Indira Banerjee, J
1. Leave granted.
2. This Appeal is against a judgment and order dated 30th July 2018 passed by a Division Bench of the Allahabad High Court, dismissing Criminal
Appeal No. 1813 of 1983 filed by the Appellant along with other accused persons, against a judgment and order of conviction dated 1st August 1983
passed by the VI Additional District and Sessions Judge, Shahjahanpur in Sessions Trial No. 268 of 1981, inter alia, convicting the Appellant of the
offences under Section 302 read with Section 149, Section 307 read with Section 149 and Section 148 of the Indian Penal Code (hereinafter referred
to as “the IPCâ€) and sentencing him, inter alia, to life imprisonment for offence punishable under Section 302 read with Section 149 of the IPC.
3. It appears that the Appellant had been granted bail by the Trial Court by an order dated 13th June 1980. The High Court also granted bail to the
Appellant during the entire period of the appeal. The Appellant was taken into custody on 9th September 2019 after dismissal of his appeal by the
High Court.
4. It is the case of the Prosecution that on 8th April 1980, at about 12:15 P.M., one Rati Pal arrived at Kaanth Police Station and filed a complaint
alleging that eight days before Holi, one Rajkumar Singh had purchased a buffalo from his elder brother Brahmapal Singh at the price of Rs. 1,900/-.
5. The said Rajkumar had promised to pay the price of the buffalo to the complainant’s elder brother, Brahmapal Singh, eight days after Holi.
6. Rajkumar Singh, however, did not pay the price of the buffalo to the complainant’s elder brother, Brahmapal Singh as promised. Brahmapal
Singh did not permit Rajkumar Singh to harvest his crops.
7. On 7th April 1980, Rajkumar Singh asked Brahmapal Singh to come to Simra Khera the next day, that is, 8th April 1980, to collect his money.
8. On 8th April 1980, the complainant’s cousin brother, Mahendra Singh came to the complainant’s house and asked Brahmapal Singh to go to
Simra Khera with him to collect his money from Rajkumar Singh after settling accounts with him. Thereafter, the complainant’s brother-in-law
(Shreepal Singh), Brahmapal Singh, the complainant, a villager Badshah Singh and Mahendra Singh went to Simra Khera. They went to the house of
Sher Singh Thakur and sat on a cot in the sitting area.
9. Mahendra Singh called Rajkumar Singh, who came with a rifle in his hand along with the Appellant, Karan Singh, who was also armed with a rifle,
Sukhlal armed with a single barrel gun, Jagdish Singh armed with a single barrel gun, Harpal Singh armed with a single barrel gun and Nankoo Singh
armed with a double barrel gun.
10. At about 9:00 A.M., Brahmapal Singh asked for his money. Harpal Singh asked Rajkumar Singh to discharge his debt to Brahmapal Singh as soon
as possible. At this, Rajkumar Singh opened fire with his rifle and shot Brahmapal Singh. The bullet hit his head. Brahmapal Singh fell down
unconscious.
11. Thereafter, the associates of Rajkumar Singh, that is, Harpal Singh, Karan Singh, Jagdish Singh, Sukhpal Singh and Nankoo Singh opened fire from
their respective weapons. After the associates of Rajkumar Singh opened fire, the complainant, Badshah Singh, Shreepal Singh and Mahendra Singh
ran away from the spot. Out of the shots fired from the side of the accused, one shot hit Mahendra Singh. The complainant and other eyewitnesses
ran into Sher Singh Thakur’s house. When they returned to the place of occurrence, they found Brahmapal Singh dead.
12. After the FIR was lodged, the Investigating Officer investigated the case and after completion of investigation submitted chargesheet against the
accused persons Rajkumar Singh, Harpal Singh, Jagdish Singh, Karan Singh, Sukhlal Singh and Nankoo Singh under Sections 148, 302/149 and
307/149 of the IPC.
13. The Fifth Prosecution Witness (PW5) Dr. P. K. Gupta who had conducted the post mortem examination of the dead body of the deceased found
several gunshot injuries on the body.
14. The Appellant and other accused persons were tried by the Sessions Court. The prosecution examined six witnesses, namely, the first Prosecution
Witness, Dr. R.N. Rastogi (PW1), Rati Pal Singh (PW2), Shreepal Singh (PW3), Mahendra Singh (PW4), Dr. P.K. Gupta (PW5) and the
Investigating Officer (IO) Jagdish Singh (PW6).
15. By a judgment and order dated 1st August 1983, the Trial Court convicted the accused persons, inter alia, for murder and sentenced them, inter
alia, to undergo life imprisonment.
