# KURIA & ANR v. STATE OF RAJASTHAN {Criminal Appeal No. 2488 of 2009)

- **Citation:** [2012] 10 S.C.R. 570
- **Court:** Supreme Court of India
- **Decided:** 2012-09-13
- **Case number:** Criminal Appeal No. 2488 of 2009
- **Bench:** Swatanter Kumar, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kuria-anr-v-state-of-rajasthan-criminal-appeal-no-2488-of-2009-27963
- **Pages:** 33

## Headnote

Penal Code, 1860:
ss. 302 and 364 rlw s. 34 - Prosecution under - 15
accused causing death of one person - 4 eye-witnesses -
Animosity between parties - Conviction of 3 and acquittal of
rest of the accused by trial court - Appeal of one accused
0 abated due to his death - High Court upholding the conviction
of the two accused - On appeal, held: The eye-accounts are
fully supported by statement of Investigating Officer, inquest
report, post mortem report and the recoveries - There was
also motive for the accused to kill the deceased - Prosecution
E has been able to prove its case beyond reasonable doubt -
In view of the evidence, accused rightly convicted.
s. 34 - Applicability - Held: The provision is applicable
in cases where it is not possible to attribute a specific role to
a particular accused - The basic essentials for applying it are
F : (1) Criminal act committed by several persons (2) The act
is done in furtherance of common intention.
s. 34 - Nature of - Held: The provision is a rule of
evidence and does not create a substantive offence.
G
Criminal Trial:
Improved and contradictory statements - Evidentiary
value - Held: The discrepancies or improvements which do
not materially affect the case of the prosecution and are
H
570
KURIA & ANR. v. STATE OF RAJASTHAN
571
insignificant, cannot be made the basis for doubting the A
prosecution case.
Witnesses:
Sole-eye witness - Evidentiary value - Held: The court 8
can act on the testimony of sole eye-witness provided he is
wholly reliable and can base conviction relying on such
witness.
Related witness - Evidentiary value - Held: If testimony
of an eye-witness found truthful, it cannot be discarded merely C
on the ground that the witness was relative of the deceased.
Words and Phrases:
Expression 'Sterling worth' in the context of Criminal
Jurisprudence - Meaning of.
D
The two appellants-accused alongwlth 13 other
accused were prosecuted ulss. 302 and 364 r/w s. 34 IPC
for having caused death of one person. According to
prosecution, there were 4 eye-witnesses (PWs 1, 3, 5 and
E
15) to the incident. One of the eye-witnesses PW 3 was
the son of the deceased and was the informant. There
was rivalry between the accused party and the
complainant party. During trial, two of the eye-witnesses
viz. Pws 1 and 5 turned hostile. Trial court acquitted all
F
the accused except three accused, Including the two
appellants-accused. The convicted accused filed appeal
before High Court. During pendency of the appeal, one
of the convicted accused died and the appeal abated
against him. High Court confirmed the conviction of the G
appellants-accused.
In appeal to this Court, the appellants contended that
there Is contradiction between the ocular and medical
evidence;
that there
are contradictions
and
H
572
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A improvements in the statements of the witnesses; that
presence of PWs 3, 4, 7 and 15, at the scene of
occurrence, was doubtful hence their evidence not
reliable; that no specific role or use of weapon in the
attack was seen by any of the witnesses; that the
B statements of hostile witness or unreliable witnesses
cannot be used for the purpose of corroboration of other
witnesses; and that s. 34 IPC is not attracted in the
present case and therefore the conviction was not
justified.
c
Dismissing the appeal, the Court
HELD: 1. In the facts and circumstances of the case,
the cumulative effect of the prosecution evidence is that
the prosecution has been able to prove its case beyond
D reasonable doubt. [Para 29] [601-B]
2. It is not correct to say that there is conflict between
the medical evidence and the ocular evidence in relation
to the manner in which injuries were inflicted and the
E consequences thereof. Except where it is totally
irreconcilable with the medical evidence, oral evidence
has primacy. In the present case, a large number of
persons had attacked one person. These witnesses
cannot be expected to explain the role in the inflicting of
F injur

## Text

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A
B
c
[2012] 10 S.C.R. 570
KURIA & ANR.
v.
STATE OF RAJASTHAN
{Criminal Appeal No. 2488 of 2009)
SEPTEMBER 13, 2012
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Penal Code, 1860:
ss. 302 and 364 rlw s. 34 - Prosecution under - 15
accused causing death of one person - 4 eye-witnesses -
Animosity between parties - Conviction of 3 and acquittal of
rest of the accused by trial court - Appeal of one accused
0 abated due to his death - High Court upholding the conviction
of the two accused - On appeal, held: The eye-accounts are
fully supported by statement of Investigating Officer, inquest
report, post mortem report and the recoveries - There was
also motive for the accused to kill the deceased - Prosecution
E has been able to prove its case beyond reasonable doubt -
In view of the evidence, accused rightly convicted.
s. 34 - Applicability - Held: The provision is applicable
in cases where it is not possible to attribute a specific role to
a particular accused - The basic essentials for applying it are
F : (1) Criminal act committed by several persons (2) The act
is done in furtherance of common intention.
s. 34 - Nature of - Held: The provision is a rule of
evidence and does not create a substantive offence.
