons prior  

to the post-mortem examination.   

8. All  the weapons used in the crime had been recovered in the  

disclosure statements made by the appellants and other accused.  In the  

opinion of Dr. R.K. Singhvi (PW.8), injuries nos.1, 2 and 3 could be  

caused by the weapons used in the offence.  The question does arise as  

to  whether  there  is  inconsistency/contradiction  in  the  medical  and  

ocular evidence.  The evidence on record clearly reveal that injuries  

had been caused to Kailash @ Killu, deceased, on his neck, chest and  

right portion of the stomach.   

9. It is a settled legal proposition that the ocular evidence would  

have  primacy  unless  it  is  established  that  oral  evidence  is  totally  

irreconcilable  with  the  medical  evidence.   More  so,  the  ocular  

testimony  of  a  witness  has  a  greater  evidentiary  value  vis-a`-vis  

7

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 if  

proved, the ocular evidence may be disbelieved.  (Vide: State of U.P.  

v.  Hari  Chand, (2009)  13  SCC  542;  Abdul  Sayeed  v.  State  of  

Madhya  Pradesh, (2010)  10  SCC  259;  and Bhajan  Singh  @  

Harbhajan Singh & Ors. v. State of Haryana, (2011) 7 SCC 421).

10. So far as the opinion of the doctor that death had occurred within  

3 to 6 hours prior to post-mortem examination, does not mean that Dr.  

R.K. Singhvi (PW.8) was able to fix any exact time of death.  The issue  

raised by the learned counsel for the appellants is no more res integra.  

In Mangu Khan & Ors. v. State of Rajasthan, AIR 2005  

SC 1912, this Court examined a similar issue wherein the post-mortem  

report mentioned that the death had occurred within 24 hours prior to  

post-mortem examination. In that case, such an opinion did not match  

with the prosecution case.  This Court examined the issue elaborately  

and held that physical condition of the body after death would depend  

on a large number of  circumstances/factors  and nothing can be said  

with certainty.  In determining the issue, various factors such as age  

8

and  health  condition  of  the  deceased,  climatic  and  atmospheric  

conditions of the place of occurrence and the conditions under which  

the body is  preserved, are required to be considered. There has been no  

cross-examination of  the  doctor  on the  issue as  to  elicit  any of  the  

material  fact  on which a possible argument could be based  in  this  

regard.  The acceptable ocular evidence cannot be dislodged on such  

hypothetical basis for which no proper grounds were made.   

11. In Baso Prasad & Ors. v. State of Bihar, AIR 2007 SC 1019,  

while considering a similar  issue, this Court held that exact  time of  

death cannot be established scientifically and precisely.   

Halle  (DW.1),  examined  by  the  appellants  in  their  defence,  

deposed that incident occurred at 11.00 a.m. which is consistent with  

the prosecution case.  Thus, in view of the above, the submission so  

advanced by the learned counsel for the appellants, is not tenable and  

thus,  does  not  tilt  the  balance  in  favour  of  the  appellants.   The  

argument does not require any further consideration.   

12. This Court in  Kartik Malhar v. State of Bihar,(1996) 1 SCC  

614, defined  ‘interested witness’ as:  

“A close relative who is a natural witness cannot   be  regarded  as  an  interested  witness.  The  term  

9

‘interested’ postulates that the witness must have   some  direct  interest  in  having  the  accused  somehow or the other convicted for some animus  or for some other reason.”   

13. Evidence  of  related  witness  can  be relied  upon provided it  is  

trustworthy.   Mere  relationship  does  not  disqualify  a  witness.  

Witnesses who are related to the victim are as competent to depose the  

facts as any other witness. Such evidence is required to be carefully  

scrutinised  and  appreciated  before  reaching  to  a  conclusion  on  the  

conviction of the accused in a given case. (See:  Himanshu @ Chintu  

v. State  (NCT of Delhi),  (2011) 2 SCC 36; and  Bhajan Singh  @  

Harbhajan Singh & Ors. (supra).

