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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1482    OF  2013

YOGESH SINGH …       APPELLANT(S)

:Versus:

MAHABEER SINGH & ORS. …    RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1. This appeal is directed against the judgment and order

dated  17th February,  2012  passed  by  the  High  Court  of

Judicature at Allahabad in Criminal Appeal No.1734 of 1983,

whereby  the  High  Court  acquitted  the  accused  persons  –

respondents  herein  of  the  charges  under  Section  302  read

with Section 149 of the Indian Penal Code.  

2. The  case  of  the  prosecution  is  that  on  26.06.1982  at

about  8.00  A.M.,  the  deceased  Mohan  Singh,  who  was  a

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resident  of  Village  Garh  Umrao,  Tehsil  Sadabad,  District

Mathura, U.P., after taking bath at the tube-well, was going to

his house along with his minor daughter Lajjawati (PW-5). He

was carrying his single barrel gun and the strip of cartridges

with  him.  The respondents  Phal  Singh and Mahabir  Singh,

along with other accused Om Prakash and Gopi Chand, were

clearing  the  irrigation  channel  of  their  field;  whereas

respondents  Raj  Pal  and Satya Pal  were scrapping grass in

their  respective  fields.  Jaipal  Singh  and  Om  Prakash  were

engaged  in  plucking  the  Moong  Pods  from the  field.  When

deceased Mohan Singh reached the ridge of the field of  Om

Prakash and Gopi Chand, Phal Singh and Jaipal Singh caught

him by his hands whereas respondent Om Prakash came from

behind, put his arm around him and put him down on the

ground. In the meantime, other accused persons also reached

there. Then the accused Jaipal and Om Prakash caught hands

of the deceased and accused Rajpal and Satyapal caught the

legs of the deceased. Rajpal hit the deceased with a Ballam.

Accused Mahabir Singh and Phal Singh severed the head of

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the  deceased  Mohan  Singh  by  hitting  him  with  Phawara

(Spade).  

3. At the time of the incident, Kalyan Singh (PW-1), who is

the father of deceased Mohan Singh, and Bani Singh (PW-2)

were  sitting  at  the  tube  well  of  Bani  Singh  situated  at  a

distance of around 150 yards from the place of incident. On

hearing  the  cries  of  deceased  Mohan  Singh  and  Lajjawati

(PW-5), the aforesaid witnesses rushed to the place of incident.

In the meantime, accused Harcharan also arrived at the place

of incident carrying his gun. In order to dissuade Kalyan Singh

and  Bani  Singh,  the  accused  respondents  Phal  Singh  and

Harcharan fired in the air. Then the accused persons tried to

take away the body of deceased Mohan Singh by dragging it

for some distance. But due to the hue and cry raised by the

eye-witnesses,  the  accused  fled  away  from  the  place  of

incident.  Thereafter,  Kalyan  Singh  (PW-1)  went  to  Police

Station Sadabad with a written complaint of the incident, on

the basis of which an FIR of the incident was lodged on the

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same day at around 11.00 A.M. and Case Crime No.139 of

1982 was registered.   

4. Thereafter, investigation started and police sent the dead

body of Mohan Singh for post-mortem, prepared Site Map of

the place of the incident, and collected blood-stained soil and

clothes of  the deceased.  In the evening,  accused Harcharan

was  arrested  and  on  the  information  given  by  him,  a

blood-stained Phawara (Spade) was recovered. All the articles

recovered were sent for chemical examination.  

5. Dr.  K.C.  Jain  (PW-4)  conduced  the  post-mortem

examination of  deceased Mohan Singh which disclosed that

there were three ante mortem injuries present on the corpse of

Mohan Singh; head was severed from the body; and there was

fracture on 6th and 7th vertebra. The doctor opined that the

death was caused due to shock and hemorrhage due to above

stated injuries.  

6. After  the  investigation  was  complete,  seven  persons,

namely,  Mahabir  Singh,  Phal  Singh,  Jaipal  Singh,  Om

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Prakash, Raj Pal, Satya Pal and Har Charan were challaned by

the police and charge-sheet was submitted in Court. As the

case was exclusively triable by the Court of Sessions, it was

committed to the Court of learned Sessions Judge, Mathura.

Thereafter,  charges  were  framed  against  all  the  accused

persons vide order dated 16.12.1982, they were tried for the

respective  offences  and  after  hearing  the  counsel  for  the

prosecution and also the counsel for the accused, the learned

Sessions Judge vide his order dated 26.07.1983, convicted six

accused  persons  (respondents  Nos.1  to  6  herein)  for

committing the offence under Section 302 read with Section

149  IPC  and  sentenced  each  of  them  to  undergo  rigorous

imprisonment for life. They were also convicted severally under

Sections 147, 148  & 379 of IPC. The accused Har Charan was

not found guilty of the offences punishable under Section 148

or Section 302/149 of IPC and hence he was acquitted.   

7. Being aggrieved by the judgment  of conviction passed by

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the  learned  Sessions  Judge,  Mathura,  the  accused

respondents preferred an appeal under Section 374 Cr.P.C.,

before  the  High  Court  of  Judicature  at  Allahabad.  The

Allahabad  High  Court  by  its  judgment  dated  17.02.2012

passed  in  Criminal  Appeal  No.1734  of  1983,  allowed  the

appeal filed by the accused respondents  and acquitted them

of the charges under Section 302 read with Section 149 of IPC.

Hence, this appeal, by special leave, is filed before this Court

by the son of the deceased challenging the judgment and order

of acquittal passed by the High Court.  

