RANVIR SINGH ETC. ETC.versusTHE STATE OF MADHYA PRADESH

                         [2023] 1 S.C.R. 841                            841


                   RANVIR SINGH ETC. ETC.                               A
                                 v.
              THE STATE OF MADHYA PRADESH
             (Criminal Appeal Nos. 1384-1385 of 2009)
                        JANUARY 12, 2023                                B
          [B. R. GAVAI AND M. M. SUNDRESH, JJ.]
        Penal Code, 1860 – ss. 148, 302/149, 324/149, 304 Part-II –
Acquittal under – Appellants-accused persons were charged of
having committed an offence u/ss. 148, 302/149, 324/149 – Dehati
                                                                        C
Nalishi (Ex. P-28) was recorded as an FIR, in pursuance of the
information given by one of the deceased person ‘H’, in which he
stated that he along with the other two persons (K and PW-12) was
attacked by the appellants – The Statement of the H was recorded
at the place of occurrence by PW-20 (Investigating officer) and
later H died at the hospital – Trial Court convicted the appellants –   D
High Court confirmed life imprisonment for death of ‘K’ and modified
the same qua deceased ‘H’ to u/s. 304 Part-II – On appeal, held :It
was PW-20 who had recorded statement, it is highly doubtful as to
whether the deceased would be conscious enough to give the
statement, particularly in light of the injuries suffered by him – On
                                                                        E
a perusal of the records, there were writings over the thumb
impression made under Ex. P-28 – It is rather strange as a thumb
impression would normally follow the statement; it has to find place
at the conclusion of the statement – This lends credence to the view
that thumb impression must have been obtained on a blank paper –
The statement as the one actually given by the deceased to PW-20        F
cannot be treated as dying declaration – The statement specifically
excludes others and the same excluded were shown as witness by
the same investigating officer – There is no explanation given by
PW-20 as to why the statement of deceased was not recorded in the
presence of the judicial magistrate and duly certified doctor – Also,
                                                                        G
the evidence adduced by the prosecution through eye witnesses is
not trustworthy – Witnesses were not able to name the accused –
However, they have identified the accused after 2 to 3 years for
first time in the Court – Test identification Parade ought to be have
been done – Much reliance was placed on PW-12, however, PW-12
was not examined by PW-20 – Statement of PW-12 u/s. 161 Cr.P.C.,        H
                                841
842            SUPREME COURT REPORTS                      [2023] 1 S.C.R.


A     if recorded was not marked – PW-12 also identified accused first
      time in Court – Evidence of PW-12 cannot be relied upon – Therefore,
      benefit of doubt given to the appellants-accused.
            Allowing the appeals, the Court
            HELD: Investigating Officer’s Role:
B
            1. Even on the recording of the statement of the deceased
      ‘H’, P.W.20-the Investigating Officer was not very clear. The
      discrepancy also extends to the place where the body was found
      when the statement was recorded. An investigating officer is
      expected to act in an un-biased, fair and in a manner that is
C     required of a public servant. His concern is to find out the truth.
      The suppression of the statement given by the other witnesses
      would obviously go to the root of the matter. One does not know
      the clear picture, and therefore the benefit shall be extended to
      the appellants. [Para 29][852-E-G]
D            2. P.W.20 is the one who recorded the statement. On the
      discussion made, it is highly doubtful as to whether the deceased
      would be conscious enough to give the statement, particularly in
      light of the injuries suffered by him. There are not only incise
      wounds, but there must have also been continuous bleeding,
E     which would have naturally occurred, as the case was registered
      a day after the occurrence. The statement of witnesses contradicts
      each other on this aspect. Furthermore, as rightly submitted by
      the counsel for the appellants, on a perusal of the records, there
      were writings over the thumb impression made under Ex. P-28.
      It is rather strange as a thumb impression would normally follow
F     the statement; it has to find place at the conclusion of the
      statement. It is found, on the scrutiny, that even after the thumb
      impression over which there were obviously writings found, there
      were some more sentences written. This obviously lends credence
      to the view that thumb impression must have been obtained on a
G     blank paper and in a hurry, the contents were filled up
      subsequently. [Para 31][856-H; 857-A-C]
            Dying Declaration
           3. There is absolutely no explanation given by P.W.20 as to
      why he has not utilized the services of either a Magistrate or a
H     doctor, even after his first recording. The fact that he deposed
    RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                       843
                      PRADESH

