BHAGCHANDRAversusSTATE OF MADHYA PRADESH

                          [2021] 9 S.C.R. 765                            765


                         BHAGCHANDRA                                     A
                                  v.
                 STATE OF MADHYA PRADESH
               (Criminal Appeal Nos. 255-256 of 2018)
                        DECEMBER 09, 2021                                B
               [L. NAGESWARA RAO, B. R. GAVAI
                  AND B. V. NAGARATHNA, JJ.]
       Penal Code, 1860 – s.302 r/w. s.201 and 506-B – Prosecution
case that appellant committed murder of his two brothers and a
nephew – There was a property dispute of appellant with his both         C
brothers – On the day of incident, PW-1-complainant had gone to
attend the call of nature – While returning, she saw the appellant
armed with an axe getting out of her house – When she went inside
her house she saw her brother-in-law lying dead in outer room –
His neck was cut – When she came in the courtyard, she saw her           D
son dead, having injuries on his neck and head – She followed the
appellant towards the field – She saw the appellant assaulting her
husband with the axe – When she tried to stop the accused from
assaulting the deceased, the accused abused her and told her to go
away and threatened her – Her husband also died – Her other two
children (PW-2 and PW-3) in house, who saw the incident escaped          E
from the house – The trial Court convicted appellant for offences
u/s.302 r/w. s.201 and s.506B IPC and awarded him death sentence
– His death sentence was confirmed by the High Court – On appeal,
held: It is clear from the evidence of PW-1, that she had personally
witnessed the appellant assaulting deceased-husband – It is further      F
clear from the evidence of PW-2 and PW-3 that they have personally
witnessed the appellant assaulting their brother and uncle – The
evidence of these three witnesses is duly corroborated by the other
witnesses – PWs 4, 5 and 6 corroborated the testimony of PW-1 –
PW-6 corroborated testimony of PW-2 and 3 – Upon perusal of the
evidence of the witnesses as a whole, the evidence is cogent, reliable   G
and trustworthy – As far as capital punishment is concerned, the
trial court as well as the High Court has only taken into
consideration the crime but have not taken into consideration the
criminal, his state of mind, his socio-economic background etc –
The appellant comes from a rural and economically poor
                                                                         H
                                 765
766            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A     background – There are no criminal antecedents – The appellant
      cannot be said to be a hardened criminal – This is the first offence
      committed by the appellant – The certificate issued by the Jail
      Superintendent shows that the conduct of the appellant during
      incarceration was satisfactory – It cannot be said that there is no
      possibility of the appellant being reformed and rehabilitated –
B
      Therefore, the death sentence awarded to the appellant is converted
      to life imprisonment for a period of 30 years.
            Partly allowing the appeals, the Court
            HELD: 1. It could be seen that what is required to be
C     considered is whether the evidence of the witness read as a whole
      appears to have a ring of truth. It has been held that minor
      discrepancies on trivial matters not touching the core of the case,
      hypertechnical approach by taking sentences torn out of context
      here or there from the evidence, would not ordinarily permit
      rejection of the evidence as a whole. It has been held that the
D     prosecution evidence may suffer from inconsistencies here and
      discrepancies there, but that is a shortcoming from which no
      criminal case is free. What is important is to see as to whether
      those inconsistencies go to the root of the matter or pertain to
      insignificant aspects thereof. It has been held that there are always
E     normal discrepancies due to normal errors of observation, normal
      errors of memory due to lapse of time, due to mental disposition,
      shock and horror at the time of occurrence. It is the duty of the
      court to separate falsehood from the truth in every case.
      [Para 31][779-E-H; 780-A]

F           State of Uttar Pradesh v. Krishna Master and Others (2010)
            12 SCC 324 : [2010] 9 SCR 563 – relied on.
             2. This Court is of the view that the minor discrepancies in
      the evidence of the prosecution witnesses are not of such a nature
      which would persuade this Court to disbelieve their testimonies.
G     It is further to be noted that the witnesses are rustic villagers
      and some inconsistencies in their depositions are bound to be
      there. [Para 32][780-A-B]
            3. This Court has held that in case of rustic witnesses, some
      inconsistencies and discrepancies are bound to be found. It has
      been held that the inconsistencies in the evidence of the witnesses
H
     BHAGCHANDRA v. STATE OF MADHYA PRADESH                             767


