Mukesh Balmik vs The State Of Madhya Pradesh

S.No. Name of Conviction Sentence Fine Appellant under Section

1.

Mukesh 148 of IPC R.I. for six Rs.500/-Balmik months in default to suffer RI for 2 months

302/149 of Life Rs. IPC (in Imprisonment 1,000/- in respect of default 1 deceased year’s Badal) R.I.

302/149 of Life Rs. IPC (in Imprisonment 1,000/- in respect of default 1 deceased year’s Ajay) R.I.

323/149 of R.I. for 1 Rs.500/-IPC (in year in default respect of 3 injured months’ Vinod) RI.

323/149 of R.I. for 1 Rs.500/-IPC (in year in default respect of 3 injured months’ Shivkumar) RI.

25(1B)(a) R.I. for 1 Rs.1000/-of the year in default Arms Act 3 months’ RI.

27 of Arms R.I. for 3 Rs.1000/-Act years in default 1 year’s RI.

2.

Raju 148 of IPC R.I. for six Rs.500/-Balmik months in default to suffer RI for 2 months

302/149 of Life Rs. IPC (in Imprisonment 1,000/- in respect of default 1 deceased year’s Badal) R.I.

302/149 of Life Rs. IPC (in Imprisonment 1,000/- in respect of default 1 deceased year’s Ajay) R.I.

323/149 of R.I. for 1 Rs.500/-IPC (in year in default respect of 3 injured months’ Vinod) RI.

323/149 of R.I. for 1 Rs.500/-IPC (in year in default respect of 3 injured months’ Shivkumar) RI.

27 of Arms R.I. for 3 Rs.1000/-Act years in default 1 year’s RI.

24.

It seems to us that it is necessary for the appellate court which is confronted with the absence of the convict as well as his counsel, to immediately proceed against the persons who stood surety at the time when the convict was granted bail, as this may lead to his discovery and production in court. If even this exercise fails to locate and bring forth the convict, the appellate court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka. After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions: (SCC p. 734, para 19)

“19.1.

that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;

19.2.

that the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent;

19.3.

that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;

19.4.

that it can dispose of the appeal after perusing the record and judgment of the trial court.

19.5.

that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and

19.6.

that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.”

(i)

Incised wound transversally mid parietal region size 5x1/2x bone deep over the skull. Bleeding present Left side;

(ii). Incised wound size 6 x ½ x bone deep over the right parietal region of scalp, transversely obliquely bleeding present;

(iii). Incised wound size 4x1/2x1/2 cm left side of parietal region.

(iv). Pain and Tenderness on the left leg.

(v)

Contusion size 5 x 3 inch over the right forearm near forearm.

1.

Healed wound found at occipital region 5 x 4 cm in measuring, conical in shape (V shape).

2.

Healed wound found on fronto parietal region of skull towards left side admeasuring 3x1 cm.

On dissection of wound No. 1 fracture was found admeasuring 5x4 cm at the base of occipital bone and mid of occipital region, both fracture met at left side of occipital region which is conical in shape. Another fracture found at top of ocipital region which is measuring 3x1 cm. After dissection of bone, subdural hematoma was found in fracture of skull in both fracture area and corresponding to fracture side. On dissection of another bone, no fracture was found. The cause of death was the injury on head and coma. It was also opined by Dr. A. K. Ojha (PW5) that the injuries might be 10 to 12 days old.

21.

Thus, this Court is of the considered opinion, that the death of Prembai was homicidal in nature and the cause of death was septicemia due to infection and gangrene of peritoneum, omentum and intestine coil. There is nothing on record to suggest that the septicemia had developed due to post operational complications. Thus, the septicemia had developed due to infection and gangrene because of injuries caused by the appellant. Thus, the cause of homicidal death is directly relatable to the injuries caused by the appellant.

(i)

Entrance wound size 2.5 x 2 cm situated over abdomen in umbilicus region in the left side .3 cm away from umbilicus, inferio lateral from umbilicus. Margins of the wound was inverted, lacerated blackening of the margin was present around the wound. Wound track deep directed upward and laterally connecting exit wound No. 1. Clotted blood was present inside the track of wound.

