Holding

The Supreme Court held that there were no material contradictions, the inconclusive blood‑group test does not defeat the prosecution, and the lack of a medical fitness certificate does not invalidate the dying declaration, thereby upholding the conviction under s.302/34 IPC.

Summary

The appellant, Dharmendra Kumar, was convicted for murder under s.302 read with s.34 IPC for stabbing Tillu during a dispute over a wall construction, with additional convictions under s.147, 148 and 149 later set aside. The Supreme Court examined whether alleged contradictions in witness testimonies, the inconclusive blood‑group test on the seized knife, and the lack of a medical fitness certificate for the dying declaration of co‑deceased Tularam warranted overturning the conviction. It held that the eyewitness accounts were consistent and corroborated by medical evidence and the recovered weapon, and that procedural lapses in the FIR or the absence of a fitness certificate did not prejudice the prosecution. The Court also affirmed the admissibility of the appellant’s disclosure statement leading to the seizure of the knife under s.27 IEA. Consequently, the appeal was dismissed and the life sentence upheld.

Issues considered

Whether contradictions or discrepancies in the prosecution's case merit setting aside the conviction
Whether the absence of blood‑group classification or inconclusive forensic results on the recovered weapon undermines the prosecution's case
Whether the failure to obtain a medical fitness certificate invalidates the statement of the deceased recorded under s.161 CrPC as a dying declaration

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 161, s. 162, s. 313
Evidence Act, 1872s. 145, s. 27, s. 32
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 34

Subjects

murdersection 302 IPCsection 34 IPCdying declarationforensic science laboratoryblood group classificationFIR procedural defectdisclosure statementevidence admissibilitycontradictions in testimonymedical fitness certificateidentification testspot map

Judgment

[2024] 7 S.C.R. 218 : 2024 INSC 480

Dharmendra Kumar @ Dhamma
v.
State of Madhya Pradesh
(Criminal Appeal No. 2806 of 2024)
08 July 2024
[Surya Kant* and K. V. Viswanathan, JJ.]

Issue for Consideration
High Court if justified in upholding conviction and sentence of the
appellant under ss. 302/34 IPC; the contradictions or discrepancies
and the absence of blood group classification or inconclusive FSL
results on the recovered weapon, if detrimental to the prosecution’s
case; the Investigating Officer’s failure to obtain a fitness certificate
from the medical officer, if would invalidate the consideration of
the statement of the deceased recorded u/s. 161 CrPC before his
death, as a ‘dying declaration; and disclosure statement made by
the appellant leading to the discovery and subsequent seizure of
the knife, if admissible in evidence.

Headnotes†
Penal Code, 1860 – ss. 302/34 – Conviction and sentence
under – On facts, dispute over construction of wall – Verbal
abuses hurled at the complainant – Two persons who
constructed the wall physically assaulted by the opposite party,
the appellant inflicted knife blow to one, and later both of them
succumbed to their injuries – Appellant convicted u/ss. 302,
147, 148, and 149 and sentenced to life imprisonment – High
Court upheld the appellant’s conviction u/s. 302/34, however,
acquitted him u/ss. 147 and 148 – Correctness:
Held: No contradictions or discrepancies in the prosecution case
that would compel to take a view different than that of the courts
below – When the testimonies of eyewitnesses are consistent,
unimpeachable, and duly corroborated by medical evidence or
the recovery of incriminating material like the weapon used, the
deficiencies, if any, in the recording of FIR alone do not constitute a
valid ground to overturn the conviction or undermine the prosecution
case – Non-reading of contents of FIR to the complainant would not
effect the prosecution case – Presence of appellant on the place

* Author
[2024] 7 S.C.R. 219

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

of occurrence established – Disclosure statement by the appellant
leading to the discovery and seizure of the knife admissible in
evidence – Knife injury can be attributed to the appellant – Absence
of blood group classification or inconclusive FSL results on the
recovered weapon would not effect the prosecution case – Also,
mere non-obtainment of a medical fitness certificate would not
deter the court from considering a properly recorded statement u/s.
161 CrPC, to be a dying declaration – Thus, the order passed by
the High Court upheld – Evidence.[Paras 44, 51, 58, 61, 69, 70]
Evidence – Contradictions in the prosecution case – Omission
on the part of the Investigating Officer in marking a spot where
incident took place, on the site plan – Effect:
Held: Mere omission on the part of the Investigating Officer does
not deflect the prosecution case – Site plan merely denotes the
location of the incident without implying further details – In light
of the fact that the persons who had seen that to which they
have testified, due weightage must be given to their first-hand
version – Their evidence cannot be jettisoned merely because the
I.O. forgot to describe the room on the spot map – It is a case
where eyewitnesses corroborated each other; their depositions
are reinforced by deceased himself in his statement recorded
u/s. 161 CrPC, and the location of the incident is depicted on the
spot map as a `brick room’ – Thus, stands established that there
was another Jhuggi where the deceased sought refuge and was
eventually assaulted – So-called contradiction fails to invade the
corpus delicti. [Paras 33, 34]
First information report – Non-reading of contents of FIR to
the complainant – Effect:
Held: Subject FIR fully satisfies all the ingredients of s. 154 CrPC –
During the cross-examination, the complainant-informant claimed
that the Police neither read out the FIR to her nor did it mention
the contents of her statements which were recorded by the Police –
Assuming it to be correct, such omission did not cause any prejudice
to the appellant – Not a case where the appellant was not provided
with a copy of the FIR or the charge sheet, which could have
hindered his ability to effectively cross-examine the informant – Also
no suggestion that he was not present at the scene, that he did
not participate in the incident, or that he was falsely implicated for
any reason – Appellant, thus, failed to demonstrate any prejudice
resulting from the alleged non-reading of the contents of the FIR
220 [2024] 7 S.C.R.

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to the informant – Reading over of the information after it is written
down, the signing of the said information by the informant, and
the entry of its substance in the prescribed manner not obligatory,
but procedural in nature, and the omission of any of them does
not impact the legal consequences resulting from the information
provided – Furthermore, when testimonies of eyewitnesses are
consistent, unimpeachable, and duly corroborated by medical
evidence or recovery of weapon used, the deficiencies, if any, in
recording of FIR alone do not constitute a valid ground to overturn
the conviction or undermine the prosecution case. [Paras 40-44]
Evidence – Presence of appellant on the place of occurrence,
if doubtful:
Held: No reason to doubt that the appellant was not only present
at the scene of crime, but he actively participated in the occurrence
and gave one of the fatal blows to deceased – Submission of poor
visibility owing to darkness at the spot of occurrence not tenable –
Place of occurrence, was adjacent to that of the complainant making
it easier for the witnesses to observe and identify the accused
persons – Each accused, particularly the appellant, was familiar
to the eyewitnesses – Considering that the incident occurred on
a summer night, there would have been minimal obstruction to
visibility for the witnesses – Appellant, in his 313 CrPC statement,
nowhere took the plea of alibi also did not pursue this defence
during the cross-examination of witnesses either, as also did not
adduce any evidence in support thereof – Furthermore, not a
case where the complainant or prosecution witness held grudges
against the appellant and fabricated a story to implicate him after
the incident – Rather, the name of the appellant surfaced in the
very first version, duly recorded, within less than two hours of
the occurrence – Also no motive to falsely implicate the appellant
indicated.[Paras 48, 49, 51]
Evidence – Disclosure statement by the appellant leading to
the discovery and seizure of the knife-weapon of offence –
Admissibility in evidence – Knife injury, if can be attributed
to the appellant:
Held: Disclosure statement of the appellant to the extent it led to
the recovery of a knife correctly admitted in evidence – Prosecution
version was accepted by the courts below – It cannot be ignored
that both eyewitnesses, are illiterate labourers, and their testimonies
were recorded after a considerable length of time had passed since
[2024] 7 S.C.R. 221