G
Criminal Trial:
Improved and contradictory statements - Evidentiary
value - Held: The discrepancies or improvements which do
not materially affect the case of the prosecution and are
H
570
KURIA & ANR. v. STATE OF RAJASTHAN
571
insignificant, cannot be made the basis for doubting the A
prosecution case.
Witnesses:
Sole-eye witness - Evidentiary value - Held: The court 8
can act on the testimony of sole eye-witness provided he is
wholly reliable and can base conviction relying on such
witness.
Related witness - Evidentiary value - Held: If testimony
of an eye-witness found truthful, it cannot be discarded merely C
on the ground that the witness was relative of the deceased.
Words and Phrases:
Expression 'Sterling worth' in the context of Criminal
Jurisprudence - Meaning of.
D
The two appellants-accused alongwlth 13 other
accused were prosecuted ulss. 302 and 364 r/w s. 34 IPC
for having caused death of one person. According to
prosecution, there were 4 eye-witnesses (PWs 1, 3, 5 and
E
15) to the incident. One of the eye-witnesses PW 3 was
the son of the deceased and was the informant. There
was rivalry between the accused party and the
complainant party. During trial, two of the eye-witnesses
viz. Pws 1 and 5 turned hostile. Trial court acquitted all
F
the accused except three accused, Including the two
appellants-accused. The convicted accused filed appeal
before High Court. During pendency of the appeal, one
of the convicted accused died and the appeal abated
against him. High Court confirmed the conviction of the G
appellants-accused.
In appeal to this Court, the appellants contended that
there Is contradiction between the ocular and medical
evidence;
that there
are contradictions
and
H
572
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A improvements in the statements of the witnesses; that
presence of PWs 3, 4, 7 and 15, at the scene of
occurrence, was doubtful hence their evidence not
reliable; that no specific role or use of weapon in the
attack was seen by any of the witnesses; that the
B statements of hostile witness or unreliable witnesses
cannot be used for the purpose of corroboration of other
witnesses; and that s. 34 IPC is not attracted in the
present case and therefore the conviction was not
justified.
c
Dismissing the appeal, the Court
HELD: 1. In the facts and circumstances of the case,
the cumulative effect of the prosecution evidence is that
the prosecution has been able to prove its case beyond
D reasonable doubt. [Para 29] [601-B]
2. It is not correct to say that there is conflict between
the medical evidence and the ocular evidence in relation
to the manner in which injuries were inflicted and the
E consequences thereof. Except where it is totally
irreconcilable with the medical evidence, oral evidence
has primacy. In the present case, a large number of
persons had attacked one person. These witnesses
cannot be expected to explain the role in the inflicting of
F injuries by each one of them individually and the weapons
used. Such conduct would be opposed to the normal
conduct of a human being. The fear for his own life and
anxiety to save the victim would be so high and
bothersome to the witness that it will not only be unfair
but also unfortunate to expect such a witness to speak
G with precision with regard to injuries inflicted on the body
of the deceased and the role attributable to each of the
accused individually. In the present case, the result of the
blunt Injuries Is evident from the report of the post
mortem. The post mortem report, the Inquest report, the
H statements of PW2, PW3, PW4, PW7 and PW15 are in line
KURIA & ANR. v. STATE OF RAJASTHAN
573
with each other and there is no noticeable conflict A
between them. The injuries on the body of the deceased
were so severe that they alone could be the cause of
death and the statement of PW6 (doctor) in relation to
cause of death is definite and certain. [Paras 8, 13 and
16] [585-B; 590-E; 592-G-H; 593-A-D]
B
Abdul Sayeed v. The State of Madhya Pradesh (2010)
10 SCC 259: 2010 (13) SCR311; Baso Prasad and Ors. v.
State of Bihar 2006 (13) SCC 65: 2006 (9) Suppl. SCR 431;
Krishnan v. State (2003) 7 SCC 56: 2003 (1) Suppl. C
SCR 771 - relied on.
3.1. Improvements or variations of the statements of
the witnesses should be of such nature that it would
create a definite doubt in the mind of the court that the
witnesses are trying to state something which is not true D
and which is not duly corroborated by the statements of
the other witnesses. That is not the situation in the
present case. The improvements do not create any legal
impediment in accepting the statements of PW3, PW4,
PW7 and PW15 made under oath. The discrepancies or E
improvements which do not materially affect the case of
the prosecution and are insignificant cannot be made the
basis for doubting the case of the prosecution. The
courts may not concentrate too much on such
discrepancies or improvements. The purpose is to
F
primarily and clearly sift the chaff from the grain and find
out the truth from the testimony of the witnesses. Where
It does not affect the core of the prosecution case, such
discrepancy should not be attached undue significance.