should not be blown out of proportion. To do so is to ignore hard       A
realities of village life and give undeserved benefit to the accused.
It has been held that the evidence of such witnesses has to be
appreciated as a whole. A rustic witness is not expected to
remember every small detail of the incident and the manner in
which the incident had happened. Further, a witness is bound to
                                                                        B
face shock of the untimely death of his near relatives. Upon
perusal of the evidence of the witnesses as a whole, this Court is
of the considered view that their evidence is cogent, reliable and
trustworthy. [Para 34][780-G-H; 781-A-B]
      4. Insofar as the contention of the appellant that the medical
evidence does not support the prosecution case is concerned,            C
the ocular evidence of the eye witnesses is cogent, reliable and
trustworthy. Apart from that, the oral version in the testimonies
of PWs 1, 2 and 3 is duly corroborated by the injuries as shown
in the Post-Mortem Report of the deceased persons. Therefore,
the contention in this regard is liable to be rejected.                 D
[Para 36][782-A-B]
      5. Since the present case is a case of direct evidence, even
if the prosecution has failed to prove the other incriminating
circumstances beyond reasonable doubt, in our view, it will not
have an effect on the prosecution case. In the present case,            E
another factor that is to be noted is that immediately after the
incident, FIR is lodged by PW-1 who was accompanied by PW-4.
The FIR fully corroborates the ocular evidence of prosecution
witnesses. [Para 38][782-C-D]
      6. In that view of the matter, this Court of the considered       F
view that even upon reappreciation of the evidence, it cannot be
said that the trial court has committed an error in convicting
the appellant and the High Court in confirming the same.
[Para 39][782-E]
       7. From the judgment of the trial court as well as the High      G
Court, it does not appear that the courts below have drawn a
balance sheet of mitigating and aggravating circumstances. The
trial court as well as the High Court has only taken into
consideration the crime but have not taken into consideration
the criminal, his state of mind, his socio- economic background
etc. [Para 43][784-C-D]                                                 H
768            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A            8. In view of the settled legal position, it is our bounden
      duty to take into consideration the probability of the accused
      being reformed and rehabilitated. It is also our duty to take into
      consideration not only the crime but also the criminal, his state
      of mind and his socio-economic conditions. The deceased as well
      as the appellant are rustic villagers. In a property dispute, the
B
      appellant has got done away with two of his siblings and a nephew.
      The State has not placed on record any evidence to show that
      there is no possibility with respect to reformation or rehabilitation
      of the convict. The appellant has placed on record the affidavits
      of son of appellant and nephew of appellant and also the report of
C     the Jail Superintendent, Central Jail, Jabalpur. The appellant
      comes from a rural and economically poor background. There
      are no criminal antecedents. The appellant cannot be said to be a
      hardened criminal. This is the first offence committed by the
      appellant, no doubt, a heinous one. The certificate issued by the
      Jail Superintendent shows that the conduct of the appellant during
D
      incarceration has been satisfactory. 9. It cannot therefore be said
      that there is no possibility of the appellant being reformed and
      rehabilitated foreclosing the alternative option of a lesser sentence
      and making imposition of death sentence imperative. The
      conviction of the appellant for the offences punishable under
E     Sections 302, 201 and 506-B of the IPC is affirmed. However,
      the death sentence awarded to the appellant is converted to
      life imprisonment for a period of 30 years. [Paras 44 and 46]
      [785-D-G; 786-A-B]
            Mohd. Mannan alias Abdul Mannan v. State of Bihar
F           (2019) 16 SCC 584 : [2019] 8 SCR 266; Mofil Khan
            and Another v. The State of Jharkhand RP (Criminal)
            No. 641/2015 in Criminal Appeal No.1795/2009 dated
            26.11.2021; Rajendra Pralhadrao Wasnik v. State of
            Maharashtra (2019) 12 SCC 460 : [2018] 14 SCR 585
            – relied on.
G
            Krishnan and Another v. State represented by Inspector
            of Police (2003) 7 SCC 56 : [2003] 1 Suppl. SCR 771;
            Pratap Singh and Another v. State of Madhya Pradesh
            (2005) 13 SCC 624 : [2005] 5 Suppl. SCR 439;
            Mohammed Ajmal Mohammad Amir Kasab alias Abu
H
      BHAGCHANDRA v. STATE OF MADHYA PRADESH                              769


      Mujahid v. State of Maharashtra (2012) 9 SCC 1 :                    A
      [2012] 8 SCR 295; Dayanidhi Bisoi v. State of Orissa
      (2003) 9 SCC 310 : 2003 AIR 3915; Mohd. Arif alias
      Ashfaq v. Registrar, Supreme Court of India and Others
      (2014) 9 SCC 737 : [2014] 11 SCR 1009; R. Shaji v.
      State of Kerala (2013) 14 SCC 266 : [2013] 3 SCR
                                                                          B
      1172; Rammi alias Rameshwar v. State of Madhya
      Pradesh (1999) 8 SCC 649 : [1999] 3 Suppl. SCR 1;
      Ravi s/o Ashok Ghumare v. State of Maharashtra (2019)
      9 SCC 622 : [2019] 15 SCR 712; Bachan Singh v. State
      of Punjab (1980) 2 SCC 684 : 1980 AIR 898; Machhi
      Singh and Others v. State of Punjab (1983) 3 SCC 470                C
      : [1983] 3 SCR 413 – referred to.
                       Case Law Reference
[2005] 5 Suppl. SCR 439         referred to              Para 13
[2012] 8 SCR 295                referred to              Para 15          D
[2014] 11 SCR 1009              referred to              Para 15
[2003] 1 Suppl. SCR 771         referred to              Para 17
[2013] 3 SCR 1172               referred to              Para 17
[1999] 3 Suppl. SCR 1           referred to              Para 18          E
[2019] 15 SCR 712               referred to              Para 19
[2010] 9 SCR 563                referred to              Para 30
[2019] 8 SCR 266                relied on                Para 41
[1983] 3 SCR 413                referred to              Para 41          F
[2018] 14 SCR 585               relied on                Para 43
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 255-256 of 2018.
      From the Judgment and Order dated 19.12.2017 of the High Court      G
of Judicature at Madhya Pradesh at Jabalpur in CRRFC No.03 of 2017
and Criminal Appeal No.1684 of 2017.
      N. Hariharan, Sr. Adv., Ms. Shivani Misra, Ms. Pratiksha Bhaskar,
Varun Deswal, Vaibhav Sharma, Siddharth Singh Yadav, Prateek Bhalla,
Ms. Punya Rekha Angara, Ms. Sridevi Panikkar, Advs. for the Appellant.    H
770             SUPREME COURT REPORTS                         [2021] 9 S.C.R.


