Delhi High Court

Mohd. Shahid Khan @ Raja vs State on 10 March, 2014

Author: Sunita Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision: 10th March, 2014

+       CRL.A. 1345/2011

        MOHD. SHAHID KHAN @ RAJA     ..... Appellant
                     Through: Ms. Rakhi Dubey, Advocate

                          versus

        STATE                                         ..... Respondent
                          Through:       Mr. Sunil Sharma, APP

%

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment dated 20 th April,

2011 and order on sentence dated 2nd May, 2011 passed in Sessions

Case No.77/2009 in case FIR No.109/2009, PS Kapashera whereby

the appellant was held guilty of offence u/s 302 IPC and was

sentenced to undergo imprisonment for life and to pay Rs.10,000/- as

fine and in default of payment of fine, to further undergo SI for four

months.

2. Prosecution case emanates from the fact that on 17 th May,

2009, on receipt of a call regarding murder of a male aged about 20-

25 years at Gali No.8, Kapashera near Govt. Garbage House, near

White Flats, New Delhi, PW13, W Constable Sudesh filled the PCR

form Ex.PW-13/A and flashed the message to Control Room. On

receipt of message, PW-12, W Head Constable Saroj recorded DD

No.12A (Ex.PW-12/A) and entrusted the same to SI Sudan Singh. SI

Sudan Singh along with Constable Lakhmi Chand went to Phirni

Chowk, Opp. White Flats, near Govt. Dust Bin, Kapashera, New

Delhi where he found a dead body of a young man lying on the slope

near drain and the park. He informed the SHO who reached the spot.

The dead body was having a cut mark on the right side of the neck.

There were injury marks on his head and right cheek. His private

organ was cut from his body. The dead body was identified by his

wife. Blood was lying on the left side of the dead body in the park.

One paper cutting blade and one railway ticket from Shahbad to Patel

Nagar was lying near the blood. SHO called the crime team. PW-3

ASI Khazan Singh, In-charge, Crime Team reached the spot along

with his team. PW-5, Head Constable Rajeev took photographs

Ex.PW-5/A-1 to PW-5/A-9 from different angles. After inspection of

the site, ASI Khazan Singh gave his report Ex.PW3/A. A blade,

railway ticket, blood stained grass and earth control were lifted from

the spot and were seized vide different seizure memos. Rukka was

sent to police station through Constable Dharam Veer on the basis of

which FIR Ex.PW12/B was recorded by PW-12, W Head Constable

Saroj. The dead body was sent to DDU Hospital for preservation

through Constable Lakhmi Chand.

3. It is further the case of prosecution that on 18th May, 2009,

Inspector Lakhender Singh along with one public person Mohd.

Rustam went to S.N. Enterprises, 6/12, Shadipur Depot, Kirti Nagar

where inquiries were made and it was revealed that PW15 Mohd.

Rustam, deceased Mohd. Naushad, accused Mohd. Shahid Khan and

Mohd. Irshad Alam were working in S.N. Enterprises as employees.

Deceased Mohd. Naushad, being short tempered, used to abuse

Mohd. Shahid Khan and Mohd. Irshad Alam. They further came to

know that Mohd. Shahid Khan belonged to Jharkhand and Mohd.

Irshad Alam belonged to Bihar and both of them would be leaving by

train that evening. As such, the police officials along with Mohd.

Rustam went to Old Delhi Railway Station. On the pointing out of

Mohd. Rustam, accused Mohd. Shahid Khan and Mohd. Irshad Alam

were arrested from an open area in front of a park opposite Old Delhi

Railway Station. Mohd. Shahid Khan made a disclosure statement,

Ex.PW-15/F and got recovered one blood stained broken blade with

yellow handle and button generally used for cutting paper and leather,

which was seized vide memo Ex.PW-14/A. Mohd. Irshad Alam

Alam also made a disclosure statement and got recovered his blood

stained T.shirt from his tenanted house in village Kapashera.

4. On 19th May, 2009, inquest papers were prepared. Post-

mortem on the dead body of the deceased was conducted by PW2, Dr.

Komal Singh and, thereafter, the dead body was handed over to the

relatives of the deceased. After post-mortem, Dr. Komal Singh

handed over two sealed parcels containing clothes of the deceased

and blood gauge along with the sample seal which were taken into

possession vide seizure memo Ex.PW-17/A. During the course of

investigation, statement of witnesses were recorded. Exhibits were

sent to FSL and after completing investigation, charge sheet was

submitted against the accused Mohd. Shahid Khan Khan whereas

separate challan was filed against accused Mohd. Irshad Alam before

Juvenile Justice Board.

5. In order to substantiate its case, prosecution in all examined 19

witnesses. All the incriminating evidence was put to the accused

while recording his statement under Section 313 Cr.P.C. wherein he

admitted that he along with Mohd. Irshad Alam, Mohd. Rustam and

deceased Mohd. Naushad used to work in a leather purse

manufacturing factory named as S.N. Enterprises at 6/12, Kirti Nagar

Industrial Area, New Delhi. He also admitted that he as well as

Mohd. Irshad Alam were residing at Kapashera. It was also admitted

that one Naseem was working as a contractor in the said factory. 35-

36 workers were working under his supervision and he had divided

those workers in sub-groups. However, he denied that deceased

Mohd. Naushad was in his group which was headed by Mohd.

Rustam. Rest of the case is one of denial simplicitor. According to

him, he is innocent. He had a dispute with Mohd. Rustam on account

of some payment, which was outstanding towards him. He did not

pay the outstanding amount for three months and, as such, Mohd.

Rustam got him falsely implicated in this case. According to him, he

was lifted from his house on 17th May, 2009 and was taken to police

station and kept in lockup. Thereafter, he was taken to a place where

there were bushes. Police took out a knife from a box and asked him

to hold it and then his photos were taken with mobile. He was falsely

implicated in this case. He did not prefer to lead any defence

evidence.