The normal course of human conduct would be that while G
narrating a particular Incident, there may occur minor
discrepancies. Such discrepancies may even in law
render credential to the depositions. The improvements
or variations must essentially relate to the material
particulars of the prosecution case. The alleged
H
574
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A improvements and variations must be shown with
respect to material particulars of the case and the
occurrence. Every such improvement, not directly related
to the occurrence, is not a ground to doubt the testimony
of a witness. The credibility of a definite circumstance of
B the prosecution case cannot be weakened with reference
to such minor or insignificant Improvements. [Para 21]
[596-H; 597-A]
Kathi Bharat Vajsur and Anr. v. State of Gujarat (2012)
5 SCC 724; Narayan Chetanram Chaudhary and Anr. v.
C State of Maharashtra (2000) 8 SCC 457:2000 (3) Suppl.
D
E
SCR 104; D.P. Chadha v. Triyugi Narain Mishra and Ors.
(2001) 2 SCC 205: 2000 (5) Suppl. SCR 408; Sukhchain
Singh v. State of Haryana ~Ors. (2002) 5 SCC 100: 2002
(3) SCR 408 - relied on:
3.2. Every improvement or variation cannot be
treated as an attempt to falsely implicate the accused by
the witness. The approach of the court has to be
reasonable and practicable. [Para 23] [597-G]
Ashok Kumar vs. State of Haryana (2010) 12 SCC
350: 2010 (7) SCR 1119; Shiv/al and Anr. v. State of
Chhattisgarh (2011) 9 SCC561: 2011 (11) SCR 429 -
relied on.
F
3.3. The presence of PW15 cannot be doubted at the
site in question. He was going from the bus stand to his
house and had stopped on the way after seeing the
Incident This behavior of PW15 Is very normal behavior
and does not call for the raising of any unnecessary
G doubts. As far as absence of the name of PW15 from the
FIR is concerned, it Is clear that PW3 was following his
father from behind and the moment the accused persons,
who were large in number, started assaulting his father
with weapons that they were carrying, for fear of his own
H
KURIA & ANR. v. STATE OF RAJASTHAN
575
life and to bring people to save his father, he ran from the
A
site. Obviously, PW15 appeared at the scene at that time
and PW3 had not seen him at that juncture. Afterwards,
when he came to the site along with other witnesses, i.e.,
PW2, PW4 and PW7, he saw his father's body being
thrown near the hand pump in front of the house of the
8
accused. The death of his father would have perturbed
him so much that his priorities would be only to take his
father to the hospital and inform the police, rather than
viewing as to who was there around him besides the
persons who had come with him. [Para 19] [594-C-F]
c
3.4. The variations or insignificant improvements in
the statements of PW3 and PW7 are of such nature that
they cannot make the statement of these witnesses
unbelievable and unreliable. The witnesses have stated
that they had informed the police of what they stated D
under oath before the court, but why it was not so
recorded in their statements under Section 161 recorded
by the Investigating Officer would be a reason best
known to the Investigating Officer. It is only when
exaggeration fundamentally changes the nature of the
E
case, the court has to consider whether the witness was
stating truth or not. [Paras 20 and 22] [595-E]
Sunil Kumar v. State Govt. of NCT of Delhi (2003) 11
SCC 367: 2003(4) Suppl. SCR 767 - relied on.
F
3.5. The variations in the statement of witness cannot
be termed as contradictions between the statements of
the witnesses. They are explainable variations which are
likely to occur in the normal course and do not, in any G
way, adversely affect the case of the prosecution. Thus,
there are no material contradictions in the statement of
the witnesses or the documents, nor can the presence
of PW15 be doubted at the place of occurrence. [Para 20]
[595-E]
H
576
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
3.6. 'Sterling worth' is only an expression that is used
for judging the worth of the statement of a witness. The
use of such an expression in the context of criminal
jurisprudence would mean a witness worthy of credence,
one who is reliable and truthful. This has to be gathered
B from the entire statement of the witnesses and the
demeanour of the witnesses, if any, noticed by the court.
Linguistically, 'sterling worth' means 'thoroughly
excellent' or 'of great value'. This term, in the context of
criminal jurisprudence cannot be of any rigid meaning. It ·
c must be understood as a generic term. In the instant
case, the statements of the witnesses are reliable,
trustworthy and deserve credence by the Court. They do
not seem to be based on any falsehood. [Para 18] [593H; 594-A·B]
D
4.1. The presence of PW3, PW4, PW7 and PW15 at
the place of occurrence is neither unnatural nor
improbable. In fact, their statements are trustworthy and
their presence at the place of occurrence at different
timings is plausible and fully fits into the case of the
E prosecution. The version given by these witnesses is
fully corroborated by documentary and medical evidence.
The eye account given by these witnesses fully finds
support from the statement of the Investigating Officer,
the inquest report, post-mortem report as well as the
F recoveries effected from the place of occurrence
including the blood- stained earth and wood from the
door of the house of the accused. As a general rule, the
court can and may act on the testimony of a single eyewitness provided he is wholly reliable and base the
G conviction on the testimony of such sole eye-witness.
