# YOGESH SINGH v. MAHABEER SINGH & ORS

- **Citation:** [2016] 7 S.C.R. 713
- **Court:** Supreme Court of India
- **Decided:** 2016-10-20
- **Case number:** Criminal Appeal No.1482 of 2013
- **Bench:** Pinaki Chandra Ghose, Amitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yogesh-singh-v-mahabeer-singh-ors-31640
- **Pages:** 33

## Headnote

Penal Code, 1860:
s. 302 rlw s.149 - Murder - Head severed from trunk- Incident
witnessed by daughter and also father of the deceased - Trial court
convicted six persons - High Court acquitted the accused personsrespondents - Appeal against acquittal by son of the deceased -
Held: It was not the case of the accused that they were prejudiced
by the alleged delay in dispatch of the FIR to the nearest Magistrate
competent to take cognizance of such offence - Non-recording of
certain relevant entries in the inquest report did not constitute a
material defect so grave to throw out the prosecution story and the
otherwise reliable testimonies of prosecution witnesses that remained
uncontroverted - There was no major contradiction either in the
evidence of the witnesses or any conflict in medical or ocular
evidence which would tilt the balance in favour of the respondents
- The minor improvements, embellishments etc., were insignificant
and ignored since the evidence of the witnesses otherwise
corroborated each other in material particulars - The view expressed
by High Court was not plausible one - Trial court had correctly
analyzed the material on record to arrive at its conclusion - Order
of conviction passed by trial court restored
Criminal Jurisprudence:
A
8
c
D
E
F
Burden to prove guilt - Held: The guilt of the accused must be
proved beyond all reasonable doubJs - However, the burden on the
prosecution is only to establish its case beyond all reasonable doubt
G
and not all doubts.
Two views - Held: If two views are possible 011 the evidence
adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the
accused should be adopted.
H
713
714
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2016] 7 S.C.R.
Evidence:
Testimony of child witness - Evidentiary value of - Held:
Evidence of a child witness must be evaluated carefully" and with
greater circumspection because a child is susceptible to be swayed
by what others tell him and thus a child witness is an easy prey to
tutoring.
Medical evidence - Evidentiary value of - Held: Is only
corroborative and not conclusive ...:. In case of a conflict between
oral evidence and medical evidence, the former is to be preferred
unless the medical evidence completely rules out the oral evidence.
Testimony of related/interested witness - Evidentiary value of
- Held: Evidence cannot be disbelieved merely on the ground that
the witnesses are related to each other or to the deceased - In case
the evidence has a ring of truth in it, is cogent, credible and
trustworthy, it can be relied upon.
Minor contradictions in prosecution evidence - Effect on
prosecution case - Held: Minor contradictions, inconsistencies or
insignificant embellishments do not affect the core of the prosecution
case and should not be taken to be a ground to reject the prosecution
evidence - The omission should create a serious doubt about the
truthfulness or creditworthiness of a witness - It is only the serious
contradictions and omissions which materially affect the case of
the prosecution but not every contradiction or omission.
Delay/Laches:
Delay in examination of prosecution witness/child witnesses
- Effect of- Held: The trial court observed that child witness (PW5)
was cross-examined on practically every detail of the prosecution
story and her statement corroborated every part thereof - It was
rightly observed by the Trial Judge that the delay was on account
of the fact that the Investigating Officer wanted to assure himself of
the veracity of her statement and hence, she was examined after
she had time to recover from the shock of the incident and compose
herself - Under these circumstances, any delay in examining this
witness uls. 161 of Cr.P.C. will not prejudice the_pTosecution - Code -
·of Criminal Procedure, 1973 - s.161.
Delay in sending FIR to Magistrate - Held: Although in terms
YOGESH SINGH v. MAHABEER SINGH & ORS.
of s.J 57 Cr:P.C., the police officer conc

## Text

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[2016] 7 S.C.R. 713
YOGESH SINGH
v.
MAHABEER SINGH & ORS.
(Criminal Appeal No.1482 of 2013)
OCTOBER 20, 2016
[PINAKI CHANDRA GHOSE AND AMITAVA ROY, JJ.]
Penal Code, 1860:
s. 302 rlw s.149 - Murder - Head severed from trunk- Incident
witnessed by daughter and also father of the deceased - Trial court
convicted six persons - High Court acquitted the accused personsrespondents - Appeal against acquittal by son of the deceased -
Held: It was not the case of the accused that they were prejudiced
by the alleged delay in dispatch of the FIR to the nearest Magistrate
competent to take cognizance of such offence - Non-recording of
certain relevant entries in the inquest report did not constitute a
material defect so grave to throw out the prosecution story and the
otherwise reliable testimonies of prosecution witnesses that remained
uncontroverted - There was no major contradiction either in the
evidence of the witnesses or any conflict in medical or ocular
evidence which would tilt the balance in favour of the respondents
- The minor improvements, embellishments etc., were insignificant
and ignored since the evidence of the witnesses otherwise
corroborated each other in material particulars - The view expressed
by High Court was not plausible one - Trial court had correctly
analyzed the material on record to arrive at its conclusion - Order
of conviction passed by trial court restored
Criminal Jurisprudence:
A
8
c
D
E
F
Burden to prove guilt - Held: The guilt of the accused must be
proved beyond all reasonable doubJs - However, the burden on the
prosecution is only to establish its case beyond all reasonable doubt
G
and not all doubts.
Two views - Held: If two views are possible 011 the evidence
adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the
accused should be adopted.
H
713
714
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2016] 7 S.C.R.