A           Ms. Swarupma Chaturvedi, AAG, Sunny Choudhary, Shantanu
      Singh, Ms. Saumya Kapoor, Advs. for the Respondent.
             The Judgment of the Court was delivered by
             B. R. GAVAI, J.
B            1. The appellant has approached this Court, being aggrieved by
      the judgment and order dated 19th December 2017, passed by the Division
      Bench of the High Court of Madhya Pradesh at Jabalpur in Criminal
      Appeal No. 1684 of 2017, thereby dismissing the appeal preferred by
      the appellant challenging the judgment and order passed by the Second
      Additional Sessions Judge (hereinafter referred to as the “trial judge”)
C     dated 4th April 2017, vide which the appellant was convicted for the
      offences punishable under Section 302 read with Section 201 and Section
      506-B of the Indian Penal Code, 1860 (hereinafter referred to as the
      “IPC”). The trial judge had awarded death sentence to the appellant for
      the offences punishable under Section 302 of the IPC (3 counts) and 7
D     years’ rigorous imprisonment each for the offences punishable under
      Sections 201 and 506-B of the IPC respectively. The trial judge has also
      made a reference being CRRFC No. 03 of 2017 to the High Court
      under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter
      referred to as “Cr.P.C.”) for confirmation of death penalty. Vide impugned
      judgment and order, the High Court confirmed the death penalty.
E
             2. The prosecution story in brief, is thus:
            Appellant-Bhagchandra is the real brother of deceased Thakur
      Das and deceased Devki Prasad. Deceased Akhilesh was the son of
      deceased Devki Prasad and as such, the nephew of the appellant. PW-
F     1-Kiran Patel is the wife of deceased Devki Prasad. PW-2-Urmila and
      PW-3-Kamlesh are the daughter and son of deceased Devki Prasad
      and Kiran Patel (PW-1).
             3. Deceased Devki Prasad resided in village Pur along with his
      brother deceased Thakur Das, his wife PW-1-Kiran Patel, daughter PW-
      2-Urmila, sons PW-3-Kamlesh, deceased Akhilesh, and Kisiyabai, mother
G
      of the appellant.
            4. It is the prosecution case that on the fateful early morning of
        th
      11 October 2015 at around 05.00-05.30 am, complainant-Kiran Patel
      (PW-1) had gone to attend the call of nature. While returning, she saw
      the appellant armed with an axe getting out of her house. It is the
H
      BHAGCHANDRA v. STATE OF MADHYA PRADESH                                    771
                  [B. R. GAVAI, J.]

prosecution case that there was previous enmity between the appellant           A
on one hand and deceased Thakur Das and deceased Devki Prasad on
the other. She therefore suspected some foul play. Immediately after
entering the house, she saw Thakur Das lying dead smeared with blood
and his neck was detached from the body. In the courtyard, she also
found her son Akhilesh lying dead. It is the prosecution case that deceased
                                                                                B
Devki Prasad had gone to his field in the night so as to guard the crops.
Suspecting something might be done to him, PW-1 rushed towards the
field which was nearby the house. She saw the appellant assaulting her
husband Devki Prasad with an axe. She tried to stop the appellant but he
threatened to kill her. In the meanwhile, the relatives and the neighbours
had gathered at the spot.                                                       C
      5. Immediately after the incident, a First Information Report
(hereinafter referred to as “FIR”) came to be registered on the basis of
the oral complaint given by Kiran Patel (PW-1), in the Police Station,
Maharajpur. After investigation, charge-sheet came to be filed before
the concerned court which committed the case to the Sessions Judge.             D
      6. The trial judge framed charges against the appellant under
Sections 302 (3 counts), 201 and 506 Part-II of the IPC. The appellant
denied all the charges and claimed that he was falsely implicated by
Kiran Patel (PW-1) to grab the property.
       7. At the conclusion of the trial, the trial judge found the appellant   E
guilty of committing the offences he was charged with and as such,
awarded sentences as stated hereinabove. The trial court also made a
Reference being CRRFC No. 03 of 2017 to the High Court for
confirmation of the capital punishment awarded by it.
        8. Being aggrieved by the judgment of conviction and sentence           F
passed by the trial court, the appellant preferred an appeal being Criminal
Appeal No. 1684 of 2017 before the High Court. The High Court
dismissed the appeal and confirmed the death penalty awarded by the
trial court. Being aggrieved thereby, the present appeal.
      9. We have heard Shri N. Hariharan, learned Senior Counsel,               G
appearing on behalf of the appellant and Smt. Swarupama Chaturvedi,
learned Assistant Advocate General, appearing on behalf of the
respondent-State.
      10. Shri Hariharan would submit that the entire case against the
appellant is a fabricated one and has been framed at the instance of            H
772               SUPREME COURT REPORTS                         [2021] 9 S.C.R.


A     Kiran Patel (PW-1). The learned Senior Counsel submitted that the
      evidence as placed on record by the prosecution does not establish the
      guilt of the accused-appellant beyond reasonable doubt.
             11. The learned Senior Counsel submitted that firstly, the time of
      the incident as shown by the prosecution is itself doubtful. He submitted
B     that the Post-Mortem Report of all the three deceased persons would
      show that semi-digested food was found in the stomach of the deceased
      persons. He therefore submitted that the death would have occurred
      around 3-4 hours after their last meal. He submitted that from the
      evidence brought on record, it would show that deceased Devki Prasad
      had left for the field at around 09.00 pm. He submitted that therefore the
C     deceased must have taken their meal at around 09.00 pm. As such, the
      death has occurred between 12.00 midnight and 01.00 am.
              12. He further submitted that there are material contradictions in
      the testimonies of PW-1-Kiran Patel, PW-2-Urmila and PW-3-Kamlesh.
      He submitted that even the conduct of PW-1 is unnatural. She has stated
D     that, while going to answer the call of nature, she had put a latch to close
      the door of the house. He submitted that normally a person would not do
      such an act. He further submitted that the evidence of PW-7-Rakesh
      Vishwakarma is totally unnatural. From the evidence of PW-7, it is clear
      that though he has witnessed the incident, he has not informed the same
E     to the police, who were very much available in the village. He has only
      informed PW-6-Kamlesh Patel s/o Gulabchandra Patel (for the sake of
      convenience, hereinafter referred to as “Kamlesh-II”). He submitted
      that it is clear that PW-7 is an introduced witness.
            13. Shri Hariharan further submitted that the prosecution has
F     withheld the most important witness i.e. Kisiyabai, mother of deceased
      Thakur Das and Devki Prasad as well as the appellant, though her
      statement was recorded under Section 161 Cr.P.C. He submitted that
      since the prosecution has withheld an important witness, an adverse
      inference needs to be drawn against the prosecution. The learned Senior
      Counsel, in this respect, relies on the judgment of this Court in the case
G     of Pratap Singh and Another v. State of Madhya Pradesh1.
             14. The learned Senior Counsel submitted that the so-called
      recovery of axe on the memorandum of appellant under Section 27 of
      the Indian Evidence Act, 1872 (hereinafter referred to as the “Evidence
      1
H         (2005) 13 SCC 624
      BHAGCHANDRA v. STATE OF MADHYA PRADESH                                 773
                  [B. R. GAVAI, J.]

