Full Judgment Text
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CASE NO.:
Appeal (crl.) 482 of 2000
PETITIONER:
SUKHDEV YADAV AND ORS.
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT: 13/09/2001
BENCH:
Umesh C Banerjee & N. Santosh Hegde
JUDGMENT:
BANERJEE, J.
It is now well-settled that the Court can sift the chaff from
the grain and find out the truth from the testimony of the witnesses.
The evidence is to be considered from the point of view of
trustworthiness and once the same stands satisfied, it ought to
inspire confidence in the mind of the Court to accept the stated
evidence. This Court in Leela Ram (Dead) Through Duli Chand v.
State of Haryana and another [(1999) 9 SCC 525] relying upon an
earlier decision of this Court in State of U.P. v. M.K. Anthony
(1985 (1) SCC 505) observed:
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 Rammi v. State of M.P. (1999 (8) SCC 649), this Court
further observed:
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
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two witnesses or as between two statements of the
same witness) is an unrealistic approach for
judicial scrutiny.
This Court went on to state : (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).
It is indeed necessary however to note that there would hardly
be a witness whose evidence does not contain some amount of
exaggeration or embellishmentsometimes there would be a
deliberate attempt to offer the same and sometimes the witnesses in
their over anxiety to do better from the witness box details out an
exaggerated account. In Appabhai and Anr. v. State of Gujarat
(1988 Suppl. SCC 241), this Court in paragraph 13 of the Report
observed:
.The court while appreciating the
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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 facts, 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 now a days 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..
Having dealt with the basics of the legal issue as regards
probative value of the evidence and the acceptability thereof and
adverting to the factual matrix of the matter at this juncture, be it
noted that against a judgment of affirmation as regards the
conviction under Section 302 of the I.P.C. and sentence of
imprisonment for life awarded to the appellants, the present
petitioners being the accused in Sessions case No.288 of 1989,
moved this Court under Article 136 of the Constitution for leave to
Appeal and upon the leave being granted, the matter came up for
consideration before this Court.
Be it noted that against the judgment of the Additional
Sessions Judge, two criminal appeals were moved before the Patna
High Court [Crl. Appeal No.154 of 1993 (Sukhdev Yadav & Ors.
v. State of Bihar) and Crl. Appeal No. 209 of 1993 (Rakesh
Mondal v. State of Bihar)] and in the common judgment for both
the appeals, the High Court was of the view that the prosecution
has succeeded in proving its case beyond all reasonable doubts and
conviction and sentence awarded to the appellants do not require
any interference.
Incidentally this Court on 7.8.2000 was pleased to reject the
special leave petition against the order and judgment dated
20.12.1999 in Criminal Appeal No.209 of 1993. This Court
however on 9th May, 2000 admitted the instant appeal by the grant
of leave in S.LP. (Crl.) No.1606 of 2000 as regards the other
appeal being Crl. Appeal No. 154 of 1993 before the High Court.
On the factual score it appears that the occurrence dates back
to 1st December, 1986 at about 9.30 a.m. in village Khaira within
Kharagpur P.S. of Munger district in which Ramdeo Singh Mukhia
fell a victim of gun shot injury. The prosecution case as made out
depicts that the informant had gone to Fasiyabad to get labourers
for his field and on his way back to village Khaira, he met his son
who went ahead of him and as the son reached the house of one
Mahabir Modi, the son was surrounded by the appellants herein
together with one Munindra alias Bimal Singh besides some
unknown persons on the road. On the call of appellant Sukhdev
Yadav, Rakesh Mandal fired at the deceased who immediately fell
down dead on the spot. The accused persons thereafter fled away.
The informant alleged that the occurrence took place as the
deceased was an active member of a political party and opposed to
that of another political party of which Rakesh and others were
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members.
The post-mortem examination on the body of the deceased
was conducted by Dr. Nageshwar Prasad Jha (P.W.6) at Munger
and he had found ante mortem injuries on the body as appears from
his deposition.
1. One lacerated wound 2½x1½ on left side of
scalp in frontal and temporal region with burnt
hairs and inverters edges (wounds of enteries) and
fracture of left side of frontal Bone, left temporal
Bone and left perital bone. On dissection
laceration of manages, bring substance,
hamhoerhage and clot in the brain substance from
left cerebral hemisphere to right cerebral
hemisphere.
Lacerated wound right side of scalp in occipital
and perital region 4½ x 3½ with fragmentation
of right perital and temporal Bones and from this
area of wound bone chsaps were absent. There
was laceration in the scalp and blood in the scalp.
