Yadav & Ors Vs. State of Bihar  Insc
485 (13 September 2001)
C Banerjee & N. Santosh Hegde Banerjee, J.
now well-settled that the Court can sift the chaff from the grain and find out
the truth from the testimony of the witnesses.
evidence is to be considered from the point of view of trustworthiness and once
the same stands satisfied, it ought to inspire confidence in the mind of the
Court to accept the stated evidence. This Court in Leela Ram (Dead) Through Duli
Chand v. State of Haryana and another [(1999) 9 SCC 525]
relying upon an earlier decision of this Court in State of U.P. v. M.K. Anthony (1985 (1) SCC 505) observed:
are bound to be some discrepancies between the narrations of different
witnesses when they speak on details, and unless the contradictions are of a
material dimension, the same should not be used to jettison the evidence in its
entirety. Incidentally, corroboration of evidence with mathematical niceties
cannot be expected in criminal cases. Minor embellishment, there may be, but
variations by reason therefor should not render the evidence of eyewitnesses
unbelievable. Trivial discrepancies ought not to obliterate an otherwise
v. State of M.P. (1999 (8) SCC 649), this Court
When an eyewitness is examined at length it is quite possible for him to make
some discrepancies. No true witness can possibly escape from making some
an untrue witness who is well tutored can successfully make his testimony
totally non- discrepant. But courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so incompatible with the
credibility of his version that the court is justified in jettisoning his evidence.
But too serious a view to be adopted on mere variations falling in the
narration of an incident (either as between the evidence of two witnesses or as
between two statements of the same witness) is an unrealistic approach for
Court went on to state : (SCC pp.656-57, paras 25-27)
is a common practice in trial courts to make out contradictions from the
previous statement of a witness for confronting him during cross-examination.
Merely because there is inconsistency in evidence it is not sufficient to
impair the credit of the witness. No doubt Section 155 of the Evidence Act
provides scope for impeaching the credit of a witness by proof of an
inconsistent former statement. But a reading of the section would indicate that
all inconsistent statements are not sufficient to impeach the credit of the
witness. The material portion of the section is extracted below:
Impeaching credit of witness.- The credit of a witness may be impeached in the
following ways by the adverse party, or, with the consent of the court, by the
party who calls him (1) (2) (3) by proof of former statements inconsistent with
any part of his evidence which is liable to be contradicted;
former statement though seemingly inconsistent with the evidence need not
necessarily be sufficient to amount to contradiction. Only such of the
inconsistent statement which is liable to be contradicted would affect the
credit of the witness.
145 of the Evidence Act also enables the cross-examiner to use any former
statement of the witness, but it cautions that if it is intended to contradict
the witness the cross-examiner is enjoined to comply with the formality
prescribed therein. Section 162 of Code also permits the cross- examiner to use
the previous statement of the witness (recorded under Section 161 of the Code)
for the only limited purpose i.e. to contradict the witness.
contradict a witness, therefore, must be to discredit the particular version of
the former statement has the potency to discredit the present statement, even
if the latter is at variance with the former to some extent it would not be
helpful to contradict that witness (vide Tahsildar Singh v. State of U.P.: AIR
1959 SC 1012).
indeed necessary however to note that there would hardly be a witness whose
evidence does not contain some amount of exaggeration or embellishmentsometimes
there would be a deliberate attempt to offer the same and sometimes the
witnesses in their over anxiety to do better from the witness box details out
an exaggerated account. In Appabhai and Anr. v. State of Gujarat (1988 Suppl. SCC 241), this Court
in paragraph 13 of the Report observed:
court while appreciating the evidence must not attach undue importance to minor
discrepancies. The discrepancies which do not shake the basic version of the
prosecution case may be discarded. The discrepancies which are due to normal
errors of perception or observation should not be given importance. The errors
due to lapse of memory may be given due allowance.