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

the occurrence – Both the witnesses emphatically denied that they
were tutored by Police or anyone else – Unfiltered testimony of
a rustic witness, even if marred with some minor inconsistencies
or discrepancies, cannot debilitate its perseverance – Evidence
of such witnesses has to be evaluated comprehensively and
carefully, especially when the cross-examination discreetly suggests
that the accused persons did make a bid to win them over by
exerting some extraneous pressure – Thus, the statements of the
prosecution witness does not suffer from the discrepancy of such
a nature that they should be discarded – Even the testimony of
the Investigating Officer is devoid of any ulterior motive or attempt
to fabricate evidence or falsely implicate the appellant and his
co-accused – It would be too unfair and unreasonable to expect
a witness, unless parroted, to recall every minute detail of the
occurrence and present it with a totally accumulative narrative –
Appellant’s submission that knife injury was not caused by him,
bereft of any merit. [Paras 56-58]
Evidence – Absence of blood group classification –
Inconclusive FSL results on the recovered weapon – Effect
on the prosecution case:
Held: Upon a thorough examination of the FSL report, its
confirmed that the blood group classification test conducted on
the recovered knife yielded inconclusive results – However, the
human blood was detected on the knife recovered at the instance
of the appellant – Various weapons, including lathis and even
the knife attributed to accused underwent an FSL examination,
yet, no traces of human blood were found on them – Notably,
human blood was solely found on the knife used by the appellant
– Furthermore, non-explanation of human blood on the weapon
of crime constitutes a circumstance against the accused – It is
incumbent upon the accused to provide an explanation regarding
the presence of human blood on the weapon – Appellant failed
to do so – While it may not be a decisive factor to determine the
guilt, but conspicuous silence does lend support to prosecution
case. [Para 61]
Code of Criminal Procedure, 1973 – s. 161 – Statement made
by deceased to a police officer u/s. 161, regarding cause of
death – Admissibility as dying declaration:
Held: s.161 empowers the Police to examine orally any person
who is acquainted with the facts and circumstances of the case
222 [2024] 7 S.C.R.

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under investigation – Police may reduce such statement into
writing also – s. 162(1), nonetheless, mandates that no statement
made by any person to a Police Officer, if reduced to writing, be
signed by the person making it, nor shall such statement be used
in evidence except to contradict a witness in the manner provided
by s. 145 of the Evidence Act – However, Sub-Section (2) of s.
162 carves out an exception to Sub-Section (1) that nothing in s.
162 shall be deemed to apply to any statement falling within the
ambit of clause (1) of s. 32 of the Evidence Act – Statement made
by a person who is dead, as to the cause of his death or to the
circumstances of the transaction which resulted in his death, to
a Police Officer and which has been recorded u/s. 161, shall be
relevant and admissible, notwithstanding the express bar against
use of such statement in evidence contained therein – In such
eventuality, the statement recorded u/s. 161 assumes the character
of a dying declaration – Since extraordinary credence has been
given to such dying declaration, the court ought to be extremely
careful and cautious in placing reliance thereupon. [Para 64]
Code of Criminal Procedure, 1973 – s. 161 – Consideration
of the statement of one of the deceased recorded u/s. 161
before his death, as a dying declaration – Non-obtainment of
a medical fitness certificate by the investigating officer from
the medical officer – Effect:
Held: As regard to the assessment of mental fitness of the person
making a dying declaration, it is indubitably the responsibility of
the court to ensure that the declarant was in a sound state of
mind – This is because there are no rigid procedures mandated for
recording a dying declaration – If an eyewitness asserts that the
deceased was conscious and capable of making the declaration,
the medical opinion cannot override such affirmation, nor can the
dying declaration be disregarded solely for want of a doctor’s
fitness certification – Requirement for a dying declaration to be
recorded in the presence of a doctor, following certification of the
declarant’s mental fitness, is merely a matter of prudence – On
facts, investigating officer recorded the statement instantly, a day
after the incident, categorically stating that the medical report did
not mention that the condition of the declarant, was serious in
nature – On perusal of the statement, it is clear that the declarant
was in a fit condition as not only did he properly explain the incident
but has also markedly specified the role of the appellant – That
[2024] 7 S.C.R. 223

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

apart, the injuries found during the post-mortem examination
conducted by the doctor have duly corroborated the statement of
deceased – Mere non-obtainment of a medical fitness certificate
would not deter the Court from considering a properly recorded
statement u/s. 161 to be a dying declaration. [Para 70]
First information report – Object of:
Held: FIR is not a substantive piece of evidence, and it can be
used only to corroborate or contradict the version of an informant –
Also written complaint to register the FIR not necessary – Even
an oral communication to the Police disclosing the commission
of a cognizable offence is sufficient to register the FIR – Object
of the FIR is to inform the jurisdictional Magistrate and the Police
Administration of the offence reported to the Police Station; to
acquaint the Judicial Officer before whom the case is ultimately
tried as to what are the actual facts stated immediately after the
occurrence and on what materials the investigation commenced;
and most importantly, to safeguard the accused against subsequent
variations, exaggerations or additions. [Paras 38, 39]

Case Law Cited
Shivanna v. State of Hunsur Town Police [2010] 10 SCR 410 :
(2010) 15 SCC 91; State v. N.S. Gnaneswaran (2013) 3 SCC
594; State (NCT of Delhi) v. Navjot Sandhu [2005] Supp. 2 SCR
79 : (2005) 11 SCC 600; Heera v. State of Rajasthan [2007] 7
SCR 1065 (2007) : 10 SCC 175; Nathuni Yadav v. State of Bihar
[1996] Supp. 10 SCR 905 : (1998) 9 SCC 238; Pulukuri Kottaya
v. Emperor (1946) SCC OnLine PC 47; Raja @ Rajinder v. State
of Haryana [2015] 3 SCR 947 : (2015) 11 SCC 43; John Pandian
v. State [2010] 15 SCR 1012 : (2010) 14 SCC 129; Mukeshbhai
Gopalbhai Barot v. State of Gujarat [2010] 9 SCR 632 : (2010)
12 SCC 224; Sri Bhagwan v. State of U.P. [2012] 12 SCR 774 :
(2013) 12 SCC 137; Pradeep Bisoi v. State of Odisha [2018] 12
SCR 947 : (2019) 11 SCC 500; Koli Chunilal Savji v. State of
Gujarat [1999] Supp. 3 SCR 284 : (1999) 9 SCC 562; Laxman
v. State of Maharashtra [2002] Supp. 1 SCR 697 : (2002) 6 SCC
710 – referred to.

List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973; Evidence
Act, 1872.
224 [2024] 7 S.C.R.

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List of Keywords
Contradictions or discrepancies; Absence of blood group
classification; Inconclusive FSL; Medical fitness certificate;
Statement of the declarant recorded u/s. 161 CrPC before his
death; Dying declaration; Disclosure statement; Admissible in
evidence; Testimonies of eyewitnesses; First information report;
Plea of alibi; Onus to prove; Test Identification tests.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2806
of 2024
From the Judgment and Order dated 19.12.2017 of the High Court of
M.P. Principal Seat at Jabalpur in CRA No.193 of 2006

Appearances for Parties
Dushyant Dave, Sr. Adv., Kuldip Singh, Mrs. Ayushi Gaur, Gaurav
Yadava, Advs. for the Appellant.
Ms. Mrinal Gopal Elker, Saurabh Singh, Ashish Rawat, Advs. for
the Respondent.