8. Respondent No.4 herein having died on 10.12.2012, as

supported  by  the  Death  Certificate  filed  in  this  Court,  this

appeal abates as against respondent No.4.  

9. We have  heard  the  learned  counsel  appearing  for  the

appellant  as  also  the  learned  counsel  appearing  for  the

respondents accused and perused the oral and documentary

evidence on record.

10. The Trial Court convicted the accused relying upon the

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successful  establishment  of  the  following  facts  by  the

prosecution:

(a) the murder of the deceased vide Exh. Ka 7 (Panchnama),

Exh.  Ka  3  (post-mortem  examination  report)  and  the

recovery  of  the  head  of  the  deceased  that  had  been

severed from the trunk;

(b) the place of occurrence vide recovery of personal articles

of the deceased from the alleged place of occurrence as

also blood stained earth from a pool of blood found at the

alleged place of occurrence and the corresponding report

of the Chemical Examiner and Serologist certifying it to

be human blood;

(c) motive for the commission of the offence;

(d) the time and manner of occurrence of the incident from

the evidence of PW1, PW2 and PW 5 (eye witnesses)  was

not only credible but corroborated by each other and in

turn stood corroborated by the medical evidence.

11. On  the  other  hand,  the  High  Court  found  that  the

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prosecution  story  was  not  reliable  since  the  eye-witnesses

were interested and other witnesses were inimical and had the

motive to falsely implicate the accused persons. Further, their

presence at the scene of occurrence at the time of the incident

was  also  doubted.  It  was  further  found  that  the  aforesaid

prosecution witnesses not only made false statements on the

most material  parts  of  the prosecution case,  but were even

otherwise not acceptable to a reasonable person. Moreover, the

testimony of the formal witnesses was also found to be not

trustworthy  on  account  of  serious  lapses  in  recording  of

evidence,  holding  of  inquest  and  dispatching  of  FIR  to  the

nearest Magistrate leading to an inference as to its antedating.

Resultantly, the accused persons were acquitted by the High

Court.

12. Before  proceeding  with  an  analysis  of  the  various

contentions raised by the parties or expressing opinion on the

appreciation  and  findings  of  fact  and  law  recorded  by  the

courts below, we wish to reiterate the scope of interference by

this Court in a criminal appeal against acquittal under Article

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136 of the Constitution of India.  

13. In  Himachal  Pradesh  Administration  Vs. Shri  Om

Prakash,  (1972)  1  SCC 249,  it  was  held  by  this  Court  as

follows:

“In  appeals  against  acquittal  by  special  leave under Article 136, this Court has undoubted power to  interfere  with  the  findings  of  the  fact,  no distinction  being  made  between  judgments  of acquittal  and  conviction  though  in  the  case  of acquittals it will not be ordinarily interfere with the appreciation  of  evidence  or  on  findings  of  fact unless the High Court “acts perversely or otherwise improperly.”

14. Further, in Ganga Kumar Srivastava Vs. State of Bihar,

(2005) 6 SCC 211, this Court added one more ground, namely,

where the appreciation of evidence and finding is vitiated by

any  error  of  law  of  procedure  or  found  contrary  to  the

principles of natural justice, errors of record and misreading of

the evidence.

15. It is a cardinal principle of criminal jurisprudence that

the guilt of the accused must be proved beyond all reasonable

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doubts. However,  the  burden on the  prosecution is  only  to

establish  its  case  beyond  all  reasonable doubt  and  not  all

doubts. Here, it is worthwhile to reproduce the observations

made  by  Venkatachaliah,  J.,  in  State  of  U.P.  Vs. Krishna

Gopal and Anr., (1988) 4 SCC 302:

“25. … Doubts would be called reasonable if  they are free from a zest for abstract speculation.  Law cannot  afford  any  favourite  other  than  truth.  To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial  doubts  as  to  the  guilt  of  the  accused person arising from the evidence, or from the lack of it,  as  opposed  to  mere  vague  apprehensions.  A reasonable doubt is not an imaginary, trivial  or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.  

26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such  units  constitute  proof  beyond  reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis,  rest  on a robust common sense and,  ultimately  on  the  trained  intuitions  of  the judge.  While  the  protection  given by  the  criminal process to the accused persons is not to be eroded, at  the  same  time,  uninformed  legitimization  of trivialities would make a mockery of administration of criminal justice.”

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[See also Krishnan  Vs. State,  (2003)  7  SCC 56; Valson and  Anr.  Vs. State  of  Kerala,  (2008)  12 SCC 24  and Bhaskar  Ramappa Madar  and Ors. Vs. State of Karnataka, (2009) 11 SCC 690].

16. Another golden thread which runs through the web of the

administration of justice in criminal cases is that if two views

are possible on the evidence adduced in the case, one pointing

to the guilt of the accused and the other to his innocence, the

view which is favourable to the accused should be adopted.

[Vide  Kali Ram  Vs. State of Himachal  Pradesh, (1973) 2

SCC 808;  State of Rajasthan  Vs. Raja Ram, (2003) 8 SCC

180;  Chandrappa & Ors.  Vs. State of Karnataka,  (2007) 4

SCC 415;  Upendra Pradhan  Vs. State of Orissa, (2015) 11

SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and

Anr., (2015) 11 SCC 242].