Evidence:
Testimony of child witness - Evidentiary value of - Held:
Evidence of a child witness must be evaluated carefully" and with
greater circumspection because a child is susceptible to be swayed
by what others tell him and thus a child witness is an easy prey to
tutoring.
Medical evidence - Evidentiary value of - Held: Is only
corroborative and not conclusive ...:. In case of a conflict between
oral evidence and medical evidence, the former is to be preferred
unless the medical evidence completely rules out the oral evidence.
Testimony of related/interested witness - Evidentiary value of
- Held: Evidence cannot be disbelieved merely on the ground that
the witnesses are related to each other or to the deceased - In case
the evidence has a ring of truth in it, is cogent, credible and
trustworthy, it can be relied upon.
Minor contradictions in prosecution evidence - Effect on
prosecution case - Held: Minor contradictions, inconsistencies or
insignificant embellishments do not affect the core of the prosecution
case and should not be taken to be a ground to reject the prosecution
evidence - The omission should create a serious doubt about the
truthfulness or creditworthiness of a witness - It is only the serious
contradictions and omissions which materially affect the case of
the prosecution but not every contradiction or omission.
Delay/Laches:
Delay in examination of prosecution witness/child witnesses
- Effect of- Held: The trial court observed that child witness (PW5)
was cross-examined on practically every detail of the prosecution
story and her statement corroborated every part thereof - It was
rightly observed by the Trial Judge that the delay was on account
of the fact that the Investigating Officer wanted to assure himself of
the veracity of her statement and hence, she was examined after
she had time to recover from the shock of the incident and compose
herself - Under these circumstances, any delay in examining this
witness uls. 161 of Cr.P.C. will not prejudice the_pTosecution - Code -
·of Criminal Procedure, 1973 - s.161.
Delay in sending FIR to Magistrate - Held: Although in terms
YOGESH SINGH v. MAHABEER SINGH & ORS.
of s.J 57 Cr:P.C., the police officer concerned is required to forward
a copy of the FIR to the Magistrate empowered to take cognizance
of such offence, promptly and without undue delay, it cannot be
laid down as a rule of universal application that whenever there is
some delay in sending the FIR to the Magistrate, the prosecution
version becomes unreliable and the trial stands vitiated - When
there is posiii"'le evidence to the fact that the FIR was recorded without
unreasonable delay and investigation started on the basis of that
FIR and there is no other infirmity brought to the notice of the Court,
then in the absence of any prejudice to the accused, it cannot be
concluded that the investigation was tainted and the prosecution
story rendered unsupportable - Code of Criminal Procedure, I 97 3
- s.157.
Allowing the appeal, the Court
HELD: 1.1 It is a cardinal principle of criminal jurisprudence
that the guilt of the accused must be proved beyond all reasonable
doubts. However, the burden on the prosecution is only to
establish its case beyond all re"son"ble doubt and not "//doubts.
JJ?ara 1~1 (729-CJ
Himachal Pradesh Administration v. Shri Om Prakash
1972 (2) SCR 765: (1972) 1 SCC 249; Ganga Kumar
Srivastava v. State of Bihar (2005) 6 SCC 211 - relied
on.
1.2 If two views are possible on the evidence adduced in
the case, one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused should
715
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be adopted. However, the rule regarding the benefit of doubt
F
does not warrant acquittal of the accused by resorting to surmises,
conjectures or fanciful considerations. (Paras 16, 17] (730-B, D]
State of U.P. v. Krishna Gopal and Am: 1988 (2) Suppl.
SCR 391: (1988) 4 SCC 302; Krishnan 1-: State (2003)
7 SCC 56:2003 (1) Suppl. SCR 771: Va/son and Anr. v.
G
State of Kera/a (2008) 12 SCC 24: Bhaskar Ramappa
Madt>r and Ors. v. State of Karnataka (2009) 11 SCC
690 : 2009 (5) SCR 256; Kali Ram v. State of Himachal
Pradesh (1973) 2 SCC 808:1974 (1) SCR 722; State of
Rajasthan v. Raja Ram (2003) 8 SCC 180 : 2003 (2)
H
716
A
B
c
D
E
F
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SUPREME COURT REPORTS
[2016] 7 S.C.R.
Suppl. SCR 445; Chandrappa & Ors. v. State of
Karnataka (2007) 4 SCC 415: 2007 (2) SCR 630;
Upendra Pradhan v. State of Orissa (2015) 11 SCC
124:2015 (5) SCR 214; Go/bar Hussain & Ors. v. State
of Assam and Anr. (2015) 11 SCC 242:2015 (5) SCR
525; State of Punjab v. Jaf{ir SinKh (1974) 3 SCC
277:1974 (1) SCR 328; Shivaji Sahebrao Bobade &
Anr. v. State of Maharashtra (1973) 2 SCC 793:1974
(1) SCR 489 - relied on.
1.3. It is well-settled that the evidence of a child witness
must find adequate corroboration, before it is relied upon as the
rule of corroboration is of practical wisdom than of law. However,
it is not the law that if a witness is a child, his evidence shall be
rejected, even if it is a found reliable.[Paras 22, 23][731-G; 732-B]
Praka.sh v. State of M.P. (1992) 4 SCC 225; Baby
Kandayanathi v. State of Kera/a 1993 Supp (3) SCC
667; Raja Rum Yaduv v. State of Bihar (1996) 9 SCC
287: 1996 (1) Suppl. SCR 174; Dattu Ramrao Sakhare
v. State of Maharashtra (1997) 5 SCC 341; State of
U.P. v. Ashok Dixit & Anr. (2000) 3 SCC 70 : 2000 (1)
SCR 855; Suryanarayana v. State Of Karnataka (2001)
9 SCC 129 : 2001 (1) SCR 1; Panchhi v. State of U.P.,
(1998) 7 SCC 177 : 1998 (1) Suppl. SCR 40 - relied
on.