Judgment / Order of the Supreme Court
Judgment
Surya Kant, J.
Leave granted.
2. This appeal is directed against the judgment dated 19.12.2017, passed
by the High Court of Madhya Pradesh at Jabalpur (hereinafter, ‘High
Court’), dismissing the Criminal Appeal filed by the Appellant against
his conviction and sentence under Section 302 read with Section
34 of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) awarded by
the Learned Additional Sessions Judge, Bhopal (hereinafter, ‘Trial
Court’) vide judgment and order dated 10.11.2005.
FACTS :
3. At this juncture, it is imperative to delve into the factual matrix to set
out the context of the present proceedings.
4. FIR No. 268 dated 20.06.2004 was registered at Police Station Kamla
Nagar, Bhopal under Sections 307, 147, 148, and 149 of IPC on the
[2024] 7 S.C.R. 225

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

statement of Usha Bai (P.W.10). The said Complainant stated that
on the night of 20.06.2004, at around 9:30 pm, she was overseeing
the construction of the wall of her Jhuggi (hut) by Devi Singh @
Tillu, and Tularam. At that moment, accused persons, Ahmad and
his wife, Kanija Bi, arrived and objected to the construction. Tillu
asserted that it was their Jhuggi and they had the right to build the
wall. Meanwhile, other accused persons, including Vijay, Dharmendra
@ Dhamma (Appellant), Katchu @ Ramswaroop, Ballu, Ravi, and
Asgar, arrived and began verbally abusing the Complainant, Tillu, and
Tularam. The situation intensified as all the accused, including the
Appellant, rushed to physically assault Tillu. In defence, Tillu sought
refuge inside a nearby unoccupied Jhuggi belonging to one Bhairav
Shastri, locking the door from inside. However, the accused forcibly
entered Bhairav Shastri’s Jhuggi by breaking open the door. Once
inside, they surrounded Tillu, with the Appellant delivering a knife blow
to Tillu in his abdomen, while Asgar inflicted another blow slightly
lower on his stomach. Following this, the other accused persons
also physically assaulted Tillu using their fists and sticks. Meanwhile,
Tularam attempted to intervene, but he too was subjected to blows
from Katchu and Ahmad, resulting in injuries to his head and hands.
Upon hearing the commotion, residents from the locality arrived at
the scene, prompting the accused to flee. The Complainant further
stated that she attempted to intervene but was threatened with dire
consequences if she did not leave the area.
5. After the incident, Tillu and Tularam, both injured, were taken to
Katju Hospital for medical aid. The Emergency Medical Officer, Dr.
R.S. Vijayvargiya (P.W.4), noted Tillu’s lack of pulse, as well as two
stab wounds in his chest and three stab wounds in his abdomen,
indicating a critical condition. Upon examining Tularam, Dr. Vijayvargiya
observed severe injuries to the occipital and temporal regions of his
head. Subsequently, both injured persons were referred to Hamidia
Hospital for further treatment.
6. Tillu unfortunately succumbed to his injuries and was declared dead,
while Tularam was still alive and was admitted to Hamidia Hospital.
7. Dr. C.S. Jain (P.W. 13) conducted the post-mortem examination on
Tillu, determining that the cause of death was shock and haemorrhage
resulting from multiple stab wounds across the body and head injuries.
The wounds were inflicted by a sharp, penetrating weapon, causing
the stab injuries, while the head injuries were inflicted by a hard and
226 [2024] 7 S.C.R.

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blunt object. The combined injuries to the head and abdomen were
deemed sufficient to cause death.
8. Girish Bohre, the Investigating Officer (P.W.14), commenced the
investigation by preparing a spot map (Ex.P.2) and also seized the
blood-stained pieces of the floor from the place of occurrence (Ex.P.31).
9. As Tularam was alive though critically injured, the Investigating Officer
(P.W. 14) documented his statement (Ex.P.40) under Section 161 of
the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’) wherein
Tularam recounted the events during the subject incident. Tularam
mentioned that he and Tillu were constructing the wall of Usha Bai’s
Jhuggi at Navgrah Mandir. Around 9:15 pm, Ahmad and his wife,
Kanija Bi, approached and opposed the construction. Despite Tillu’s
assertion that it was their wall, Ahmad persisted in preventing them.
Shortly after, Vijay, Dharmendra @ Dhamma (Appellant), Katchu
@ Ramaswaroop, Ballu, Ravi, and Asgar arrived, initiating verbal
abuse. The accused then assaulted Tillu, who sought refuge inside
Bhairav Shastri’s nearby Jhuggi, locking himself inside. The assailants
forcibly entered and surrounding Tillu, Dhamma (Appellant) inflicted
a knife blow to Tillu’s abdomen, while Asgar also stabbed him near
the navel. Additionally, the other accused engaged in physical assault
using sticks, lathis, and fists. When Tularam attempted to intervene,
Katchu and Ahmad struck him with sticks, inflicting injuries to his
head, hands, and body. Tularam noted that Lallu (P.W.11) and one
Ramesh were eyewitnesses to the incident.
10. Tularam too passed away approximately five days after undergoing
surgery in Hamidia Hospital. Dr. Neelam Srivastava (P.W.15)
conducted his post-mortem examination, concluding that the cause
of death was cardio-respiratory failure resulting from a head injury.
Moreover, the severity of the injury was such that it could have led
to death under normal circumstances. This injury, deemed homicidal,
was inflicted by hard, blunt, and heavy objects.
11. During the course of investigation, the Investigating Officer (P.W. 14),
following a disclosure statement (Ex.P.14) made by the Appellant,
recovered a knife, which the Appellant had concealed in Barrack
No. 2 of Police Line Nehru Nagar. Lallu Vishwakarma (P.W.11) was
a witness to this recovery. The knife was then submitted for forensic
examination (Ex.P.39), where the human blood on the knife was
detected but the blood group classification was inconclusive.
[2024] 7 S.C.R. 227

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

12. After the investigation, all the accused persons, including the Appellant,
were charged under Sections 147, 148, 302/149, 307/149 of IPC.
13. In the trial, the prosecution examined as many as 15 witnesses to
bring the guilt home, including Usha Bai, P.W.10 (Complainant) and
Lallu Vishwakarma, P.W.11, both eyewitnesses. The prosecution case
is largely based upon the version of these two eyewitnesses, who
claimed that the fatal blows were caused to the victims in front of them.
14. The Trial Court, having found the version of the two eyewitnesses
(P.W.10 and P.W.11) to be trustworthy, which was duly corroborated
by the testimony of the Investigating Officer (P.W.14), the medical
evidence and the recovery of the weapon, held the Appellant guilty of
offences under Sections 302, 147, 148, and 149 of IPC and sentenced
him to undergo life imprisonment.
15. The High Court, vide the impugned judgment, upheld the Appellant’s
conviction under Section 302 read with Section 34 of the IPC, though
it has acquitted him under Sections 147 and 148 of the IPC. The
High Court has held that: (i) The presence of the Appellant stood
established through the testimony of Lallu Vishwakarma (P.W.11),
and his cross-examination further confirms that there was no motive
for falsely incriminating the Appellant; (ii) The allegations against the
Appellant, as detailed by eyewitnesses Usha Bai (P.W.10) and Lallu
Vishwakarma (P.W.11), were duly corroborated by the medical opinions
of Dr. C.S. Jain (P.W.13) and Dr. Neelam Shrivastava (P.W.15); (iii)
The statement given by deceased Tularam, as recorded by P.W.14,
aligns with other evidence relied upon for conviction; (iv) The weapon
(knife) was seized based on the disclosure statement of the Appellant,
making the recovery admissible under Section 27 of the Indian
Evidence Act, 1872 (hereinafter, ‘IEA’); and (v) the testimony of
Investigating Officer, P.W.14, also corroborated the weapon’s seizure.
16. Discontented with his conviction, the Appellant is in appeal before us.
Contentions Of Parties :
17. Mr. Dushyant Dave, learned Senior Counsel for the Appellant, argued
that the High Court erred in upholding the Appellant’s conviction
under Section 302/34 IPC. Substantiating this, he made the following
submissions:
a) The prosecution’s case presented inherent contradictions. On
the one hand, the two eyewitnesses (P.W.10 and P.W.11),
228 [2024] 7 S.C.R.

