Raju vs State Of U.P.
2021 Latest Caselaw 4579 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on : 18.03.2021
 
Delivered on : 25.03.2021
 
Court No. - 48
 
Case :- CRIMINAL APPEAL No. - 1555 of 2002
 
Appellant :- Raju
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kamlesh Kumar,Prem Chandra Dwivedi,Sumati Rani Gupta
 
Counsel for Respondent :- A.G.A.
 
And
 
Case :- CRIMINAL APPEAL No. - 988 of 2002
 
Appellant :- Ram Singh And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kamlesh Kumar,Mukesh Kumar Maurya,Prem Chandra Dwivedi,Sumati Rani Gupta
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Shamim Ahmed,J.

Heard Ms. Sumati Rani Gupta, learned counsel for the appellants and Sri. Ajit Ray, learned AGA appearing for the State.

These two appeals have been filed against the judgment dated 14.2.2002 passed by the Additional Sessions Judge, Court No. 5, Agra convicting the appellant Raju for the offence under Section 302 IPC and Ram Singh, Badam Singh and Urmila, the appellants in connected appeal for the offence under Section 302 read with Section 34 IPC.

It is informed that appellant Urmila died during the pendency of the appeal and a certificate to this effect has been placed on record. Thus, her appeal is abated.

Learned counsel for the appellants submits that an FIR was registered with police station Etmadaula District Agra on 19.3.1998 for the offence under Section 302 IPC. The FIR was lodged by the deceased's wife Nisha alleging that on 19.3.1998 a quarrel took place in noon between Urmila, wife of Ram Singh and Shakuntala, wife of Man Singh. It was when daughter of Man Singh was playing holi with the boys. The deceased asked them not to quarrel and to go away from the place. Later at around 7 pm on the same day, accused Raju, Ram Singh, Urmila and Badam Singh came at the place of deceased equipped with lathi and knife. They called the deceased. They asked him to come out from the house and started abusing him. When the deceased asked them not to abuse, Ram Singh asked to teach a lesson to deceased. On the aforesaid, accused Ram Singh, Badam Singh and Urmila caught the deceased who fell down. Accused Raju thereupon gave blows from the knife at the chest and head. The witness, namely, Lakshmi Prasad son of Munna lal and Bhagwan Singh son of Raghuvar Singh came to rescue the deceased, who was taken to the hospital but was declared dead and accordingly FIR was lodged.

Pursuant to the FIR, investigation was caused and thereupon chargesheet was filed for the offence under Section 302 IPC against accused Raju and under Sections 302 read with Section 34 IPC for other accused. After framing of the charges, the trial commenced where the prosecution produced six witnesses apart from eight documents to prove its case while the statement of the accused were recorded under Section 313 Cr.P.C. The trial court thereupon convicted the appellants for the offence under Sections 302 and 302/34 IPC and sentenced them to life imprisonment.

Learned counsel for the appellants submits that the prosecution failed to bring evidence to prove the case beyond doubt. No independent witnesses were produced to prove the case because PW1 Ruby and PW2 Nisha were interested witness being daughter and wife of the deceased. Referring to the statement of PW1 Ruby, it is stated that her statement was not trustworthy for the reason that though she is shown to be eye-witness but was not available at the place of occurrence. Her presence has not been shown in the FIR. Her name was not disclosed even while filing of the chargesheet. Her statements under Section 161 Cr.P.C. were not recorded initially. It was recorded later on and submitted along with the supplementary charge-sheet. She was implanted to make out a case against the accused though her availability at the place of occurrence itself is doubtful. The trial court should not have relied her statement, as otherwise statement is in contradiction to the statement of PW2. The contradiction in the statement has been ignored by the learned trial court. It is also stated that the statement of PW1 is nothing but developed after the investigation and accordingly she made the statement to prove the prosecution case as per the investigation. Learned trial court committed illegality in placing reliance on her statement.

A reference to statement of PW2 Nisha has also been given. Contradiction in the statement has been shown in reference to the FIR. It is stated that the initial quarrel between the relatives said to have been taken place in the morning while in the FIR it has been shown to be in the afternoon. The aforesaid contradiction has been ignored by the learned trial court while relying upon the testimony of PW2, who otherwise was an interested witness and planted the accused due to rivalry.

Learned counsel for the appellants further submitted that the police did not recover the clothes of the deceased so as the knife alleged to have been used by accused Raju. In absence of it, accused Raju could not have been connected with the crime. Without there being any corroboratory evidence, the order of conviction has been passed by the learned trial court.