6. After meticulously examining the evidence led by the

prosecution and the other material on record, vide impugned

judgment, the appellant was held guilty and sentenced as mentioned

above. The findings have been assailed by the appellant by filing the

present appeal.

7. We have heard Ms. Rakhi Dubey, Amicus Curiae for the

appellant and Sh. Sunil Sharma, learned Additional Public Prosecutor

for the State/respondent.

8. It was submitted by learned counsel for the appellant that as per

the prosecution, the appellant along with Mohd. Irshad Alam

committed the murder of Mohd. Naushad on the intervening night of

16-17th May, 2009. However, as per the post-mortem report, time

since death was 72 hours, meaning thereby, the death had taken place

between 12:15 pm to 1:20 pm on 16 th May, 2009. Moreover, as per

the prosecution case, PW-15 Mohd. Rustam informed PW-1 Farzana

in the morning that deceased was in the company of the appellant and

JCL-Irshad Alam. Thereafter the dead body was recovered near

Govt. Dust Bin and was identified by PW-1. However, PW-1 failed to

inform the police regarding the factum of deceased being in the

company of the accused persons. She simply informed the police that

the deceased had gone to work in the morning a day before and had

not returned. This shows falsity of the case against the appellant. It

was further submitted that prosecution is heavily relying upon the

testimony of Mohd. Rustam for proving the circumstances of last

seen. However, the same is doubtful, firstly, in the light of the post-

mortem report, secondly the name of the accused person was not

informed at the first instance, thirdly, testimony of PW-15 is contrary

to testimony of PW-1 Farzana and PW-7 Naseem. PW-1, Farzana

does not state that she had gone to search the deceased in the

morning. Similarly, Naseem fails to state regarding the quarrel

between the deceased and the accused prior to the incident. The case

is based on circumstantial evidence. The chain of evidence is not so

complete as to show that within all human probability the act must

have been done by the accused. The prosecution has failed to prove

motive for commission of crime. As per the case of prosecution, the

deceased used to abuse the accused persons who used to feel offended

and also extended threat to the deceased, however, no complaint was

filed in this regard. As per the post-mortem report, the deceased was

strangulated. Thereafter, the post-mortem injuries were also caused.

It is hard to believe that any person would murder in such a brutal

manner just because the deceased used abusive language. Moreover,

the cause of death of the deceased was strangulation. However,

prosecution failed to explain as to with which material, the

strangulation was done. Prosecution had shown the recovery of a

broken blade at the instance of the appellant from the bushes near the

spot which was an open space accessible to all. The spot was duly

inspected by the crime team when the dead body was recovered.

Thus the recovery becomes doubtful. Under the circumstances, it was

submitted that the prosecution has not been able to establish its case

beyond reasonable doubt and the accused is entitled to be acquitted of

the offence alleged against him.

9. Reliance was placed on Bhajan Singh vs. State, (2011) 7 SCC

421; Bakhshish Singh vs. State, 1971 SCC (Cri.) 251; Chander Pal

vs. State, 1998 (2) JCC (Del.) 207; Padala Veera Reddy vs. State,

AIR 1990 SC 79.

10. Per contra, it was submitted by learned Additional Public

Prosecutor for the State that the impugned order does not suffer from

any infirmity which calls for interference. Although the case is based

on circumstantial evidence, however, all the links in the chain are

complete to prove the complicity of the accused in the crime. Motive

to commit crime stands proved from the testimony of PW-1 Farzana,

wife of the deceased. Accused was last seen by PW-15 Mohd.

Rustam. Accused also made an extra judicial confession before

Mohd. Rustam. Subsequent to his arrest, he got recovered the

remaining part of the blade and as per the report of the scientific

officer, the blade of the paper cutting knife recovered at the instance

of accused matched with other broken piece of blade recovered near

the dead body. Human blood was also found on the blade of the

paper cutter. Under the circumstances, it was submitted that the

appeal is without any merit and the same is liable to be dismissed.

11. We have given our considerable thoughts to the respective

submissions of the learned counsel for the parties and have perused

the record.

12. It is an undisputed case of the parties that deceased Mohd.

Naushad met a homicidal death. Post-mortem on the dead body of

Mohd. Naushad was conducted by PW-2 Dr. Komal Singh who gave

his report, Ex.PW2/A. As per the post mortem report, following were

the observations and findings:-

External appearance: Both eyes closed, mouth open, congestion NAD, Cornea Hazy, nails bluish, hue (Cyanose), face and hair are embedded, covered with pieces of grass etc, bleeding from the mouth.

Ante-mortem External injuries:

1. Laceration of right ear at helix and pinna along the margin 3cm x 2mm, cut through.

2. Scratch marks on left side of the back, four in number, length varying from 5 to 7 cm, from gluteal region to scapular region.

3. Nail mark on inner surface of right arm 5 mm.

4. Dislocation of lower lateral incisors, clotted blood present along with gum contusion.

5. Comb shape imprint abrasion on left lateral size of neck 2.1 cm x 5mm.

6. Ligature strangulation mark encircling the neck in

circular fashion extending from left lateral surface of the neck coming towards the anterior side. Then on the right lateral side, on the right posterior hair line, there was gap of 1.3 cm. Total circumference of the neck was 31 cm. Ligature was 34cm x 5 mm.

7. Abrasion over the ligature mark on the anterior surface. It was present over the thyroid cartilage going bilaterally towards the mastoid process and then to the posterior hair. It was 2 cm below the chin, 11 cm above the sternum, 7 cm from the left mastoid, 7 cm from the right mastoid.

Post-mortem injuries

8. Cut throat mark on the right anterior lateral of the neck size was 8cm and 4cm, muscle and vessels were cut through and through and there was no clotting of blood around.