There is no legal impediment in convicting a person on
the sole testimony of a single witness. [Para 24) [597-H;
598-A-B-C, D-E, G-H]
4.2. The testimony of an eye-witness, if found truthful,
H cannot be discarded merely because the eye-witness was
KURIA & ANR. v. STATE OF RAJASTHAN
577
a relative of the deceased. Where the witness is wholly A
unreliable, the court may discard the statement of such
witness, but where the witness is wholly reliable or
neither wholly reliable nor wholly unreliable (if his
statement is fully corroborated and supported by other
ocular and documentary evidence), the court may base B
Its judgment on the statement of such witness. Of course,
In the latter category of witnesses, the court has to be
more cautious and see if the statement of the witness Is
corroborated. [Para 25] [599-A-C]
Sunil Kumar v. State Govt. of NCT of Delhi (2003) 11 C
SCC 367: 2003(4) Suppl. SCR 767; Brathi alias Sukhdev
Singh v. State of Punjab(1991) 1 SCC 519: 1990 (2) Suppl.
SCR 503; Alagupandi @ A/agupandian v. State of Tamil
Nadu 2012 (5) SCALE 595 - relied on.
D
4.3. All the witnesses were present at the place of
occurrence and their statements are reliable. In the
alternative, if the court relies upon the statement of PW15
(according to the accused, the sole eye-witness) whose
statement, according to the accused, is unreliable, the E
conviction can be based on the statement of PW15, as
the statement of that witness is trustworthy, reliable and
is completely corroborated by other ocular and
documentary evidence. [Para 26] [599-D-E]
5. The accused/appellants cannot draw any F
advantage from PW1 and PW5 being declared hostile.
V'~ilatever doubt these witnesses could cause to the case
of the prosecution stands fully supplied and erased by
the statement of other eye-witnesses and the other
medical and expert evidence. [Para 27) [600-B-C]
G
6. Another very material piece of evidence which
directly links the accused to the offence is that when the
blood-stained clothes of the deceased and other articles
were recovered, sealed and sent for serological H
578
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
examination to the FSL and the Chemical Analyst had
submitted its report Exhibit P/43 after such serological
examination, human blood of blood group '0', which was
also the blood group of the deceased, was found on all
the three articles. [Para 27] [600-C-D]
B
7. According to PW-1 there was animosity between
the parties regarding agricultural land. There were cases
pending in the court. Though he denied the suggestion
that they had murdered the deceased due to this reason,
but he does provide a motive for the accused persons
C to commit the offence. In all likelihood, that was the cause
for murdering the deceased. [Para 28] [600-G]
8. In face of the unimpeachable evidence, ocular and
documentary, the question of corroboration by unreliable
D evidence does not arise in the present case. [Para 28]
[600-G-H]
E
State of Punjab v. Parveen Kumar (2005) 9 SCC 769 -
held inapplicable.
9.1. It is not correct to say that it was not a case of
pre-meditated murder, and the provisions of Section 34
IPC are not attracted in the present case. It has come in
evidence that all the accused persons had come with
weapons, assaulted the deceased and taken him inside
F
the house where he was again assaulted by the accused
persons and after sometime, his body was dragged by
the accused persons, including the appellant and thrown
near the hand pump. There was motive for the accused
persons to kill the deceased, they had come out with
G common intention and object to assault and kill the
deceased in which they succeeded. In the cases where
it is not possible to attribute a specific role to a particular
accused, like the present case, recourse to this provision
is appropriately made by the prosecution. [Paras 30 and
H 31] [601-B-E]
KURIA & ANR. v. STATE OF RAJASTHAN
579
9.2 . The soul of Section 34, IPC is the joint liability A
in doing a criminal act The section is a rule of evidence
and does not create a substantive offence. The distinctive
feature of the section is the element of participation in
action. The liability of one person for an offence
committed by the other in the course of criminal act B
perpetrates to all other persons, under Section 34 IPC, if
such criminal act is done in furtherance of the common
intention of the person who joins in committing the crime.
The Court has to examine the prosecution evidence with
regard to application of Section 34 cumulatively and if the c
ingredients are satisfied, the consequences must follow.
It is difficult to state any hard and fast rule which can be
applied universally to all cases. It will always depend on
the facts and circumstances of the given case whether
the person Involved in the commission of the crime with 0
a common intention can be held guilty of the main
offence committed by them together. The provisions of
Section 34 IPC come to the aid of law while dealing with
the cases of criminal act and common intention. Its basic
essentials are : that the criminal act is committed by
E
several persons, such act is done in furtherance of
common intention of all and each of such persons Is
liable for that act in the same manner as if it were done
by him alone. [Para 32] [601-0-H; 602-A-D]
Shyamal Ghosh v. State of West Bengal 2012 (6) CALE
F
381; Hemchand Jhas alias Hemchandra Jha v. State of Bihar
(2008) 11 SCC 303: 2008 (9) SCR 1171; Nand Kishore v.
State of Madhya Pradesh (2011) 12 SCC 120: 2011 (7)
SCR 1152 - relied on.