17. However, the rule regarding the benefit of doubt does not

warrant  acquittal  of  the  accused  by  resorting  to  surmises,

conjectures  or  fanciful  considerations,  as  has  been held  by

this Court in the case of  State of Punjab  Vs. Jagir Singh,

(1974) 3 SCC 277:

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“A criminal trial is not like a fairy tale wherein one is  free  to  give  flight  to  one’s  imagination  and fantasy.  It  concerns itself  with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different  human  emotions.  In  arriving  at  the conclusion about the guilt of the accused charged with the commission of a crime,  the court has to judge, the evidence by the yardstick of probabilities, its  intrinsic  worth  and  the  animus  of  witnesses. Every  case  in  the  final  analysis  would  have  to depend upon its own facts. Although the benefit of every  reasonable  doubt  should  be  given  to  the accused,  the  courts  should  not  at  the  same time reject  evidence  which  is  ex  facie  trustworthy,  on grounds  which  are  fanciful  or  in  the  nature  of conjectures.”

18. Similarly, in Shivaji Sahebrao Bobade & Anr. Vs. State

of  Maharashtra,  (1973)  2  SCC  793,  V.R.  Krishna  Iyer,  J.,

stated thus:

“The cherished principles or golden thread of proof beyond reasonable  doubt which runs through the web of our law should not be stretched morbidly to embrace  every  hunch,  hesitancy  and  degree  of doubt.  The  excessive  solicitude  reflected  in  the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only  reasonable  doubts  belong  to  the  accused. Otherwise any practical system of justice will then break  down  and  lose  credibility  with  the community.”

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19. Keeping in mind the aforesaid position of law, we shall

examine the arguments advanced and the evidence adduced

by the parties as also the materials on record and see in view

of the nature of offence alleged to have been committed by the

respondents whether the findings of fact recorded by the High

Court call for interference in the facts and circumstances of

the case.

20. The learned counsel for the appellant  has submitted that

the High Court  has erred in rejecting the evidence of  PW1,

PW2 and PW5 as also the formal witnesses by placing undue

emphasis on minor/trivial issues not going to the root of the

case. Per contra, the learned counsel for the respondents has

supported the reasoning of  the High Court and has further

sought to point out cracks in the prosecution story by alleging

absence of immediate motive, recovery of weapon being false

and fabricated, belated introduction of story of marriage, the

factum  of  which  could  not  be  proved,  non-production  of

independent  witnesses,  incongruence  between  the  medical

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evidence and prosecution story, non-establishment of ballam

injury, failure to put material questions regarding marriage to

the  accused under  Section  313 Cr.P.C.  and finally  the  site

plan belying the prosecution claim.

21. For the sake of convenience, we shall first examine the

general position of law on the various issues that found favour

with  the  High  Court  in  recording  the  order  of  acquittal  in

favour of the accused and then address the specific findings of

fact and law by the High Court.

Testimony of Child Witnesses

22. It is well-settled that the evidence of a child witness must

find adequate corroboration, before it is relied upon as the rule

of  corroboration  is  of  practical  wisdom  than  of  law.  (See

Prakash  Vs. State  of  M.P.,  (1992)  4  SCC  225; Baby

Kandayanathi  Vs. State  of  Kerala, 1993  Supp  (3)  SCC

667; Raja  Ram  Yadav  Vs. State  of  Bihar,  (1996)  9  SCC

287; Dattu  Ramrao  Sakhare  Vs. State  of

Maharashtra, (1997)  5  SCC  341; State  of  U.P.  Vs. Ashok

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Dixit & Anr., (2000) 3 SCC 70; Suryanarayana Vs. State Of

Karnataka, (2001) 9 SCC 129).

23. However, it is not the law that if a witness is a child, his

evidence shall be rejected, even if it is a found reliable. The law

is that  evidence of  a child witness must be evaluated more

carefully and with greater circumspection because a child is

susceptible to be swayed by what others tell him and thus a

child witness is an easy prey to tutoring. [Vide  Panchhi  Vs.

State of U.P., (1998) 7 SCC 177].

Testimony of Interested/Inimical Witnesses

24. On the  issue  of  appreciation  of  evidence  of  interested

witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364

= 1954 SCR 145, is one of the earliest cases on the point.  In

that case, it was held as follows:

“A witness is normally to be considered independent unless he or  she  springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused,  to  wish  to  implicate  him  falsely. Ordinarily,  a  close  relative  would  be  the  last  to screen  the  real  culprit  and  falsely  implicate  an

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innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the  mere  fact  of  relationship  far  from  being  a foundation is often a sure guarantee of truth.”

25. Similarly, in Piara Singh and Ors. Vs. State of Punjab,

AIR 1977 SC  2274 = (1977) 4 SCC 452,  this Court held:

“It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence.  If  on a perusal  of  the evidence the  Court  is  satisfied  that  the  evidence  is creditworthy there is no bar in the Court relying on the said evidence.”

26. In Hari Obula Reddy and Ors. Vs. The State of Andhra

Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court

observed:

“.. it is well settled that interested evidence is not necessarily  unreliable  evidence.  Even partisanship by  itself  is  not  a  valid  ground  for  discrediting  or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never  form  the  basis  of  conviction  unless corroborated  to  a  material  extent  in  material particulars  by  independent  evidence.  All  that  is

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necessary  is  that  the  evidence  of  interested witnesses  should  be  subjected to  careful  scrutiny and accepted with caution. If on such scrutiny, the interested  testimony  is  found  to  be  intrinsically reliable or inherently probable, it may, by itself, be sufficient,  in  the  circumstances  of  the  particular case, to base a conviction thereon.”