9. Postmortem injuries on the penis, incised cut was given at the stem and there was no clotted blood.

10. Postmortem abrasion on the right sub scapular 2cm x 1cm.

11. There was cut incised wound of the left little finger, bone deep 3 cm x 2cm.

Internal Examination :

Brain was congested and edematous. Lungs were also congested and edematous. Underneath surface of the neck has clotted blood and the clotted blood was present on the posterior surface of the cricoid cartilage. Froth was present in the hymen

of the trachea. Other body organs were also congested. Stomach contained 150 ml of semi digested food.

It was opined that cause of death was asphyxia subsequent to ligature strangulation. Constricting force by the ligature was sufficient to kill the person in ordinary course of nature.

13. The core question for consideration is who was responsible for

committing such a brutal murder. There is no eye-witness to the

incident and the case of prosecution rests on circumstantial evidence.

14. The tests applicable to cases based on circumstantial evidence

are fairly well-known. The decisions of Hon'ble Supreme Court

recognising and applying those tests to varied fact situation are a

legion. Reference to only some of the said decisions should, however,

suffice.

15. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984)

4 SCC 116, Hon'ble Supreme Court declared that a case based on

circumstantial evidence must satisfy, the following tests:

"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to

say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency.

(4) They should exclude every possible hypothesis except the one to be proved, and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

16. In Aftab Ahmad Ansari vs. State of Uttaranchal, (2010) 2

SCC 583, it was observed:

"13. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be."

17. To the same effect are the decisions rendered in Bakhshish

Singh (supra), Chander Pal (Supra) and Padala Veera Reddy relied

upon by learned counsel for the appellant.

18. What, therefore, needs to be seen is whether the prosecution

has established the incriminating circumstances upon which it places

reliance and whether those circumstances constitute a chain so

complete as not to leave any reasonable ground for the Appellant to

be found innocent.

19. The circumstances which accounted for conviction of the

appellant may be broadly categorised as under:-

        (i)     Motive to eliminate the deceased
        (ii)    The deceased being last seen with the appellant and JCL
                Irshad Alam

(iii) Extra judicial confession made by the accused to PW15, Rustam

(iv) Recovery of remaining part of weapon of offence at the instance of accused Mohd. Shahid

(v) Scientific evidence.

20. We shall take each of the circumstance in seriatim:-

Motive

21. PW-1 Farzana, PW-6 Nagender Majhi, PW-7 Naseem and PW-

15, Mohd. Rustam have consistently deposed that the deceased,

Mohd. Naushad, accused Mohd. Shahid Khan, JCL Mohd. Irshad

Alam and Mohd. Rustam were working in the same leather purse

manufacturing unit, namely, S.N. Enterprises at Kirti Nagar. This

fact is not even disputed by the accused in his statement under

Section 313 Cr.P.C. It has further come in the evidence that the

deceased Mohd. Naushad, accused Mohd. Shahid Khan, Mohd. Irshad

Alam and Rustam were all working under the same contractor in S.N.

Enterprises, Kirti Nagar. Naseem was the contractor who had divided

the workers in sub-groups and one such sub-group was headed by

deceased Mohd. Naushad and PW-15 Rustam and both the accused

used to work in the said sub-group. Although, in his statement under

Section 313 Cr.P.C., the accused has taken a plea that deceased was

not working in their group, however, testimony of PW-7 Naseem in

this regard was never challenged. No suggestion was given to him

that deceased Mohd. Naushad was working in some other group or

the group where the accused Mohd. Shahid Khan and Mohd. Irshad

Alam were working, was headed by Rustam only. There is no motive

attributed to PW-7 Naseem for allegedly making a false statement

against the accused Mohd. Shahid Khan and Mohd. Irshad in this

regard. He is a totally independent witness and no animosity, ill will

or grudge has been alleged against him for which reason he will

depose falsely in this regard. Under the circumstances, it stands

proved that both the accused were working under the group which

was headed by Rustam and the deceased.

22. PW1, Farzana, wife of the deceased has deposed that 15 days

prior to the death of her husband, a quarrel had taken place between

her husband and accused Mohd. Shahid Khan and Mohd. Irshad Alam

and they hurled abuses on each other. After two days of this quarrel,

accused Mohd. Shahid Khan made a telephone call to her on the STD

booth and extended threat that he would kill her husband. She

enquired from accused Mohd. Shahid Khan the reasons for

administering such threat on which he replied that her husband gave

filthy abuses to him. Next day, Mohd. Shahid Khan and Mohd.

Irshad Alam came to her house at about 8:00 pm. At that time, her

husband was also present. Again the threat was repeated by both the

accused and in pursuance to her query as to why they wanted to kill

her husband they replied that her husband was in the habit of giving

filthy abuses. Her husband asked her to keep quiet and thereafter, he

had some talk with both the accused. Then both of them left. PW-7

Naseem also corroborates her version by deposing that he had

witnessed the quarrel between both the accused and deceased before

his murder. Under the circumstances, it is established that the

deceased used to abuse the accused due to which he was annoyed and

had been extending threats to kill him.

23. It was submitted by learned counsel for the accused that the

mere fact that the deceased used to hurl abuses on the accused

persons cannot furnish sufficient ground for eliminating him.

24. We cannot forget that it is generally a difficult area for

prosecution to bring on record as to what was in the mind of the

accused/appellant and why he chose to act in a particular manner

because it is not easy to read the human nature being what it is. A

man's passion may arouse at any time even on a very trifling issue.

The motive of a man is often so deep seated as to be almost

unfathomable. He alone is having the knowledge of the feelings

which he may be having against a particular person. On the other

hand, there are persons who are so indolent and tolerant that they do

not even react on much more serious incidents. Man's behaviour and

reaction differ from person to person and by no scale is measurable.

In today's time when patience run low and anger is aroused over a

very trifling matter, it cannot be said with utmost certainty that the act

such as hurling abuses could not have been sufficient enough to form

a motive for commission of an offence.