16. The Trial Court found the testimonies of the eye-witnesses were reliable. The Trial Court further found there was motive to kill the deceased and
this was proved by the witnesses produced by the Prosecution. All accused persons had come to the spot with deadly weapons with intention to kill
the deceased. All the accused had fired on the deceased with their firearms, as a result of which the deceased had sustained 16 bullet injuries.
17. As observed above, the Appellant along with other convicted persons filed Criminal Appeal No. 1813 of 1983 which has been dismissed by the
High Court by the judgment and order under appeal. While the appeal was pending before the High Court, five out of six accused persons died. Only
the Appellant is alive.
18. The High Court did not find any major contradiction either in the evidence of the witnesses or any conflict in medical or ocular evidence, which
could tilt the balance in favour of the Appellant. The High Court observed that minor discrepancies and/or improvements and/or embellishments were
insignificant and ought to be ignored in view of the overwhelming corroborative evidence of the other witnesses.
19. Mr. Ajit Kumar Sinha, learned Senior Counsel appearing on behalf of the Appellant submitted that the police recovered two articles which were
produced in evidence. They produced blood-stained clothes of the injured witness Mahender Singh marked as Exhibit Ka-13 and the blood-stained
mud and normal mud recovered from the alleged site of the incident which is marked as Exhibit Ka-12. Mr. Sinha argued that there was no recovery
of the weapon of crime.
20. The 11 exhibits tendered in evidence were (i) Medical Report of injuries sustained by the injured witness Mahender Singh, (ii) The complaint made
by the complainant to the Investigating Officer, (iii) Post Mortem Report of the deceased, (iv) Pallets recovered from the body of the deceased, (v)
Incident Report entered by the constable on the basis of the FIR, (vi) Case diary submitted by the I.O., (vii) Panchnama etc., (viii) Site plan of the
place of occurrence, (ix) Sample of blood-stained mud and normal mud collected from the site by the I.O., (x) Blood-stained clothes of the injured
witness Mahender Singh and (xi) Chargesheet drawn by the police upon conclusion of investigation, as is evident from the records.
21. The Prosecution, as observed, had examined six Prosecution Witnesses namely, Dr. R.N. Rastogi (PW1), Ratipal Singh (PW2), Shreepal Singh
(PW3), Mahendra Singh (PW4), Dr. P.K. Gupta (PW5) and Jagdish Singh (Investigating Officer).
22. Mr. Sinha submitted that it was the case of the Prosecution that there was dispute between the prime accused Rajkumar Singh and the deceased
Brahmapal Singh over the price of buffalo for which Brahmapal Singh stopped Rajkumar Singh from harvesting his crops. There was no dispute or
enmity between the Appellant and the deceased.
23. Mr. Sinha further argued that it has been alleged that of the six accused persons, Rajkumar Singh and Karan Singh were carrying rifles with them,
the others carried single/double guns. However, the witnesses did not see any of the other accused persons except Rajkumar Singh firing at the
deceased. There is, therefore, no eye-witness against Karan Singh.
24. Mr. Sinha argued that no weapon alleged to have been used by the Appellant was either recovered or produced by the police in course of trial.
Mr. Sinha argued that the main injured witness Mahendra Singh had testified that he had not seen the Appellant at the spot when the incident took
place. The Prosecution has not declared this witness hostile but relied upon on his evidence.
25. Mr. Sinha further argued that it is alleged that injured witness Mahender Singh is a relative of the Appellant Karan Singh. This is contrary to the
admission of the complainant as contained in the FIR itself. Mr. Sinha argued that Mahender Singh is not a relative of Karan Singh but a close relative
of Rati Pal and Brahmapal Singh.
26. Mr. Sinha further argued that medical examination of the injured witness Mahender Singh and the post mortem report of the deceased Brahmapal
Singh revealed that all the injuries inflicted on both the persons were gunshot injuries. No injury has been caused from the rifle. The body of the
deceased contained pellets fired from the gun. There is no injury caused by bullets fired from rifle.
27. Mr. Sinha argued that the Investigating Officer had stated that there was no recovery of any empty cartridge or bullet from the site. No scattered
gun pellets were recovered from the site. There was no witness from the village even though the village had a population of 700-800 people. The
villagers had only stated that they had heard of the incident.
28. Mr. Sinha argued that the Trial Court had in its judgment recorded that “since Raj Kumar fired a shot from rifle & his companions were
armed with guns, therefore the witnesses got panicked & they never tried to know the truth that whether in reality the bullet of rifle ever hit
Brahmapal or not. The best witness to state this reality could have been deceased Brahmapal himself that whether the bullet fired by
Rajkumar ever hit him or not, or did he fell on the takht just because he got panicked since the bullet merely travelled from near his head.