1.4. The evidence of a closely related witnesses is required
to be carefully scrutinised and appreciated before any conclusion
is made to rest upon it, regarding the convict/accused in a given
case. Thus, the evidence cannot be disbelieved merely on the
ground that the witnesses are related to each other or to the
deceased. [Para 28) [733-F-G]
Dalip SinKh v. State of Punjab AIR 1953 SC 364 : 1954
SCR 145; Piara Singh and Ors. " State of Punjab AIR
1977 SC 2274 : (1977) 4 sec 452:1978 (1) SCR 597;
Hari Obula Reddy and Ors. v. The State of Andhra
Pradesh (1981) 3 SCC 675; Ramashish Rai v. Jagdish
Singh (2005) 10 SCC 498; Anil Rai v. State of Bihar
(2001) 7 SCC 318: 2001 (1) Suppl. SCR 298; State of
U.P. v. Jagdeo Singh (2003) 1 SCC 456; Bhagalool
YOGESH SINGH v. MAHABEER SINGH & ORS.
Lodh & Am: v. State of U.P. (2011) 13 SCC 206 : 2011
(6) SCR 1037; Dahari & Ors. v. State of U. P. (2012)
,.lo sec 256 : 2012 (8) SCR 1219; Raju @
Ba/achandran & Ors. v. State of Tamil Nadu (2012) 12
SCC 701 : 2012 (11) SCR 109; Gangabhavani v.
Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298 :
2013 (14) SCR 155; Jodhan v. State of MP. (2015) 11
SCC 52 : 2015 (4) SCR 789 - relied on.
1.5. It is well settled in law that the minor discrepancies
are not to be given undue emphasis and the evidence is to be
considered from the point of view of trustworthiness. The test is
whether the same inspires confidence in the mind of the Court.
If the evidence is incredible and cannot be accepted by the test
of prudence, then it may create a dent in the prosecution version.
If an omission or discrepancy goes to the root of the matter and
ushers in incongruities, the defence can take advantage of such
inconsistencies. Every omission cannot take place of a material
omission and, therefore, minor contradictions, inconsistencies
or insignificant embellishments do not affect the core of the
prosecution case and should not be taken to be a ground to reject
the prosecution evidence. [Para 29) [734-B-D]
Rammi @ Rameshwar v. State of MP. (1999) 8 SCC
649: l999 (3) Suppl. SCR 1; Leela Ram (dead) throul{h
Duli Chand v. State of Haryana and Another (1999) 9
SCC 5~ :· 1999 (3) Suppl. SCR 435; Bihari Nath
Goswami v. Shiv Kumar Singh & Ors. (2004) 9 SCC
186 : 2004 (2) SCR 623; Vijay @ Chinee v. State of
Madhya Pradesh (2010) 8 SCC 191 : 2010 (8) SCR .
1150; Sampath Kumar v. Inspector of _Police,
Krishnagiri (2012) 4 SCC 124 ~ 2012 (2) SCR 289;
Shyamal Ghosh v. State of West Bengal (2012) 7 SCC
646 ·: 2012 (10) SCR 95; Mritunjoy Biswas v. Pranab
@ Kuti Biswas and Anr. (2013) 12 SCC 796 : 2013 (7)
SCR 1105 - relied on.
2.1. PWl and PW5 stated under oath that on the fateful day,
the deceased and PW5 were going to another village via th~ir
village house.
The High Court noted .that there was no reason
for the deceased to go through the fields of the accused since
717
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718
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SUPREME COURT REPORTS
[2016] 7 S.C.R.
there was a straight pathway for accessing the village from the
tube-well and that the animosity between the informant and the
accused persons was so deep that they had put restriction upon
themselves not to trespass or pass through the fields of their
opponents. This observation of the High Court is not accepted
as well in the light of the categorical finding by the trial court that
along the north also there were fields of the very same accused,
meaning thereby that in either case the deceased while going
from his tube-well to his house in the village, would necessarily
have to pass through the fields of the accused. (Paras 31, 32)
(735-E-H)
2.2. The trial court observed that child witness (PW5) was
cross-examined on practically every detail of the prosecution
story and her statement corroborated every part thereof.
Moreover, the delay in recording of the statement of PW5 was
not unexplained. It was rightly observed by the Trial Judge that
the delay was on account of the fact that the Investigating Officer
wanted to assure himself of the veracity of her statement and
hence, she was examined after she had time to recover from the
shock of the incident and compose herself. Under these
circumstances, any delay in examining this witness under Section
161 of Cr.P.C. will not prejudice the prosecution. (Para 34) (736H; 737-A-B)
C. Muniappan and Others v. State of Tamil Nadu (2010)
9 SCC 567:2010 (10) SCR 262 - relied on.
State of U.P. v. Ashok Dixit and Anr. (2000) 3 SCC 70 :
2000 (1) SCR 855; Vijaybhai Bhanabhai Patel v.
Navnitbhai Patel & Ors. (2004) 10 SCC 583; Jagjit
Singh @ Jagga v. State of Punjab (2005) 3 SCC 689 :
2005 (1) SCR 559; Vijaybhai Bhanabhai Patel v.
Navnitbhai Patel & Ors. (2004) 10 SCC 583; State of
U.P. v. Ashok Dixit and Anr. (2000) 3 SCC 70 : 2000
(1) SCR 855; Jagjit Singh @ Jagga v. State of Punjab
(2005) 3 sec 689 - held inapplicable.