(ii)

The second entrance wound situated in the left pelvic area of abdomen 8 cm away from the umbilicus Inferio lateral situated 3 cm in size, circular in shape margin inverted blackening was seen. Track direction upward and medially continued exit wound no.2. Clotted blood was present inside the track.

(iii)

Entrance wound situated on right side of scalp temporal region size 5 cm away from the right eye margin of wound is lacerated, inverted, blackening seen around the wound. Track deep direction upward and medially contained with the exit wound no.3

(iv)

First exit wound was of 4 x 4 cm situated over left side back of the chest at the level of 10th intercostal space. 5 cm away from the midline margin, everted, lacerated track deep continued with the entrance wound no. 1.

(v)

Second Exit wound situated over right side of back in lumbar region L3,L4 level just lateral to the mid line margin of wound everted. Lacerated size 3 into 3.5 cm continued with track no. 2.

(vi)

Third exit wound situated over right side of eye orbit 5 x 5 cm margin of the wound lacerated, everted track deep continue to the entrance wound no. 3. Structure like eye wall was absent. On internal examination plastic cap was found on wound number 1 of Exit Wound 2.5 cm long diameter 2 cm which was sealed and handed over to the police constable. According to Dr. D. K. Ujjania (P.W.14), the cause of death was syncope on account of firearm injury in the vital organs and the death of the deceased Badal was homicidal in nature. The post mortem report is Ex.P/17. This witness was cross examined and in cross examination this witness has stated that copy of FIR was not sent. The Fire arms were also not shown to him at the time of Post mortem. The track of entrance wound was from downwards to upward. The person who had caused injury No.3 must be on the right side of the deceased. The cloths were sealed by him but did not mention as to whether any gun shot holes were there or not.

Whether Vinod Balmik (P.W.1) and Shiv Kumar (P.W.4) had sustained injuries?

(i)

Pain @ Tenderness of the back. No swelling and redness seen;

(ii)

Pain @ Tenderness on right side of chest but no swelling and redness seen.

All the injuries simple in nature, caused by hard @ blunt. Duration within 12 hours. The MLC report is Ex. P/14.

(i)

Contusion 4x4 cm on the left elbow joint

(ii)

Pain & Tenderness of left knee joint, but not swelling and redness seen;

(i)

Abrasion middle finger 2x1/4x1/4 cm with redness.

Injuries 2 and 3 simple in nature caused by hard & blunt object. Duration within 12 hours. X-ray of left elbow joint was advised. The MLC report of Vinod Balmik (P.W.1) is Ex. P/15.

Who are the author of death of Badal and Ajay and causing injuries to Vinod Balmik (P.W.1) and Shiv Kumar (P.W.4)

Related witnesses

18.

The High Court has attached a lot of weight to the evidence of the said Madho Singh (PW 9) as he is an independent witness. On perusal of the record, it appears that the said person already had deposed for the victim family on a number of previous occasions, that too against the same accused. This being the fact, it is important to analyse the jurisprudence on interested witness. It is a settled principle that the evidence of interested witness needs to be scrutinised with utmost care. It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trustworthy. Here we may refer to chance witness also. It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted.

19.

A contradicted testimony of an interested witness cannot be usually treated as conclusive…….

21.

What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki. It was held that: (SCC p. 754, para 7)

“7.

… True, it is, she is the wife of the deceased; but she cannot be called an ‘interested’ witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be ‘interested’.”

15.

In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, the view that a “natural witness” or “the only possible eyewitness” cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was “concerned in the success of the trap”. The Constitution Bench held: (AIR p. 506, para 15)

“15.

… The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person.”

23.

The wife of a deceased (as in Kalki), undoubtedly related to the victim, would be interested in seeing the accused person punished—in fact, she would be the most interested in seeing the accused person punished. It can hardly be said that she is not an interested witness. The view expressed in Kalki is too narrow and generalised and needs a rethink.