Act”) is also of no relevance. He submitted that firstly, the Serology       A
Report does not support the prosecution case. He submitted that the
recovery on memorandum would be relevant only if the prosecution is in
a position to establish that the article recovered was used in the crime.
He submitted that apart from the Serology Report not supporting the
prosecution case, the said axe has not been put to any of the witnesses
                                                                             B
to establish that it was the same weapon which was used in the crime.
       15. Shri Hariharan would submit that the trial court as well as the
High Court has not considered the evidence in its correct perspective.
He submitted that the evidence has been considered in a totally erroneous
manner. He submitted that though this Court is exercising the jurisdiction
under Article 136 of the Constitution of India, since the matter pertains    C
to death penalty, it is necessary that this Court should reappreciate the
entire evidence. He relies on the judgments of this Court in the cases of
Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v.
State of Maharashtra2, Dayanidhi Bisoi v. State of Orissa3 and Mohd.
Arif alias Ashfaq v. Registrar, Supreme Court of India and Others4.          D
       16. Shri Hariharan, in the alternative, submitted that in no
circumstances, the death penalty was warranted in the facts of the present
case. He submitted that firstly, the trial court has imposed the death
penalty on the same day on which the conviction was recorded. He
submitted that a sufficient period of time between the order of conviction   E
and the sentence ought to have been given to the appellant so that the
appellant would have availed of his right to point out the aggravating and
mitigating circumstances. He further submitted that the courts below
have also failed to take into consideration that the accused was not a
hardened criminal. The accused did not have any criminal antecedents
and it was his first crime. He further submitted that the trial court as     F
well as the High Court has not taken into consideration the possibility of
the appellant being reformed. It is therefore submitted that the death
penalty is not warranted at all in the facts and circumstances of the
present case.
      17. Smt. Chaturvedi, on the contrary, submitted that both the courts   G
below have rightly convicted the appellant and also awarded death penalty.
She submitted that minor inconsistencies in the evidence of the witnesses
2
  (2012) 9 SCC 1
3
  (2003) 9 SCC 310
4
  (2014) 9 SCC 737
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774             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     should not be given much importance. She further submitted that when
      ocular evidence has been found by the court to be cogent, trustworthy
      and reliable, then some inconsistencies in the medical evidence would
      not be relevant. She relies on the judgment of this Court in the case of
      Krishnan and Another v. State represented by Inspector of Police 5 to
      assert the said contention. She further submitted that merely because
B
      the Serology Report is not conclusive, it cannot be a ground to disbelieve
      the prosecution case. For the said proposition, she relies on the judgment
      of this Court in the case of R. Shaji v. State of Kerala6.
              18. Smt. Chaturvedi, in order to meet the challenge about the
      evidence of PW-7-Rakesh, submitted that the reaction of a witness to a
C     situation may differ from person to person. She submitted that merely
      because PW-7-Rakesh has informed PW-6-Kamlesh first, which was
      prior to informing the police, it does not put a dent on his testimony. For
      this, she relies on the judgment of this Court in the case of Rammi alias
      Rameshwar v. State of Madhya Pradesh7.
D            19. She further submitted that taking into consideration the brutality
      of murder, wherein three blood relatives have been done away with for
      no fault of theirs, warrants no lesser penalty than the death penalty. She
      submitted that the necks of all the three persons were segregated due to
      the brutal attack and as such, the trial court has rightly awarded death
E     penalty and the High Court has rightly confirmed the same. She relies
      on the judgment of this Court in the case of Ravi s/o Ashok Ghumare
      v. State of Maharashtra8.
             20. Shri Hariharan, in rejoinder, submitted that in view of the law
      laid down by this Court, relevant material is required to be placed before
F     the court while considering as to whether the death penalty should be
      awarded or not. He submitted that accordingly, an affidavit of the close
      relatives of the appellant has been placed on record. He further submitted
      that the certificate from the prison authority is also placed on record
      which would show that the conduct of the appellant is satisfactory, not
      warranting death penalty.
G
            21. With the assistance of the learned counsel for the parties, we
      have examined the materials placed on record.
      5
        (2003) 7 SCC 56
      6
        (2013) 14 SCC 266
      7
        (1999) 8 SCC 649
      8
H       (2019) 9 SCC 622
      BHAGCHANDRA v. STATE OF MADHYA PRADESH                                  775
                  [B. R. GAVAI, J.]