Blood oozing from left ear and both nasal cavity.
2. Rigor Mortis was present on all from limbs. In
my opinion death was due to commia and brain
injuries caused by missible (fire arm) age within
24 hours.
3. Sees the P.M. report and states. It is in my pen
and bears my signature.(Mark exhibit 2).
4. From Injury no.1 it appears that fire arm was
made from close range because burnt hairs were
found
xxx examination xxx
5. Injury no.1 was upto brain. Meninge is the
membrane which covers the brain. This
membrance is covered by skull bones. Injury no.1
had affected all the membrances of the brain.
Membrane on both sides of the brain were
affected. Even the piamater was effected on back
side of the brain.
6. I also found exit wound. Injury no.(ii) is wound
of exit. I have not mentioned it in my report Non
mentioning of exit wound in injury no. (ii) is
merely slip of pen.
At the trial the prosecution examined eight (8) witnesses, five
(5) of whom were on the point of occurrence and the other three
(3) were formal witnesses including the doctor who held the post-
mortem examination on the body of the deceased. The accused
persons also examined one Shyam Sunder Mandal as D.W.1 and
who in turn stated that the occurrence had taken place at a place
different as also in a manner contra, the prosecution case, on
account of a dispute between the accused and the mother of
Rakesh Mandal, namely Urmila Devi. At the conclusion of the
trial, however, the learned Sessions Judge convicted the appellants
herein as noticed herein before but acquitted Moninder alias Bimal
Singh. The appeals therefrom stand rejected by the High Court
and hence this appeal as noticed herein before more fully.
Mr. Tulsi, the learned Senior Advocate appearing in support
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of the appeal rather strenuously contended that there has been a
serious divergence of evidence as regards the place of occurrence
which in turn completely displaces the prosecution case and the
High Court has clearly fallen into an error in not taking note of
such a divergent view pertaining to the place of occurrence. As
noticed above five (5) of the prosecution witnesses claimed to
have seen the actual occurrence to wit, the accused persons
surrounded the deceased and one Rakesh Mandal firing shot at him
let us therefore, have a short scrutiny of the evidence pertaining
to the place of occurrence : The informant being the father of the
deceased in his First Information Report recorded:
..today at about 9.00 Oclock I had gone to
call labour.. I was returning from there when
my son Ram Dev Singh Mukhiya met me while
going from the west to the village. My son went
ahead and I remained behind a little and between
this, I saw on the road near the hut of Mahavir
Manjhi, that Sukhdev Yadav, the leader of
S.U.C.I. Resident of Muzaffar Ganj, Rakesh
Mandal son of Shyan Sunder Mandal, Muninder
@ Vimal Singh son of Bangali Singh, Ram Avtar
Singh son of Biso Singh, all residents of Khaira,
Parmeshwar Bind, son of unknown, resident of
Pakuri, Police Station: Kharagpur, District
Monger, and some unknown outside people,
surrounded Mukhiya ji. Sukhdev Yadav ordered
that fire the bullet immediately. On his order
Rakesh Mandal fired the bullet, then Mukhiya ji
fell on the ground. All the above said accused by
firing bullet ran towards the East.
The following are the necessary and relevant extracts from
the depositions available on record as regards the place of
occurrence so far as the prosecution witnesses are concerned:
P.W.1 :
..I saw that Sukhdev Yadav, Ram Autar Mandal and
Vimal Mandal and one more person whom I did not
recognise, came out of the field of Rhar. Mukhiaji who
was coming from the west, was grabbed by
Parmeshwar Bind and Rakesh Mandal and the rest of
the people surrounded him. Sukhdev Yadav said what
you are looking for fire the bullet, on which Rakesh
Mandal took out the pistol from the waist and fired the
bullet at Mukhia Ram Dev Singh, which hit on his
head. Thereafter Rakesh Mandal and Parmeshwar Bind
ran towards South East. The rest of the people ran
towards North.
In cross examination however, P.W.1 stated:
Rakesh and Parmeshwar had caught both the
hands of the deceased. When other accused came out
of the field of Rahad then the hand of the deceased
was caught. When the hand was caught, by then, other
accused reached there and surrounded the deceased. I
do not remember that I had made such a statement
before Darogaji or not, when the four persons by
coming out of the field of Rahad surrounded Mukhiaji,
then Rakesh and Parmeshwar joined with the accused.
..