3. Although in terms of Section 157 Cr.P.C., the police officer
· concerned is required to forward a copy of the FIR to the
Magistrate empowered to take cognizance of such offence,
promptly and without 'undue delay, it cannot be laid down as a
YOGESH SINGH v. MAHABEER SINGH & ORS.
rule of universal application that whenever there is some delay
in sending the FIR to the Magistrate, the prosecution version
becomes unreliable and the trial stands vitiated. When there is
positive evidence to the fact that the FIR was recorded wi~hout
unreasonable delay and investigation started on the basis of that
FIR and there is no other infirmity brought to the notice of the
Court, then in the absence of any prejudice to the accused, ft
cannot be concluded that the investigation was tainted and the
prosecution story rendered ·unsupportable. (Para 40) (739-C-D]
. 4. It is well-established that inquest report is not a
.substantive piece of evidence and can only be looked into for
testing tt,e veracity of the witnesses of inquest. The object of
preparin~ such report is merely to ascertain the apparent cause
of death, ~amely, whether it is suicidal, homicidal, accidental or
caused by animals or machinery etc. and stating in what manner,
or by what weapon or instrument, the injuries on the body appear
to have been inflicted. In the present case, it is not the case of
the accused that they have been prejudiced by the alleged delay
· in dispatch of the FIR to the nearest Magistrate competent to
take cognizance of such offence. Moreover, the no.n-recording of
certain relevant entries in the inquest report do not constitute a
material defect so grave to throw out the prosecution story and
the otherwise reliable testimonies of prosecution witnesses that
have mostly remained uncontroverted. There is no reason to
interfere with the judgments of the courts below on this ground.
In any event, the evidentiary value of medical evidence is only
corroborative and not conclusive and, hence, in case of a conflict
between oral evidence and medical evidence, the former is to be
preferred unless the medical evi~ence completely rules out. the
oral evidence. (Paras 41,_ 42, 43) (739-F-G; 740-B-C, E)
Leela Ram v. State of Haryana (1999) 9 SCC 525; Subal
Ghorai and Ors. v. State of West Bengal (2013) 4 SCC
607; Pala Singh v. State of Punjab, (1972) 2 SCC 640
: 1973 (1) SCR 964; Sarwan Singh v. State of Punjab
(1976) 4 SCC 369; Anil Rai v. State of Bihar (2001) 7
SCC 318:2001 (1) Suppl. SCR 298; Munshi Prasad &
Ors. v. State of Bihar (2002) 1 SCC 351: 2001 (4)
Suppl. SCR 25; Aqeel Ahmad v. State of U.P. (2008)
16 SCC 372: 2008 (17) SCR 1330~ Dharamveer v.
719
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SUPREME COUR'{ REPORTS
[2016) 7 $.C.R.
State of U.P. (2010) 4 SCC 469 : 2010 (3) SCR 162;
Sandeep v. State of U.P., (2012) 6 SCC 107: 2012 (5)
SCR 952; Pedda Narayan v. State of A.P. (1975) 4 SCC
153 : 1975 Suppl. SCR 84; Khl!iii v. State qf MP. (1991)
3 SCC 627 : 1991 (3) SCR 1; Ku/dip Sinf!.h v. State qf
Punjab 1992 Supp (3) SCC 1; Georf!.e and Ors. v. State
of Kera/a and Anr. (2008) 4 SCC 605; Suresh Rai v.
State of Bihar (2000) 4 SCC 84: 2000 (2) SCR 796;
Amar Singh v. Ba/winder Singh (2003) 2 SCC 518:2003
(1) SCR 754; Radha Mohan Singh v. State of U.P.,
(2006) 2 SCC 450:2006 (1) SCR 519; Sambhu Das v.
State of Assam, (2010) 10 SCC 374:2010 (11) SCR 493;
Solanki Chimanbhai Ukabhai v. State of Gujarat (1983)
2 SCC 174; Mani Ram v. State of Rajasthan, 1993 Supp
(3) SCC 18 : 1993 (2) SCR 852; State qf U.P. v. Krishna
· Gopal & Anr., State of Haryana v. Bhagirath (1999) 5
SCC 96 : 1999 (3) SCR 529; Dhirajbhai Gorakhbhai
Nayak v. State of Gujarat (2003) 5 SCC 223; Thaman .
Kumar v. State of U. T. of Chandigarh (2003) 6 SCC
380 : 2003 (3) SCR 1190; Krishnan " State, (2003) 7
SCC 56 : 2003 (1) Suppl. SCR 771; Khambam Raja
Reddy & Am: v. Public Prosecutor, High Court of A.P.
(2006) 11 SCC 239 : 2006 (6) Suppl. SCR 446; State
of U.P. v. Dinesh (2009) 11 SCC 566 : 2009 (2) SCR
1175; State qf U.P. v. Hari Chand (2009) 13 SCC
542:2009 (7) SCR 149; Abdul Sayeed v. State of MP.
(2010) 10 SCC 259: 2010 (13) SCR 311; Bhajan Singh
@Harbhajan Singh & Ors. v. State (2011) 7 SCC 421
: 2011 (7) SCR l - relied on.
~
5. There was no major contradiction either in the evidence
of the witnesses or any conflict in medical or ocular evidence
which would tilt the balance in favour of the respondents. The
minor improvements, embellishments etc., apart from being far ·
G · yield of human faculties are insignificant and ought to be ignored
since the evidence of the witnesses otherwise overwhelmingly
corroborate each other in material particulars. [Para 44) (740-H;
741-A-BJ
6. The trial court found that there was sufficient motive with
H
the accusetl persons to commit the murder of the dec~ased since
YOGESH SINGH v. MAHABEER SINGH & ORS.
the deceased had defeated accused in the Pradhan elections, thus
putting an end to his position as Pradhan for the last 28-30 years ..