       22. PW-1-Kiran Patel is the wife of deceased Devki Prasad. She         A
has stated in her evidence that on the date of the incident, at around
05.00 am, she had gone out to answer the call of nature. At that time,
her brother-in-law Thakur Das, sons Akhilesh and Kamlesh, daughter
Urmila and mother-in-law Kisiyabai were sleeping at home. When she
returned after around 10 minutes, she saw appellant armed with an axe
                                                                              B
coming out of her house. She suspected some foul play. When she entered
the house, she saw her brother-in-law Thakur Das lying dead in outer
room. His neck was cut. When she came in the courtyard, she saw her
son Akhilesh dead, having injuries on his neck and head. She stated that
her son Kamlesh and daughter Urmila had gone to the place of Gulab
after seeing the appellant assaulting their uncle and brother. Both of        C
them came and informed her that Thakur Das and Akhilesh were
assaulted by the appellant. She suspected that the appellant had gone
towards the field and therefore, she followed the appellant towards the
field. She saw the appellant assaulting her husband Devki Prasad with
the axe. When she tried to stop the accused from assaulting the deceased,
                                                                              D
the accused abused her and told her to go away and threatened her that
she would also meet the same fate. She stated that when she was returning
home, she saw PW-7-Rakesh. Thereafter, PW-4-Rammilan, PW-5-Khillu
Patel and PW-6-Kamlesh-II also came. She has further stated in her
evidence that deceased Thakur Das was residing with the appellant for
10 years. However, the appellant started demanding the land of Thakur         E
Das and his tractor. As such, the appellant forced Thakur Das to leave
his house. Thereafter, Thakur Das had started residing with the family
of deceased Devki Prasad. She has stated that the appellant thought
that Thakur Das’s property would come to the family of Devki Prasad
and so, the appellant had assaulted and killed her brother-in-law, her
                                                                              F
husband and son. PW-1 has been cross-examined at length. However,
in spite of lengthy cross-examination, her evidence insofar as the incident
is concerned, has gone unchallenged.
       23. PW-2-Urmila was about 11-12 years old at the time of incident.
After putting preliminary questions to her, the trial judge found that she
was capable of understanding the questions and answering the same             G
and as such, her statement was recorded without administering oath to
her.
      24. She stated that on the day of the incident, after her mother
went to answer the call of nature, she was doing the household work.
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776            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     She heard the sound of ‘dham dham’ and thought that it might be a
      dog’s sound. She went towards the place from where the sound was
      coming and saw that the appellant was assaulting the deceased with an
      axe. Her brother Akhilesh was sleeping in the courtyard. She tried to
      wake him up but he did not get up. The appellant came to the courtyard
      along with the axe and started assaulting Akhilesh. She got frightened
B
      and therefore went to PW-6-Kamlesh-II’s house. Her brother Kamlesh
      (PW-3) had also woken up. He also tried to wake Akhilesh up but he did
      not get up. The appellant tried to catch hold of Kamlesh (PW-3) too,
      however, Kamlesh (PW-3) ran away with Urmila to Kamlesh-II’s house.
      She further stated that thereafter, her mother came. She informed about
C     the incident to her mother. Thereafter, her mother went to the field. She
      stated that her mother saw the appellant assaulting the deceased.
      Thereafter, her mother came home and started shouting and raising hue
      and cry. As such, PW-6-Kamlesh-II and PW-4-Rammilan came there.
      The said child witness has also been thoroughly cross-examined.
      However, her evidence insofar as the main incident is concerned, has
D
      gone unchallenged. Similar is the evidence of PW-3-Kamlesh who was
      aged 12-13 years at the time of the incident.
             25. It will be thus clear from the evidence of PW-1-Kiran Patel,
      that she has personally witnessed the appellant assaulting deceased Devki
      Prasad. It will be further clear from the evidence of PW-2-Urmila and
E     PW-3-Kamlesh that they have personally witnessed the appellant
      assaulting deceased Thakur Das and deceased Akhilesh. The evidence
      of these three witnesses would also reveal that immediately after PW-1
      came from field, she was informed by PW-2 and PW-3 about the assault
      by the appellant on Thakur Das and Akhilesh. The testimony of these
F     three witnesses is duly corroborated by the other witnesses. PW-4-
      Rammilan is the son of Shyambihari. Shyambihari is another brother of
      deceased Thakur Das, deceased Devki Prasad and appellant
      Bhagchandra. He has stated in his deposition that on the date of incident
      when he was going out at around 5.30 am, his aunt Kiran Patel was
      shouting maar dala, maar dala. When he went near his aunt Kiran
G     Patel, he saw that inside the house, Thakur Das and Akhilesh were lying
      dead. When he went to the field, he saw Devki Prasad lying dead in
      front of the tractor. He stated that Kiran informed him about the incident.
      This witness had accompanied PW-1 to the Police Station for lodging
      the report. This witness has also undergone lengthy cross-examination.
H     Nothing damaging has come on record in the cross-examination. This
      BHAGCHANDRA v. STATE OF MADHYA PRADESH                                 777
                  [B. R. GAVAI, J.]