25. Dealing with the aspect of motive, in Subedar Tewari v. State

of U.P., 1989 Supp (1) SCC 91, Hon'ble Supreme Court observed as

under:-

"The evidence regarding existence of motive which operates in the mind of an assassin is very often than (sic) not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to the evil thought in the mind of the assassin."

26. Again reiterating the role played by motive in deciding as to

whether the prosecution has proved the case beyond reasonable

doubt against an accused, the Hon'ble Supreme Court in the case

of Suresh Chandra Bahari v. State of Bihar,1995 Supp (1) SCC 80

held as under:-

"Sometimes motive plays an important role and become a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act with illegal means with a view to achieve that intention. In a case where there is motive, it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the evidence bearing on the guilt of the accused nonetheless becomes untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading

to the commission of the crime."

27. This view was reiterated in Amitava Banerjee @ Amit @

Bappa Banerjee vs. State of West Bengal, (2011) 12 SCC 554, where

it was observed as under:-

"41. Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty.

42. Absence of motive in a case depending entirely on circumstantial evidence is a factor that shall no doubt weigh in favour of the accused, but what the Courts need to remember is that motive is a matter which is primarily known to the accused and which the prosecution may at times find difficult to explain or establish by substantive evidence.

43. Human nature being what it is, it is often difficult to fathom the real motivation behind the commission of a crime. And yet experience about human nature, human conduct and the frailties of human mind has shown that inducements to crime have veered around to what Wills has in his book "Circumstantial Evidence" said:

"The common inducements to crime are the desires of revenging some real or fancied wrong; of getting rid of rival or an obnoxious connection; of escaping from the pressure of pecuniary or other obligation or burden of obtaining plunder or other coveted object; or preserving reputation, either that of general character or the conventional reputation or profession or sex; or gratifying some other selfish or malignant passion."

28. It has come on record that the deceased was short tempered and

since the accused persons were working under him they used to be

reprimanded by the deceased quite on and off, and therefore, the

accused persons were nurturing an ill-will and grudge against him.

Even prior to the incident, they had threatened the deceased to kill

him and had also telephonically threatened his wife to kill the

deceased. The fact that the accused were so furious and annoyed and

were nurturing such hatred towards the deceased is reflective from the

post-mortem report which goes to show that even after strangulating

the deceased, there were as many as four post-mortem injuries in the

shape of cut throat mark on right anterior lateral of the neck, the

penis was cut, there was abrasion on the right sub scapular and

another cut incised wound on the left little finger. As such, motive to

commit the crime stands proved not only from the ocular testimony of

the prosecution witnesses but also from the medical evidence.

Last seen

29. PW-15 Mohd. Rustam has deposed that on 16 th May, 2009, he

along with the deceased Mohd. Naushad, accused Mohd. Shahid

Khan and Mohd. Irshad Alam had returned to Kapashera after

finishing their duties and thereafter deceased was taken by accused

Mohd. Shahid Khan and Mohd. Irshad Alam with them on the

pretext of some party. This part of his testimony is not challenged in

cross-examination. Rather in cross-examination, it was suggested to

him that the programme of party on 16th May, 2009 was actually

made by the accused Mohd. Shahid Khan, Mohd. Irshad Alam and

Mohd. Naushad jointly, meaning thereby, that the factum of accused

Mohd. Shahid, Mohd. Irshad Alam and deceased going for a party on

that evening after working hours is not even denied by the accused.

PW-15 further clarified that Mohd. Naushad had agreed to go with

both the accused only after he was assured that expenses would be

borne by them. Not only this, it was also suggested to the witness

that he was making a false statement against the accused on being

annoyed with him for not having invited to the party. This again

corroborates the version of PW-15 that not only the accused Mohd.

Shahid Khan and Mohd. Irshad Alam had lured the deceased of

giving him a party on 16th May, 2009, but Rustam was not invited in

the said party. There is no challenge to the testimony of this witness

that the deceased was not taken by the accused persons with them on

the pretext of giving him a party. Under the circumstances, it stands

proved that accused Mohd. Shahid Khan and Mohd. Irshad Alam

were the two persons in whose company the deceased was 'lastly

seen' alive.

30. Moreover, when this incriminating circumstance was put to the

accused in his statement recorded under Section 313 Cr. P.C., he did

not give any explanation except choosing the mode of denial. In

State of Maharashtra vs. Suresh, (2000) 1 SCC 471 reiterated in

Jagroop Singh vs. State of Punjab, (2012) 11 SCC (Crl.) 768, it has

been held that when the attention of the accused is drawn to such

circumstances that inculpate him in the crime and he fails to offer

appropriate explanation or gives a false answer, the same can be

counted as providing a missing link for completing the chain of

circumstances. It was incumbent upon the appellant to explain when

he parted with the company of deceased after he along with co-

accused Mohd. Irshad Alam and deceased had gone for a party which

he has failed to explain. As such, the circumstance of 'last seen'

together with the deceased is one of the incriminating piece of

evidence against the accused. Mere fact that PW1, Farzana did not

disclose this fact while identifying the dead body of her husband does

not falsify the testimony of this witness which remains unassailed and

unrebutted in cross-examination.

Extra judicial confession

31. It has come in the statement of PW-15 Mohd. Rustam that on

the intervening night of 16-17th May, 2009 at 12:30 am, accused

Mohd. Shahid Khan and Mohd. Irshad Alam came to his tenanted

premises, woke him up and made an extra judicial confession that

they had murdered Mohd. Naushad. However, he did not pay any

attention to them and advised them to go home and sleep as they were

under the influence of liquor at that time. Next morning, when wife

of deceased called him up stating that Mohd. Naushad had not

returned home that night, he got suspicious and started searching for

Mohd. Naushad. However, he being unsure did not reveal about the

extra judicial confession made by accused persons to him to anyone.