27. Again, in Ramashish Rai  Vs. Jagdish Singh,  (2005) 10

SCC 498, the following observations were made by this Court:

“The  requirement  of  law  is  that  the  testimony  of inimical  witnesses  has  to  be  considered  with caution.  If  otherwise  the  witnesses  are  true  and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication.  It  also  can  be  a  ground  for  assault. Therefore, a duty is cast upon the court to examine the  testimony  of  inimical  witnesses  with  due caution and diligence.”  

28. A survey of the judicial pronouncements of this Court on

this  point  leads  to  the  inescapable  conclusion  that  the

evidence  of  a  closely  related  witnesses  is  required  to  be

carefully scrutinised and appreciated before any conclusion is

made to rest upon it, regarding the convict/accused in a given

case. Thus, the evidence cannot be disbelieved merely on the

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ground that the witnesses are related to each other or to the

deceased.  In case the  evidence has  a ring of  truth to  it,  is

cogent, credible and trustworthy, it can, and certainly should,

be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC

318; State  of  U.P.  Vs. Jagdeo  Singh, (2003)  1  SCC  456;

Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206;

Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @

Balachandran & Ors.  Vs. State  of  Tamil  Nadu,  (2012)  12

SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors.,

(2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC

52).

Discrepancies in Evidence

29. It is well settled in law that the minor discrepancies are

not  to  be  given undue emphasis  and the  evidence is  to  be

considered from the point of view of trustworthiness. The test

is whether the same inspires confidence in the mind of the

Court. If the evidence is incredible and cannot be accepted by

the  test  of  prudence,  then  it  may  create  a  dent  in  the

prosecution version. If an omission or discrepancy goes to the

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root of the matter and ushers in incongruities, the defence can

take advantage  of  such inconsistencies.  It  needs no special

emphasis to state that every omission cannot take place of a

material  omission  and,  therefore,  minor  contradictions,

inconsistencies or insignificant  embellishments  do not  affect

the core of the prosecution case and should not be taken to be

a  ground  to  reject  the  prosecution  evidence.  The  omission

should  create  a  serious  doubt  about  the  truthfulness  or

creditworthiness  of  a  witness.  It  is  only  the  serious

contradictions and omissions which materially affect the case

of  the  prosecution but  not  every  contradiction  or  omission.

(See  Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC

649;  Leela  Ram (dead)  through  Duli  Chand  Vs. State  of

Haryana  and  Another,  (1999)  9  SCC  525;  Bihari  Nath

Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186;

Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC

191;  Sampath Kumar  Vs. Inspector of Police, Krishnagiri,

(2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal,

(2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti

Biswas and Anr., (2013) 12 SCC 796).

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Lapses in Investigation

30. In C. Muniappan and Others vs. State of Tamil Nadu,

(2010) 9 SCC 567, this Court explained the law on this point

in the following manner:

“There  may  be  highly  defective  investigation  in  a case. However, it is to be examined as to whether there is  any lapse by the IO and whether  due to such  lapse  any  benefit  should  be  given  to  the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground  for  acquittal.  If  primacy  is  given  to  such designed  or  negligent  investigations  or  to  the omissions  or  lapses  by  perfunctory  investigation, the  faith  and  confidence  of  the  people  in  the criminal  justice  administration  would  be  eroded. Where there has been negligence on the part of the investigating  agency  or  omissions,  etc.  which resulted in defective investigation,  there is  a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not  and  to  what  extent  it  is  reliable  and  as  to whether such lapses affected the object of  finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of  the trial  in the case cannot  be allowed  to  depend  solely  on  the  probity  of investigation.”  

31. In  the  present  case,  the  High  Court  found  that  the

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testimonies  of  the  eye  witnesses  were  not  reliable.  In  this

connection, the High Court noted that the very claim of the

witnesses  that  on  the  fateful  day,  the  deceased  and  his

daughter PW5, Lajjawati were going to their house situated in

the north of the village for any particular reason, did not carry

any weight in view of the fact that the deceased used to reside

in his self-contained shelter situated near the tube well which

was far removed from the Village and where he used to retire

each day before sunset. We are not inclined to endorse this

finding of the High Court, particularly in light of the deposition

of PW1 and PW5, who stated under oath that on the fateful

day, the deceased and PW5 were going to another village via

their village house.  

32. The High Court also noted that there was no reason for

the  deceased to  go through the  fields  of  the  accused since

there was a straight pathway for accessing the village from the

tube-well. Moreover, the animosity between the informant and

the accused persons was so deep that they had put restriction

upon themselves not to trespass or pass through the fields of

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their  opponents.  We  are  not  in  agreement  with  this

observation  of  the  High  Court  as  well  in  the  light  of  the

categorical finding by the trial court that along the north also

there were fields of the very same accused, meaning thereby

that in either case the deceased while going from his tube-well

to  his  house in  the  village,  would  necessarily  have  to  pass

through the fields of the accused. It has also been submitted

by  the  counsel  on  behalf  of  the  appellant  that  this  was

precisely the reason why the deceased used to retire to his

separate citadel each day before sunset and carry his gun and

cartridge-strip with him.

33. As far  as  the  evidence  of  PW5 is  concerned,  the  High

Court found that it was illogical that the dress of a child who

was living with her parents in a different establishment would

be  kept  in  the  custody  of  someone  else  who  was  living

elsewhere, particularly in the light of the possessive attitude of

children  that  urges  them  to  cling  to  their  most  precious

belongings.  In  this  regard,  it  has  been  submitted  by  the

counsel for the appellant that while the daily wears of PW5

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were kept at the tube-well,  fancy clothes for occasions were

kept  at  the  village  house.  Be  that  as  it  may,  we  are  not

inclined  to  agree  with  this  reasoning  of  the  High  Court.