witness would be in a sense a neutral witness inasmuch as his relation       A
with both, the appellant and the deceased, is of the same degree. PW-1
had immediately disclosed about the incident to him and he had
accompanied her to lodge the FIR.
      26. Similar is the testimony of PW-5-Khillu Patel.
       27. PW-6-Kamlesh-II is also related to the witnesses, deceased        B
and the appellant. He stated that on the date of the incident at around
04.00 am, he had gone to answer the call of nature. While returning, he
received a message on his mobile and in that light, he saw the appellant
running towards him. On him questioning the appellant as to what he
was doing there, the appellant said, “I thought that you are Thakur Das”.    C
At that time, the appellant was having an axe with him. Thereafter, PW-
6 came home and was resting. At around 05.00-05.30 am, the children
of Devki Prasad namely Urmila (PW-2) and Akhilesh (PW-3) came to
him. Both were frightened and told him that Bhagchandra uncle had
hacked Thakur Das and Akhilesh with the axe. He further stated that he
too was afraid as he was alone and could not do anything. He stated that     D
in the meantime, Kiran Bhabhi had come and informed about the incident.
      28. It could thus be seen that all these witnesses establish the
presence of each other. PW-1-Kiran Patel stated about the presence of
PW-4-Rammilan, PW-5-Khillu Patel and PW-6-Kamlesh-II and about
them immediately coming to the spot and her informing them about the         E
incident. PWs 4, 5 and 6 corroborated the testimony of PW-1 in that
aspect. PW-2-Urmila and PW-3-Kamlesh stated about witnessing the
incident of appellant assaulting deceased Thakur Das and Akhilesh, and
running towards the house of Kamlesh-II and informing him about the
same. PW-6 too corroborated this version of PWs 1, 2 and 3.                  F
       29. Insofar as the evidence of PW-7-Rakesh is concerned, we
find that the conduct of the said witness appears to be somewhat
unnatural. He stated that after witnessing the incident, he had gone to
another village on motorcycle to see his friend. From there, he had gone
to the Hospital at Maharajpur. After that, he came home at around 10.00-     G
10.30 am. Though, the police were present in the village, he did not
inform them about the incident. On his own, he stated that he had informed
Kamlesh-II about the incident. We therefore find that it will not be
appropriate to rely on his testimony. However, even if the testimony of
PW-7 is eschewed, we find that the ocular testimonies of PWs 1 to 6
                                                                             H
778               SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     establish the case of the prosecution beyond reasonable doubt that it is
      the appellant who had assaulted the deceased persons.
             30. No doubt that there are minor discrepancies in the evidence
      of these PWs. It will be relevant to refer to the following observations of
      this Court in the case of State of Uttar Pradesh v. Krishna Master
B     and Others9:-
               “15. Before appreciating evidence of the witnesses examined in
               the case, it would be instructive to refer to the criteria for
               appreciation of oral evidence. While appreciating the evidence
               of a witness, the approach must be whether the evidence of
C              the witness read as a whole appears to have a ring of truth.
               Once that impression is found, it is undoubtedly necessary
               for the court to scrutinise the evidence more particularly
               keeping in view the deficiencies, drawbacks and infirmities
               pointed out in the evidence as a whole and evaluate them to
               find out whether it is against the general tenor of the evidence
D              and whether the earlier evaluation of the evidence is shaken
               as to render it unworthy of belief. Minor discrepancies on
               trivial matters not touching the core of the case,
               hypertechnical approach by taking sentences torn out of
               context here or there from the evidence, attaching importance
E              to some technical error committed by the investigating officer
               not going to the root of the matter would not ordinarily permit
               rejection of the evidence as a whole.
               16. If the court before whom the witness gives evidence had the
               opportunity to form the opinion about the general tenor of the
F              evidence given by the witness, the appellate court which had not
               this benefit will have to attach due weight to the appreciation of
               evidence by the trial court and unless the reasons are weighty
               and formidable, it would not be proper for the appellate court to
               reject the evidence on the ground of variations or infirmities in the
               matter of trivial details. Minor omissions in the police statements
G              are never considered to be fatal. The statements given by the
               witnesses before the police are meant to be brief statements
               and could not take place of evidence in the court. Small/Trivial
               omissions would not justify a finding by court that the witnesses
               concerned are liars. The prosecution evidence may suffer from
      9
H         (2010) 12 SCC 324
      BHAGCHANDRA v. STATE OF MADHYA PRADESH                                   779
                  [B. R. GAVAI, J.]

      inconsistencies here and discrepancies there, but that is a              A
      shortcoming from which no criminal case is free. The main
      thing to be seen is whether those inconsistencies go to the root
      of the matter or pertain to insignificant aspects thereof. In the
      former case, the defence may be justified in seeking advantage
      of incongruities obtaining in the evidence. In the latter, however,
                                                                               B
      no such benefit may be available to it.
      17. In the deposition of witnesses, there are always normal
      discrepancies, howsoever honest and truthful they may be.
      These discrepancies are due to normal errors of observation,
      normal errors of memory due to lapse of time, due to mental
      disposition, shock and horror at the time of occurrence and              C
      threat to the life. It is not unoften that improvements in earlier
      version are made at the trial in order to give a boost to the
      prosecution case, albeit foolishly. Therefore, it is the duty of the
      court to separate falsehood from the truth. In sifting the
      evidence, the court has to attempt to separate the chaff from            D
      the grains in every case and this attempt cannot be abandoned
      on the ground that the case is baffling unless the evidence is really
      so confusing or conflicting that the process cannot reasonably be
      carried out. In the light of these principles, this Court will have to
      determine whether the evidence of eyewitnesses examined in this
      case proves the prosecution case.”                                       E

                                                   [emphasis supplied]
       31. It could thus be seen that what is required to be considered is
whether the evidence of the witness read as a whole appears to have a
ring of truth. It has been held that minor discrepancies on trivial matters    F
not touching the core of the case, hypertechnical approach by taking
sentences torn out of context here or there from the evidence, would not
ordinarily permit rejection of the evidence as a whole. It has been held
that the prosecution evidence may suffer from inconsistencies here and
discrepancies there, but that is a shortcoming from which no criminal
case is free. What is important is to see as to whether those                  G
inconsistencies go to the root of the matter or pertain to insignificant
aspects thereof. It has been held that there are always normal
discrepancies due to normal errors of observation, normal errors of
memory due to lapse of time, due to mental disposition, shock and horror
                                                                               H
780             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     at the time of occurrence. It is the duty of the court to separate falsehood
      from the truth in every case.
            32. Applying these principles, we are of the view that the minor
      discrepancies in the evidence of the prosecution witnesses are not of
      such a nature which would persuade this Court to disbelieve their
B     testimonies. It is further to be noted that the witnesses are rustic villagers
      and some inconsistencies in their depositions are bound to be there.
            33. In this respect, it will be apposite to refer to the following
      observations of this Court in the case of Krishna Master (supra):
             “23. The record of the case shows that this witness Jhabbulal
C            was cross-examined at great length. He was subjected to gruelling
             cross-examination which runs into 31 pages. The first and firm
             impression which one gathers on reading the testimony of this
             witness is that he is a rustic witness. A rustic witness, who is
             subjected to fatiguing, taxing and tiring cross-examination for days
D            together, is bound to get confused and make some inconsistent
             statements. Some discrepancies are bound to take place if a
             witness is cross-examined at length for days together. Therefore,
             the discrepancies noticed in the evidence of a rustic witness who
             is subjected to gruelling cross-examination should not be blown
             out of proportion. To do so is to ignore hard realities of village life
E            and give undeserved benefit to the accused who have perpetrated
             heinous crime.
             24. The basic principle of appreciation of evidence of a rustic
             witness who is not educated and comes from a poor strata of
             society is that the evidence of such a witness should be appreciated
F            as a whole. The rustic witness as compared to an educated witness
             is not expected to remember every small detail of the incident and
             the manner in which the incident had happened more particularly
             when his evidence is recorded after a lapse of time. Further, a
             witness is bound to face shock of the untimely death of his near
G            relative(s). Therefore, the court must keep in mind all these relevant
             factors while appreciating evidence of a rustic witness.”
             34. It can thus be seen that this Court has held that in case of
      rustic witnesses, some inconsistencies and discrepancies are bound to
      be found. It has been held that the inconsistencies in the evidence of the
      witnesses should not be blown out of proportion. To do so is to ignore
H
      BHAGCHANDRA v. STATE OF MADHYA PRADESH                                  781
                  [B. R. GAVAI, J.]