court by calling into aid its vast experience of men and matters in different
cases must evaluate the entire material on record by excluding the exaggerated
version given by any witness. When a doubt arises in respect of certain facts
alleged by such facts, the proper course is to ignore that fact only unless it
goes into the root of the matter so as to demolish the entire prosecution
story. The witnesses now a days go on adding embellishments to their version
perhaps for the fear of their testimony being rejected by the court.
courts, however, should not disbelieve the evidence of such witnesses
altogether if they are otherwise trustworthy..
dealt with the basics of the legal issue as regards probative value of the evidence
and the acceptability thereof and adverting to the factual matrix of the matter
at this juncture, be it noted that against a judgment of affirmation as regards
the conviction under Section 302 of the I.P.C. and sentence of imprisonment for
life awarded to the appellants, the present petitioners being the accused in
Sessions case No.288 of 1989, moved this Court under Article 136 of the
Constitution for leave to Appeal and upon the leave being granted, the matter
came up for consideration before this Court.
noted that against the judgment of the Additional Sessions Judge, two criminal
appeals were moved before the Patna High Court [Crl. Appeal No.154 of 1993 (Sukhdev
Yadav & Ors. v. State of Bihar) and Crl. Appeal No. 209 of 1993 (Rakesh Mondal
v. State of Bihar)] and in the common judgment for both the appeals, the High
Court was of the view that the prosecution has succeeded in proving its case
beyond all reasonable doubts and conviction and sentence awarded to the
appellants do not require any interference.
this Court on 7.8.2000 was pleased to reject the special leave petition against
the order and judgment dated 20.12.1999 in Criminal Appeal No.209 of 1993. This
Court however on 9th
May, 2000 admitted the
instant appeal by the grant of leave in S.LP. (Crl.) No.1606 of 2000 as regards
the other appeal being Crl. Appeal No. 154 of 1993 before the High Court.
factual score it appears that the occurrence dates back to 1st December, 1986 at about 9.30 a.m. in village Khaira within Kharagpur P.S. of Munger
district in which Ramdeo Singh Mukhia fell a victim of gun shot injury. The
prosecution case as made out depicts that the informant had gone to Fasiyabad
to get labourers for his field and on his way back to village Khaira, he met
his son who went ahead of him and as the son reached the house of one Mahabir Modi,
the son was surrounded by the appellants herein together with one Munindra
alias Bimal Singh besides some unknown persons on the road. On the call of
appellant Sukhdev Yadav, Rakesh Mandal fired at the deceased who immediately
fell down dead on the spot. The accused persons thereafter fled away.
informant alleged that the occurrence took place as the deceased was an active
member of a political party and opposed to that of another political party of
which Rakesh and others were members.
post-mortem examination on the body of the deceased was conducted by Dr. Nageshwar
Prasad Jha (P.W.6) at Munger and he had found ante mortem injuries on the body
as appears from his deposition.
lacerated wound 2½x1½ on left side of scalp in frontal and temporal region with
burnt hairs and inverters edges (wounds of enteries) and fracture of left side
of frontal Bone, left temporal Bone and left perital bone. On dissection
laceration of manages, bring substance, hamhoerhage and clot in the brain
substance from left cerebral hemisphere to right cerebral hemisphere.
wound right side of scalp in occipital and perital region 4½ x 3½ with
fragmentation of right perital and temporal Bones and from this area of wound
bone chsaps were absent. There was laceration in the scalp and blood in the
scalp. Blood oozing from left ear and both nasal cavity.
Rigor Mortis was present on all from limbs. In my opinion death was due to commia
and brain injuries caused by missible (fire arm) age within 24 hours.
Sees the P.M. report and states. It is in my pen and bears my signature.(Mark
From Injury no.1 it appears that fire arm was made from close range because
burnt hairs were found xxx examination xxx
Injury no.1 was upto brain. Meninge is the membrane which covers the brain.
This membrance is covered by skull bones. Injury no.1 had affected all the membrances
of the brain.
on both sides of the brain were affected. Even the piamater was effected on
back side of the brain.
also found exit wound. Injury no.(ii) is wound of exit. I have not mentioned it
in my report Non mentioning of exit wound in injury no. (ii) is merely slip of
trial the prosecution examined eight (8) witnesses, five (5) of whom were on
the point of occurrence and the other three (3) were formal witnesses including
the doctor who held the post- mortem examination on the body of the deceased.