Without  attempting  to  indulge  in  any  form  of  notional

psychoanalysis  of  the  child  witness  (PW5),  we  wish  to

emphasize  that  she  was  not  subjected  to  any

cross-examination  on  this  point  and  hence  any  form  of

conjecture on this point would be wholly improper on our part.

However,  the  learned  counsel  for  the  respondents  have

submitted that PW5 was a tutored witness relying upon the

fact that she had not taken a bath before leaving the house

with her father to purportedly attend a marriage ceremony. We

find that this contention is wholly frivolous having no material

bearing on the present case.  

34. The  learned  counsel  for  the  respondents  has  further

sought to attack the testimony of this prosecution witness on

the  ground  of  delay  in  recording  of  her  statement  by  the

Investigating Officer.  In support  of  this  submission,  learned

counsel has relied upon the judgments of this Court in State

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of U.P. Vs. Ashok Dixit and Anr., (2000) 3 SCC 70; Vijaybhai

Bhanabhai Patel Vs. Navnitbhai Patel & Ors., (2004) 10 SCC

583; Jagjit Singh @ Jagga Vs. State of Punjab, (2005) 3 SCC

689]. However, we find that none of these cases help the case

of  the  respondents  since  Vijaybhai  Bhanabhai  Patel  Vs.

Navnitbhai Patel & Ors., (2004) 10 SCC 583, does not pertain

to the case of a child witness and in State of U.P. Vs. Ashok

Dixit and Anr., (2000) 3 SCC 70, and Jagjit Singh @ Jagga

Vs. State of Punjab, (2005) 3 SCC 689, delay in recording of

evidence was not   per se  held to be fatal to the prosecution

case but the testimony of the child witness in each case was

found to be incredible on account of material contradictions

and lack of independent corroboration. We find that this is not

the case here. In this context, we may note that the Trial Court

has  observed  that  PW5  was  cross-examined  on  practically

every  detail  of  the  prosecution  story  and  her  statement

corroborated  every  part  thereof.  Moreover,  the  delay  in

recording of the statement of PW5 was not unexplained. It was

rightly observed by the learned Trial Judge that the delay was

on account of the fact that the Investigating Officer wanted to

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assure himself of the veracity of her statement and hence, she

was examined after she had time to recover from the shock of

the incident and compose herself. Under these circumstances,

any  delay  in  examining  this  witness  under  Section  161  of

Cr.P.C. will not prejudice the prosecution.

35. Further, the High Court opined that when the bicycle was

being kept regularly in the house of the deceased situated at

the tube-well, it was very difficult to accept the explanation for

the deceased to go to his village house. The High Court noted

that  this was reinforced by the fact that  as per evidence of

PW5, the brother-in-law of the deceased or the maternal uncle

of  PW5,  namely,  Ghanshyam was  not  in  the  village  in  the

morning  when the  incident  had occurred.  However,  we feel

that  there  appears  to  be  some  confusion  on  this  point.

According  to  the  versions  of  PW1  and  PW2,  it  was  the

brother-in-law  of  Rajvir  (brother  of  the  deceased),  namely,

Amar Singh who had visited the house of the deceased and

had taken the bicycle of the deceased on the night prior to the

date of the incident and that he was also present on the spot

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at the time of the incident. Now, it is true that PW5 had stated

in her deposition that “Mama” (maternal uncle) had taken the

bicycle, it is quite probable that she meant to refer to Amar

Singh and not Ghanshyam (her real maternal uncle being the

brother  of  her  mother).  Hence,  there  is  no  conflict  in  the

evidence of the eyewitnesses on this point.  

36. A related contention raised on behalf of the respondents

is that the story of marriage was introduced for the first time

by the prosecution witnesses during trial and the same was

not even proved. However, we must note the observations of

the  learned  Trial  Judge  which  were  to  the  effect  that  the

statements  of  the  prosecution  witnesses  under  Section  162

Cr.P.C.  were  conspicuously  silent  on  this  part,  thereby

implying that the Investigating Officer did not care to inquire

about it during investigation. Thus, in the light of the position

of  law  examined  above  vis-à-vis effect  of  lapses  in  the

investigation,  we  are  not  prepared  to  dispense  with  the

accusation  merely  on  this  point  especially  when  the  Trial

Court concluded that there was no material contradiction in

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the statements of PW1 and PW5.  

37. Another reason for which the High Court disbelieved the

prosecution  story  is  the  improvement  made  by  PW2 in  the

story of beheading of the deceased. We find it difficult to agree

with  this  conclusion  of  the  High  Court  in  the  light  of  the

judgment of this Court in  Leela Ram Vs. State of Haryana,

(1999) 9 SCC 525, wherein it was observed:

“It  is  indeed  necessary  to  note  that  one  hardly comes  across  a  witness  whose  evidence  does  not contain  some  exaggeration  or  embellishment  – sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety  they  may  give  a  slightly  exaggerated account. The court can sift the chaff from the grain and find out  the  truth from the  testimony of  the witnesses.  Total  repulsion  of  the  evidence  is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is  satisfied,  it  ought  to  inspire  confidence  in  the mind  of  the  court  to  accept  the  stated  evidence though not however in the absence of the same.”