9.3. All the accused had committed criminal acts G
punishable under the provisions of the IPC. They had
done so with common intention, as is evident from the
statement of the witnesses and the documents on
record. And lastly, each one of them, whether he actually
H
580
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A made any assault on the body of the deceased or not,
dragged him and threw his body in the gully or not, shall
all be deemed to have committed the said offences with
the aid of Section 34 IPC. [Para 33] [602-F-G]
B
c
D
E
F
G
Case Law Reference:
2010 (13) SCR 311
Relied on
Para 13
2006 (9) Suppl. SCR 431 Relied on
Para 14
2003 (1) Suppl. SCR 771 Relied on
Para 15
(2012) 5 sec 724
Relied on
Para 21
2000 (3) Suppl. SCR 104 Relied on
Para 21
2000 (5) Suppl. SCR 408 Relied on
Para 21
2002 (3) SCR 408
Relied on
Para 21
2003 (4) Suppl. SCR 767 Relied on
Para 22
2010 (7) SCR 1119
Relied on
Para 23
2011 (11) SCR 429
Relied on
Para 23
2003 (4) Suppl. SCR 767 Relied on
Para 25
1990 (2) Suppl. SCR 503 Relied on
Para 25
2012 (5) SCALE 595
Relied on
Para 25
(2005) 9 sec 769
held inapplicable Para 28
2012 (6) SCALE 381
Relied on
Para 32
2008 (9) SCR 1171
Relied on
Para 32
2011 (7) SCR 1152
Relied on
Para 32
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2488 of 2009.
H
From the Judgment & Order dated 20.5.2008 of the High
KURIA & ANR. v. STATE OF RAJASTHAN
581
Court of Rajasthan at Jodhpur in D.B. Criminal Appeal No.
A
1130 of 2003.
Bhagwati Prasad, H.D. Thanvi, Pushpendra Singh, Sarad
Kumar Singhania for the Appellants.
P.P. Malhotra, ASG, Wasim A Qadri, Kiran, B.K. Prasad,
B
B.V. Balramdas, Suryanarayana Singh, Pragati Neekhra for the
Respondent.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. At the outset, we may notice C
that 15 accused persons had faced trial for offences under
Sections 302 and 364 read with Section 34 of the Indian Penal
Code, 1860 (for short "IPC") before the Court of the Additional
Sessions Judge, Banswara (Rajasthan). Vide its judgment
dated 5th September, 2003, learned Trial Court acquitted all
D
the accused persons except Laleng son of Bajeng, Laleng son
of Dalji and Kuriya son of Laleng. These three accused were
convicted for both these offences and were directed to undergo
rigorous imprisonment for life with a fine of Rs.4,000/- each and
in default to further undergo rigorous imprisonment for four
E
months under Section 302/34 IPC and to undergo rigorous
imprisonment for ten years with a fine of Rs.1000/- each and
in default to undergo further rigorous imprisonment for one
month under Section 364/34 IPC.
2. All the three acc·used persons preferred separate
F
appeals before the High Court, impugning the judgment of the
Trial Court. Unfortunately, during the pendency of the appeal
before the High Court, Laleng son of Bajeng died. Vide its
judgment dated 25th May, 2008, the Division Bench of the High
Court of Rajasthan at Jodhpur confirmed the judgment of G
conviction and order of sentence against the remaining two
accused, i.e., Kuria son of Laleng and Laleng son of Dalji.
3. Aggrieved from the judgment of the High Court, both the
accused have filed the present appeal. The State did not
H
582
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A challenge the acquittal of the 12 accused persons by the Trial
Court before the High Court. Thus, in the present appeal, we
are only concerned with the appeal of the aforementioned two
accused.
4. Now, we may notice the case of the prosecution in brief.
B Laleng, son of Mogji Patidar went to the Police Station, Garhi
on 28th January, 2001 and lodged a written report (Exhibit P3)
to the effect that his father had gone to some other place as a
guest. At about 5.30 in the evening, he was returning to his
house. The informant (who was also going in the same
C direction), was at some distance behind him. Along with him
were two persons, namely, Dhulji and Bapulal. When his father
reached near the house of Yatendra, son of Shivaji and was
standing on the road, Laleng and Dalji started assaulting his
father and on their hands, took him inside their house.
D According to Laleng, who was examined as PW3, Laleng son
of Dalji, the accused, was carrying an axe in his hand. The other
accused, Laleng s/o Wajeng, was carrying a 'kash' and Kuriya
was carrying a 'lath' in his hands and others were also carrying
'laths'. PW3 and the others with him could not interfere
E because of the large number of accused and, due to fear, they
ran to the village to get help. Once this fact was disclosed, Dhulji
son of Gotam, Bajeng son of Pemji and Dalji son of Gotam had
also arrived at the place of incident. In their presence, Laleng
and his son Kuria, Laleng son of Dalji, Dhulji son of Bajeng,
F Kuber son of Jasu and Bhemji son of Nathu were beating his
father and while assaulting him, dragged and threw him on the
road in front of the house of Laleng, the accused. When the
informant and the others came near his father, they saw that
he had expired. The body of the deceased was lying at the
G spot. According to this witness, there was rivalry between these
persons and the deceased. PW3, thus, had seen the incident.
The FIR was registered under Sections 147, 148, 149 and 302
of the IPC vide Exhibit P/4. The Investigating Officer
commenced his investigation, went to the place of occurrence,
H prepared the site plan (Exhibit P/5) and recorded statement of
KURIA & ANR. v. STATE OF RAJASTHAN
583
[SWATANTER KUMAR, J.]
the witnesses vide panchnama (Exhibit P/2). The body of the
A
deceased was taken into custody. The clothes worn by the
deceased were also taken into possession vide Exhibit P/7.