Since Brahmapal is dead therefore in this situation there is no witness left to prove this fact that whether the bullet fired by Rajkumar ever
hit Brahmapal or not. Therefore, even in this situation where there is no injury mark of bullet rifle on the head of deceased Brahmapal, no
effect is caused on the case of the prosecution because under panic nobody is in this situation where he can assess the reality.â€
29. According to Mr. Sinha, this establishes that the conviction made by the Trial Court was only based on assumption/presumption. Mr. Sinha argued
that all the prosecution witnesses namely, PW2, PW3 and PW4 had stated that, as soon as the first shot was fired by Rajkumar Singh from his rifle
towards Brahmapal Singh, they all ran away with their back towards the accused and they did not see who had fired but had nevertheless heard gun
shots. Hence, none of the witnesses had deposed as to which of the accused was involved in firing apart from Rajkumar Singh.
30. Mr. Sinha argued that the Trial Court erred in holding that the aforesaid material factors were minor contradictions and minor lapses on the part of
the Prosecution and proceeded to convict all the accused persons guilty beyond doubt. Mr. Sinha argued that the Trial Court had completely ignored
the chain of evidence to wrongly conclude that the accused persons were guilty, particularly the Appellant Karan Singh.
31. Mr. Sinha further argued that as per settled law, the doctrine of severability does not apply in the case of a statement of a witness in a criminal
trial. Either the whole statement has to be discarded by declaring the witness hostile or else the entire statement has to be relied upon. In this context
Mr. Sinha cited Palvinder Kaur v. State of Punjab AIR 1952 SC 354, and Hanumant Govind Nargundkar v. State of Madhya Pradesh AIR 1952 SC
343. In Palvinder Kaur (supra) this court held that a statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory
statement is of some fact, which if true, would negative the offence alleged to be confessed. In Hanumant (supra) this Court held:-
“…It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used
against him. An admission must be used either as a whole or not at all. If the statement of the accused is used as a whole, it completely
demolishes the prosecution case and, if it is not used at all, then there remains no material on the record from which any inference could be
drawn that the letter was not written on the date it bears.â€
32. The judgments of this Court in Palvinder Kaur (supra) and in Hamunant (supra), which pertain to confession and/or admission are distinguishable
on facts. On the other hand, in Mrinal Das and Others v. State of Tripura AIR 2011 SC 3753, this Court held that it is well settled that in a criminal
trial, credible evidence of even hostile witnesses can form the basis of conviction.
33. Mr. Sinha also referred to Navaneethakrishnan v. State By Inspector of Police (2018) 16 SCC 161, where this Court re-affirmed: -
“…every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved
must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other
hypothesis against the guilt is possible.â€
34. Mr. Sinha concluded by submitting that the Prosecution has failed to prove Appellant’s guilt beyond reasonable doubt. There were clear
discrepancies in evidence visible on the face of the record. The appeal therefore ought to be allowed.
35. On the other hand, on behalf of the State, Mr. Sanjay Kumar Tyagi, Advocate on Record, submitted that this Court should not interfere with a
concurrent finding of the Trial Court and the High Court.
36. On post mortem, the dead body of the deceased was found to have a large number of gun shots, multiple shot wounds. Some bullets penetrated
and exited the body. The injured Mahender Singh had medically been examined by Dr. R. N. Rastogi, who had found gunshot wounds, pellet injuries
etc.
37. Mr. Tyagi argued and rightly that the Prosecution case was proved from the statements of three eye witnesses namely, Rati Pal (PW2), Shivpal
(PW3) and Mahender Singh (PW4), apart from PW1 being the Doctor who had examined injured witnesses and PW5 being the Doctor who had
conducted the post mortem.
38. As argued by Mr. Tyagi, there may have been some minor discrepancies in the evidence of the PW’s. However, all material particulars have
been corroborated. PW2 and PW3 more or less corroborated the prosecution story. They both said that the Appellant Karan Singh was there at the
place of occurrence with a rifle. They said the accused Raj Kumar Singh opened fire first, after which all the others started firing. PW2 said he did
not actually see the others firing, but he heard the sound of firing from which he knew that the others were firing bullets. However, PW2 categorically
stated that all the others had opened fire. When the accused opened fire all these three PWs ran away. They went inside the house of Sher Singh.
When they came out after a few minutes they found Brahmapal dead. PW4, Mahender Singh, the injured witness has not, however, named Karan
Singh. No question was put to him as to whether he had seen Karan Singh.