38. Similarly, in  Subal Ghorai and Ors.  Vs. State of West

Bengal, (2013) 4 SCC 607, this Court stated as follows:

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“Experience shows that witnesses do exaggerate and this  Court  has  taken  note  of  such  exaggeration made by the witnesses and held that on account of embellishments, evidence of witnesses need not be discarded if  it  is corroborated on material  aspects by the other evidence on record.”

39. It was further noted by the High Court that the special

report  of  the  incident,  that  is,  copy  of  the  FIR  had  been

received  by  the  Magistrate  1½  months  after  the  incident.

Moreover, there was no time mentioned by PW8 in the relevant

column as to when the inquest proceedings were started nor

was any date or time mentioned in the relevant column as to

when the inquest proceeding ended allegedly at the instruction

of  PW9,  thus  leading  to  an  inference  of  antedating  and

fabrication. We find that these observations of the High Court

are not supported by the evidence on record inasmuch as the

DW1 was himself not sanguine as to the correct date of receipt

of the FIR in the present case. He simply stated that due to

workload, the entry was made on 10.08.1982. Further, PW8

had  stated  in  his  deposition  that  PW9  must  have  spoken

about  the  date  and  time  of  starting  the  Panchnama  to  be

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recorded in the relevant column but he could not be certain in

view of loud noise at the place of the incident at the relevant

time. In any event, in the light of the position of law examined

above and the observation of the Trial Court that these merely

show  remissness  on  part  of  the  investigating  officer  and

should not be treated as fatal to the prosecution case, we are

not inclined to disbelieve the prosecution story.  

40. It  has  been consistently  held  by  this  Court  through a

catena of judicial decisions that although in terms of Section

157 Cr.P.C., the police officer concerned is required to forward

a  copy  of  the  FIR  to  the  Magistrate  empowered   to  take

cognizance  of  such  offence,  promptly  and  without  undue

delay, it cannot be laid down as a rule of universal application

that whenever there is some delay in sending the FIR to the

Magistrate,  the  prosecution  version  becomes  unreliable  and

the trial stands vitiated. When there is positive evidence to the

fact  that  the  FIR  was  recorded  without  unreasonable  delay

and investigation started on the basis of that FIR and there is

no other infirmity brought to the notice of the Court, then in

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the  absence  of  any  prejudice  to  the  accused,  it  cannot  be

concluded  that  the  investigation  was  tainted  and  the

prosecution  story  rendered  unsupportable.  [See Pala  Singh

Vs. State of Punjab,  (1972) 2 SCC 640;  Sarwan Singh  Vs.

State of Punjab,  (1976) 4 SCC 369;  Anil  Rai  Vs. State of

Bihar, (2001) 7 SCC 318; Munshi Prasad & Ors. Vs. State of

Bihar,  (2002) 1 SCC 351;  Aqeel Ahmad  Vs. State of U.P.,

(2008) 16 SCC 372;  Dharamveer  Vs. State of U.P., (2010) 4

SCC 469; Sandeep Vs. State of U.P., (2012) 6 SCC 107].

41. Further,  the  evidentiary  value  of  the  inquest  report

prepared  under  Section  174  of  Cr.P.C.  has  also  been  long

settled  through  a  series  of  judicial  pronouncements  of  this

Court.  It  is  well-established  that  inquest  report  is  not  a

substantive piece of evidence and can only be looked into for

testing the veracity of the witnesses of inquest. The object of

preparing  such  report  is  merely  to  ascertain  the  apparent

cause  of  death,  namely,  whether  it  is  suicidal,  homicidal,

accidental or caused by animals or machinery etc. and stating

in  what  manner,  or  by  what  weapon  or  instrument,  the

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injuries on the body appear to have been inflicted. [See Pedda

Narayan  Vs. State  of  A.P.,  (1975)  4  SCC 153;  Khujji  Vs.

State of M.P., (1991) 3 SCC 627; Kuldip Singh Vs. State of

Punjab, 1992 Supp (3) SCC 1; George and Ors. Vs. State of

Kerala and Anr., (2008) 4 SCC 605; Suresh Rai Vs. State of

Bihar, (2000) 4 SCC 84;  Amar Singh  Vs. Balwinder Singh,

(2003) 2 SCC 518;  Radha Mohan Singh  Vs. State of U.P.,

(2006) 2 SCC 450;  Sambhu Das  Vs. State of Assam, (2010)

10 SCC 374].  

42. In the present case, it is not the case of the accused that

they have been prejudiced by the alleged delay in dispatch of

the  FIR  to  the  nearest  Magistrate  competent  to  take

cognizance  of  such  offence.  Moreover,  in  our  opinion,  the

non-recording of certain relevant entries in the inquest report

do not constitute a material defect so grave to throw out the

prosecution  story  and  the  otherwise  reliable  testimonies  of

prosecution  witnesses  that  have  mostly  remained

uncontroverted.