It was only after the dead body was recovered that he disclosed all the

facts to the police which were recorded in his statement dated 17th

May, 2009.

32. The evidentiary value of extra judicial confession came up for

consideration before Hon'ble Supreme Court in R. Kuppusamy vs.

State, (2013) 3 SCC 322 where it was observed:-

"8. That a truthful extra judicial confession made voluntarily and without any inducement can be made a basis for recording a conviction against the person making the confessions was not disputed before us at the hearing. What was argued by Ms. Mahalakshmi Pavani, counsel appearing for the Appellant, was that an extra judicial confession being in its very nature an evidence of a weak type, the Courts would adopt a cautious approach while dealing with such evidence and record a conviction only if the extra judicial confession is, apart from being found truthful and voluntary, also corroborated by other evidence. There was, according to the learned Counsel, no such corroboration forthcoming in the present case which according to her was sufficient by itself to justify rejection of the confessional statement as a piece of evidence against the Appellant. Reliance, in support of the contention urged by the learned Counsel, was placed upon the decisions of this Court in Gura Singh v. State of Rajasthan , (2001) 2 SCC 205 and Sahadevan and Anr. v. State of Tamil Nadu, (2012) 6 SCC 403.

9. In Gura Singh's case (supra) a two-Judge Bench of this Court was also dealing with an extra judicial confession and the question whether the same could be made a basis for recording the conviction against the accused. This Court held that despite the inherent weakness of an extra judicial confession as a piece of evidence, the same cannot be ignored if it is otherwise shown to be voluntary and truthful. This Court also held that extra judicial confession cannot always be termed as tainted evidence and that corroboration of such evidence is required only as a measure of abundant caution. If the Court found the witness to whom confession was made to be trustworthy and that the confession was true and voluntary, a conviction can be founded on such evidence alone. More importantly, the Court declared that Courts cannot start with the presumption that extra judicial confession is always suspect or a weak type of evidence but it would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak about such a confession and whether the confession is voluntary and truthful.

10. In Sahadevan's case (supra) a two-Judge Bench of this Court comprehensively reviewed the case law on the subject and concluded that an extra judicial confession is an admissible piece of evidence capable of supporting the conviction of an accused provided the same is made voluntarily and is otherwise found to be truthful. This Court also reiterated the principle that if an extra judicial confession is supported by a chain of cogent circumstances and is corroborated by other evidence, it acquires credibility. To the same effect are the decisions of this Court in

Balbir Singh and Anr. v. State of Punjab, 1996 (SCC) Crl. 1158 and Jaspal Singh @ Pali v. State of Punjab, (1997) 1 SCC 510.

11. It is unnecessary, in the light of above pronouncements, to embark upon any further review of the decisions of this Court on the subject. The legal position is fairly well-settled that an extra judicial confession is capable of sustaining a conviction provided the same is not made under any inducement, is voluntary and truthful. Whether or not these attributes of an extra judicial confession are satisfied in a given case will, however, depend upon the facts and circumstances of each case. It is eventually the satisfaction of the Court as to the reliability of the confession, keeping in view the circumstances in which the same is made, the person to whom it is alleged to have been made and the corroboration, if any, available as to the truth of such a confession that will determine whether the extra judicial confession ought to be made a basis for holding the accused guilty.

33. Adverting to the case in hand, the extra judicial confession

made by the accused to Mohd. Rustam, is voluntary, truthful and

unaffected by any inducement that could be termed to be unreliable or

unworthy of credence. This is particularly so since Rustam was the

person under whom both the accused persons were working and

earlier also when they were reprimanded by the deceased for not

working properly, they had confided in him and at that time he had

advised both of them to work properly. Initially when the accused

had come to him during the intervening night and confessed the

crime, at that time, he did not take it seriously as they were under the

influence of liquor and therefore, he asked them to go to their house

and sleep, however, after the recovery of dead body, he disclosed this

fact to the police on the very next day. As such, it cannot be said that

his statement about the confession made by the accused was an

afterthought. Furthermore, the factum of accused persons making the

confessional statement before Mohd. Rustam has not been challenged

in cross-examination, so much so that even no suggestion was given

to the witness that no such confessional statement was made by the

accused persons to this witness.

34. The Supreme Court in Laxmibai (dead) through LRs and Anr.

vs. Bhagwantbuva (dead) through LRs and Ors., AIR 2013 SC 1204

examined the effect of non-cross examination of witness on a

particular fact/circumstance and held as under:-

"31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to

impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses."

35. This view was reiterated by Hon'ble Supreme Court in

Gangabhavani vs. Rayapati Venkat Reddy and Ors., AIR 2013 SC

3681. Under the circumstances, this extra judicial confession is

another incriminating piece of evidence connecting the accused with

the crime.

Recovery of weapon of offence

36. On 18th May, 2009, SI Rajender Singh along with SHO

Inspector Lakhender Singh and other police officials and Mohd.

Rustam went to Old Delhi Railway Station. On the pointing out of

Mohd. Rustam, accused Mohd. Shahid Khan and Mohd. Irshad Alam

were apprehended. Both the accused were arrested. Accused Mohd.

Shahid Khan made a disclosure statement Ex.PW-15/F stating therein

that due to filthy abuses hurled by the deceased, he as well as Mohd.

Irshad Alam were very annoyed. They hatched a conspiracy and took

the deceased with them on the pretext of giving him a party.

Thereafter, he strangulated the deceased with a handkerchief and after

he died, then gave knife injury on his neck with paper cutter, cut his

penis and threw the same in the ganda nala. The blade was thrown in

the bushes. He further stated that he had thrown the blood stained

shirt and handkerchief in the kudedaan and he could get recovered the

blade, blood stained shirt and the handkerchief. Although the

handkerchief and the blood stained shirt of the accused could not be

recovered, however, he led the police party to the place of occurrence,

i.e., opposite white flats near ganda nala Park, Kapashera and got

recovered one blood stained broken blade meant for cutting paper and

leather. Besides the police officials, one independent witness PW14,

Gautam Yadav was also present at the time of recovery of the blade.