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relied upon by the courts below, testified that the entire incident
unfolded inside Bhairav Shastri’s Jhuggi, situated near that of
the Complainant, (P.W.10). On the other hand, the Investigating
Officer (P.W.14), during his cross-examination, stated that no
quarrel took place near P.W.10’s Jhuggi, and that there was no
‘Bhairon Baba Temple’ or residence near the site of occurrence.
It was argued that since the incident admittedly occurred inside
a Jhuggi, it is unbelievable that the eyewitnesses could have
seen it.
b) It was contended that the presence of the Appellant at the place
of incident is stoutly disputed, and such an inference can be
well drawn from the statement of the Complainant herself. The
incident took place around 9:30 pm, posing visibility challenges
for the witnesses. Usha Bai (the Complainant, P.W.10) has
deposed that she was familiar with accused Ahamd, Asghar Ali,
Ravi, and Kanija Bi but was aware of the other accused by name
only. This clearly indicates that P.W.10 was not acquainted with
the Appellant. Barring the eyewitness account, there is no other
credible evidence to suggest that the Appellant was present or
participated in the occurrence.
c) Further, the knife injury could not be attributed to the Appellant,
as testified by Lallu Vishwakarma (P.W.11), who explicitly stated
that he couldn’t discern who assaulted whom.
d) That apart, it was urged that the weapon confiscated from the
Appellant underwent a Forensic Science Laboratory (hereinafter,
‘FSL’) examination, producing inconclusive results, which
bolsters the Appellant’s case that he was falsely implicated.
e) Finally, it was canvassed that the statement of the deceased
Tularam, recorded by Investigating Officer Girish Bohre (P.W.14)
under Section 161 CrPC, could not have been considered a
‘dying declaration’ due to the absence of certification from the
doctor regarding Tularam’s mental fitness.
f) Even otherwise, a dying declaration made before the Investigating
Officer/ Police is always shrouded by suspicious circumstances
and no reliance thereupon can be made.
18. Per Contra, Ms. Mrinal Gopal Elker, learned counsel on behalf of the
State, argued that the impugned judgment dated 19.12.2017 does
not warrant any interference by this Court. She submitted as follows:
[2024] 7 S.C.R. 229

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

a) The Courts below have expressly affirmed the presence of
the Appellant at the site of incident and his involvement in the
occurrence, based on the testimony of Lallu Vishwakarma
(P.W.11). She argued that Vishwakarma’s cross-examination
provides no reason to doubt his version qua the Appellant.
b) There is a specific accusation against the Appellant of inflicting
the knife blow on the deceased Tillu’s abdomen, which is
supported by the Medical Legal Certificate (MLC) conducted by
Dr. R.S. Vijayvargiya (P.W.4), who confirmed the presence of a
stab wound on the abdomen with profuse bleeding.
c) After he was apprehended, the Appellant voluntarily disclosed
the location of the concealed knife to the Investigating Officer
in the presence of witnesses. Such a recovery is admissible
in evidence as an incriminating material against the Appellant.
d) Finally, Ms. Elker highlighted that the courts below have rightly
considered the statement of deceased Tularam recorded under
Section 161 of CrPC as a ‘dying declaration’, corroborating the
prosecution’s case against the Appellant beyond any doubt.
ANALYSIS :
19. Having heard learned Senior Counsel/Counsel for the parties at a
considerable length and on perusal of the statements of eyewitnesses
along with other relevant material on record, we find that the following
three questions fall for our consideration in the present appeal:
A. Have the Courts below erred in not appreciating the contradictions
or discrepancies which would dislodge the prosecution’s case?
B. Is the absence of blood group classification or inconclusive FSL
results on the recovered weapon detrimental to the prosecution’s
case?
C. Does the Investigating Officer’s failure to obtain a fitness
certificate from the medical officer invalidate the consideration
of the statement of Tularam recorded under Section 161 CrPC
before his death, as a ‘dying declaration’?
A. CONTRADICTIONS IN THE PROSECUCTION’S CASE:
20. Since the prosecution case against the Appellant predominantly
hinges upon the testimonies of Usha Bai (P.W.10), Lallu Vishwakarma
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(P.W.11), Dr. C.S. Jain (P.W.13), Dr. Neelam Shrivastava (P.W.15) and
Girish Bohre (P.W.14), we deem it appropriate to briefly summarise
their testimonies hereunder:
21. Usha Bai (P.W.10) swore that on 20.06.2004, around 9.00 p.m.,
she was overseeing the construction of wall of her Jhuggi by Devi
Singh alias Tillu and Tularam. Ahmad and Kanija Bi, two of the
accused, arrived and ordered them to halt construction. Following
this, Ahmad struck Tularam on the head with a lathi. Subsequently,
Asgar, Ahmad’s son, incited the other accused to attack, prompting
all the accused to rush in and assault Tillu, Tularam, and Lalaram
with various weapons like sticks, rods, and pipes. When P.W.10
attempted to intervene by grabbing Ahmad’s lathi, she was verbally
abused and told to step aside. Consequently, she retreated to the
sidelines. The accused continued to beat Tillu and Tularam until they
were incapacitated. Tillu succumbed to his injuries at the scene,
while Tularam was barely breathing. Immediately after the incident,
Tillu, Tularam, and Lalaram were rushed to Hamidia Hospital for
treatment by the Kamla Nagar Police Station. Tillu passed away en
route to the hospital. P.W.10 lodged a First Information Report (FIR)
(Ex.P.7) detailing the incident.
22. Lallu Vishwakarma (P.W.11) recounted that the incident occurred
near a wall owned by Usha Bai (P.W.10). Around 8-9:30 pm, Ahmad
arrived wielding a lathi at the place of construction of Usha Bai’s
wall, where P.W.11 and Tillu were sharing a meal. Ahmad confronted
them, objecting to the wall’s construction. In response, Tillu urged
them to allow the construction to proceed. Subsequently, all the
other accused arrived and assaulted Tillu and another individual,
although P.W.11 couldn’t discern the specific assailants. The accused
wielded various weapons such as lathis, knives, sticks, rods, and
pipes during the attack. Tillu was found injured inside Bhairon Baba’s
room, while Tularam lay injured at the construction site. P.W.11 then
arranged for the injured to be transported in an auto. He noted that
Tillu’s intestines were protruding, which he wrapped in cloth and
placed in the auto. Additionally, Tularam had suffered traumatic and
haemorrhagic shock due to multiple injuries. The injured were then
taken to Hamidia Hospital. The Police subsequently confiscated
the knife and sticks from the Appellant (Ex.P.14) and prepared a
memorandum, which P.W.11 signed.
[2024] 7 S.C.R. 231