14. Anil  (PW.11),  undoubtedly,  has  been  closely  related  to  the  

victim being his nephew.  His evidence requires  a very careful  and  

close scrutiny in the light of the aforesaid settled legal propositions.  

15. The main thrust of the argument of the learned counsel for the  

appellants  has been that  the statements  of Khemchand (PW.10) and  

Anil (PW.11) have been mutually destructive, thus both are liable to be  

discarded  altogether.  The  High  Court  has  disbelieved  Khemchand  

(PW.10) to the extent that he was present at the time of incident and  

1

thus, could not be an eye-witness.  Deposition of Anil (PW.11) clearly  

reveals that incident occurred at 10.30 a.m. in front of the house of  

Rama Tailor  and the appellants  alongwith Dinesh caused injuries  to  

Kailash (deceased) with weapons such as knife, gupti and ‘katarna’ on  

the neck, chest and stomach.  At the time of incident, Anil (PW.11) had  

been  at  a  short  distance  from  the  victim.   Ishwar  Nayak  (PW.6),  

Dharmendra (PW.12) and other persons had also gathered there.  He  

also deposed about the motive that Rakesh, accused, wanted utensils  

from Kailash (deceased), who refused to oblige the accused.  Rakesh,  

accused had threatened Kailash to face dire consequences.  In cross-

examination, he has admitted that at the time of the incident, Ishwar  

Nayak (PW.6), Dharmendra (PW.12) and Pradeep Pathak (PW.15) etc.,  

were with him.  He denied that he reached the place of occurrence on  

being informed by Halle (DW.1) and further denied the suggestion that  

he  had  not  seen  the  quarrel  between  the  accused  persons  and  the  

deceased.  He gave a full account of the overt acts of the accused while  

causing injuries to Kailash.  His evidence has to be examined taking  

into consideration that the site plan prepared by the Patwari make it  

clear that the incident occurred on a main road and the victim as well  

as Anil (PW.11) were on the same road.  There was no obstruction in  

1

between, thus  Anil (PW.11) could clearly view the incident.  Though,  

there has been some dispute regarding the distance between the two,  

but taking into consideration the fact that the accused had been very  

well  known to  the  witness  being  resident  of   the  same village,  the  

distance  becomes  immaterial  for  the  reason  that  the  witness  could  

recognize  him  even  from  that  distance.   The  other  eye-witnesses,  

particularly, Ishwar Nayak (PW.6), Dharmendra (PW.12) and Pradeep  

Pathak  (PW.15)  did  not  support  the  case  of  the  prosecution  

appropriately. Dharmendra (PW.12) stood declared hostile.  Deposition  

of  Ishwar Nayak (PW.6) has corroborated the case of the prosecution  

to the extent that  Anil (PW.11) was at the place of occurrence earlier  

to him.  In cross-examination, he deposed as under:

“Half  the  boys ran towards the spot  of  incident   immediately. Amongst them was Anil also.  I did  not go with Anil.”

16. In view of the above, it is evident that incident occurred at 11.30 a.m.  

Kailash, injured was taken to the hospital where he was examined by  

the doctor and declared dead.  Anil (PW.11) went from hospital to  

police station and lodged the FIR at 12.30 p.m. wherein all the three  

accused were specifically named.  The distance of the police station  

from the place of occurrence had been only 1 k.m.  The overt acts of  

1

the accused had been mentioned. The motive was also disclosed.  It  

is  improbable  that  the  appellants  had  been  enroped  falsely  as  

promptness  in  lodging  the  FIR shows that  there  was  no  time  for  

manipulation.  Prompt and early reporting of the occurrence by the  

informant with all its vivid details gives an assurance regarding truth  

of its version. Allegations may not be an after-thought or having a  

colourable version of the incidents.  (See: Kishan Singh (dead) thr.  