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43. The learned counsel appearing for the respondents has

then tried to create a dent in the prosecution story by pointing

out  inconsistencies  between  the  ocular  evidence  and  the

medical  evidence. However,  we are  not  persuaded with  this

submission  since  both  the  Courts  below  have  categorically

ruled that the medical evidence was consistent with the ocular

evidence  and  we  can  safely  say  that  to  that  extent,  it

corroborated  the  direct  evidence  proffered  by  the

eye-witnesses. We hold that there is no material discrepancy

in the medical and ocular evidence and there is no reason to

interfere  with  the  judgments  of  the  Courts  below  on  this

ground.  In any event,  it  has been consistently  held by this

Court that the evidentiary value of  medical evidence is only

corroborative  and  not  conclusive  and,  hence,  in  case  of  a

conflict  between  oral  evidence  and  medical  evidence,  the

former  is  to  be  preferred  unless  the  medical  evidence

completely  rules  out  the  oral  evidence.  [See Solanki

Chimanbhai  Ukabhai  Vs. State  of  Gujarat,  (1983)  2  SCC

174;  Mani Ram Vs. State of Rajasthan, 1993 Supp (3) SCC

18;  State  of  U.P.  Vs. Krishna  Gopal  &  Anr., State  of

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Haryana  Vs. Bhagirath,  (1999)  5  SCC  96;  Dhirajbhai

Gorakhbhai Nayak Vs. State of Gujarat, (2003) 5 SCC 223;

Thaman Kumar  Vs. State of U.T. of Chandigarh, (2003) 6

SCC 380;  Krishnan Vs. State,  (2003) 7 SCC 56;  Khambam

Raja  Reddy & Anr.  Vs. Public  Prosecutor,  High Court  of

A.P., (2006) 11 SCC 239; State of U.P. Vs. Dinesh, (2009) 11

SCC 566; State of U.P. Vs. Hari Chand, (2009) 13 SCC 542;

Abdul  Sayeed  Vs. State  of  M.P.,  (2010)  10  SCC 259 and

Bhajan Singh @ Harbhajan Singh & Ors. Vs. State, 2011) 7

SCC 421].

44. In  the  present  case,  we  do  not  find  any  major

contradiction either in the evidence of  the witnesses or any

conflict  in  medical  or  ocular  evidence  which  would  tilt  the

balance  in  favour  of  the  respondents.  The  minor

improvements, embellishments etc., apart from being far yield

of human faculties are insignificant and ought to be ignored

since the evidence of the witnesses otherwise overwhelmingly

corroborate each other in material particulars.

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45. The High Court has also noted that the deceased was a

person  with  criminal  antecedents  and  had  fired  at  many

persons, including one Bashira, and hence could have been

targeted  and  killed  by  any  of  his  enemies.  It  has  been

submitted by the learned counsel for the appellant that the

High Court has erred on this point since there was no such

evidence  brought  on  record  and  merely  certain  suggestions

were  made  to  PW1  regarding  this  fact  during  his

cross-examination, which were denied. Moreover, it was also

submitted that in the statement of the accused recorded under

Section 313 Cr.P.C., they have stated that the deceased was a

police  mukhbir  (informant)  and  not  that  he  had  criminal

antecedents. Be that as it may, we would like to refrain from

any form of conjecture on this point. In the present case, the

prosecution has not sought to prove its claim on the basis of

circumstantial  evidence  which  as  a  rule  needs  to  be

conclusive, excluding any possible hypothesis of innocence of

the accused. In the present case, it is not incumbent on the

prosecution  to  discharge  such  burden  to  rule  out  every

possible hypothesis inconsistent with the guilt of the accused

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or consistent with the guilt of any other person.  

46. It has next been contended by the learned counsel for the

respondents  that  there  was  no  immediate  motive  with  the

respondents to commit the murder of the deceased. However,

the Trial Court found that there was sufficient motive with the

accused persons to commit the murder of the deceased since

the deceased had defeated accused Harcharan in the Pradhan

elections, thus putting an end to his position as Pradhan for

the last 28-30 years. The long nursed feeling of hatred and the

simmering enmity between the family of the deceased and the

accused persons most likely manifested itself in the outburst

of anger resulting in the murder of the deceased. We are not

required to express any opinion on this point in the light of the

evidence adduced by the direct witnesses to the incident. It is

a settled legal proposition that even if the absence of motive,

as alleged, is accepted that is of  no consequence and pales

into insignificance when direct evidence establishes the crime.

Therefore,  in  case  there  is  direct  trustworthy  evidence  of

witnesses  as  to  commission  of  an  offence,  motive  loses  its

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significance.  Therefore,  if  the  genesis  of  the  motive  of  the

occurrence  is  not  proved,  the  ocular  testimony  of  the

witnesses as to the occurrence could not be discarded only on

the ground of absence of motive, if otherwise the evidence is

worthy of reliance. [Hari Shankar Vs. State of U.P., (1996) 9

SCC 40; Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12

SCC 616; State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC

73;  Abu Thakir & Ors.  Vs. State of Tamil Nadu,  (2010) 5

SCC 91 and Bipin Kumar Mondal Vs. State of West Bengal;

(2010) 12 SCC 91].

47. The next line of contention taken by the learned counsel

for the respondents is that the recovery evidence was false and

fabricated. We feel no need to address this issue since it had

already  been  validly  discarded  by  the  Trial  court  while

convicting the respondents. In any case, it is an established

proposition of law that mere non-recovery of weapon does not

falsify  the  prosecution  case  where  there  is  ample

unimpeachable ocular evidence. [See Lakahan Sao Vs. State

of Bihar and Anr., (2000) 9 SCC 82; State of Rajasthan Vs.

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Arjun Singh & Ors., (2011) 9 SCC 115 and Manjit Singh and

Anr. Vs. State of Punjab, (2013) 12 SCC 746].