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

23. In addition to the two eyewitnesses, the prosecution so as to lend
corroboration to the ocular evidence, called upon medical experts,
namely Dr. C.S. Jain (P.W.13) and Dr. Neelam Shrivastava (P.W.15),
who conducted the post-mortem examinations of Tillu and Tularam,
respectively.
24. Dr. C.S. Jain, P.W.13, reported that Tillu’s body was brought in for
post-mortem examination on 21.06.2004, revealing four stab wounds
on the front side of the abdomen, along with a laceration on the head
and three abrasions. He concluded that the stab wounds were inflicted
by a hard, sharp, and penetrating weapon, while the head injuries
were caused by a hard and blunt object. The combined injuries to the
head and abdomen were deemed sufficient to cause death.
25. Dr. Neelam Shrivastava, P.W.15, testified that Tularam’s body was
brought for post-mortem examination on 24.06.2004, revealing multiple
radial fractures, subdural subarachnoid haemorrhage, and various
wounds. She concluded that Tularam’s death resulted from respiratory
failure due to a head injury and its associated complications. The
severity of the injury was sufficient to cause death in the ordinary
course of nature, and it was determined to be homicidal, inflicted
by a hard, blunt, and heavy weapon. During cross-examination,
she clarified that Tularam did not sustain any injuries from knives or
swords on his body.
26. The prosecution also examined Girish Bohre, Investigating Officer
(P.W.14), of the subject incident. He testified how the investigation was
conducted, a spot map (Ex.P.2) of the location was prepared, and a
blood-stained piece of flooring was also seized from the place of the
incident. Additionally, he conducted a panchnama on Tillu’s dead body
(Ex.P.32). He apprehended the Appellant and interrogated him in the
presence of witnesses. During interrogation, the Appellant confessed
to hiding the knife used in the assault in Barrack No. 2 of the Police
Line Nehru Nagar. P.W.14 then drafted a memorandum, leading to the
recovery of an iron knife at the instance of the Appellant. Following
this, he arrested the Appellant and other co-accused. P.W.14 also
prepared a panchnama (Ex.P.34) of Tularam’s dead body.
27. It is pertinent to mention at this stage that Ajjharruddin (P.W.1),
Sukhram (P.W.2), and Reshambai (P.W.3) were also brought in as
eyewitnesses to the incident. However, they were deemed hostile
by the prosecution, as according to them, no incident occurred in
their presence.
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28. It is noteworthy to mention here that during the trial of the Appellant
and other co-accused, one of the accused, Vijay Singh absconded.
Subsequent to the judgment of the Trial Court in 2005, that Vijay
Singh was apprehended and tried. The Trial Court vide another
judgment delivered in the year 2007, convicted him based on the
testimony of eyewitness Usha Bai (P.W.10), duly supported by the
medical opinions of Dr. C.S. Jain (P.W.13) and Dr. Neelam Shrivastava
(P.W.15) as well as the testimony of Girish Bohre, the Investigating
Officer (P.W.14).
29. Having elaborated on the testimonies of the key witnesses in the
instant case, we may now dredge up the contradictions highlighted
on behalf of the Appellant.
A.1 Bhairav Shastri’s Jhuggi
30. It was vehemently agitated that there is a latent dissension in the
testimonies of the witnesses regarding the location of the occurrence.
While Usha Bai, P.W.10 and Lallu Vishwakarma, P.W.11, deposed
that the deceased Tillu entered the Jhuggi of Bhairav Shastri, where
he was subsequently surrounded and assaulted in the abdomen
by the Appellant wielding a knife, the Investigating Officer (P.W.14)
veraciously admitted during cross-examination that he was unaware
of any individual named Bhairon Baba residing near the scene of the
incident. The I.O. further clarified that there was no house or temple
associated with Bhairon Baba in the vicinity of the incident, which is
why he did not name it in the spot map (Ex.P.2).
31. We have thoroughly scrutinized the testimonies of the witnesses in
this regard. We find a consistent mention of Bhairav Shastri across all
prosecution accounts, with Bhairav Shastri also being loosely referred
to as Bhairon Baba. Lallu Vishwakarma, P.W. 11, has unerringly
stated in his testimony that the deceased Tillu was discovered
inside Bhairon Baba’s room following the incident. Additionally, the
presence of Bhairon Shastri’s Jhuggi is noted in Section 161 CrPC
statement of the deceased Tularam recorded by Girish Bohre, the
Investigating Officer (P.W.14), wherein he unequivocally stated that
Tillu sought refuge inside Bhairav Shastri’s hut and locked himself
in. The mention of Bhairon Shastri’s Jhuggi is also evident in the FIR
(Ex.P.7) filed by the Complainant, P.W.10, as well as in her statement
(Ex.D.1) recorded under Section 161 CrPC.
[2024] 7 S.C.R. 233

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

32. It is true that while Girish Bohre (P.W.14), as per his statement,
was unaware of any Bhairon Baba near the scene of occurrence,
the location referred to as ‘Bhairon Shastri’s Jhuggi’ by the other
witnesses is indeed depicted on the spot map (Ex.P.2) prepared by
him. A plain examination of the spot map (Ex.P.2) reveals a marked
structure labelled ‘B’, identified as a `brick room’ where the deceased
took refuge. Even though the said structure is not captioned as
Bhairav Shastri’s Jhuggi or by any other name, it gives credence
to the version of the eye witnesses that Tillu was attacked in the
neighbouring Jhuggi. Moreover, the defence has not disputed the
depictions in the spot map while cross-examining the I.O. (P.W.14).
33. A mere omission on the part of the Investigating Officer in marking
a spot on the site plan does not deflect the prosecution’s case. It
is well-established that the site plan merely denotes the location of
the incident without implying further details.1 In light of the fact that
the persons who had seen that to which they have testified, due
weightage must be given to their first-hand version. Their evidence
cannot be jettisoned merely because the I.O. forgot to describe the
room as ‘Bhairav Shastri’s Jhuggi’ on the spot map.
34. It is a case where eyewitnesses have corroborated each other;
their depositions are reinforced by deceased Tularam himself in his
statement recorded under Section 161 CrPC, and the location of the
incident is depicted on the spot map (Ex.P.2) as a `brick room’. It,
thus, stands established that there was another Jhuggi where the
deceased sought refuge and was eventually assaulted. Given these
circumstances, the so-called contradiction miserably fails to invade
the corpus delicti.
A.2 Legal Effect of Non-reading of Contents of FIR to the
Complainant
35. It was then argued that the Complainant, Usha Bai (P.W.10), in
her cross-examination, has candidly admitted that the FIR (Ex.P.7)
was not read out to her and she put her thumb impression under
the instructions of the Police. Reliance is placed on her deposition
during cross-examination where she claims to have thumb marked
on a blank paper, whereupon Ex.P.7 was prepared.