39. PW1, Dr. R.N. Rastogi who had examined Mahender Singh said that he had been hit on the back. This tallies with the version of the PWs that he
was hit by bullet while they were all running away. PW5, being the Doctor who conducted the post mortem on the body of the deceased said he found
gunshot injury on the center of the forehead, 3 centimetre above the nose. Many bones of the head were fractured. He described various other
gunshot wounds. There were multiple gunshot wounds. There were also gunshot wounds of exit of bullets apart from gunshot wounds of entry. The
thigh bone was fractured. Upon internal examination, brain was ruptured, right and left membrane were ruptured, lungs were ruptured. 45 pellets,
small and large were recovered. The Doctor opined that the cause of death was bleeding and shock caused by the injuries. He opined that all the
injuries were sufficient to cause death.
40. The tenor of the evidence of the Doctor who conducted the post mortem tends to support the case of the prosecution witnesses that all the
accused persons, who were present, carrying arms had fired. The injured witness Mahender Singh may not have specifically named the Appellant
Karan Singh. However, two of the other eye-witnesses, that is, PW2 and PW3 confirmed that he was present at the place of occurrence and was
carrying rifle. PW3 had seen the Appellant Karan Singh fire.
41. From the evidence of Mahender Singh, PW-4, it appears that no specific question was put to him as to whether the Appellant was present at the
place of occurrence or not. This Court, in Rohtash Kumar v. State of Haryana (2013) 14 SCC 434 held:-
“24. ... The court has to examine whether evidence 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
witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to
give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic
version of the prosecution witness...â€
42. Referring to Narayan Chetanram Chaudhary and Another v. State of Maharashtra AIR 2000 SC 3352, Mr. Tyagi argued that minor discrepancies
caused by lapses in memory were acceptable, contradictions were not. In this case, there was no contradiction, only minor discrepancies.
43. In Kuriya and Anr. v. State of Rajasthan (2012) 10 SCC 433, this Court held:
“30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the
prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too
much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth
from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached
undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor
discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially
relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material
particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the
testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor
or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State of
Gujarat (2012) 5 SCC 724, Narayan Chetanram Chaudhary v. State of Maharashtra (2000) 8 SCC 457, Gura Singh v. State of Rajasthan
(2001) 2 SCC 205 and Sukhchain Singh v. State of Haryana (2002) 5 SCC 100.
31. What is to be seen next is whether the version presented in the Court was substantially similar to what was said during the investigation.
It is only when exaggeration fundamentally changes the nature of the case, the Court has to consider whether the witness was stating the
truth or not. [(Ref. Sunil Kumar v. State (Govt. of NCT of Delhi)] (2003) 11 SCC 367.
32. These are variations which would not amount to any serious consequences. The Court has to accept the normal conduct of a person.
The witness who is watching the murder of a person being brutally beaten by 15 persons can hardly be expected to a state a minute by
minute description of the event. Everybody, and more particularly a person who is known to or is related to the deceased, would give all his
attention to take steps to prevent the assault on the victim and then to make every effort to provide him with the medical aid and inform the
police. The statements which are recorded immediately upon the incident would have to be given a little leeway with regard to the statements
being made and recorded with utmost exactitude. It is a settled principle of law that every improvement or variation cannot be treated as an
attempt to falsely implicate the accused by the witness. The approach of the court has to be reasonable and practicable. Reference in this
regard can be made to Ashok Kumar v. State of Haryana (2010) 12 SCC 350 and Shivlal v. State of Chhattisgarh (2011) 9 SCC 561.â€
44. In Shyamlal Ghosh v. State of West Bengal (2012) 7 SCC 646, this Court held:
“46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch
as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused.
………… Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court
has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough
to adversely affect the case of the prosecution.
49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along
with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in
isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to
the accused.â€
45. In Rohtash Kumar v. State of Haryana (2013) 14 SCC 434, this Court held:-
“24. ... The court has to examine whether evidence 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
witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to
give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic
version of the prosecution witness...â€
46. As argued by Mr. Tyagi, appearing for the State both PW2 and PW3 had clearly mentioned that the Appellant and PW4 Mahender Singh were
both present at the place of occurrence. The Appellant’s presence has been proved by two eye witnesses. It has been proved by the eye
witnesses, that the Appellant carried a rifle. But PW2 and PW3 deposed that all the accused had opened fire. The prosecution was required to prove
its case beyond reasonable doubt, which it has done, and not beyond all iota of doubt. The fact that one of the injured witnesses may not have
mentioned the name of Appellant Karan Singh does not demolish the evidence of the other witnesses.
47. We find no grounds to interfere with the concurrent findings of the Trial Court and the High Court. The fact that the trial/appeal should have taken
years and that other accused should have died during the appeal cannot be a ground for acquittal of the Appellant. The appeal is thus dismissed.