Learned counsel has made further reference to the statements of other witnesses to show serious lapses in the investigation and otherwise even if the statement of PW2 is relied upon, a case under Section 302 read with Section 34 IPC is not made out against accused Ram Singh, Urmila and Badam Singh. They had not come with the common intention to cause offence under Section 302 IPC. It may be only to settle the matter between the neighbors/family members. No overt act of those accused has been shown in the occurrence other than the allegation of catching hold of deceased. The occurrence was caused all of a sudden by accused Raju. The knife kept inside the cloth by Raju was taken out and he said to have given blows to the deceased but it has not come that other accused were knowing that Raju is having knife to cause occurrence. Mere presence at the place of occurrence would not make out a case for offence under Section 302 read with Section 34 IPC and otherwise no evidence against them was produced by the prosecution to prove offence under Section 302/34 IPC against three accused out of which one has already died, thus, the appeal has been abated. The prayer is accordingly, to set aside the judgment of the learned sessions court.

The appeal has been opposed by the learned AGA. The argument would be considered while dealing with the argument raised by the learned counsel for the appellants.

We have accordingly considered the rival submissions of the parties and perused the record.

The trial court has convicted the appellant Raju for the offence under Section 302 IPC while other appellants, namely, Ram Singh, Urmila and Badam Singh have been convicted for the offence under Section 302 with the add of Section 34 IPC. They have been sentenced to life imprisonment. Accused Raju was released on bail in the year 2002 while other accused were released on bail earlier. However, three appellants, namely, Raju, Ram Singh and Badam Singh are behind the bars as they did not appear in the court pursuant to the direction of the court and accordingly they were arrested pursuant to the warrant issued against them. Thus, all the three accused are behind the bars presently.

The incident shown in the FIR indicates not only the place of occurrence but time and date also. At around 7 pm on 19.3.1998, accused-appellants Raju, Ram Singh, Urmila and Badam Singh came at the residence of deceased. He was called to come out from the house and thereupon Raju gave blows to deceased from sharp-aged weapon. The deceased was then taken to the hospital where he was declared dead. The detail description of occurrence has been given in the FIR and after investigation, the chargesheet was filed against all the accused for the offence under Sections 302 IPC and 302/34 IPC.

To prove the case, prosecution produced PW1 Ruby and PW2 Nisha showing them to be the eye-witnesses.

PW1 Ruby has given the description of the incident in examination-in-chief. The statement shows that the incident took place at around 7 pm on 19.3.1998. It was after an occurrence in the morning between the two family members. She was cross-examined but her statement in-chief could not be demolished. The statement made by PW1 has been corroborated by PW2 Nisha, who said that on the date of occurrence in the morning, Urmila and Shakuntala quarrel as Man Singh's daughter was playing Holi with the boys. The deceased asked them not to quarrel rather to leave the place immediately. At around 7 pm, all the four accused came to their residence. They asked deceased to come out of house. The door was open by the mother-in-law of the deceased and thereupon deceased came out and asked the accused-appellants not to abuse him. Ram Singh asked to catch hold of the deceased as he is favouring Man Singh. Badam Singh, Ram Singh and Urmila catch hold of the deceased and in the process he fell down. Raju thereupon caused knife blows to the deceased. Immediately after occurrence, the deceased was taken to the hospital where he was declared dead.

PW2 Nisha was cross-examined but her statement in-chief could not be demolished. She has given description of the incident and the place of occurrence. In the cross-examinations she has admitted that knife was not lying in the hand of accused Raju. It was suppressed in the clothes and was taken out to cause injuries to the deceased one at the head and other at the chest only when he fell down. She was confronted with her statement under Section 161 Cr.P.C. The statement however does not show common intention of accused Ram Singh, Urmila and Badam Singh to cause occurrence under Section 302 IPC as knowledge about the availability of knife with accused Raju has not been shown. They otherwise are shown to be neighbors. She has however corroborated the version of PW1 in regard to the occurrence caused by accused Raju who had given two knife blows to the deceased.

An argument was raised before the trial court in regard to the contradiction in the FIR and the statement of PW2 Nisha in regard to the repeated blows to the deceased which was qualified to be only two blows in the court statement to make it in conformity with the postmortem report. The trial court has not accepted it to be a contradiction in reference to the postmortem report and otherwise we do not find a contradiction because the postmortem report (exhibit ''Ka.2') shows more than one injuries out of sharp-aged weapon to the deceased which corroborates the statements of PW1 and PW2. In this regard, the statement of Dr. V. P. Singh PW3 is also relevant. He has given description of the injuries found on the body of the deceased. The injuries out of sharp-edged weapon were found at the chest and head i.e. on the vital parts. The cause of death is due to excess bleeding out of injuries. The postmortem report and the statement of the doctor PW3 corroborates the version of the eye-witnesses PW1 and PW2. The allegations against the accused Raju regarding two blows by knife is established by the statement of PW3 and the postmortem report (exhibit Ka.2). It is true that knife and the shirt of the deceased were not recovered but only for that lapse of the I.O. prosecution case cannot be disbelieved. The view aforesaid is supported by the judgment of the Apex Court in the case of State of Karnataka Vs. Suvarnamma and Another; 2015 (1) SCC 323. Para 11, 12, 12.1 to 12.9 are quoted hereunder:

"11. It is also well settled that though the investigating agency is expected to be fair and efficient, any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence to prove the offence.