24.

For the time being, we are concerned with four categories of witnesses—a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorisation of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.

25.

In the present case, PW 5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinised with great care and caution.

26.

In Dalip Singh v. State of Punjab this Court observed, without any generalisation, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused—each case has to be considered on its own facts. This is what this Court had to say: (AIR p. 366, para 26)

“26.

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

27.

How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab. This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the “enemy” of the victim. This is what this Court said: (AIR p. 331, para 6)

“6.

There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim’s hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. … [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.”

28.

More recently, in Waman v. State of Maharashtra this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, Balraje v. State of Maharashtra, Prahalad Patel v. State of M.P., Israr v. State of U.P., S. Sudershan Reddy v. State of A.P., State of U.P. v. Naresh, Jarnail Singh v. State of Punjab and Vishnu v. State of Rajasthan it was held: (Waman case, SCC p. 302, para 20)

“20.

It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care.”

16.

The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words: (Sarwan Singh case, SCC p. 376, para 10)

“10.

… The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.”

17.

The plea of “interested witness”, “related witness” have been succinctly explained by this Court in State of Rajasthan v. Kalki. The following conclusion in para 7 is relevant: (SCC p. 754)

“7.

As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a ‘highly interested’ witness because she ‘is the wife of the deceased’, and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an ‘interested’ witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be ‘interested’.”

From the above it is clear that “related” is not equivalent to “interested”. The witness may be called “interested” only when he or she has derived some benefit from the result of a litigation, in the decree in a civil case, or in seeing an accused person punished. A witness, who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”.

18.

The plea of defence that it would not be safe to accept the evidence of the eyewitnesses who are the close relatives of the deceased, has not been accepted by this Court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties to either side. In such cases, if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Where it is shown that there is enmity and the witnesses are near relatives too, the court has a duty to scrutinise their evidence with great care, caution and circumspection and be very careful too in weighing such evidence. The testimony of related witnesses, if after deep scrutiny, found to be credible cannot be discarded.

19.

It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness, if otherwise the same is found credible. The witness could be a relative but that does not mean his statement should be rejected. In such a case, it is the duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested witness.

20.

It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. (Vide State of A.P. v. Veddula Veera Reddy, Ram Anup Singh v. State of Bihar, Harijana Narayana v. State of A.P., Anil Sharma v. State of Jharkhand, Seeman v. State, Salim Sahab v. State of M.P., Kapildeo Mandal v. State of Bihar and D. Sailu v. State of A.P.)

21.

In Kulesh Mondal v. State of W.B. this Court considered the reliability of interested/related witnesses and has reiterated the earlier rulings and it is worthwhile to refer the same which reads as under: (SCC pp. 580-81, para 11)

“11.

’10. We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses,] should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25)

“25.

We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.”

11.

Again in Masalti v. State of U.P. this Court observed: (AIR pp. 209-10, para 14)

“14.

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. … The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”

12.

To the same effect is the decision in State of Punjab v. Jagir Singh, Lehna v. State of Haryana …. As observed by this Court in State of Rajasthan v. Kalki normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar.’* ”

17.

It would be appropriate to have a look at the legal position with regard to the evidence of related and interested witnesses. In Sarwan Singh v. State of Punjab, SCC para 10, this Court observed thus: (SCC p. 376, para 10)

“10.

… The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.” It is settled law that there cannot be any hard-and-fast rule that the evidence of interested witnesses cannot be taken into consideration and they cannot be termed as witnesses. But, the only burden that would be cast upon the courts in those cases is that the courts have to be cautious while evaluating the evidence to exclude the possibility of false implication. Relationship can never be a factor to affect the credibility of the witness as it is always not possible to get an independent witness.

17.

Then, next comes the question “what is the difference between a related witness and an interested witness?”. The plea of “interested witness”, “related witness” has been succinctly explained by this Court that “related” is not equivalent to “interested”. The witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PWs 1 and 5 were not only related witnesses, but also “interested witnesses” as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal]. As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analysing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution.