1 Shivanna v. State of Hunsur Town Police (2010) 15 SCC 91
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36. In order to appreciate the contention, we have gone through the
translated version of the statement of Usha Bai (P.W.10), which the
Appellant has appended along with the original paper book as well
as a part of “Compilation of Depositions of Witnesses”. Since the
translated version was seemingly incorrect, making it difficult to discern
as to what the witness had deposed, we have also gone through the
original Hindi version of Usha Bai’s (P.W.10) statement.
37. The statement of a witness has to be extolled in its entirety. It may
be recapitulated that Usha Bai (P.W.10), in her complaint which led
to the registration of the subject FIR, had categorically stated that,
“Vijay, Dharmendra @ Dhamma, Katchu @ Ramswaroop, Ballu,
Ravi, Asgar all came shouting that Tillu was indulging in Dadagiri and
he be finished today……...” The FIR further states that, “ye sabhee
log” [all these persons] started attacking, Tillu ran towards Bhairav
Shastri’s Jhuggi, entered and closed the door from inside to save
himself. “Sabhee ne” (all of them) forcefully broke the door open and
entered the Jhuggi and surrounded Tillu ….. and Dharmendra @
Dhamma (Appellant) then gave a knife blow in the abdomen of Tillu.
38. It must also be borne in mind that FIR is not a substantive piece of
evidence, and it can be used only to corroborate or contradict the
version of an Informant. It is also not necessary that there should
always be a written complaint to register the FIR. Even an oral
communication to the Police disclosing the commission of a cognizable
offence is sufficient to register the FIR.
39. The object of the FIR is three-fold: firstly, to inform the jurisdictional
Magistrate and the Police Administration of the offence that has been
reported to the Police Station; secondly, to acquaint the Judicial Officer
before whom the case is ultimately tried as to what are the actual facts
stated immediately after the occurrence and on what materials the
investigation commenced; thirdly and most importantly, to safeguard
the accused against subsequent variations, exaggerations or additions.
40. The subject FIR (Ex.P.7) fully satisfies all the ingredients of Section 154
CrPC. The occurrence is reported to have taken place on 20.06.2004
at 9.30 p.m., and the FIR was recorded on the same day at 10.45
p.m. The names of all the eight accused who allegedly participated
in the occurrence are duly recorded. The FIR is written in a natural,
consistent flow of handwriting, with no signs of spaces being left,
words being overwritten or shrunken, or any word or sentence being
[2024] 7 S.C.R. 235

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

interpolated. The last line of the FIR categorically records that the
report was read out and explained to the Informant. The FIR is in
the prescribed format and Usha Bai (P.W.10) has thereafter put her
thumb impression.
41. It is true that during her cross-examination, Usha Bai (P.W.10),
has claimed that the Police neither read out the FIR (Ex.P.7) to
her nor did it mention the contents of her statements which were
recorded by the Police on 5-6 occasions. She further stated that
it could not be determined what version was included in Ex.P.7
since she is not a literate person. It seems that the Appellant made
an overt attempt to influence the witness. However, despite Usha
Bai’s innocuous intent to help the Appellant from the wrath of law,
she could not deny the fact that the FIR was registered on her
complaint or that Tillu and Tularam suffered fatal injuries in the
occurrence reported by her.
42. Assuming that the Police failed to read out or apprise the informant
about the contents of the FIR, the question that falls for consideration
is whether such omission has caused any prejudice to the Appellant?
In our considered opinion, the answer has to be in the negative. This
is not a case where the Appellant was not provided with a copy of
the FIR or the charge sheet, which could have hindered his ability to
effectively cross-examine the Informant. The record reveals that Shri
A.K. Shrivastava, Advocate, cross-examined Usha Bai (P.W.10) on
behalf of the Appellant. Usha Bai did try to help the Appellant by not
disclosing his name as one of the accused, but she could not hide the
fact that besides Ahmad, Asgar, Ravi and Kanija Bi, she also knew
the other accused by their names. The Appellant is admittedly one of
those accused. She has further deposed that sabhee ne (all of them)
assaulted Tillu with lathi, rods and pipes. She further stated that when
she tried to intervene, Ahmad abused her and threatened to kill her.
She then went and stood at some distance and witnessed that those
aaropigan, i.e., all the accused, had given fatal assaults to Tillu and
Tularam. Most importantly, she further testified that she, along with
Lalaram, then went to the Police Station Kamla Nagar, whereafter the
Police Officials immediately sent Lalaram and Tularam for treatment
at Hamidia Hospital. Tillu, however, could not reach the hospital as
he succumbed to the injuries on the way. Additionally, in paragraph
4 of her deposition, Usha Bai (P.W.10) unmistakably states that she
reported the matter to Police Station Kamla Nagar through Ex.P.7,
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which is thumb marked by her. This part of her deposition has not
been questioned by the Appellant while cross-examining Usha Bai
(P.W.10). We have also gone through the Appellant’s own statement
recorded under Section 313 CrPC. Aside from a vague denial and
claims of false implication, there is no suggestion that he was not
present at the scene; that he did not participate in the incident, or that
he was falsely implicated for any reason. The Appellant, thus, has
failed to demonstrate any prejudice resulting from the alleged non-
reading of the contents of the FIR to the Informant. The contention
raised in this regard is entirely misconceived.
43. Be that as it may, this Court in State v. N.S. Gnaneswaran 2 has
ruled that the stipulations outlined in Section 154 CrPC concerning
the reading over of the information after it is written down, the
signing of the said information by the informant, and the entry of
its substance in the prescribed manner are not obligatory. These
requirements are procedural in nature, and the omission of any of
them does not impact the legal consequences resulting from the
information provided under the section.
44. It is equally well-settled that when the testimonies of eyewitnesses
are consistent, unimpeachable, and duly corroborated by medical
evidence or the recovery of incriminating material like the weapon
used, the deficiencies, if any, in the recording of FIR alone do not
constitute a valid ground to overturn the conviction or undermine
the prosecution case.
A.3 Presence of Appellant on the Place of Occurrence
45. Learned Senior Counsel for the Appellant argued that it is a case
of false implication as the presence of the Appellant at the spot of
occurrence has not been established beyond doubt. He relied upon
the statement of Usha Bai (P.W.10), who, in the opening statement
of her examination-in-chief, named Ahmad, Asgar, Ravi and Kanija
Bi as accused and claimed that she did not know anyone else. It
was highlighted that Usha Bai (P.W.10) not only failed to name the
Appellant in her entire statement but also admitted during the cross-
examination that she never provided the names of the assailants,
as mentioned by the Police in the FIR (Ex.P.7).

2 (2013) 3 SCC 594
[2024] 7 S.C.R. 237

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

46. We are, however, not impressed by the submission. We say so for
the following reasons :
(a) The statement of Usha Bai (P.W.10) has to be read and
appreciated in its entirety and not in piecemeal.
(b) She, as discussed earlier, deposed that she knew the remaining
accused by name. She was indisputably referring to the remaining
accused who were present in court which included the Appellant
as well.
(c) She deposed that “all the accused” attacked Lalaram, Tularam
and Devi Singh @ Tillu with dandas, rods and pipes.
(d) She further deposed that all the accused assaulted Tillu and
Tularam with the intention to kill them.
(e) She also admitted that she went to Police Station Kamla
Nagar and got the FIR (Ex.P.7) lodged, which bore her thumb
impression.
(f) Having admitted these material facts, it would be too far-fetched
to dissect Usha Bai’s version to hold that the Appellant was not
present or participated in the occurrence.
(g) In any case, Lallu Vishwakarma (P.W.11), another eyewitness,
explicitly stated that the Appellant was present and he participated
in the incident by delivering a knife blow to Tillu’s abdomen.
(h) The knife injury attributed to the Appellant has been duly
established by Dr. R.S. Vijayvargiya (P.W.4) and Dr. C.S. Jain
(P.W.13).
(i) The Investigating Officer (P.W.14) successfully established the
recovery of the weapon of offence, namely a knife, based on the
Appellant’s disclosure statement. Lallu Vishwakarma (P.W.11),
who witnessed the recovery, supported the Investigating Officer’s
testimony.
(j) To dispel any doubts, Lallu Vishwakarma (P.W.11) identified
the Appellant in court and specifically pointed out, “The person
standing in front wearing a check shirt is Dharmendra”.
47. It is trite law that identification tests (TIP) do not serve as substantive
evidence but are primarily intended to assist the investigating agency
in ensuring that their progress in investigating the offence is on the
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correct path. Holding a TIP is not obligatory. Further, a failure to hold
TIP cannot be a ground to eschew the testimony of witnesses whose
evidence was concurrently accepted by the trial and appellate courts.3
Additionally, a failure to hold a parade would not make inadmissible
the evidence of identification in the court.4
48. Similarly, the contention of poor visibility owing to darkness at the
spot of occurrence is also not tenable. In analysing the incidents
occurring at night, this Court in Nathuni Yadav v. State of Bihar 5
has taken into account several factors, including:
(i) The proximity at which the assailants would have confronted
the injured.
(ii) The possibility of some ambient light reaching the scene from
the stars.
(iii) The familiarity of the witnesses with the appearance of each
assailant.
49. In the instant case, firstly, the place of occurrence, i.e., Bharav Shastri’s
Jhuggi, was adjacent to that of the Complainant (P.W.10) making it
easier for the witnesses to observe and identify the accused persons.
Secondly, each accused, particularly the Appellant, was familiar to
the eyewitnesses. Thirdly, considering that the incident occurred on a
summer night, there would have been minimal obstruction to visibility
for the witnesses. Fourthly and most importantly, the Appellant, in his
313 CrPC Statement, has nowhere taken the plea of alibi. He did not
pursue this defence during the cross-examination of witnesses either.
50. There is no gainsaying that whosoever pleads alibi in contrast and
derogation of the eyewitness version, is under cumbrous onus to prove
absence from the scene and time of crime. The Appellant not only
failed to raise this defence but also did not adduce any evidence in
support thereof. Taking into consideration the cumulative effect of all
these factors, we have no reason to doubt that the Appellant was not
only present at the scene of crime, but he actively participated also in
the occurrence and gave one of the fatal blows to Tillu (deceased).