12. We may refer to the well known observations from decisions of this Court :

12.1  Shivaji Sahabrao Bobade vs. State of Maharashtra; 1973 (2) SCC 793:

"8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the post-mortem certificate. Certainly, the court which has seen the witnesses depose, has a great advantage over the appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial Judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful candour, rustic naivete and clever equivocation, manipulated conformity and ingenious inveracity of persons who swear to the facts before him. Nevertheless, where a Judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the court of appeal is in as good a position to assess or arrive at legitimate conclusions as the Court of first instance. Nor can we make a fetish of the trial Judge's psychic insight."

12.2 Bharwada Bhoginbhai Hirjibhai v. State of Gujarat; 1983 (3) SCC 217:

"5. ..........We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :

"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

12.3 Appabhai vs. State of Gujarat; 1998 Supp SCC 241:

"13. .........The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J., speaking for this Court in Sohrab v. State of Madhya Pradesh observed: [SCC p. 756, SCC (Cri) p. 824, para 8]

8....This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered."

12.4 State of Haryana v. Bhagirath; 1999 (5) SCC 96

"8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge.

9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:

"It is difficult to define the phrase ''reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: ''It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.' "

10. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:

"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."

11. In Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793) this Court adopted the same approach to the principle of benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. This Court further said: (SCC p. 799, para 6)

"6.....The judicial instrument has a public accountability. 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."

12.5 Leela Ram v. State of Haryana; 1999 (9) SCC 525

"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony (1985) 1 SCC 505). In para 10 of the Report, this Court observed: (SCC pp. 514-15)

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."

10. In a very recent decision in Rammi v. State M.P ; 1999 (8) SCC 649 , this Court observed: (SCC p. 656, para 24)

"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."

This Court further observed: (SCC pp. 656-57, paras 25-27)

"25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross- examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:

''155. Impeaching credit of witness.--The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him--

(1)-(2)     	****
 
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;'
 

26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be ''contradicted' would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to ''contradict' the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to ''contradict' the witness.

27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. (AIR (1959) SC 1012)."

12.6 State of H.P. vs. Lekh Raj; 2000 (1) SCC 247

"10. The High Court appears to have adopted a technical approach in disposing of the appeal filed by the respondents. This Court in State of Punjab v. Jagir Singh (1974) 3 SCC 277) held: (SCC pp. 285-86, para 23)

"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime 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."

The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind."

12.7 Gangadhar Behera vs. State of Orissa; 2002 (8) SCC 381:

"15. To the same effect is the decision in State of Punjab v. Jagir Singh (1974) 3 SCC 277) and Lehna v. State of Haryana (2002) 3 SCC 76). Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co- accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P. (AIR (1957) SC 366 ) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab (AIR (1956) SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. (1972) 3 SCC 751) and Ugar Ahir v. State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. (AIR (1954) SC 15) and Balaka Singh v. State of Punjab (1975) 4 SCC 511). As observed by this Court in State of Rajasthan v. Kalki (1981) 2 SCC 752) normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar (2002) 6 SCC 81). Accusations have been clearly established against the accused-appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned."

12.8 State of Punjab v. Swaran Singh; 2005 (6) SCC 101:

"10. The questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and he is given full opportunity to cross-examine each and every witness examined on the prosecution side. He is given copies of all documents which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution. However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the court in evaluating the evidence properly, the court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence. Generally, composite questions shall not be asked to the accused bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial.

11. In State (Delhi Admn.) v. Dharampal (2001) 10 SCC 372) it was held as under: (SCC pp. 376-77, para 13)

"13. Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him."

12. In Jai Dev v. State of Punjab (1963) 3 SCR 489) it was observed thus: (SCR p. 510)

21....."The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."

13. In Bakhshish Singh Dhaliwal v. State of Punjab (1967) 1 SCR 211) a three-Judge Bench of this Court held that: (SCR p. 225 D)

33......."It was not at all necessary that each separate piece of evidence in support of a circumstance should be put to the accused and he should be questioned in respect of it under that section;"

14. In Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793) a three-Judge Bench of this Court considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence, widening the sweep of the provision concerning examination of the accused after closing prosecution evidence made the following observations: (SCC p. 806, para 16):

16........."It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction."