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At the time when the deceased was hit by bullet,
at that time I was at a distance of about 25-30 yards
from the deceased. After being hit by bullet, Mukhiaji
fell on the road towards the western corner, due to
which a lot of blood oozed out on the land. At the place
of incident there is a slight curve on the road which has
taken a turn towards western side. I had seen only that
injury which occurred as a result of the bullet which hit
Mukhiaji in the head; could not see any other
injury.
After this incident, I also alongwith other people
started driving away the accused, who had run towards
the North.
P.W.2 :
When I reached towards the west from the house
of Mahavir Modi, then saw that near the Mango tree
Sukhdev Yadav, Ram Autar Mandal, Rakesh Mandal,
Parmeshwar Bind and Munim Mandal @ Vimal
Mandal were there. Vimal was going from there
towards the village at a distance of about 100 yards.
Rakesh Mandal and others were surrounding deceased
Ramdev Mukhia. Accused Sukhdev Yadav said
Rakesh what you are looking fire the bullet. On this
Rakesh fired bullet, Mukhiaji fell and the accused ran
away. Sukhdev Yadav and Ram Autar had run towards
North and Rakesh Mandal and Parmeshwar Bind ran
towards the East.
P.W.3 :
When I reached near the house of Mahavir Modi,
then saw that at a little distance near the Mango tree, 5-
6 persons were going running, out of which I
recognised Sukhdev Yadav, Rakesh Mandal and
Parmeshwar Bind and on going ahead, I saw that Ram
Dev Singh (Mukhiaji) was lying on the road who had
expired. In the head of Mukhiaji bullet had hit and
blood was oozing out from there. The reason for the
incident is political quarrel between Sukhdev Yadav
and deceased Ram Dev Singh.
P.W.4 :
The informant in his deposition however, clarified
that the incident took place on the road going North-
South near the place in East-West direction
P.W.5 :
When Mukhiayaji reached near Mahavir Modis
basa, Sukhdev, Ramautar and two other accused came
out from Rahar field and encircled Mukhiya. Rakesh
and Parmeshwar, who were going ahead were also
amongst those who encircled Mukhiya. Thereafter,
Sukhdev ordered to fire bullet and Rakesh fired at
Mukhiyaji. Thereafter, all the accused fled away..
The evidence on record does not, however, lend any credence
to the submissions of Mr. Tulsi. There may be some variations but
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there exists no major contradiction on record. Modis house and
Rahar field are the two places which have been mentioned by the
accused persons but the factum of being surrounded and the firing
done at the instance of the appellant No.1 stands uncontradicted.
As noticed above, minor variations may be there but if on a perusal
of the evidence in its entirety, it appears to be otherwise
trustworthy, question of the evidence being non-trustworthy
would not arise. As noticed above, the Court can sift the chaff
from the grain and find out the truth from the evidence itself. The
evidence tendered lends credence to the prosecution case as
regards the involvement of the appellant herein in the murder. It is
in this context, the High court observed:
As they were deposing in court after more than
five years of the occurrence, there might be some
inconsistency.. but being minor in nature they
have to be ignored. The evidence of eye-
witnesses being consistent, we have no reason to
disbelieve the prosecution case.
Mr. Tulsi next contended that the earliest version of the
occurrence had been suppressed in as much as although the
chowkidar visited the place of occurrence and thereafter passed on
the information to the investigating officer, on the basis of which
the latter came to the place of occurrence has been withheld
deliberately this creates, Mr. Tulsi contended, some doubt
regarding the verasity of the prosecution case and benefit whereof
ought to be given to the appellants: While it is on record that the
Chowkidar happened to visit the place of occurrence before he
came again with the investigating officer, but a positive evidence
of the investigating officer to the effect that the latter reached the
village on hearing a rumour about the murder of Ram Dev Singh
and it so happened that there was no cross-examination on this
score and in the absence of which the statement of the
investigating officer cannot but be accepted. In any event, what
would be the effect by reason of non production of the chowkidar?
The Chowkidar may or may not be there or it may be a sheer
co-incidence that both the investigating officer and the chowkidar
came together but that by itself does not affect the varasity of the
prosecution case neither it is possible to have any conjectures to
the effect that the chowkidar had gone to the Police Station and
brought the investigating officer at the site it is however too
trivial a matter to be considered at length and as such we do not
find any reason to dictate further on the issue neither the same
lends any credence to the submissions in support of the appeal or
as regards the conclusion arrived by the High Court.