The long nursed feeling of hatred and the simmering enmity
between the family of the deceased and the accused persons most
likely manifested itself in the outburst of anger resulting in the
murder of the deceased. It is a settled legal proposition that even
if the absence of motive, as alleged, is accepted that is of no
consequence and pales into insignificance when direct evidence
establishes the crime. Therefore, in case there is direct
trustworthy evidence of witnesses as to commission of an offence,
motive loses its significance. Therefore, if the genesis of the
motive of the occurrence is not proved, the ocular testimony of
the witnesses as to the occurrence could not be discarded only
on the ground of absence of motive, if otherwise the evidence is
worthy of reliance. The view expressed by the High Court, is
not a plausible one. On the other hand, the trial court has correctly
analyzed the material on record in the factual as well as legal
perspectives to arrive at its conclusion. (Paras 46, 55) (741-F-H;
742-A-B; 744-H; 745-A)
Hari Shankar v. State o/U.P. (1996) 9 SCC 40 : 1996
(2) Snppl. SCR 348; Bikau Pandey &'Ors. v. State of
Bihar (2003) 12 SCC 616 : 2003 (6) Suppl. SCR 201;
State of U.P. v. Kishanpal & Ors. (2008) 16 SCC 73 :
2008 (11) SCR 1048; Abu Thakir & Ors. v. State of
Tamil Nadu (2010) 5 SCC 91 : 2010 (4) SCR 794; Bipin
Kumar Monda/ v. State of West Bengal (2010) 12 SCC
91:2010 (8) SCR 1036; Lakahan Sao v. State of Bihar
and Am: (2000) 9 SCC 82; State of Rajasthan v. Arjun
Singh & Ors., (2011) 9 SCC 115 : 2011 (10) SCR 823;
Manjit Singh and Am: v. State of Punjab (2013) 12 SCC
746:2013 (11) SCR 107; Raj Kumar Singh@ Raju@
Batya v. State of Rajasthan (2013) 5 SCC 722; Nar
Singh v. State of Haryana (2015) 1 SCC 496 : 2014
(12) SCR 218; Darya Singh v. State of Punjab AIR
1965 SC 328 : 1964(7) SCR 397; Raghubir Singh v.
State of U.P. (1972) 3 SCC 79; Appabhai and Anr. v.
State of Gujarat, 1988 Supp (l) SCC 241; Prithvi v.
Mam Raj (2004) 13 sec 279: 2004 (2) SCR 530 -
relied on.
721
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722
SUPREME COURT REPORTS
[2016] 7 S.C.R.
A
Case Law Reference
1972 (Z) SCR 765
relied on
Para 13
c200~) 6 sec 211
relied on
Para 14
1988 (2) Suppl. SCR 391
relied on
Para 15
B
2003 (1) Suppl. SCR 771
relied on
Para 15
(20010 12 sec 24
relied on
Para 15
2009 (~) SCR 256
relied on
Para 15
1974 n) SCR 722
relied on
Para 16
c
2003 (2) Suppl. SCR 445
relied on
Para 16
2007· (2) SCR 630
relied on
Para 16
2015 (5) SCR 214
relied on
Para 16
'D
2015 (5) SCR 525
relied on
Para 16
1974 V> SCR 328
relied on
Para 17
1974.(1) SCR 489
relied on
Para 18
)
(1992) 4 sec 225
relied on
Para22
E
1993 Supp (3) sec 667
relied on
Para22
1996 (1) Suppl. SCR 174
relied on
Para22
1997) 5 sec 341
relied on
Para22
2000 (1) SCR 855
relied on
Para22
F
2001 (1) SCR 1
. relied on
Para22
1998 (1) Suppl. SCR 40
relied on
Para23
1954 SCR 145
relied on
Para24
.1?78 (1) SCR 597
relied on
Para25
G
(198~) 3 sec 675
relied on
. Para 26
c2005) 10 sec 498
relied on
Para27
2001 (1) Suppl. SCR 298
relied on
Para28
c200~> 1. sec 456
relied on
Para28
H
2!Hl (6) SCR 1037
relied on
Para28
YOGESH SINGH v. MAHABEER SINGH & ORS.
723
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SUPREME COURT REPORTS
[2016] 7 S.C.R.
A
2012 (5) SCR 952
relied on
Para 40
1975 Suppl. SCR 84
relied on
Para 41
1991 (3) SCR 1
relied on
Para 41
1992 Supp (3) sec 1
relied on.
Para 41
B
c2ooio 4 sec 605
relied on
Para 41
~!JOO (2) SCR 796
relied on
Para 41
2003 (1) SCR 754
relied on
Para 41
2006 (1) SCR 519
relied on
Para 41
c
20~0 (11) SCR 493
relied on
Para 41
(198~) 2 sec 114
relied on
Para 43
1993 (Z) SCR 852
relied on
Para 43
1999 (3) SCR 529
relied on
Para43
D
(2003) 5 sec 223
relied on
Para 43
2!)03 (3) SCR 1190
relied on
Para43
2003 (1) Suppl. SCR 771
relied on
Para43
E
2006 (6) Suppl. SCR 446
relied on
Para43
2009 (2) SCR 1175
relied on
Para43
2009 (7) SCR 149
relied on
Para 43
2010 (13) SCR 311
relied on
Para43
F
_2011 (7) SCR 1
relied on
Para 43
1996 (2) Suppl. SCR 348
relied on
Para46
2003 (6) Suppl. SCR 201
relied on
Para 46
2008 (11 ) SCR 1048
relied on
Para 46
G
2010 (4 ) SCR 794
relied on
Para46
2010 (8 ) SCR 1036
relied on
Para 46
c2000) 9 sec 82
relied on
Para 47
20,1 .(10) SCR 823
relied on
Para 47
H
YOGESH SINGH v. MAHABEER SINGH & ORS.