The body of the deceased was subjected to post mortem which
was prepared by Dr. S.K. Bhatnagar, PW6 being Exhibit P/11.
From the house of the accused Laleng, blood stained Dahli B
(piece of wood of the door of the house) was taken into
possession vide Exhibit P/9. In furtherance to the statement of
the accused, the recoveries of iron kash, axe and laths were
made and the same were taken into possession vide Exhibits
P/13 to P/18. The recovered articles were sent to the Forensic c
Science Laboratory, Udaipur (FSL) vide Exhibit P/30 for which
permission was granted by the Superintendent of Police vide
Exhibit P/29 [Acknowledgment receipt (Exhibit P/31)]. The
report of the FSL was received and accepted as Exhibit P/43.
Based upon the oral statements and the documentary evidence 0
collected during the course of the trial and the statements
recorded during investigation, the Investigating Officer (PW16)
completed his investigation and submitted cha/an under
Section 173(3) of the Code of Criminal procedure, 1973 (for
short, the Cr.P.C.) to the court of competent jurisdiction.
5. As already noticed, the accused-appellants faced trial
before the Trial Court and were convicted. Their conviction and
order of sentence was confirmed by the High Court.
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6. The prosecution, in order to prove its case, had
F
examined as many as 17 witnesses. PW1, PW3, PW5 and
PW15 were projected by the prosecution as eye-witnesses.
However, during the course of their examination, PW1 and PW5
were declared hostile as they did not support the case of the
prosecution and the case of the prosecution primarily hinges
upon the statements of PW3 and PW15 coupled with the post G
mortem report, the report of the FSL, statement of PW6 and
the attendant circumstances.
7. While impugning the concurrent judgments before this
Court, the contentions raised on behalf of the appellants are :
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[2012] 10 S.C.R.
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(1)
PW1 is not a reliable eye-witness, inasmuch as
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from
his statement and the attendant
circumstances, it is clear that he has not seen the
occurrence.
(2)
Presence of PW15 at the place of occurrence is
doubtful inasmuch as PW3 in his report to the
Police, Exhibit P/3 did not name him. Thus, the
presence of PW15 is very doubtful.
(3)
No specific role or use of a particular weapon in
causing injuries by the respective accused has
been seen by PW3 or any other witness.
(4)
There is clear contradiction between the ocular and
medical evidence inasmuch as, according to PW3
and PW15, axe and kash were used for inflicting
injuries upon the deceased, while, according to the
post mortem report (Exhibit P/11 ), all the injuries
were caused with blunt weapons and there was no
bleeding injury. Furthermore, the question of
collecting the blood from the dahli of the accused
did not arise as the deceased was not bleeding as
per the version given by the eye-witnesses.
Consequently, there are serious holes in the case
of the prosecution.
(5)
The statement of hostile witnesses or unreliable
witnesses cannot be used for the purposes of
corroboration of other witnesses. A statement which
is otherwise untrustworthy cannot be corroborated
by another piece of unreliable evidence. Deliberate
and unbelievable improvements have been made
in the statements of the witnesses between their
recording of statement under Section 161 of the
Cr.P.C. and statements in the Court. Statements of
the witnesses are not sterling worthy and the entire
case of the prosecution is based upon suspicion.
KURIA & ANR. v. STATE OF RAJASTHAN
585
[SWATANTER KUMAR, J.]
Lastly, the provisions of Section 34 IPC are not A
attracted in the present case, as it was not a case
of common intention and object.
8. First of all, we may deal with the argument advanced
on behalf of the appellant that there is clear conflict between
the medical evidence and the ocular evidence in relation to the B
manner in which injuries were inflicted and the consequences
thereof. Even the cause of death is not evident from the post
mortem report and once the cause of death is not proved, the
accused would be entitled to an order of acquittal.
9. In order to examine the merit of this contention, it is
necessary for us to refer to the post mortem report at the very
threshold. The post mortem report had been exhibited as
Exhibit P/11 and the relevant part thereof reads as under :
"1.
Bruse 2 x 2 cm above RT eye
2.
Bruse 3 x 2 cm on Pissa Rt ear
3.
Bruse 9x3 cm near Rt side Nose
4.
Bruse 3x2 cm Rt cheek near ear
5.
Bruse 25x20 cm in front of chest and extending to
the base of left side of Abdomen
6.
Brine 7x2 cm
7.
Bruse 5x4 cm Rt lower back
8.
Bruse 7x4 cm Rt upper arm
9.
Bruse 4x2 cm Left Elbow
10.
Bruse 7x2 cm back of left hand
11.
Barne Entire back from lateral bone both side
superior border should interior border till lower left
of last lib
12.
Brune 4 x 4 cm Rt leg
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SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
13.
Burn 5x5 cm left leg
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14.
Burne 5x5 cm left thigh
15.