37. The recovery has been challenged by learned counsel for the

appellant on the ground that the recovery had taken place from an

open space and in fact, the crime team had already visited the place

and, therefore, it cannot be said that the recovery was effected at the

instance of the accused in order to connect him with crime. The

submission is devoid of merit, inasmuch as, when the crime team had

visited the spot, one piece of blade of paper cutting knife besides

other articles were visible at the spot and the same were taken into

possession. However, recovery of the blade was affected from the

bushes and according to PW-14 Gautam Yadav, it was not visible

from a distance. That being so, since the blade was lying in the

bushes and was not otherwise visible, therefore, it cannot be said that

the blade was lying in open area accessible to all so that the recovery

of the blade in pursuance to the disclosure statement made by the

accused may be held to be inadmissible in evidence. All the police

officials as well as the independent witness have been cross-examined

at length in regard to the recovery of the blade. However, nothing

material could be elicited to discredit their testimony. Moreover,

Gautam Yadav was totally an independent witness, who was neither

known to the accused nor to the deceased and as such, there is no

plausible reason as to why he would either depose in favour of the

deceased or against the accused. His presence at the spot was quite

natural as he was also a resident of Kapashera village and according

to him he was present at his house at Chetanya Apartments,

Kapashera village. Police officials were present in front of his

complex near ganda nala opposite park. Many public persons were

present. He also went there. SHO requested the public persons to

join the proceedings and he voluntarily joined the investigation and

thereupon accused Mohd. Shahid Khan got recovered the blood and

mud stained blade from the bushes in his presence. Under the

circumstances, recovery of blood stained blade at the instance of

accused stands proved.

Scientific Evidence

38. It has come on record that after receipt of information

regarding the dead body of one male lying on the slope near ganda

nala, SI Sudan Singh along with Constable Lakhmi Chand reached

the spot where blood in huge quantity was found at the spot. One

railway ticket and one paper cutter blade was also lying there. All

these articles were taken into possession vide different seizure

memos. After post-mortem of the dead body was conducted, Dr.

Komal Singh handed over the clothes and blood sample of the

deceased. After the arrest of the accused, one blade was recovered

which was also seized. During the course of investigation, all the

exhibits were sent to FSL. As per report Ex.PA given by Ms. Shashi

Bala, Sr. Scientific Assistant, blood was detected on the rail ticket,

plastic handle with broken blade and pant of the deceased. Accused

Mohd. Irshad Alam had also got recovered his T.shirt on which also

blood of human origin was found. As per the report, the blood group

of the deceased was of 'B' group and on T.shirt of co-accused also,

human blood of 'B' group was found. However, as regards the rail

ticket, broken blade and pant of the deceased, the blood group could

not be opined. That itself, however, is not fatal.

39. In State of Rajasthan vs. Teja Ram and Ors., (1999) 3 SCC

507, one of the circumstances which the Trial Court relied on as

incriminating against the accused was the recovery of two axes

(kulhadis). On the strength of the statements of two of the accused

persons, the said axes (kulhadis) were subjected to chemical

examination and the result was that both the axes (kulhadis) were

found stained with blood. However, when they were further subjected

to test by the serologist, the blood on one axe was found to be of

human origin while the blood stain on the other axe was found to be

so disintegrated that its origin became undetectable. A Division

Bench of the High Court of Rajasthan declined to act on the evidence

relating to the recovery of axes for the reason that human blood could

be detected only on one of them while the origin of the blood on the

other was not established, there was room for entertaining doubt as to

the real person whose blow with the axe would have caused the

injury. The Supreme Court finding the reasoning of the High Court

unsustainable, opined as under:-

"25. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to hematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused."

40. In the case of Gura Singh vs. State of Rajasthan, (2001) 2

SCC 205, the prosecution proved beyond doubt the recovery of the

blood stained 'chadar' (sheet) belonging to the Appellant and kassi,

the weapon of offence on the basis of the voluntary disclosure

statement made by the accused, who was charged with the offence of

patricide and had allegedly smashed the skull of the deceased with the

kassi. Both the Trial Court as well as the High Court held that the

prosecution had successfully established the making of the disclosure

statements by the Appellant and the consequent recovery of the

weapon of offence and 'chadar' at his instance. The serologist and

chemical examiner found the 'chadar' (sheet) and other items to be

stained with human blood. However, the origin of blood stains on the

kassi and other items like the shoes of the accused could not be

determined on account of disintegration with the lapse of time. The

contention was sought to be raised on behalf of the Appellant that the

prosecution had failed to connect the accused with the commission of

crime and the judgments of the Supreme Court in Prabhu Babaji

Navle Vs. State of Bombay, AIR 1956 SC 51 and Raghav Prapanna

Tripathi Vs. State of U.P., AIR 1963 SC 74 were pressed into

service. Rejecting the aforesaid contention, the Supreme Court held

that the effect of the failure of the serologist to detect the origin of

blood due to disintegration in the light of the aforesaid cases was

considered by this court in Teja Ram's case (supra) and in view of the

authoritative pronouncement of this court in the said case, there was

no substance in the submission of the learned counsel for the

Appellant that in the absence of the report regarding the origin of the

blood, the Trial Court could not have convicted the accused.

41. In Ramnaresh & Ors. Vs. State of Chattisgarh, (2012) 4 SCC

257, which was a case u/s 302/499/376 (2) (g) r/w Section 34 IPC, the

plea was taken that the FSL report does not connect the accused with

the commission of crime as the FSL report did not give the grouping

of the blood/semen. Repelling the contention, it was held by Hon'ble

the Supreme Court that FSL report was inconclusive but not negative

which would not provide the accused with any material benefit.