The accused persons also examined one Shyam Sunder Mandal as D.W.1 and who in
turn stated that the occurrence had taken place at a place different as also in
a manner contra, the prosecution case, on account of a dispute between the
accused and the mother of Rakesh Mandal, namely Urmila Devi. At the conclusion
of the trial, however, the learned Sessions Judge convicted the appellants
herein as noticed herein before but acquitted Moninder alias Bimal Singh. The
appeals therefrom stand rejected by the High Court and hence this appeal as
noticed herein before more fully.
the learned Senior Advocate appearing in support of the appeal rather
strenuously contended that there has been a serious divergence of evidence as
regards the place of occurrence which in turn completely displaces the
prosecution case and the High Court has clearly fallen into an error in not
taking note of such a divergent view pertaining to the place of occurrence. As
noticed above five (5) of the prosecution witnesses claimed to have seen the
actual occurrence to wit, the accused persons surrounded the deceased and one Rakesh
Mandal firing shot at him let us therefore, have a short scrutiny of the
evidence pertaining to the place of occurrence : The informant being the father
of the deceased in his First Information Report recorded:
at about 9.00 Oclock I had gone to call labour.. I was returning from there
when my son Ram Dev Singh Mukhiya met me while going from the west to the
village. My son went ahead and I remained behind a little and between this, I
saw on the road near the hut of Mahavir Manjhi, that Sukhdev Yadav, the leader
of S.U.C.I. Resident of Muzaffar Ganj, Rakesh Mandal son of Shyan Sunder Mandal,
Muninder @ Vimal Singh son of Bangali Singh, Ram Avtar Singh son of Biso Singh,
all residents of Khaira, Parmeshwar Bind, son of unknown, resident of Pakuri,
Police Station: Kharagpur, District Monger, and some unknown outside people,
surrounded Mukhiya ji. Sukhdev Yadav ordered that fire the bullet immediately.
On his order Rakesh Mandal fired the bullet, then Mukhiya ji fell on the
ground. All the above said accused by firing bullet ran towards the East.
following are the necessary and relevant extracts from the depositions
available on record as regards the place of occurrence so far as the
prosecution witnesses are concerned:
saw that Sukhdev Yadav, Ram Autar Mandal and Vimal Mandal and one more person
whom I did not recognise, came out of the field of Rhar. Mukhiaji who was
coming from the west, was grabbed by Parmeshwar Bind and Rakesh Mandal and the
rest of the people surrounded him. Sukhdev Yadav said what you are looking for
fire the bullet, on which Rakesh Mandal took out the pistol from the waist and
fired the bullet at Mukhia Ram Dev Singh, which hit on his head. Thereafter Rakesh
Mandal and Parmeshwar Bind ran towards South East. The rest of the people ran
cross examination however, P.W.1 stated:
and Parmeshwar had caught both the hands of the deceased. When other accused
came out of the field of Rahad then the hand of the deceased was caught. When
the hand was caught, by then, other accused reached there and surrounded the
deceased. I do not remember that I had made such a statement before Darogaji or
not, when the four persons by coming out of the field of Rahad surrounded Mukhiaji,
then Rakesh and Parmeshwar joined with the accused. ..
time when the deceased was hit by bullet, at that time I was at a distance of
about 25-30 yards from the deceased. After being hit by bullet, Mukhiaji fell
on the road towards the western corner, due to which a lot of blood oozed out
on the land. At the place of incident there is a slight curve on the road which
has taken a turn towards western side. I had seen only that injury which
occurred as a result of the bullet which hit Mukhiaji in the head; could not
see any other injury.
this incident, I also alongwith other people started driving away the accused,
who had run towards the North.
reached towards the west from the house of Mahavir Modi, then saw that near the
Mango tree Sukhdev Yadav, Ram Autar Mandal, Rakesh Mandal, Parmeshwar Bind and Munim
Mandal @ Vimal Mandal were there. Vimal was going from there towards the
village at a distance of about 100 yards.