725
2013 (11) SCR 107
relied on
Para 47
A
c2913) 5 sec 122
relied on
Para 48
2014 (12) SCR 218
relied on
Para49
19~~ (7) SCR 397
relied on
Para50
(1972) 3 sec 79
relied on
Para 51
B
. 1988 Supp (1) sec 241
relied on
Para52
20Q~ (2) SCR 530
relied on
Para 53
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1482 of2013.
C
From the Judgment and Order dated 17.02.2012 of the High Court
of Judicature at Allahabad in Criminal Appeal No. 1734of1983.
Ms. Vibha Dutta Makhija, Sr. Adv., Aditya Singh, Rajiv Dalal,
Advs. for the Appellant.
Nagender Rai, P. S. Dutta, Sr. Advs., P. N. Gupta, Dr. (Mrs.)
Vi pin Gupta, C. D. Singh, Ms. Sy Iona Mahapatra, Manoj Kumar, Advs.
for the Respondents.
The Judgment of the Court was delivered by
PINAKI CHANDRA GHOSE, J. I. This appeal is directed
against the judgment and order dated 17'h February, 2012 passed by the
High Court of Judicature at Allahabad in Criminal Appeal No.1734 of
1983, whereby the High Court acquitted the accused persons -
respondents herein of the charges under Section 302 read with Section
149 of the Indian Penal Code.
2. The case of the prosecution is that on 26.06.1982 at about 8.00
A.M., the deceased Mohan Singh, who was a resident of Village Garh
Umrao, Tehsil Sadabad, District Mathura, U.P., after taking bath at the
tube-well, was going to his house along with his minor daughter La.ijawati
(PW-5). He was carrying his single barrel gun and the strip of C(artridges
with him. The respondents Phal Singh and Mahabir Singh, along with
other accused Om Prakash and Gopi Chand, were clearing the irrigation
channel of their field; whereas respondents Raj Pal and Satya Pal were
scrapping grass in their respective fields. Jaipal Singh and Om Prakash
were engaged in plucking the Moong Pods from the field. When deceased
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Mohan Singh reached the ridge of the field of Om Prakash and Gopi
Chand, Phal Singh and Jaipal Singh caught him by his hands whereas
respondent Om Prakash came from behind, put his arm around him and
put him down on the ground. In the meantime, other accused persons
also reached there. Then the accused Jaipal and Om Prakash caught
hands of the deceased and accused Rajpal and Satyapal caught the legs
of the deceased. Rajpal hit the deceased with a Ballam. Accused Mahabir
Singh and Phal Singh severed the head of the deceased Mohan Singh by
hitting him with Phawara (Spade).
3. At the time of the incident, Kalyan Singh (PW-I), who is the
father of deceased Mohan Singh, and Bani Singh (PW-2) were sitting at
the tube well of Bani Singh situated at a distance of around 150 yards
from the place of incident. On hearing the cries of deceased Mohan
Singh and Laijawati (PW-5), the aforesaid witnesses rushed to the place
of incident. In the meantime, accused Harcharan also arrived at the
place ofincident carrying his gun. In order to dissuade Kalyan Singh and
Bani Singh, the accused respondents Phal Singh and Harcharan fired in
the air. Then the accused persons tried to take away the body of deceased
Mohan Singh by dragging it for some distance. But due to the hue and
cry raised by the eye-witnesses, the accused fled away from the place
of incident. Thereafter, Kalyan Singh (PW- I) went to Police Station
Sadabad with a written complaint of the incident, on the basis of which
an FIR of the incident was lodged on the same day at around 11.00
A.M. and Case Crime No.139of1982 was registered.
4. Thereafter, investigation started and police sent the dead body
ofMohan Singh for post-mortem, prepared Site Map of the place of the
incident, and collected blood-stained soil and clothes of the deceased. In
the evening, accused Harcharan was arrested and on the information
given by him, a blood-stained Phawara (Spade) was recovered. All the
articles recovered were sent for chemical examination.
5. Dr. K.C. Jain (PW-4) conduced the post-mortem examination
of deceased Mohan Singh which disclosed that there were three ante
mortem injuries present on the corpse of Mohan Singh; head was severed
from the body; and there was fracture on 61h and 7m vertebra. The
doctor opined that the death was caused due to shock and hemorrhage
due to above stated injuries.
6. After the investigation was complete, seven persons, namely,
YOGESH SINGH v. MAHABEER SINGH & ORS.
[PINAKI CHANDRA GHOSE, J.J
Mahabir Singh, Phal Singh, Jaipal Singh, Om Prakash, Raj Pal, Satya
Pal and Har Charan were challaned by the police and charge-sheet was
submitted in Court. As the case was exclusively triable by the Court of
Sessions, it was committed to the Court of learned Sessions Judge,
Mathura. Thereafter, charges were framed against all the accused persons
vide order dated 16.12.1982, they were tried for the respective offences
and after hearing the counsel for the prosecution and also the counsel
for the accused, the learned Sessions Judge vide his order dated
26.07.1983, convicted six accused persons (respondents Nos. I to 6 herein)
for committing the offence under Section 302 read with Section 149
IPC and sentenced each of them to undergo rigorous imprisonment for
life. TheywerealsoconvictedseverallyunderSections 147, 148 &379
oflPC. The accused Har Charan was not found guilty of the offences
punishable under Section 148 or Section 302/149 ofIPC and hence he
was acquitted.