42. As stated above, blood was detected on rail ticket, plastic

handle with broken blade and pant of the deceased and T.shirt of co-

accused Mohd. Irshad Alam which was opined to be of 'human

origin'. Mere fact that 'group' of blood could not be opined, does not

provide the accused with any material benefit.

43. The yellow colour plastic handle with piece of broken blade

recovered at the instance of the accused and piece of blade lying at

the spot were also sent to FSL and as per the report given by

Sh.Parshuram Singh, Sr. Scientific Officer, following opinion was

given:-

The blade piece Exhibit - 3 and blade piece with handle Exhibit - 5 were examined under microscope, VISPEC and using other measuring tools, it was found that the blade piece

Exhibit - 3 and blade piece in Exhibit - 5 were similar in respect of width, thickness, appearance of surface. When broken edge of blade piece Exhibit - 3 was placed in juxta position with blade piece in Exhibit - 5, they were found physically fitted.

Above observations indicate that the broken blade Exhibit - 3 and blade with handle Exhibit - 5 were part of one knife.

44. This report further proves that the blade piece lying at the spot

and the blade piece with handle recovered at the instance of the

accused were part of the same knife and this is another clinching

piece of incriminating circumstance connecting the accused with

crime.

45. The circumstances as narrated above and proved by the

prosecution establish the case against the accused beyond all

reasonable doubts. Learned Trial Court was right in observing that

prosecution has not only been able to prove with cogent, reliable and

trustworthy evidence, all the circumstances forming part of chain of

evidence against the accused but also that the chain is consistent only

with his guilt for the offence as charged with and is totally

inconsistent with any possibility of his being innocent.

46. When all the incriminating evidence was put to the accused,

while recording his statement under Section 313 Cr. P.C., he pleaded

innocence and alleged false implication in this case. It was alleged

that he had a dispute with Rustam, on account of some payment,

which was outstanding towards Rustam and who had not paid the

amount for three months. This plea seems to be an afterthought as it

has seen the light of the day for the first time in the statement of the

accused recorded under Section 313 Cr.P.C. Besides that, the plea is

very vague as it is not disclosed as to when the money was given to

the witness and how much amount was due towards Rustam.

Moreover, the best person to admit or deny this transaction was

Rustam. However, no such suggestion was given to him that the

accused and Rustam had any money transaction between them. The

only suggestion given to the witness was that he was annoyed with

the accused since he was not invited for party by the accused which

was denied by him. Under the circumstances, the plea taken by the

accused does not appeal to reason.

47. While passing over, the other submissions made by the learned

counsel for the appellant are also dealt with.

48. It was submitted that although the FIR was allegedly registered

at 12:30 pm, however, the copy of FIR was received at the office of

the Magistrate at 6:00 pm only, as such, there is delay in forwarding

the report to the Magistrate and, as such, an adverse inference is to be

drawn against the prosecution. Reliance was placed on Bhajan Singh

(supra). This decision does not help the appellant in any manner,

inasmuch as, it was observed that delay in despatch of FIR by itself is

not a circumstance which can throw out prosecution's case in its

entirety. Dealing with the aspect of delay in sending the copy of FIR

to Court, Hon'ble Supreme Court observed as under:-

24. In Shiv Ram and Anr. v. State of U.P. AIR 1998 SC 49, this Court considered the provisions of the Section 157, Code of Criminal Procedure, which require that the police officials would send a copy of the FIR to the Illaqa Magistrate forthwith. The court held that if there is a delay in forwarding the copy of the FIR to the Illaqa Magistrate, that circumstance alone would not demolish the other credible evidence on record. It would only show how in such a serious crime, the Investigating Agency was not careful and prompt as it ought to be.

25. In Munshi Prasad and Ors. v. State of Bihar this Court considered this issue again and observed:

"13....While it is true that Section 157 of the Code makes it obligatory on the officer in charge of the police station to send a report of the information received to a Magistrate forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice - if the court is otherwise convinced and has come to a conclusion as

regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case.

While deciding the said case, this Court placed relied upon its earlier judgments in Pala Singh and Anr. v. State of Punjab and State of Karnataka v. Moin Patel.

26. In Rajeevan and Anr. v. State of Kerala this Court examined a case where there had been inordinate delay in sending the copy of the FIR to the Illaqa Magistrate and held that un-explained inordinate delay may adversely affect the prosecution case. However, it would depend upon the facts of each case.

27. A similar view was reiterated in Ramesh Baburao Devaskar and Ors. v. State of Maharashtra, wherein there had been a delay of four days in sending the copy of the FIR to the Illaqa Magistrate and no satisfactory explanation could be furnished for such inordinate delay. While deciding the said case, reliance had been placed on earlier judgments in State of Rajasthan v. Teja Singh and Ors. and Jagdish Murav v. State of U.P. and Ors. (See also Sarwan Singh and Ors. v. State of Punjab, State of U.P. v. Gokaran and Ors. Gurdev Singh and Anr. v. State of Punjab State of Punjab v. Karnail Singh, State of J and K v. Mohan Singh and Ors., N.H. Muhammed Afras v. State of Kerala, Sarvesh Narain Shukla v. Daroga Singh and Ors. and Arun Kumar Sharma v. State of Bihar.

28. Thus, from the above it is evident that the Cr.P.C provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not anti- timed or anti-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159 Code of Criminal Procedure, if so required. Section 159 Code of Criminal Procedure empowers the Magistrate to hold the investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction.

29. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been anti-timed or anti-dated or investigation is not fair and forthright. Every such delay is not fatal unless

prejudice to the accused is shown. The expression 'forthwith' mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances.

30. However, un-explained inordinate delay in sending the copy of FIR to the Magistrate may affect the prosecution case adversely. An adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused persons after due deliberations. Delay provides legitimate basis for suspicion of the FIR, as it affords sufficient time to the prosecution to introduce improvements and embellishments. Thus, a delay in dispatch of the FIR by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or prosecution case itself is proved by leading unimpeachable evidence.