14.

The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available — if they are so, the prosecution should be able to prove the case with their assistance.

15.

Coming to the contextual facts once again, while it is true that there is no independent witness, but the evidence available on record does inspire confidence and the appellant has not been able to shake the credibility of the eyewitnesses: there is not even any material contradiction in the case of the prosecution.

58.

29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.

55.

As regards non-examination of the independent witnesses who probably witnessed the occurrence on the roadside, suffice it to say that testimony of PW Sanjay, an eyewitness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses. The High Court has held in its judgment and, in our view, rightly that the reasons given by the learned trial Judge for discarding and disbelieving the testimony of PWs 4, 5, 6 and 8 were wholly unreasonable, untenable and perverse. The occurrence of the incident, as noticed earlier, is not in serious dispute. PW Prakash Deshkar has also admitted that he had lodged complaint to the police about the incident on the basis of which FIR came to be registered and this witness has supported in his deposition the contents of the complaint to some extent. It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim, that fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny.

5.

The counsel for the appellants contended that the evidence adduced by the prosecution was interested and therefore, it cannot be relied upon. It is important to note that the witnesses examined on the side of the prosecution were all injured in the incident. PW 6 Ramchandra sustained a grievous injury, in the sense that he lost one of his teeth. The other witnesses also sustained injuries. That is proved by the various medical certificates issued by the doctor who examined them. Therefore, the presence of these witnesses at the place of occurrence cannot be suspected. All these witnesses gave evidence to the effect that when they along with deceased Bihari Lal were coming from the temple after performing some ceremony, the accused surrounded and attacked them. We do not find any infirmity in the evidence of these witnesses.

Discrepancies in the evidence of eye witnesses

27.

The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)

28.

The High Court disbelieved both the witnesses, Subedar (PW 1) and Balak Ram (PW 5) as being closely related to the deceased and for not examining any independent witnesses. In a case like this, it may be difficult for the prosecution to procure an independent witness, wherein the accused had killed one person at the spot and seriously injured the other. The independent witness may not muster the courage to come forward and depose against such accused.

29.

A mere relationship cannot be a factor to affect credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives’ evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh, Vishnu v. State of Rajasthan and Balraje.)

30.

In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

“9.

Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.”* Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited. [Vide State v. Saravanan, Arumugam v. State, Mahendra Pratap Singh v. State of U.P. and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra.]

9.

The trial court has really not recorded any convincing reason for not accepting the testimony of PW 2 and PW 8. We have carefully perused their evidence. Their evidence appears to be natural having a ring of truth. Much was sought to be made of minor discrepancies in the evidence of the two eyewitnesses, which have been described as glaring contradictions. Some variation in matters of detail is but natural, and much depends on the capacity of a witness to observe and remember events, particularly in matters of minor details. Moreover, the two witnesses came from two different directions, and they may have observed the incident at different stages, though in quick succession. However, such minor discrepancies do not warrant rejection of their evidence. Their deposition is natural and consistent with the case of the prosecution and we find no reason why they should be disbelieved.

Whether incident took place all of a sudden

Delayed recording of police statements

25……It is pertinent to point out that on the delayed examination of PW 2, no question was put to the investigating officer (PW 14) by the defence. Had such question been put to PW 14, he would have certainly explained the reason for not examining PW 2 from 15-8-1997 to 17-8-1997. Having not done so, the appellants are not right in contending that there was delay in recording the statement of PW 2.

26.

It cannot be held as a rule of universal application that the testimony of a witness becomes unreliable merely because there is delay in examination of a particular witness. In Sunil Kumar v. State of Rajasthan, it was held that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a core of witness to falsely support the prosecution case. As such there was no delay in recording the statement of PW 2 and even assuming that there was delay in questioning PW 2, that by itself cannot amount to any infirmity in the prosecution case.

14.