The other aspect pertains to non production of the seizure list
in Court as a part of the records undoubtedly, a lapse on the part
of the prosecution but the issue however, needs to be considered
from the point of view of credibility of the witnesses and in the
event of there being credible evidence on record, a lapse pertaining
to non production of seizure list does not really affect the
prosecution case in any way the issue has to be considered from
the point of view of prejudice to the accused, before however
detailing thereon, the observations of this Court in Shivnath Singh
and another v. State of U.P. (1994 (2) SCC 563) may be noticed.
This Court observed:
7. Learned counsel also argued that the
bloodstains must have been found at the
place where the deceased was beaten and
also at the place where the head was cut and
the investigating officer did not collect the
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bloodstained earth. Therefore, the place of
occurrence is doubtful. This aspect has been
examined by both the courts below and it
has been noticed that presence of
bloodstains were noted in the site plan and if
the investigating officer did not collect the
bloodstains at all the places, that by itself is
not an infirmity. Learned counsel
vehemently argued that there is a grave
doubt whether the recovered head was that
of Mohan Lal. In this context reliance is
placed on the evidence of PW 6 the doctor,
who stated that the trunk of which he
conducted the post-mortem was stoutly built
and that the head was that of a young man.
According to the learned counsel the
deceased was not a young man and therefore
the prosecution has not proved that it was
the head of Mohan Lal. In our view this is
not at all an infirmity. Even assuming that
the prosecution has not conclusively proved
that the head which was recovered was that
of Mohan Lal, witness after witness has
clearly deposed that Mohan Lal was killed
and his head was severed and there cannot
be any doubt that Mohan Lal was beheaded
in the manner stated by these witnesses. As
a matter of fact it is also mentioned in the
FIR that the head was cut-off. An argument
was advanced regarding the identification of
the body on the ground that PW 5 the
grandson of the brother of the deceased filed
an affidavit that he did not identify the body.
We cannot give any weight to this affidavit
even if it had been filed in that manner. PW
5 deposed that he came from the fields after
hearing about the occurrence and to the
dictation of PW 3 he wrote the complaint.
He was also a witness to some of the
recoveries including the head. This witness
was cross-examined at length on several
days regarding the recoveries particularly
that of the head. We do not find any serious
infirmity in his evidence. We have to point
out that all the submissions of the learned
counsel involve only appreciation of
evidence and both the courts below have
considered the evidence of the material
witnesses in great detail and as already
mentioned we have also examined the same
and we are satisfied with their evidence.
Learned counsel, however, lastly submitted
that it is not possible to separate grain from
the chaff in such cases and some of the
accused are not attributed any specific overt
acts and that the appellants cannot be
convicted on such omnibus allegations. The
way the crime has been perpetrated would
manifest the object of the unlawful assembly
and every member of such unlawful
assembly would be squarely liable.
True, as noticed above there are lapses, but the question that
arises for consideration is whether any prejudice has been caused
by reason of such a lapse, if the answer thereto is in the affirmative
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obviously it will have a serious impact on to the trial but if in the
event however, it is on the negative, no prejudice can be said to
have been caused and correspondingly question of the trial being
vitiated would not arise. The eye-witnesses account as available
on record cannot but be termed to be trustworthy and by reason
therefor, the lapses stand over-shadowed by the testimony of the
eye-witnesses. The observations above obtain support from the
decision of this Court in Baleshwar Mandal and another v. State of
Bihar (AIR 1997 SC 3471).
Mr. Tulsi lastly contended that evidence available on record
discloses that the shoes of the deceased were found kept by the
side of the head alongwith a bag and on the basis thereof it has
been contended that the place of occurrence was thus different
from the place where the dead body was found by the investigating
officer. The High Court on this score observed as below:
12. It is true that there is no apparent
explanation regarding keeping the shoes on
the side of the head of the deceased, which
is borne out not only by the inquest report,
but this fact by itself is not sufficient to
create reasonable doubt so as to disbelieve
the entire prosecution case. It may be
pointed that as per the inquest report one
pair of shoes was found on the side of the
head of the deceased but it is not clear as
to whether the feet of the deceased were
bare, that is, no shoes were put on. It is
also not clear as to whether while going to
his village, the deceased had put on the
shoes. No question was put to either
investigating officer or any other witness in
this regard." (Emphasis supplied)
On the state of evidence as emphasized above, we do not feel
it inclined to lend concurrence to the submissions in support of the
appeal that the factum of placement of shoes at a particular place
would vitiate the entire trial.
In the view as above, we do not find any merit in the appeal,
neither there is any reason to interfere with the judgment of
affirmance. The appeal, therefore, fails and is thus dismissed.
.J.
(Umesh C. Banerjee)
J.
(N. Santosh Hegde)
September 13, 2001