Lrs. v. Gurpal  Singh & Ors., AIR 2010 SC 3624).  

           It does not appeal to reasons as to why the witness would falsely  

enrope the appellants and other accused in such a heinous crime and  

spare the  real  culprits  to  go scot-free.  In  the  FIR,  Anil  (PW.11)  has  

disclosed that his father Khemchand (PW.10), Ishwar Nayak (PW.6) and  

Dharmendra (PW.12) reached the place of occurrence at a later stage.  

As the parties were known to each other being the residents of the same  

village, the identity etc. was not in dispute.   

17.     The Trial  Court had appreciated the evidence on record,  and  

reached the conclusion to the effect that Anil (PW.11) was a trustworthy  

witness  and  had  been  an  eye-witness  of  the  incident.  He  had  faced  

grilling cross-examination. However, no discrepancy or error could be  

1

shown in spite of the fact that he was nephew of  Kailash (deceased). On  

careful scrutiny of his deposition,  his statement was found trustworthy.  

The court further held that even if the other witnesses on the spot  

had not supported the prosecution case,  Anil  (PW.11) was a natural  

witness  and  had  seen  the  incident.  The  other  circumstances  

particularly,  the  statements  of  B.M.  Dubey,  Investigating  Officer  

(PW.21)  and  Balram  (PW.9),   the  arrest  of  accused,  recovery  of  

weapons on their  disclosure statements  proved the prosecution case.  

The depositions of B.M. Dubey (PW.21) had been natural. There was  

no  proof  that  the  I.O.  (PW.21)  had  any  animosity  or  any  kind  of  

interest and closeness to the deceased. Therefore, the question of not  

believing the statement of B.M. Dubey, I.O. (PW.21) does not arise.  

The  High  Court  in  spite  of  the  fact  of  dis-believing  Khemchand  

(PW.10),  found  the  prosecution  case  wholly  proved  on  the  sole  

testimony of Anil (PW.11).  

18.     There are concurrent findings of fact by the two courts below.  

Unless the findings so recorded are found to be perverse,  this Court  

should  not  generally  interfere.   This  “Court  cannot  embark  upon  

fruitless  task  of  determining  the  issues  by  re-appreciating  the  

1

evidence.”  (See :  Manju Ram Kalita v. State of Assam, (2009) 13  

SCC 330).

          19.  Even if there are minor discrepancies between the narrations of  

witnesses when they speak on details, unless such contradictions are of  

material  dimensions,  the  same  should  not  be  used  to  discard   the  

evidence in its entirety.  The trivial discrepancy ought not to obliterate  

the otherwise acceptable evidence.

20.        In Leela Ram (Dead) thr. Duli Chand v. State of Haryana &  

Anr., (1999) 9 SCC 525, this Court observed as under:

“The  Court  shall  have  to  bear  in  mind  that   different  witnesses  react  differently  under  different  situations:  whereas  some  become  speechless, some start wailing while some others   run away from the scene and yet there are some  who may come forward with courage, conviction   and belief that the wrong should be remedied. As   a matter of fact it depends upon individuals and  individuals.  There  cannot  be  any  set  pattern  or  uniform rule of human reaction and to discard a   piece of  evidence on the ground of  his  reaction  not  falling  within  a  set  pattern  is  unproductive  and a pedantic exercise.”

        21. In view of the above, we reach the inescapable conclusion that  

the  courts  below  reached  the  correct  conclusion  in  accepting  the  

1

prosecution case. Anil (PW.11) is a natural witness and his testimony  

inspired confidence and is, thus, worth acceptance.  

           The facts and circumstances of the instant case do not warrant  

any interference by this Court. Appeal lacks merit and is, accordingly,  

dismissed.  

………………………… …J.

(P. SATHASIVAM)

………………………… …J.

(Dr. B.S. CHAUHAN) New Delhi, September 19, 2011

1

1