So far as the delayed recording of statement of the witnesses is concerned, here again no question was put to the investigating officer specifically as to why there was delay in recording the statement. On the contrary, the witnesses themselves have indicated as to why there was delay. The plea of the appellants in this regard, therefore, has no substance.

Enmity

18.

There is no doubt that PWs 1, 2, 5 and 6 relied upon and believed by the trial as well as the High Court are not friendly to the accused persons on account of previous existing enmity between them. The admitted position of law is that enmity is a double-edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity, held to be a double-edged weapon, may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eyewitnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eyewitnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime, cannot be made a basis to discard or reject the testimony of the eyewitnesses, the deposition of whom is otherwise consistent and convincing.

14.

That brings us to the question whether there is any room for our interference with the conviction of Matibar Singh, appellant, as recorded by the High Court in the impugned judgment1. We must, at the outset, say that the High Court’s judgment, which has been read out at length before us, has dealt with the evidence adduced at the trial as also the submissions made by the learned counsel for the parties with commendable clarity. We have, therefore, no hesitation in affirming the reasoning and the conclusions arrived at by the High Court. The fact that there was previous enmity between the complainant’s party and the rival group of which the accused happen to be members or sympathisers is a factor that need to be taken as adverse to the prosecution. Enmity is a double-edged weapon. It was because of the said enmity that the victim was assaulted while he was on his way to attend the function. The existence of such enmity lends support to the prosecution case rather than demolish the same. The trial court was obviously in error in taking a contrary view which the High Court has rightly corrected by the impugned judgment. So also, the High Court was, in our opinion, perfectly justified in holding that the deposition of the victim and the eyewitnesses examined at the trial had not been shaken in cross-examinations to render it unsafe for the Court to rest an order of conviction against the accused persons.

Whether appellants were members of Unlawful Assembly and have committed the offence in furtherance of Common Object

7.

The precise question to be decided in this appeal, therefore, is whether in view of death caused to Girdhari and Siddhu by the unlawful assembly which is punishable under Section 302 with the aid of Section 149 IPC the corroboration as to participation of each individual member of the assembly would be necessary, and if so, whether in the instant case there is such corroboration.

8.

Section 149 IPC provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence. As has been defined in Section 141 IPC, an assembly of five or more persons is designated an “Unlawful Assembly”, if the common object of the persons composing that assembly is to do any act or acts stated in clauses “First”, “Second”, “Third”, “Fourth”, and “Fifth” of that section. An assembly, as the Explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 IPC. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.

9.

Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section

10.

Thus, once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.

14.3.

We may also take note of the principles enunciated and explained by this Court as regards the ingredients of an unlawful assembly and the vicarious/constructive liability of every member of such an assembly. In Sikandar Singh, this Court observed as under : (SCC pp. 483-85, paras 15 & 17-18)

“15.

The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly, and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.

17.

A “common object” does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The “common object” of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.

18.

In Masalti v. State of U.P. a Constitution Bench of this Court had observed that : (AIR p. 211, para 17)

’17. … Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.’”

14.4.

In Subal Ghorai, this Court, after a survey of leading cases, summed up the principles as follows : (SCC pp. 632-33, paras 52-53)

“52.

The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines “unlawful assembly” to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses “First”, “Second”, “Third”, “Fourth” and “Fifth” of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly.

53.

But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution.”

Promptness in lodging of FIR

17.

The fact that the first information report was given almost immediately, rules out any possibility of deliberation to falsely implicate any person. All the material particulars implicating the four appellants were given.

10.