Burne 4x4 cm left thigh
All are simple except 5&11 only two & all are
caused by blunt object & within 24 hrs duration.
dissection at the neck shows Oedema &
haemorahage at the base of neck of muscles & is
underlying soft tissue and at the base & antemortem
of both enclo of hyoid bones.
II. CRANIUM AND SPINAL CORD
Note The Spinal need not be examined unless any
indication on disease or injury exist.
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Healthy
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Ill THORAX
1.
Walls, Rab and Cartines Healthy
2.
Pleaurae Healthy- Pleaural cavity both full of blood
3.
Tharynx and Trachea Healthy except congestion at
Trachsea & barynx
4.
Right Lung Voluminous cut section shows blood
stained
5.
Left Lung Voluminous cut section show blood
stained froth
6.
Periartium health There are #s of 3rd to vth ribts
7.
Heath Rt side Posteriorly precing in between tissue
causing
8.
Large vessel. Lacurateen of lung (RT) similarly
there is # of V to Viithy ribs posters only causing
piefcyr & Lacuratren of in between tissue & Lungs
on left side. However nonstravenatic segments of
KURIA & ANR. v. STATE OF RAJASTHAN
587
[SWATANTER KUMAR, J.]
both lungs are voluminous as disabible above A
Pericardium & large vessels & Heart is Healthy all
four chambers of heart are empty.
In abdomen all organs are healthy stomach &
intestine formally both contains semidigistel food &
Large intestine contains faecial matri
B
10. Bladder Empty & Healthy
11. Organs and interal Healthy
V. MUSCLES BONES AND JOINT
Healthy
REMARKS AND MEDICAL OFFICER
1.
All injuries are within 24 hrs & antemortem in nature.
2.
Examinee expired 6-24 hrs of duration
3.
Examinee expired due to injury both Lungs causing
haemothorax associated pressue on neck causing
asphyxia."
Sd/-
A
B
c
D
c
D
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(Dr. R. Vpaothyarya)"
The above report has been copied from the original Post
Mortem report and no corrections have been made
thereto.
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10. The doctor was examined as PW6. According to the
doctor, the deceased was a healthy person and had suffered
the abovestated 15 injuries. When he dissected the body of the
deceased, he found that both pleural cavities were full of blood G
and the trachea and lungs were congested. At the back, ribs
three to five were fractured and they had perforated the lungs.
Similarly, on the left side as well ribs from five to seven had
been. fractured and had perforated the lungs even on that side.
The cause of death, according to PW6, was as a result of H
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[2012] 10 S.C.R.
A injuries to both the lungs and the pleural cavity being full of blood
which caused pressure on the neck, causing the deceased to
suffocate. PW6 was subjected to a lengthy cross-examination
but nothing material has been found. In his cross examination,
he stated that he had prepared Exhibit P/11 immediately after
B examining the body of the deceased.
11. PW3, the son of the deceased, stated that the accused
persons were beating his father. Fearing his own death, he ran
to the village for help and when he along with Bajeng, Dhuiji and
Dalji reached back, they saw that the accused persons threw
C the body of his late father on the road and by the time they got
there, his father had already died. He admitted his signatures
on the report, Exhibit P/3 and also stated that the Police had
prepared the site plan. Clothes of the deceased were taken in
his presence and he had signed the memo (Ex. P/7). In his
D cross-examination, he stated that despite his screaming,
nobody came to help. PW4 corroborated the statement of PW3
and stated that he had come screaming that the accused
people were beating his father. All of them ran towards the
house of the accused along with other named persons and saw
E that the accused persons had thrown the body of the deceased
on the road. According to this witness, there were 15-16
injuries on the body of the deceased. There was an injury on
the neck. According to him, the neck had been twisted (marod)
whereupon the deceased died. PW7 is the other witness who
F has stated that they went to the place of occurrence running and
when they reached, they saw that body of the deceased was
being dragged by the accused persons and, according to him,
there was injury on the neck of the deceased and neck had been
broken and his whole body had injuries. PW2 is the other
G witness who has specifically stated that body of the deceased
was lying in front of the house of Laleng, the accused, when he
went to the place of occurrence. This witness clearly stated that
when he saw the body of the deceased, he noticed that blood
was oozing from his body. In answer to a question in his crossH examination, he stated that there were disputes between
KURIA & ANR. v. STATE OF RAJASTHAN
589
[SWATANTER KUMAR, J.]
Khemji and Kachru relating to agricultural land. The inquest A
report of the body of the deceased is also a relevant document
in this regard. The Investigating Officer noticed as many as 15
injuries on the body of the deceased which completely matched
with the post mortem report. He also noticed that on the wrist
of the hand and finger (left), there was blood. There were a
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number of injuries on the right foot of the deceased. There was
fresh injury seen on the right foot. The deceased was wearing
white tericotjhabba which was blood stained. There is complete
consistency between the ocular and medical evidence. The
mere fact that no injuries on the body of the deceased were c
found which could have been caused by an axe or kash (which
are stated to be sharp aged weapons), would not ex facie belie
the ocular and medical evidence. There were a large number
persons (15) who were involved in the commission of the crime.