48. It was further contended by the learned counsel for the

respondents  that  material  questions  regarding  marriage,  on

which the prosecution had allegedly relied upon, were not put

to  the  accused  under  Section 313 Cr.P.C.,  thereby  causing

great prejudice to them. We feel that there is no weight in this

submission of the learned counsel for the respondents since

the purpose of Section 313 is only to bring the attention of the

accused to all the inculpatory pieces of evidence to give him an

opportunity to offer an explanation if he chooses to do so. As

has been succinctly held by this Court in Raj Kumar Singh @

Raju @ Batya Vs. State of Rajasthan, (2013) 5 SCC 722:

“In a criminal  trial,  the purpose of  examining the accused  person  under  Section  313  Cr.P.C.,  is  to meet  the  requirement  of  the  principles  of  natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as  regards  the  incriminating  circumstances associated with him, and the court must take note of such explanation.”

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49. We feel that no such prejudice has been caused to the

accused on account  of  the  failure of  this  Court  to examine

them  under  Section  313  on  the  facts  alleged  by  the

prosecution since they were not  incriminating in nature.  In

any case, Nar Singh Vs. State of Haryana, (2015) 1 SCC 496,

is an authority for the proposition that  accused is not  per se

entitled  for  acquittal  on  the  ground  of  non-compliance  of

mandatory provisions of Section 313 Cr.P.C.

50. The learned counsel for the respondents has also sought

to  assail  the  prosecution  version  on  the  ground  of  lack  of

independent  witnesses.  We  are  not  impressed  by  this

submission in the light of the observations made by this Court

in  Darya  Singh  Vs. State  of  Punjab,  AIR  1965 SC  328 =

1964(7) SCR 397, wherein it was observed:  

“It is well-known that in villages where murders are committed  as  a  result  of  factions  existing  in  the village  or  in  consequence  of  family  feuds, independent villagers arc generally reluctant to give evidence  because  they  are  afraid  that  giving evidence  might  invite  the  wrath  of  the  assailants and might expose them to very serious risks. It is

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quite true that it is the duty of a citizen to assist the prosecution  by  giving  evidence  and  helping  the administration of criminal law to bring the offender to  book,  but  it  would  be  wholly  unrealistic  to suggest that if the prosecution is not able to bring independent  witnesses  to  the  Court  because  they are  afraid  to  give  evidence,  that  itself  should  be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually  adduced  should  be  disbelieved  on  that ground alone without examining its merits.”

51. Similarly, in Raghubir Singh Vs. State of U.P., (1972) 3

SCC 79,  it  was  held  that the  prosecution  is  not  bound  to

produce all the witnesses said to have seen the occurrence.

Material  witnesses  considered necessary  by  the  prosecution

for  unfolding the prosecution story alone need be produced

without  unnecessary  and  redundant  multiplication  of

witnesses. In this connection, general reluctance of an average

villager  to  appear  as  a  witness  and get  himself  involved  in

cases of rival village factions when tempers on both sides are

running high, has to be borne in mind.

52. Further,  in  Appabhai  and Anr.  Vs. State  of  Gujarat,

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1988 Supp (1) SCC 241, this Court has observed :

“Experience  reminds  us  that  civilized  people  are generally  insensitive  when  a  crime  is  committed even in their  presence.  They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it  is inevitable. They think that crime like civil  dispute is between two individuals or parties and they should not involve themselves.  This  kind  of  apathy  of  the  general public  is  indeed  unfortunate,  but  it  is  there everywhere whether in village life, towns or cities. One cannot  ignore  this  handicap  with  which the investigating  agency  has  to  discharge  its  duties. The  Court,  therefore,  instead  of  doubting  the prosecution case for want of  independent witness must  consider  the  broad  spectrum  of  the prosecution version and then search for the nugget of  truth  with  due  regard  to  probability,  if  any, suggested by the accused.”

53. Next, it has been contended by the learned counsel for

the respondents that the site plan belies the prosecution claim

in view of the height of agricultural crops,  as PW1, PW2 and

PW5 could not have seen the incident and more precisely as to

which accused was doing what.  However,  when we examine

the  deposition  of  PW8,  it  appears  that  there  was  some

disparity in the height of the agricultural crops. While some

crops were waist high, others were only as high as the knees.

Hence,  there  is  not  much  force  in  this  submission  of  the

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learned  counsel  for  the  respondents  either.  Besides,  the

judgment of this Court in Prithvi Vs. Mam Raj, (2004) 13 SCC

279, is an authority for the proposition that site plan is not a

ground  to  disbelieve  the  otherwise  credible  testimony  of

eye-witnesses.

54. Finally,  it  has  been  submitted  by  the  counsel  for  the

respondents that the prosecution story smacked of fabrication

in that it  was not  possible for the prosecution witnesses to

depose  accurately  as  to  the  dragging  of  the  body  of  the

deceased by the respondents by nine steps on the ground. We

find no force in this submission in the light of the position of

law  laid  down  by  this  Court  in  Leela  Ram  Vs. State  of

Haryana (supra).

55. We,  therefore,  allow  this  appeal  and  set  aside  the

impugned judgment passed by the High Court. Having regard

to  the  evidence  on  record,  the  view  expressed  by  the  High

Court,  in our opinion,  is  not  a plausible one.  On the other

hand, the trial court has correctly analyzed the material  on

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record in the factual as well as legal perspectives to arrive at

its  conclusion.  The  Judgment  and  order  of  conviction  and

sentence  passed  by  the  learned  Sessions  Judge,  Mathura,

thus stand restored. The respondents are hereby directed to

surrender before the Trial Court within a week, failing which

the learned Sessions Judge concerned shall take prompt steps

to put the respondents accused back in jail  to undergo the

sentence awarded to them.

….....….……………………J (Pinaki Chandra  Ghose)

….....…..…………………..J (Amitava Roy)

New Delhi; October 20, 2016.