hard realities of village life and give undeserved benefit to the accused.    A
It has been held that the evidence of such witnesses has to be appreciated
as a whole. A rustic witness is not expected to remember every small
detail of the incident and the manner in which the incident had happened.
Further, a witness is bound to face shock of the untimely death of his
near relatives. Upon perusal of the evidence of the witnesses as a whole,
                                                                              B
we are of the considered view that their evidence is cogent, reliable and
trustworthy.
       35. Having held that the ocular testimony of the witnesses
establishes the guilt of the accused beyond reasonable doubt, we come
to the other contentions of the appellant. Insofar as the contention of the
appellant that the medical evidence does not support the prosecution          C
case, it will be appropriate to rely on the judgment of this Court in the
case of Krishnan and Another (supra):-
      “18. The evidence of Dr Muthuswami (PW 7) and Dr Abbas Ali
      (PW 8) do not in any way run contrary to the ocular evidence. In
      any event, the ocular evidence being cogent, credible and               D
      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          E
      witnesses to exclude the eyewitnesses’ account which had to be
      tested independently and not treated as the “variable” keeping
      the medical evidence as the “constant”.
      21. It is trite that where the eyewitnesses’ account is found
      credible and trustworthy, medical opinion pointing to alternative       F
      possibilities is not accepted as conclusive. Witnesses, as Bentham
      said, are the eyes and ears of justice. Hence the importance and
      primacy of the quality of the trial process. Eyewitnesses’ account
      would require a careful independent assessment and evaluation
      for its credibility which should not be adversely prejudged making      G
      any other evidence, including medical evidence, as the sole
      touchstone for the test of such credibility. The evidence must be
      tested for its inherent consistency and the inherent probability of
      the story; consistency with the account of other witnesses held to
      be creditworthy; consistency with the undisputed facts, the “credit”
      of the witnesses; their performance in the witness box; their power     H
782             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A            of observation etc. Then the probative value of such evidence
             becomes eligible to be put into the scales for a cumulative
             evaluation.”
             36. As already discussed hereinabove, the ocular evidence of the
      eye witnesses is cogent, reliable and trustworthy. Apart from that, the
B     oral version in the testimonies of PWs 1, 2 and 3 is duly corroborated by
      the injuries as shown in the Post-Mortem Report of the deceased persons.
      Therefore, the contention in this regard is liable to be rejected.
             37. The attack of the appellant is on the other circumstances like
      the recovery of the axe under Section 27 of the Evidence Act not being
C     relevant, since the same not being established to be used in the offence
      nor in the Serology Report, etc.
              38. Since the present case is a case of direct evidence, even if the
      prosecution has failed to prove the other incriminating circumstances
      beyond reasonable doubt, in our view, it will not have an effect on the
D     prosecution case. In the present case, another factor that is to be noted
      is that immediately after the incident, FIR is lodged by PW-1 who was
      accompanied by PW-4. The FIR fully corroborates the ocular evidence
      of prosecution witnesses.
            39. In that view of the matter, we are of the considered view that
E     even upon reappreciation of the evidence, it cannot be said that the trial
      court has committed an error in convicting the appellant and the High
      Court in confirming the same.
            40. That leaves us with the question of sentence. We will have to
      consider as to whether the capital punishment in the present case is
F     warranted or not.
             41. Recently, this Court in the case of Mohd. Mannan alias
      Abdul Mannan v. State of Bihar10, after considering earlier judgments
      of this Court on the present issue in the cases of Bachan Singh v. State
      of Punjab 11 and Machhi Singh and Others v. State of
      Punjab12,observed thus:-
G
             “72. The proposition of law which emerges from the judgments
             referred to above is itself death sentence cannot be imposed except
      10
         (2019) 16 SCC 584
      11
         (1980) 2 SCC 684
      12
H        (1983) 3 SCC 470
          BHAGCHANDRA v. STATE OF MADHYA PRADESH                                    783
                      [B. R. GAVAI, J.]

          in the rarest of rare cases, for which special reasons have to be         A
          recorded, as mandated in Section 354(3) of the Criminal Procedure
          Code. In deciding whether a case falls within the category of the
          rarest of rare, the brutality, and/or the gruesome and/or heinous
          nature of the crime is not the sole criterion. It is not just the crime
          which the Court is to take into consideration, but also the criminal,
                                                                                    B
          the state of his mind, his socio-economic background, etc. Awarding
          death sentence is an exception, and life imprisonment is the rule.”
      42. This Bench, recently, in the case of Mofil Khan and Another
v. The State of Jharkhand13 has observed thus:-
          “8. One of the mitigating circumstances is the probability of the         C
          accused being reformed and rehabilitated. The State is under a
          duty to procure evidence to establish that there is no possibility of
          reformation and rehabilitation of the accused. Death sentence
          ought not to be imposed, save in the rarest of the rare cases when
          the alternative option of a lesser punishment is unquestionably
          foreclosed (See: Bachan Singh v. State of Punjab (1980) 2 SCC             D
          684). To satisfy that the sentencing aim of reformation is
          unachievable, rendering life imprisonment completely futile, the
          Court will have to highlight clear evidence as to why the convict
          is not fit for any kind of reformatory and rehabilitation scheme.
          This analysis can only be done with rigour when the Court focuses         E
          on the circumstances relating to the criminal, along with other
          circumstances (See: Santosh Kumar Satishbhushan Bariyar v.
          State of Maharashtra (2009) 6 SCC 498). In Rajendra
          Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC
          460, this Court dealt with the review of a judgment of this Court
          confirming death sentence and observed as under:                          F