12.9 Zahira Habibullha Sheikh (5) vs. State of Gujarat; 2006 (3) SCC 374:

"37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.

40. .......... Consequences of defective investigation have been elaborated in Dhanaj Singh v. State of Punjab (2004) 3 SCC 654). It was observed as follows: (SCC p. 657, paras 5-7):

"5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995) 5 SCC 518).

6. In Paras Yadav v. State of Bihar (1999) 2 SCC 126) it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

7. As was observed in Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517) if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh (2003) 2 SCC 518)."

Learned trial court has recorded the statement of PW5 Shyam Narain Singh, who conducted the investigation. PW5 has given corroboratory evidence. It was stated that name of PW1 Ruby was not initially figured but her statement was recorded soon after knowing her to be an eye-witness and accordingly it was submitted by a supplementary chargesheet.

Jaivir Singh Tomar-PW6 also conducted the investigation. He has also supported the prosecution case and accordingly the trial court found evidence to prove the offence under Section 302 IPC against accused Raju. The statement of the accused were recorded under Section 313 Cr.P.C. So far accused Raju is concerned, he has stated about FIR out of rivalry but no evidence to prove to it has been given in defence apart from any reason.

Learned trial court found that the investigating officer did not recover the shirt of the accused and we find that the investigation was not conducted in the manner required and it is not unknown and happens to extend the benefit to the accused but merely for that reason the prosecution case cannot be ignored, if the evidence exists to prove the offence. Small contradiction in the evidence cannot vitiate the prosecution case in view of the judgment of the Apex Court in the case of Sachin Kumar Singhraha vs. State of Madhya Pradesh; 2019 (3) SCC (Cri.) 575. Para 12, 17 and 18 of judgment are quoted hereunder:

"12. The Court will have to evaluate the evidence before it keeping in mind the rustic nature of the depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole. In this view of the matter, in our considered opinion, the evidence of PW5 fully supports the evidence of PW4 and the case of the prosecution.

17. At this juncture, we would like to recall that it is well­ settled that criminal justice should not become a casualty because of the minor mistakes committed by the Investigating Officer. We may hasten to add here itself that if the Investigation Officer suppresses the real incident by creating certain records to make a new case altogether, the Court would definitely strongly come against such action of the Investigation Officer. There cannot be any dispute that the benefit of doubt arising out of major flaws in the investigation would create suspicion in the mind of the Court and consequently such inefficient investigation would accrue to the benefit of the accused.

18. As observed by this Court in the case of State of H.P. v. Lekh Raj, (2000) (1) SCC 247, a criminal trial cannot be equated with a mock scene from a stunt film. Such trial is conducted to ascertain the guilt or innocence of the accused arraigned and in arriving at a conclusion about the truth, the courts are required to adopt a rational approach and  judge the evidence by its intrinsic worth and the animus of the witnesses. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. In this view of the matter, we find no error in the reliance placed by the Courts upon the circumstance of the recoveries effected at the instance of the accused/appellant."

According to us, the prosecution could prove the case against accused Raju for commission of offence under Section 302 IPC. The statements of PW1 and PW2 have been relied upon by the learned trial court as otherwise no reason exists to disbelieve their statements. They have given description of the incident apart from the place of occurrence and is corroborated by the medical evidence as well as statement of PW3. Accused Raju came with the motive and therefore only he was having knife suppressed in the clothes. It was taken out immediately when the deceased fell down. He caused two blows on the vital part of the body. The postmortem report corroborates the statement of PW1 and PW2 so as the statement of PW3 Dr. V. P. Singh.

Accordingly, we find no illegality in the order passed by the trial court to convict accused Raju for the offence under Section 302 IPC and for sentencing him to life imprisonment.

So far as the cases of other accused are concerned, they have been convicted for the offence under Sections 302/34 IPC. The evidence on record does not show that they come with common intention to cause offence under Section 302 IPC. Their presence at the place of occurrence is proved but they have not caused any injury to the deceased and there is no evidence to show that they were knowing about the knife with accused Raju to come with common intention to cause the offence under Section 302 IPC. PW2 has alleged their role to catch hold the deceased but beyond that no allegation exists against them to come with common intention to cause the offence under Section 302 IPC. Thus, mere presence of accused Ram Singh, Badam Singh and Urmila would not make out a case under Section 302/34 IPC.

In view of the above, we acquit accused Badam Singh, Ram Singh for the offence under Section 302/34 IPC. They are languishing in jail, thus, be released forthwith.

With the aforesaid, both the appeals are disposed of. The order of conviction and sentencing accused Raju is maintained while it is set aside for accused Ram Singh and Badam Singh. Other accused-appellant Urmila since died, her appeal stands abated.

Order Date :-25.03.2021

Kuldeep