7. Being aggrieved by the judgment of conviction passed by the
learned Sessions Judge, Mathura, the accused respondents preferred an
appeal under Section 374 Cr.P.C., before the High Court of Judicature
at Allahabad. The Allahabad High Court by its judgment dated 17.02.2012
passed in Criminal Appeal No.1734of1983, allowed the appeal filed by
the accused respondents and acquitted them of the charges under Section
302 read with Section 149 of WC. Hence, this appeal, by special leave,
is filed before this Court by the son of the deceased challenging the
judgment and order of acquittal passed by the High Court.
8. Respondent No.4 herein having died on I 0.12.2012, as supported
by the Death Certificate filed in this Court, this appeal abates as against
respondent No.4.
9. We have heard the learned counsel appearing for the appellant
as also the learned counsel appearing for the respondents accused and
perused the oral and documentary evidence on record.
10. The Trial Court convicted the accused relying upon the
successful establishment of the following facts by the prosecution:
(a) the murder of the deceased vide Exh. Ka 7 (Panchnama),
Exh. Ka 3 (post-mortem examination report) and the recovery
of the head of the deceased that had been severed from the
trunk;
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(b) the place of occurrence vide recovery of personal articles of
the deceased from the alleged place of occurrence as also
blood stained earth from a pool of blood found at the alleged
place of occurrence and the corresponding report of the
Chemical Examiner and Serologist certifying it to be human
blood;
( c) motive for the commission of the offence;
( d) the time and manner of occurrence of the incident from the
evidence of PW!, PW2 and PW 5 (eye witnesses) was not
only credible but co1Toborated by each other and in tum stood
corroborated by the medical evidence.
11. On the other hand, the High Court found that the prosecution
story was not reliable since the eye-witnesses were interested and other
witnesses were inimical and had the motive to falsely implicate the
accused persons. Further, their presence at the scene of occurrence at
the time of the incident was also doubted. It was further found that the
aforesaid prosecution witnesses not only made false statements on the
most material parts of the prosecution case, but were even otherwise
not acceptable to a reasonable person. Moreover, the testimony of the
formal witnesses was also found to be not trustworthy on account of
serious lapses in recording of evidence, holding ofinquest and dispatching
of FJR to the nearest Magistrate leading to an inference as to its
antedating. Resultantly, the accused persons were acquitted by the High
Court.
12. Before proceeding with an analysis of the various contentions
raised by the parties or expressing opinion on the appreciation and findings
of fact and law recorded by the courts below, we wish to reiterate the
scope of interference by this Court in a criminal appeal against acquittal
under Article 136 of the Constitution oflndia.
13. In Himachal Pradesh Administration Vs. Shri Om Prakash,
(1972) I SCC 249, it was held by this Court as follows:
"Jn appeals against acquittal by special leave under Article
136, this Court has undoubted power to interfere with the
findings of the fact, no distinction being made between
judgments of acquittal and conviction though in the case of
acquittals it will not be ordinarily interfere with the
YOGESH SINGH v. MAHABEER SrNGH & ORS.
[PrNAKI CHANDRA GHOSE, J.)
appreciation of evidence or on findings of fact unless the
High Court "acts perversely or otherwise improperly."
14. Further, in Ganga Kumar Srivastava Vs. State of Bihar,
(2005) 6 sec 211, this Court a~ded one more ground, namely, where
the appreciation of evidence and finding is vitiated by any error oflaw of
procedure or found contrary to the principles of natural justice, errors of
record and misreading of the evidence.
15. It is a cardinal principle of criminal jurisprudence that the guilt
of the accused must be proved beyond all reasonable doubts. However,
the burden on the prosecution is only to establish its case beyond all
reasonable doubt and not all doubts. Here, it is worthwhile to reproduce
the observations made by Venkatachaliah, J., in State ofU.P. Vs. Krishna
Go pal and Anr., ( 1988) 4 SCC 302:
"25 .... Doubts would be called reasonable if they are free
from a zest for abstract speculation. Law cannot afford
any favourite other than truth. To constitute reasonable doubt,
it must be free from an overemotional response. Doubts
must be actual and substantial doubts as to the guilt of the
accused person arising from the evidence, or from the lack
of it, as opposed to mere vague apprehensions. A reasonable
doubt is not an imaginary, trivial or a merely possible doubt;
but a fair doubt based upon reason and common sense. It
must grow out of the evidence in the case.
26. The concept of probability, and the degrees ofit, cannot
obviousiy be expressed in terms of units to be
mathematically enumerated as to how many of such units
constitute proof beyond reasonable doubt. There is an
unmistakable subjective element in the evaluation of the
degrees of probability and the quantum of proof. Forensic
probability must, in the last analysis, rest on a robust common
sense and, ultimately on the trained intuitions of the judge.
While the protection given by the criminal process to the
accused persons is not to he eroded, at the same time,
uainformed legitimization of trivialities would make a
mockery ofadministration of criminal justice."
[See also Krishnan Vs. State, (2003) 7 SCC 56; Valson
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and Anr. Vs. State of Kerala, (2008) 12 SCC 24 and
Bhaskar Ramappa Madar and Ors. Vs. State of
Karnataka, (2009) 11 SCC 690).
16. Another golden thread which runs through the web of the
administration of justice in criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view which is favourable to
the accused should be adopted. [Vi de Kali Ram Vs. State ofHimachal
Pradesh, (1973) 2 SCC 808; State ofRajasthan Vs. Raja Ram, (2003)
8 SCC 180; Chandrappa & Ors. Vs. State of Karnataka, (2007) 4
SCC 415; Upendra Pradhan Vs. State ofOrissa, (2015) 11 SCC 124
and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11
sec 242).