49. In the instant case, there was no delay in lodging the FIR,

inasmuch as, call regarding murder of a male was received by Lady

Constable Sudesh at about 9:14 am. The information was given to W

HC Saroj who recorded DD No.12A at 9:20 am and handed over the

same to SI Sudan Singh. Thereafter, SI Sudan Singh along with

constable reached the spot. Information was also sent to the SHO.

Inspector Lakhender Singh reached the spot and inspected the place

of crime. His dead body was identified by PW1, Farzana to be that of

her husband. Thereafter, the rukka was prepared and FIR was

registered at 12:45 pm. Copy of the FIR was sent to the concerned

Magistrate and as per the endorsement, it was received by him at his

residence at 6:00 pm. The slight delay in reaching the FIR to the

Magistrate does not cause any prejudice to the accused. It is pertinent

to note that the defence did not put any question on these issues while

cross-examining the material witnesses and providing them an

opportunity to explain the delay. Thus, we do not find any force in

the submissions made by learned counsel for the appellant in this

regard.

50. The next submission of learned counsel for the appellant that

the assailants were not named at the very first instance and the FIR

was registered against unknown persons after the dead body was duly

identified by the wife of the deceased also cast doubt on prosecution

version, is devoid of merits. PW1 Farzana is not an eye-witness of

the incident. The very fact that she only identified the dead body and

did not name the appellant and co-accused, rather lends credence to

the prosecution version that despite the fact that 15 days prior to the

death of her husband, quarrel had taken place between the deceased

and the accused persons and they had hurled abuses on each other.

Even thereafter, the accused persons extended threats to Farzana that

they would kill her husband and in fact they also visited her house

and threatened Mohd. Naushad to kill him yet the threats were not

taken very seriously by the wife of the deceased, and therefore,

although on reaching the spot, she identified the dead body of her

husband but did not named the accused persons so as to implicate

them falsely. She being the wife of the deceased was interested in

getting the real culprits booked. It is only after the other

circumstantial evidence came on record connecting the accused

persons with the crime that the charge sheet was submitted against

them, therefore, omission to mention the name of accused persons as

assailant of the crime, in the circumstances of the case, does not cast

any doubt on prosecution case.

51. As regards last limb of argument of learned counsel for the

appellant that there is variance between ocular and medical evidence

and the medical evidence completely rules out the possibility of

ocular evidence being true, therefore, the ocular evidence has to be

discarded, again is bereft of merit.

52. Although it is true, that as per the post-mortem report, time

since death was 72 hours. That being so, as per this report, the death

might have taken place sometimes between 12:15 pm to 1:20 pm on

16th May, 2009, however, PW-15 Mohd. Rustam has deposed that on

16th May, 2009, after finishing their work at 8:00 pm, he, Mohd.

Naushad, Mohd. Shahid Khan and Mohd. Irshad Alam left the place

of work for home. Mohd. Naushad, Mohd. Shahid Khan and Mohd.

Irshad Alam, however, made a plan for a party. After getting down

from bus near Oberoi Farm, Mohd. Naushad, Mohd. Shahid Khan and

Mohd. Irshad Alam went to Kapashera Border for party whereas he

went to his house and slept. Meaning thereby, during day time, all of

them were working in the factory and therefore, between 12:15 pm to

1:20 pm, Mohd. Naushad was alive. According to Rustam, both the

accused came to his room at about 12:30 am and then they informed

him that they had killed Mohd. Naushad, meaning thereby that Mohd.

Naushad was murdered between 8:00 pm to 12:30 am. The opinion

given by a medical witness need not be the last word on the subject.

After all an opinion is what is formed in the mind of a person

regarding a particular fact situation. It would be erroneous to accord

undue primacy to the hypothetical answers of medical witness to

exclude eye-witness account, which has to be tested independently

and not treated as the 'variable' keeping the medical evidence as the

'constant'. In Bhajan Singh (supra) relied upon by learned counsel

for the appellant also it was held that ocular testimony of a witness

has greater evidentiary value viz a viz medical evidence. When

medical evidence makes the ocular testimony improbable, that

becomes a relevant factor in the process of evaluation of evidence,

however, where the medical evidence goes so far that it completely

rules out all possibility of the ocular evidence being true, the ocular

evidence may be disbelieved.

53. Matter came up for consideration in Pattipati Venkaiah vs.

State of AP, 1985 SCC (Cri) 464, where it was held by Hon'ble Apex

Court that medical science is not yet so perfect as to determine the

exact time of death nor can the same be determined in a computerised

or mathematical fashion so as to be accurate to the last second.

54. Umesh Singh vs. State of Bihar, (2013) 4 SCC 360 was also a

case where according to the prosecution, the incident had taken place

on 16th July, 1996 at 3:30 pm whereas as per the post-mortem report,

the incident must have taken place in the early hours of 16th July,

1996 and relying upon the same, it was pleaded that the medical

evidence is not in conformity with the prosecution case, rather it

supports the defence version making the entire prosecution case false.

The submission was repelled by observing that same is contrary to the

law laid down in Abdul Sayeed vs. State of MP, (2010) 10 SCC 259

and the relevant paragraphs were extracted as under:-

"33. In State of Haryana v. Bhagirath and Ors., (1999) 5 SCC 96, it was held as follows:

15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.

34. Drawing on Bhagirath's case (supra.), this Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".

35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.

21. ...The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

36. In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, this Court observed:-

"13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye- witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.

It was further observed that:-

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

55. Similar view was taken in judgments reported as Dasari Siva

Prasad Reddy Vs. Public Prosecutor, High Court of AP (2004) 11

SCC 282, Ramreddy Rajesh Khanna Reddy vs. State of AP, (2006)

10 SCC 172, Rakesh vs. State of Madhya Pradesh, (2011) 9 SCC