Mandal and others were surrounding deceased Ramdev Mukhia. Accused Sukhdev Yadav
said Rakesh what you are looking fire the bullet. On this Rakesh fired bullet, Mukhiaji
fell and the accused ran away. Sukhdev Yadav and Ram Autar had run towards
North and Rakesh Mandal and Parmeshwar Bind ran towards the East.
reached near the house of Mahavir Modi, then saw that at a little distance near
the Mango tree, 5- 6 persons were going running, out of which I recognised Sukhdev
Yadav, Rakesh Mandal and Parmeshwar Bind and on going ahead, I saw that Ram Dev
Singh (Mukhiaji) was lying on the road who had expired. In the head of Mukhiaji
bullet had hit and blood was oozing out from there. The reason for the incident
is political quarrel between Sukhdev Yadav and deceased Ram Dev Singh.
informant in his deposition however, clarified that the incident took place on
the road going North- South near the place in East-West direction
reached near Mahavir Modis basa, Sukhdev, Ramautar and two other accused came
out from Rahar field and encircled Mukhiya. Rakesh and Parmeshwar, who were
going ahead were also amongst those who encircled Mukhiya. Thereafter, Sukhdev
ordered to fire bullet and Rakesh fired at Mukhiyaji. Thereafter, all the
accused fled away..
evidence on record does not, however, lend any credence to the submissions of
Mr. Tulsi. There may be some variations but there exists no major contradiction
on record. Modis house and Rahar field are the two places which have been
mentioned by the accused persons but the factum of being surrounded and the
firing done at the instance of the appellant No.1 stands uncontradicted.
noticed above, minor variations may be there but if on a perusal of the
evidence in its entirety, it appears to be otherwise trustworthy, question of
the evidence being non-trustworthy would not arise. As noticed above, the Court
can sift the chaff from the grain and find out the truth from the evidence
itself. The evidence tendered lends credence to the prosecution case as regards
the involvement of the appellant herein in the murder. It is in this context,
the High court observed:
they were deposing in court after more than five years of the occurrence, there
might be some inconsistency.. but being minor in nature they have to be
ignored. The evidence of eye- witnesses being consistent, we have no reason to
disbelieve the prosecution case.
next contended that the earliest version of the occurrence had been suppressed
in as much as although the chowkidar visited the place of occurrence and
thereafter passed on the information to the investigating officer, on the basis
of which the latter came to the place of occurrence has been withheld
deliberately this creates, Mr. Tulsi contended, some doubt regarding the verasity
of the prosecution case and benefit whereof ought to be given to the
appellants: While it is on record that the Chowkidar happened to visit the
place of occurrence before he came again with the investigating officer, but a
positive evidence of the investigating officer to the effect that the latter
reached the village on hearing a rumour about the murder of Ram Dev Singh and
it so happened that there was no cross-examination on this score and in the
absence of which the statement of the investigating officer cannot but be
accepted. In any event, what would be the effect by reason of non production of
the chowkidar? The Chowkidar may or may not be there or it may be a sheer
co-incidence that both the investigating officer and the chowkidar came
together but that by itself does not affect the varasity of the prosecution
case neither it is possible to have any conjectures to the effect that the chowkidar
had gone to the Police Station and brought the investigating officer at the
site it is however too trivial a matter to be considered at length and as such
we do not find any reason to dictate further on the issue neither the same
lends any credence to the submissions in support of the appeal or as regards
the conclusion arrived by the High Court.
other aspect pertains to non production of the seizure list in Court as a part
of the records undoubtedly, a lapse on the part of the prosecution but the
issue however, needs to be considered from the point of view of credibility of
the witnesses and in the event of there being credible evidence on record, a
lapse pertaining to non production of seizure list does not really affect the
prosecution case in any way the issue has to be considered from the point of
view of prejudice to the accused, before however detailing thereon, the
observations of this Court in Shivnath Singh and another v. State of U.P. (1994
(2) SCC 563) may be noticed.