17. However, the rule regarding the benefit of doubt does not
warrant acquittal of the accused by resorting to surmises, conjectures or
fanciful considerations, as has been held by this Court in the case of
State of Punjab Vs. Jagir Singh, ( 1974) 3 SCC 277:
"A criminal trial is not like a fairy tale wherein one is free to
give flight to one's imagination and fantasy. It concerns
itself with the question as to whether the accused arraigned
at the trial is guilty of the offence with which he is charged.
Crime is an event in real life and is the product ofinterplay
of different human emotions. In arriving at the conclusion
about the guilt of the accused charged with the commission
of a crime, the court has to judge, the evidence by the
yardstick of probabilities, its intrinsic worth and the animus
of witnesses. Every case in the final analysis would have
to depend upon its own facts. Although the benefit of every
reasonable doubt should be given to the accused, the courts
should not at the same time reject evidence which is ex
facie trustworthy, on grounds which are fanciful or in the
nature of conjectures."
18. Similarly, in Shivaji Sahebrao Bobade & Anr. Vs. State of
Maharashtra, (1973) 2 SCC 793, V.R. Krishna Iyer, J., stated thus:
"The cherished principles or golden thread of proof beyond
reasonable doubt which runs through the web of our law
YOGESH SINGH v. MAHABEER SINGH & ORS.
[PINAKI CHANDRA GHOSE, J.]
should not be stretched morbidly to embrace every hunch,
hesitancy and degree of doubt. The excessive solicitude
reflected in the attitude that a thousand guilty men may go
but one innocent martyr shall not suffer is a false dilemma.
Only reasonable doubts belong to the accused. Otherwise
any practical system of justice will then break down and
lose credibility with the community."
19. Keeping in mind the aforesaid position oflaw, we shall examine
the arguments advanced and the evidence adduced by the parties as
also the materials on record and see in view of the nature of offence
alleged to have been committed by the respondents whether the findings
of fact recorded by the High Court call for interference in the facts and
circumstances of the case.
20. The learned counsel for the appellant has submitted that the
High Court has erred in rejecting the evidence of PWl, PW2 and PWS
as also the formal witnesses by placing undue emphasis on minor/trivial
issues not going to the root of the case. Per contra, the learned counsel
for the respondents has supported the reasoning of the High Court and
has further sought to point out cracks in the prosecution story by alleging
absence of immediate motive, recovery of weapon being false and
fabricated, belated introduction of story of marriage, the factum of which
could not be proved, non-production of independent witnesses,
'incongruence between the medical evidence and prosecution story, nonestablishment ofballam injury, failure to put material questions regarding
marriage to the accused under Section 313 Cr.P.C. and finally the site
plan belying the prosecution claim.
21. For the sake of convenience, we shall first examine the general
position of law on the various issues that found favour with the High
Court in recording the order of acquittal in favour of the accused and
then address the specific findings of fact and law by the High Court.
Testimony of Child Witnesses
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22. It is well-settled that the evidence ofa child witness must find
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adequate corroboration, before it is relied upon as the rule of corroboration
is of practical wisdom than of law. (See Prakash Vs. State of M.P.,
(1992) 4 SCC 225; Baby Kandayanathi Vs. State of Kerala, 1993
Supp (3) SCC 667; Raja Ram Yadav Vs. State ofBihar, ( 1996) 9 SCC
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A
287; Datto Ramrao Sakhare Vs. State of Maharashtra, ( 1997) 5 SCC
341; State of U.P. Vs. Ashok Dixit & Anr., (2000) 3 SCC 70;
Suryanarayana Vs. State OfKarnataka, (2001) 9 SCC 129).
23. However, it is not the law that if a witness is a child, his evidence
shall be rejected, even ifit is a found reliable. The law is that evidence of
B
a child witness must be evaluated more carefully and with greater
circumspection because a child is susceptible to be swayed by what
others tell him and thus a child witness is an easy prey to tutoring. [Vide
Panchhi Vs. State ofU.P., (1998) 7 SCC 177].
Testimony of Interested/Inimical Witnesses
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24. On the issue ofappreciation of evidence ofinterested witnesses,
Dalip Singh Vs. State of PunJab, AIR 1953 SC 364 = 1954 SCR 145,
is one of the earliest cases on the point. In that case, it was held as
follows:
"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 relative 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."
25. Similarly, ii1 Piara Singh and Ors. Vs. State of Punjab, AIR
1977 SC 2274 = ( 1977) 4 SCC 452, this Court held:
"It is we\1 settled that the evidence of interested or inimical
witnesses is to be scrutinised with care but cannot be
rejected merely on the grou~d of being a partisan evidence.
If on a perusal of the evidence the Court is satisfied that
the evidence is creditworthy there is no bar in the Court
relying on the said evidence."
26. In Hari Obula Reddy and Ors. Vs. The State of Andhra
YOGESH SINGH v. MAHABEER SINGH & ORS.
733
[PINAKI CHANDRA GHOSE, J.]
Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
A
" .. it is well settled that interested evidence is not necessarily
unreliable evidence. Even partisanship by itselfis not a valid
ground for discrediting or rejecting sworn testimony. Nor
can it be laid down as an invariable rule that interested
evidence can never form the basis of conviction unless
corroborated to a material extent in material particulars by
independent evidence. All that is necessary is that the
evidence of interested witnesses should be subjected to
careful scrutiny and accepted with caution.