Apart from that if the evidence adduced on behalf of the prosecution is accepted then whether there was immediate motive for committing the offence loses all significance. The present case has many special features which weigh heavily against the accused persons and it is not easy on their part to dislodge them. The occurrence took place before noon. The FIR was lodged at 12.30 p.m. within an hour. A copy of the FIR was received by the concerned Magistrate by 2.15 p.m., the same day. The Investigating Officer reached the place of occurrence before 4 p.m. Even the post-mortem examinations of the two victims were held by two doctors mentioned above by 5.30 p.m. the same day. In cases relating to murder the time taken in lodging the FIR assumes special significance. The FIR being the first version of the occurrence disclosed to the police acts as check on the part of the prosecution. The fact that Surjit Kaur (PW 4) lodged the FIR within an hour of the occurrence, giving the details of the manner of occurrence lends corroboration to her testimony in court regarding the participation of the accused persons in the present occurrence. The manner of occurrence disclosed by Surjit Kaur (PW 4) in the FIR was fully corroborated by the post-mortem examination reports. She stated in the FIR at 12.30 p.m. that accused persons after having assaulted the two victims with gandasa and lathis, crushed them with the wheel of the truck. The two doctors during post-mortem examinations found that injury No. 7 on the chest of Gurbux Singh and injury No. 11 on Wasava Singh could have been caused by the wheel of the truck passing over the chest of Gurbux Singh and any blunt part of the truck striking against the body of Wasava Singh. This not only corroborates the version disclosed by Surjit Kaur (PW 4) in the FIR but goes a long way to establish the correctness thereof. If Surjit Kaur (PW 4) had not witnessed the occurrence as suggested by accused persons then how could she have mentioned in the FIR that after assaulting the two victims the accused persons entered into the truck and crushed the victims with the wheel of the truck, which is supported by the post-mortem examination.

13…….In such a situation the prompt and early reporting of the occurrence by PW 1 to the police with all its vivid details gives us an assurance regarding truth of his version.

Dying Declaration of Ajay

31.

Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State (NCT of Delhi), this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard-and-fast rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement (see Rambai v. State of

Chhattisgarh).

32.

It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a police officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man and there was no time to call the police or the Magistrate. In such a situation the doctor would be justified, rather duty-bound, to record the dying declaration of the dying man. At the same time, it also needs to be emphasised that in the instant case, dying declaration is recorded by a competent Magistrate who was having no animus with the accused persons. As held in Khushal Rao v. State of Bombay, this kind of dying declaration would stand on a much higher footing. After all, a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the court (see Vikas v. State of Maharashtra).

Absconsion

Motive, preparation and previous or subsequent conduct.

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. - The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2. - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.”

Recoveries

20.

Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21.

We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

21.

Section 27 does not lay down that the statement made to a police officer should always be in the presence of independent witnesses. Normally, in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the courts seek corroboration as a matter of caution and not as a matter of rule. Thus, it is only a rule of prudence which makes the court to seek corroboration from an independent source, in such cases while assessing the evidence of the police. But in cases where the court is satisfied that the evidence of the police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration

1737. Shri Mukul Rohatgi, learned Senior Counsel appearing for the appellant has submitted that two panch witnesses were there, whereas one has been examined i.e. Suresh Satam (PW 37). His evidence cannot be relied upon for the reason that he was the brother of a Police Constable and thus, cannot be termed as an independent witness. Factually, it is true that the panch witness Suresh Satam (PW 37) himself has admitted that his brother was an employee of the Police Department of Maharashtra. Further, merely having such a relationship does not make him disqualified to be a panch witness, nor his evidence required to be ignored. In Kalpnath Rai, this Court has held that the evidence of police officials can be held to be worthy of acceptance even if no independent witness has been examined. In such a fact situation, a duty is cast on the court to adopt greater care while scrutinising the evidence of the police official. If the evidence of the police official is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined. (See also Paras Ram v. State of Haryana, Pradeep Narayan Madgaonkar v. State of Maharashtra, Sama Alana Abdulla v. State of Gujarat, Anil v. State of Maharashtra, Tahir v. State (Delhi), and Balbir Singh v. State.)

20.

The deceased had sustained a gunshot injury with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution which has relied on the eyewitness accounts of PWs 1, 2 and 3. In Sukhwant Singh v. State of Punjab [Sukhwant Singh v. State of Punjab, (1995) 3 SCC 367 : 1995 SCC (Cri) 524] , Dr A.S. Anand, J. (as the learned Chief Justice then was) speaking for a two-Judge Bench held : (SCC p. 377, para 21)

“21.