Learned counsel also argued that the bloodstains must have been found at the
place where the deceased was beaten and also at the place where the head was
cut and the investigating officer did not collect the bloodstained earth.
Therefore, the place of occurrence is doubtful. This aspect has been examined
by both the courts below and it has been noticed that presence of bloodstains
were noted in the site plan and if the investigating officer did not collect
the bloodstains at all the places, that by itself is not an infirmity. Learned
counsel vehemently argued that there is a grave doubt whether the recovered
head was that of Mohan Lal. In this context reliance is placed on the evidence
of PW 6 the doctor, who stated that the trunk of which he conducted the
post-mortem was stoutly built and that the head was that of a young man.
to the learned counsel the deceased was not a young man and therefore the
prosecution has not proved that it was the head of Mohan Lal. In our view this
is not at all an infirmity. Even assuming that the prosecution has not
conclusively proved that the head which was recovered was that of Mohan Lal,
witness after witness has clearly deposed that Mohan Lal was killed and his
head was severed and there cannot be any doubt that Mohan Lal was beheaded in
the manner stated by these witnesses. As a matter of fact it is also mentioned
in the FIR that the head was cut-off. An argument was advanced regarding the
identification of the body on the ground that PW 5 the grandson of the brother
of the deceased filed an affidavit that he did not identify the body.
cannot give any weight to this affidavit even if it had been filed in that
manner. PW 5 deposed that he came from the fields after hearing about the
occurrence and to the dictation of PW 3 he wrote the complaint.
also a witness to some of the recoveries including the head. This witness was
cross-examined at length on several days regarding the recoveries particularly
that of the head. We do not find any serious infirmity in his evidence. We have
to point out that all the submissions of the learned counsel involve only
appreciation of evidence and both the courts below have considered the evidence
of the material witnesses in great detail and as already mentioned we have also
examined the same and we are satisfied with their evidence.
counsel, however, lastly submitted that it is not possible to separate grain
from the chaff in such cases and some of the accused are not attributed any
specific overt acts and that the appellants cannot be convicted on such omnibus
allegations. The way the crime has been perpetrated would manifest the object
of the unlawful assembly and every member of such unlawful assembly would be
as noticed above there are lapses, but the question that arises for
consideration is whether any prejudice has been caused by reason of such a
lapse, if the answer thereto is in the affirmative obviously it will have a
serious impact on to the trial but if in the event however, it is on the
negative, no prejudice can be said to have been caused and correspondingly
question of the trial being vitiated would not arise. The eye-witnesses account
as available on record cannot but be termed to be trustworthy and by reason therefor,
the lapses stand over-shadowed by the testimony of the eye-witnesses. The observations
above obtain support from the decision of this Court in Baleshwar Mandal and
another v. State of Bihar (AIR 1997 SC 3471).
lastly contended that evidence available on record discloses that the shoes of
the deceased were found kept by the side of the head alongwith a bag and on the
basis thereof it has been contended that the place of occurrence was thus
different from the place where the dead body was found by the investigating
officer. The High Court on this score observed as below:
is true that there is no apparent explanation regarding keeping the shoes on
the side of the head of the deceased, which is borne out not only by the
inquest report, but this fact by itself is not sufficient to create reasonable
doubt so as to disbelieve the entire prosecution case. It may be pointed that
as per the inquest report one pair of shoes was found on the side of the head
of the deceased but it is not clear as to whether the feet of the deceased were
bare, that is, no shoes were put on. It is also not clear as to whether while
going to his village, the deceased had put on the shoes. No question was put to
either investigating officer or any other witness in this regard."
(Emphasis supplied) On the state of evidence as emphasized above, we do not
feel it inclined to lend concurrence to the submissions in support of the
appeal that the factum of placement of shoes at a particular place would
vitiate the entire trial.
view as above, we do not find any merit in the appeal, neither there is any
reason to interfere with the judgment of affirmance. The appeal, therefore,
fails and is thus dismissed.
C. Banerjee) J.