              “45. The law laid down by various decisions of this Court clearly
              and unequivocally mandates that the probability (not possibility
              or improbability or impossibility) that a convict can be reformed
              and rehabilitated in society must be seriously and earnestly
              considered by the courts before awarding the death sentence.          G
              This is one of the mandates of the “special reasons”
              requirement of Section 354(3) CrPC and ought not to be taken
              lightly since it involves snuffing out the life of a person. To
13
     RP(Criminal) No. 641/2015 in Criminal Appeal No.1795/2009 dated 26.11.2021
                                                                                    H
784                SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A                  effectuate this mandate, it is the obligation on the prosecution
                   to prove to the court, through evidence, that the probability is
                   that the convict cannot be reformed or rehabilitated. This can
                   be achieved by bringing on record, inter alia, material about his
                   conduct in jail, his conduct outside jail if he has been on bail for
                   some time, medical evidence about his mental make-up, contact
B
                   with his family and so on. Similarly, the convict can produce
                   evidence on these issues as well.””
             43. In the present case, it is to be noted that the trial court had
      convicted the appellant and imposed death penalty on the very same
      day. From the judgment of the trial court, it does not appear that the
C     appellant was given a meaningful time and a real opportunity of hearing
      on the question of sentence. From the judgment of the trial court as well
      as the High Court, it does not appear that the courts below have drawn
      a balance sheet of mitigating and aggravating circumstances. The trial
      court as well as the High Court has only taken into consideration the
D     crime but have not taken into consideration the criminal, his state of
      mind, his socio-economic background etc. At this juncture, it will be
      relevant to refer to the following observations of this Court in the case
      of Rajendra Pralhadrao Wasnik v. State of Maharashtra14:-
                “47. Consideration of the reformation, rehabilitation and
E               reintegration of the convict into society cannot be overemphasised.
                Until Bachan Singh [Bachan Singh v. State of Punjab, (1980)
                2 SCC 684 : 1980 SCC (Cri) 580] , the emphasis given by the
                courts was primarily on the nature of the crime, its brutality and
                severity. Bachan Singh [Bachan Singh v. State of Punjab,
                (1980) 2 SCC 684 : 1980 SCC (Cri) 580] placed the sentencing
F               process into perspective and introduced the necessity of considering
                the reformation or rehabilitation of the convict. Despite the view
                expressed by the Constitution Bench, there have been several
                instances, some of which have been pointed out
                in Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of
G               Maharashtra, (2009) 6 SCC 498 : (2009) 2 SCC (Cri) 1150] and
                in Sangeet v. State of Haryana [Sangeet v. State of Haryana,
                (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] where there is a
                tendency to give primacy to the crime and consider the criminal in
                a somewhat secondary manner. As observed
      14
H          (2019) 12 SCC 460
      BHAGCHANDRA v. STATE OF MADHYA PRADESH                                    785
                  [B. R. GAVAI, J.]

      in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452 :               A
      (2013) 2 SCC (Cri) 611] “In the sentencing process, both the
      crime and the criminal are equally important.” Therefore, we
      should not forget that the criminal, however ruthless he might be,
      is nevertheless a human being and is entitled to a life of dignity
      notwithstanding his crime. Therefore, it is for the prosecution and
                                                                                B
      the courts to determine whether such a person, notwithstanding
      his crime, can be reformed and rehabilitated. To obtain and analyse
      this information is certainly not an easy task but must nevertheless
      be undertaken. The process of rehabilitation is also not a simple
      one since it involves social reintegration of the convict into society.
      Of course, notwithstanding any information made available and             C
      its analysis by experts coupled with the evidence on record, there
      could be instances where the social reintegration of the convict
      may not be possible. If that should happen, the option of a long
      duration of imprisonment is permissible.”
       44. In view of the settled legal position, it is our bounden duty to     D
take into consideration the probability of the accused being reformed
and rehabilitated. It is also our duty to take into consideration not only
the crime but also the criminal, his state of mind and his socio-economic
conditions. The deceased as well as the appellant are rustic villagers. In
a property dispute, the appellant has got done away with two of his
siblings and a nephew. The State has not placed on record any evidence          E
to show that there is no possibility with respect to reformation or
rehabilitation of the convict. The appellant has placed on record the
affidavits of Prahalad Patel, son of appellant and Rajendra Patel, nephew
of appellant and also the report of the Jail Superintendent, Central Jail,
Jabalpur. The appellant comes from a rural and economically poor                F
background. There are no criminal antecedents. The appellant cannot
be said to be a hardened criminal. This is the first offence committed by
the appellant, no doubt, a heinous one. The certificate issued by the Jail
Superintendent shows that the conduct of the appellant during
incarceration has been satisfactory. It cannot therefore be said that there
is no possibility of the appellant being reformed and rehabilitated             G
foreclosing the alternative option of a lesser sentence and making
imposition of death sentence imperative.
      45. We are therefore inclined to convert the sentence imposed on
the appellant from death to life. However, taking into consideration the
                                                                                H
786                SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A     gruesome murder of two of his siblings and one nephew, we are of the
      view that the appellant deserves rigorous imprisonment of 30 years.
            46. Accordingly, the appeals are partly allowed. The conviction of
      the appellant for the offences punishable under Sections 302, 201 and
      506-B of the IPC is affirmed. However, the death sentence awarded to
B     the appellant is converted to life imprisonment for a period of 30 years.
            47. Before we part with the judgment, we must appreciate the
      valuable assistance rendered by Shri N. Hariharan, learned Senior Counsel
      appearing on behalf of the appellant and Smt. Swarupama Chaturvedi,
      learned Assistant Advocate General appearing on behalf of the
C     respondent-State.

      Ankit Gyan                                            Appeals partly allowed.




D




E




F




G




H