3 State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600
4 Heera v. State of Rajasthan (2007) 10 SCC 175
5 [1996] Supp. 10 SCR 905 : (1998) 9 SCC 238
[2024] 7 S.C.R. 239

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

51. We cannot overlook the fact that in a situation where two people are
killed in a heated altercation, it is highly unlikely that the eyewitnesses
would want the real perpetrators to escape justice. In the absence of
any prior motive, it is not plausible that they would falsely accuse the
Appellant in this case. This is not a scenario where the Complainant
or P.W.11 held grudges against the Appellant and fabricated a story
to implicate him after the incident. Rather, the name of the Appellant
surfaced in the very first version, duly recorded vide Ex.P.7, within
less than two hours of the occurrence. Pertinently, no motive to
falsely implicate the Appellant has been suggested during the cross-
examination of the eyewitnesses.
A.4 Attribution of knife injury on the Appellant
52. It was maintained by Learned Senior Counsel for the Appellant that
since the incident took place inside the Jhuggi and at night, it is highly
improbable that the witnesses could see the manner in which the
incident took place. Further, reliance was placed on the statement
of Lallu Vishwakarma, P.W.11, who stated that he could not see who
assaulted whom, and he could not tell which weapon was seized
from whom. It was, thus, asserted that there is not even an iota of
evidence to conclude that the knife injury was caused by the Appellant.
53. We have deeply analysed the submission. It is essential for this Court
to examine the Disclosure Statement (Ex.P.14) of the Appellant,
which resulted in the discovery of the weapon (knife) in question.
The statement reads as under:
“On 20.04.2004, I along with my companions Ahmad, Asgar,
Ravi, Vijay, Katchu @Ramswaroop, Ballu, and Kanija Bi
committed Maarpeet with Tillu @ Devi Singh with knife and
stick voluntarily, the knife, by which Tillu @ Devising was
assaulted by me, has been hidden by me in the Barrack
No. 2 of Police Line Nehru Nagar. Come with me, I will
hand over it to you.”
54. The disclosure statement made by the Appellant led to the discovery
and subsequent seizure of the knife, namely, the weapon of offence.
Subsequently, a seizure memo (Ex.P.20) was prepared, which stated
as follows:
“One knife made of iron with wooden handle the total
length of which is about 14 ½ inches, the length of handle
is about 4 ¾ inches and length of blade is about 10 inches
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and width of blade is about 1 ¼ inches, the tip of knife is
pointed, blood is present in the front (agla) part of the blade
which has dried up. On producing by accused Dharmendra
@ Dhamma, the same was taken in possession of Police
and sealed pack on the spot itself as evidence.”
55. The question that requires determination is whether the above-stated
disclosure statement is admissible in evidence? The issue regarding
the admissibility of a disclosure statement within the meaning of
Section 27 of the IEA was comprehensively addressed by this Court
in Pulukuri Kottaya v. Emperor,6 delineating the following briefly
summed up criteria:
(i) There should be a discovery of the fact.
(ii) The discovery of fact should be in consequence of information
received from a person accused of an offence.
(iii) The person giving the information should be in the custody of
a Police Officer.
(iv) Only that portion of information which relates distinctly or strictly
to the fact discovered can be proved.
56. The testimony of the Investigating Officer (P.W.14) unfolds that the
Appellant voluntarily made the disclosure statement while he was
in police custody, pursuant to which the weapon of offence (knife)
was recovered. Whether the said statement was made voluntarily
or was secured through coercion is essentially a question of fact. In
this regard, the testimony of Lallu Vishwakarma (P.W.11) assumes
significance as the disclosure statement was duly witnessed by him.
In our considered opinion, the disclosure statement of the Appellant
to the extent it led to the recovery of a knife fulfils the basic tenets
of Section 27 of IEA and has been correctly admitted in evidence.
57. We may hasten to add at this stage that the prosecution version
was not only accepted by the Trial Court but the High Court has also
affirmed it in appeal. In our quest to find out whether the Appellant
is guilty beyond a reasonable doubt, we have expanded the wings
of our limited jurisdiction and assumed the role akin to that of the 1st
Appellate Court. We are conscious of the fact that the jurisdictional

6 1946 SCC OnLine PC 47
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Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

magnification ought to be an exception and be invoked with great
circumspection, in a case of extreme hardship, after taking into
consideration the socio-economic conditions of the victim(s) of a
crime, the accused, as well as the vulnerable witnesses. Keeping
such parameters in view, it cannot be ignored that both eyewitnesses,
P.W.10 and P.W.11, are illiterate labourers, and their testimonies were
recorded after a considerable length of time had passed since the
occurrence. Both the witnesses have emphatically denied that they
were tutored by Police or anyone else. The unfiltered testimony of
a rustic witness, even if marred with some minor inconsistencies or
discrepancies, cannot debilitate its perseverance. The evidence of
such witnesses has to be evaluated comprehensively and carefully,
especially when the cross-examination discreetly suggests that the
accused person(s) did make a bid to win them over by exerting some
extraneous pressure. We are, thus, satisfied that the statements of
P.W.10 and P.W.11 do not suffer from the discrepancy of such a nature
that they should be discarded. Even the testimony of the Investigating
Officer (P.W.14) is devoid of any ulterior motive or attempt to fabricate
evidence or falsely implicate the Appellant and his co-accused.
58. It would be too unfair and unreasonable to expect a witness, unless
parroted, to recall every minute detail of the occurrence and present
it with a totally accumulative narrative. The Appellant’s contention is
thus bereft of any merit.
B. Effect of Absence of Blood Group Classification on
Prosecution’s Case
59. Learned Senior Counsel on behalf of Appellant asserted that the
knife purportedly retrieved from him underwent examination at the
Forensic Science Laboratory, where the test results were inconclusive,
particularly regarding the determination of the blood group on the
weapon. Consequently, the absence of a conclusive match in the
blood group analysis should be construed in favour of the Appellant
and against the prosecution.
60. Upon a thorough examination of the FSL report, it stands confirmed
that the blood group classification test conducted on the recovered
knife yielded inconclusive results. However, it is crucial to note that
human blood was detected on the knife recovered at the instance of
the Appellant (Exhibit “I” before FSL). This fact gains some importance,
considering that various weapons, including lathis and even the knife
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attributed to accused Asgar, underwent an FSL examination, yet, no
traces of human blood were found on them. Notably, human blood
was solely found on the knife used by the Appellant.
61. In line with the precedents set forth by this Court in Raja @ Rajinder
v. State of Haryana7 and John Pandian v. State8, the non-explanation
of human blood on the weapon of crime constitutes a circumstance
against the accused. It is incumbent upon the accused to provide
an explanation regarding the presence of human blood on the
weapon. The Appellant has failed to do so. The judgments delivered
by both the Trial Court and the High Court also do not reveal that
the Appellant rendered any satisfactory explanation concerning the
presence of blood on the recovered knife. Top of Form While it may
not be a decisive factor to determine the guilt, but a conspicuous
silence does lend support to the prosecution case.
C. Consideration of Section 161 CrPC Statement of Deceased
Tularam as Dying Declaration
62. It is contended on behalf of the Appellant that the courts below
have erred in relying on the statement of Tularam (Ex.P.40) given
to Investigating Officer, Girish Bohre (P.W.14) and that the said
statement cannot be considered to be a ‘dying declaration’ as the
Investigating Officer did not take any certification from the doctor
regarding the fitness of mind of Tularam.
63. In this regard, the following part of the testimony of Investigating
Officer, Girish Bohre (P.W.14), who recorded the statement of Tularam
under Section 161 CrPC, becomes quintessential:
“It is correct that I did not take permission from the Doctor
about the condition of giving statement of Tularam before
recording statement of Tularam. It is correct that I knew this
fact at the time of recording statement that one person has
died in this case. As head injury was not told to be serious
in the Medical Report, so it is incorrect to say that I knew
this fact that Tularam had sustained lathi blow on his head
and his condition was serious. It is incorrect to say that head
injury caused to Tularam was serious and his condition was