There is yet another infirmity in this case. We find that whereas an empty [sic] had been recovered by PW 6, ASI Raghubir Singh from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty [sic] and the seized pistol to the ballistic expert for examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no explanation has been furnished either in the trial court or before us. It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent.” (emphasis supplied)

The above extract which has been relied upon by the learned counsel for the appellant emphasises that in a case where injury has been caused by a firearm, the opinion of the ballistic expert is of considerable importance where both the firearm and the crime cartridge had been recovered during the investigation. Failure to produce the expert opinion in such a case affects the creditworthiness of the prosecution case.

21.

However, a three-Judge Bench of this Court in Gurucharan Singh v. State of Punjab [Gurucharan Singh v. State of Punjab, (1963) 3 SCR 585 : AIR 1963 SC 340] , has analysed the precedents of this Court and held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon. Speaking through P.B. Gajendragadkar, J. (as the learned Chief Justice then was), this Court held : (AIR pp. 346-47, para 19)

“19.

It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State [Mohinder Singh v. State, 1950 SCC 673] . In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr Purushottam is right in contending as a general proposition that in every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence.” (emphasis supplied)

22.

Similarly, a two-Judge Bench of this Court in State of Punjab v. Jugraj Singh [State of Punjab v. Jugraj Singh, (2002) 3 SCC 234 : 2002 SCC (Cri) 630] had noticed that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon. The Court, speaking through R.P. Sethi, J., had noted : (SCC pp. 243-44, para 18)

“18.

In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non-examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses.”

23.

The present case is not one where despite the recovery of a firearm, or of the cartridge, the prosecution had failed to produce a report of the ballistic expert. Therefore, the failure to produce a report by a ballistic expert who can testify to the fatal injuries being caused by a particular weapon is not sufficient to impeach the credible evidence of the direct eyewitnesses.

“17.

The report of the forensic science laboratory (Ext. A-23) confirms human blood and human sperm on the underwear of Monika. Thus, even if the object with which Monika was hit has not been identified and recovered, the evidence of PW 3, the recovery of various articles made pursuant to the confession of the appellant, the evidence of PW 5 and the report of the forensic science laboratory, Ext. A-23 prove beyond all reasonable doubt that it is the appellant alone who after having kidnapped Monika committed unnatural offence as well as rape on her and killed her and thereafter caused disappearance of the evidence of the offences. The High Court has, therefore, rightly confirmed the conviction of the appellant under Sections 364, 376, 377, 302 and 201 IPC.”

Defence of the Appellant Mukesh Balmik

25.

At this juncture, we think it apt to deal with the plea of alibi that has been put forth by the appellant. As is demonstrable, the trial court has discarded the plea of alibi. When a plea of alibi is taken by an accused, burden is upon him to establish the same by positive evidence after onus as regards presence on the spot is established by the prosecution. In this context, we may profitably reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar: (SCC p. 293, paras 22-23)

“22.

We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context: ‘(a) The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that date, A was at Lahore is relevant.’

23.

The Latin word alibi means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.” (emphasis supplied) The said principle has been reiterated in Gurpreet Singh v. State of Haryana, Sk. Sattar v. State of Maharashtra and Jitender Kumar v. State of Haryana.

35.

Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana as follows: (SCC p. 27, para 20)

“20.

… This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact.” But it is also correct that, even though the plea of alibi of the appellant is not established, it was for the prosecution to prove the case against the appellant. To this extent, the submission of the learned counsel for the appellant was correct. The failure of the plea of alibi would not necessarily lead to the success of the prosecution case which has to be independently proved by the prosecution beyond reasonable doubt. Being aware of the aforesaid principle of law, the trial court as also the High Court examined the circumstantial evidence to exclude the possibility of the innocence of the appellant.

22.

We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

“The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant.”

23.

The Latin word alibi means “elsewhere” and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P.; State of Maharashtra v. Narsingrao Gangaram Pimple.''