Except two, all were carrying laths and all the injuries on the 0
body of the deceased were caused by a blunt weapon. Even
an axe or kash could be used from the other side, i.e., not the
sharp edge to cause such injuries. Even if they were not used,
it would not, in any way, cause a dent in the case of the
prosecution. All the witnesses have truthfully spoken about the
E
occurrence. Except PW3, nobody could have actually seen the
assault on the deceased by the accused persons. It will be
unfair to expect a young boy, whose father is being beaten to
death, to watch with precision as to which of the accused was
causing which injury and by what weapon. His entire interest
would be to somehow save his father. There was so much of
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fear in his mind that he could not gather the courage of
preventing the accused persons from assaulting his father as
he thought that accused persons would kill him as well. This
conduct of PW3 cannot be said to be abnormal in the facts and
circumstances of the present case. He immediately got other G
persons to help.
12. PW15 stated that at about 5.30 p.m., he was going
from the bus stand towards his house, when he heard the
screams of the deceased. When he went there, the accused
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[2012] 10 S.C.R.
A persons were beating the deceased and while continuing to
beat him, took the deceased into their house. He also stated
that they had brought the body of the deceased outside and
threw it near the hand pump in front of their house and when
he saw the deceased he was dead and his neck was turned
8 in one direction. He also stated that there was dispute about
the agricultural land between the deceased and the accused
persons. In his cross-examination, he admitted that he was
alone at the place of occurrence when the deceased was being
beaten by the accused persons. He also stated that he had
C screamed and raised an alarm but nobody came forward to
help after which the son of the deceased along with others had
come there. In response to a question in his cross-examination,
he stated another fact that four accused persons had brought
the dead body of the deceased outside their house while
0 dragging it. However, it had not been recorded and the Police
has not noticed the same. He reiterated that body of the
deceased was dragged and thrown in front of the hand pump.
13. This Court has consistently taken the view that except
where it is totally irreconcilable with the medical evidence, oral
E evidence has primacy. In the case of Abdul Sayeed v. The
State of Madhya Pradesh [(2010) 10 SCC 259], this Court held
as under:
"38. In State of U.P. v. Hari Chand, (2009) 13 SCC 542,
this Court reiterated the aforementioned position of law
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and stated that: (SCC p. 545, para 13)
' ... In any event unless the oral evidence is totally
irreconcilable with the medical evidence, it has
primacy.'
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39. Thus, the position of law in cases where there is a
contradiction between medical evidence and ocular
evidence can be crystallised to the effect that though the
ocular testimony of a witness has greater evidentiary value
vis-a-vis medical evidence, when medical evidence
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makes the ocular testimony improbable, that becomes a
KURIA & ANR. v. STATE OF RAJASTHAN
591
[SWATANTER KUMAR, J.]
relevant factor in the process of the evaluation of evidence.
A
However, where the medical evidence goes so far that it
completely rules out all possibility of the ocular evidence
being true, the ocular evidence may be disbelieved.
40. In the instant case as referred to hereinabove, a very
large number of assailants attacked one person,, thus the
8
witnesses cannot be able to state as how many injuries
and in what manner the same had been caused by the
accused. In such a fact-situation, discrepancy in medical
evidence and ocular evidence is bound to occur. However,
it cannot tilt the balance in favour of the appellal"'.ts."
C
14. Similar view was taken by this Court in the case of
Baso Prasad & Ors. v. State of Bihar [2006 (13) SCC 65]
wherein this Court held as under :
"27. In some cases, medical evidence may corr9borate D
the prosecution witnesses; in some it may not. Tha court,
however, cannot apply any universal rule whether ocular
evidence would be relied upon or the medical evidence ,
as the same will depend upon the facts and circumstances
of each case.
E
28. No hard and fast rule can be laid down therefore. It is
axiomatic, however, that when some discrepancies are
found in the ocular evidence vis-a-vis medical evidence,
the defence should seek for an explanation from the doctor.
He should be confronted with the charge that he has
F
committed a mistake. Instances are not unknown where the
doctor has rectified the mistake committed by him while
writing the post-mortem report."
15. In the case of Krishnan v. State [(2003) 7 SCC 56], G
this Court held as under:
"18. The evidence of Dr. Muthuswami (PW 7) and Dr
Abbas Ali {PW 8) do not run in any way contrary to ocular
evidence. In any event, the ocular evidence being cogent,
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SUPREME COURT REPORTS
[2012) 10 S.C.R.
credible and trustworthy, minor variance, if any with the
medical evidence is not of any consequence.
20. Coming to the plea that the medical evidence is at
variance with ocular evidence, it has to be noted that it
would be erroneous to accord undue primacy to the
hypothetical answers of medical witnesses to exclude the
eyewitness account which had to be tested independently
and not treated as the "variable", keeping the medical
evidence as constant.
21. It is trite that where the eyewitnesses' account is found
credible and trustworthy, medical opinion pointing to
alternative possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and years of
justice. Hence, the importance and primacy of the quality
of trial process. Eyewitnesses' account would require a
careful independent assessment and evaluation for its
credibility which should not be adversely prejudged making
any other eviden~. including medical evidence, as the
sole touchstone for the test of such credibility.