7 [2015] 3 SCR 947 : (2015) 11 SCC 43
8 [2010] 15 SCR 1012 : (2010) 14 SCC 129
[2024] 7 S.C.R. 243

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

told to be serious in his medical report. It is correct that
proceedings of recording dying declaration of Tularam was
not conducted by me till Tularam was alive. It is incorrect
to say that Tularam was not able to speak after sustaining
the injuries and till his death, so I did not record his dying
declaration. It is incorrect to say that due to this reason
the statement of Exhibit P.40 has been falsely prepared.”
64. Before we proceed further, it would be apt to recapitulate Section 32(1)
of the IEA, whereunder the statement made by a person, who is dead,
as to the cause of his death or as to any of the circumstances of the
transaction which resulted in his death, is relevant and admissible,
irrespective of the fact that such person at the time of making the
statement was not under expectation of death.
65. Section 161 CrPC empowers the Police to examine orally any
person who is acquainted with the facts and circumstances of the
case under investigation. The Police may reduce such statement
into writing also. Section 162(1) CrPC, nonetheless, mandates that
no statement made by any person to a Police Officer, if reduced to
writing, be signed by the person making it, nor shall such statement
be used in evidence except to contradict a witness in the manner
provided by Section 145 of the IEA. However, Sub-Section (2) of
Section 162 CrPC carves out an exception to Sub-Section (1) as it
explicitly provides that nothing in Section 162 shall be deemed to
apply to any statement falling within the ambit of clause (1) of Section
32 of the IEA. In other words, a statement made by a person who
is dead, as to the cause of his death or to the circumstances of the
transaction which resulted in his death, to a Police Officer and which
has been recorded under Section 161 CrPC, shall be relevant and
admissible, notwithstanding the express bar against use of such
statement in evidence contained therein. In such eventuality, the
statement recorded under Section 161 CrPC assumes the character
of a dying declaration. Since extraordinary credence has been given
to such dying declaration, the court ought to be extremely careful
and cautious in placing reliance thereupon. There are a catena of
decisions of this Court which lend support to the inter-play between
provisions of the CrPC and the IEA, as explained above9.

9 See: i) Mukeshbhai Gopalbhai Barot v. State of Gujarat (2010) 12 SCC 224; (ii) Sri Bhagwan v. State of
U.P. (2013) 12 SCC 137; (iii) Pradeep Bisoi v. State of Odisha (2019) 11 SCC 500
244 [2024] 7 S.C.R.

Digital Supreme Court Reports

66. As regard to the assessment of mental fitness of the person making
a dying declaration, it is indubitably the responsibility of the court
to ensure that the declarant was in a sound state of mind. This is
because there are no rigid procedures mandated for recording a
dying declaration. If an eyewitness asserts that the deceased was
conscious and capable of making the declaration, the medical opinion
cannot override such affirmation, nor can the dying declaration be
disregarded solely for want of a doctor’s fitness certification. The
requirement for a dying declaration to be recorded in the presence
of a doctor, following certification of the declarant’s mental fitness,
is merely a matter of prudence.10
67. The Constitution Bench in Laxman v. State of Maharashtra11 has
authoritatively ruled that:
“3. … …But where the eyewitnesses state that the deceased
was in a fit and conscious state to make the declaration,
the medical opinion will not prevail, nor can it be said that
since there is no certification of the doctor as to the fitness
of the mind of the declarant, the dying declaration is not
acceptable. A dying declaration can be oral or in writing
and any adequate method of communication whether by
words or by signs or otherwise will suffice provided the
indication is positive and definite. In most cases, however,
such statements are made orally before death ensues and
is reduced to writing by someone like a Magistrate or a
doctor or a police officer. … … What is essentially required
is that the person who records a dying declaration must
be satisfied that the deceased was in a fit state of mind.
Where it is proved by the testimony of the Magistrate that
the declarant was fit to make the statement even without
examination by the doctor the declaration can be acted
upon provided the court ultimately holds the same to
be voluntary and truthful. A certification by the doctor is
essentially a rule of caution and therefore the voluntary
and truthful nature of the declaration can be established
otherwise.”

10 Koli Chunilal Savji v. State of Gujarat (1999) 9 SCC 562
11 [2002] Supp. 1 SCR 697 : (2002) 6 SCC 710
[2024] 7 S.C.R. 245

Dharmendra Kumar @ Dhamma v. State of Madhya Pradesh

68. It is important in this case to appreciate that the Investigating Officer
recorded the statement instantly, a day after the incident. He has
categorically stated that the medical report did not mention that the
condition of the declarant, Tularam, was serious in nature. More
importantly, Tularam was able to convey his statement properly.
Furthermore, on perusal of the statement, it is clear that the declarant
Tularam was in a fit condition as not only did he properly explain the
incident but has also markedly specified the role of the Appellant.
That apart, the injuries found during the post-mortem examination
conducted by P.W.13 and P.W.15 have duly corroborated the
statement of deceased Tularam.
69. From the above discussion, it is manifest that the mere non-
obtainment of a medical fitness certificate will not deter this Court
from considering a properly recorded statement under Section 161
CrPC to be a dying declaration.
CONCLUSION :
70. For the reasons stated above, we are satisfied that there are no
contradictions or discrepancies in the prosecution case of such a
nature that would compel us to take a view different than that of the
Trial Court and the High Court. We, therefore, do not find any merit
in this appeal, which is, consequently, dismissed. If the Appellant is
on bail, his bail bonds are cancelled, and he is directed to surrender
and undergo the remainder of the sentence. However, if the Appellant
is already in custody, in that event, he shall complete the remainder
of the sentence.
71. Ordered accordingly.

Result of the case: Appeal dismissed.

†
Headnotes prepared by: Nidhi Jain