that the statement was recorded once again which, however, was          A
not a part of the record. If the deceased ‘H’ was so badly injured,
and therefore died within few days of his admission into the
hospital, nothing prevented P.W.20 to record the statement in
the presence of a Judicial Magistrate and duly certified by the
doctor. The irresistible conclusion arrived at already, is that the
                                                                        B
deceased was not in a state of consciousness fit enough to make
a statement, and that is the reason why the thumb impression
was obtained subsequently, and thereafter a statement was
created. [Para 33][857-F-H; 858-A]
      Test Identification Parade
                                                                        C
       4. Having found that Ex. P-28 cannot be believed, this Court
is inclined to hold that the evidence adduced by the prosecution
through the eye witnesses also is not trustworthy. The witnesses
are not able to name the accused. However, they have identified
the accused, only after 2 to 3 years for the first time in the Court.
This Court is quite conscious about the evidentiary value of a          D
test identification parade. Certainly, in a case of this nature, it
ought to have been done. Though a test identification parade is
not a substantive piece of evidence, at times, it adds strength to
the case of the prosecution by giving more credibility to the
statements of the eye witnesses which this Court finds as grossly       E
lacking.[Para 34][858-G-H; 859-A-B]
      Testimony of the Eye Witness
      5. Much reliance has been placed on the evidence of
P.W.12. There is no difficulty in appreciating the submission that
an injured witness has to be placed on a higher pedestal. However,      F
P.W.12 has not been examined by P.W.20 at all. In his deposition,
P.W.12 repeatedly makes this position clear. The statement of
P.W.12 under Section 161 CrPC, if recorded, has also not been
marked. Even P.W.20 at one stage acknowledges the said fact,
though with some contradictions. This again brings to the               G
conclusion that it would be unsafe to rely upon the evidence of
P.W.12, who once again identifies the accused for the first time
before the Court. There is absolutely no explanation for not
examining him during the investigation. Thus, the evidence of
P.W.12 cannot be relied upon, particularly in the light of the
                                                                        H
844           SUPREME COURT REPORTS                     [2023] 1 S.C.R.


A     charges under Section 149 IPC, and insofar as the appellants are
      concerned. [Para 37][864-B-E]
           State of Madhya Pradesh v. Ratan Singh and Others,
           (2020) 12 SCC 630; Arvind Kumar @ Nemichand v.
           State of Rajasthan 2021 SCC OnLine SC 1099 :
B          2021(14) SCALE 6, Munnu Raja and Another v. The
           State of Madhya Pradesh (1976) 3 SCC 104 : [1976] 2
           SCR 764; State of Jharkhand v. Shailendra Kumar Rai
           2022 SCC OnLine SC 1494; Gireesan Nair and Others
           v. State of Kerala, (2023) 1 SCC 180; Binay Kumar
           Singh v. State of Bihar, (1997) 1 SCC 283 – relied on.
C
           Charan Singh and Others v. State of U.P., (2004) 4 SCC
           205 : [2004] 2 SCR 925; Najabhai Desurbhai Wagh v.
           Valerabhai Deganbhai Vagh and Others, (2017) 3 SCC
           261 : [2017] 2 SCR 764; Balmukund Sharma v. State
           of Bihar, (2019) 5 SCC 469; Vyas Ram v. State of Bihar,
D          (2013) 12 SCC 349 : [2013] 11 SCR 212; Akbar Sheikh
           and Others v. State of West Bengal, (2009) 7 SCC 415
           : [2009] 7 SCR 518; Nagarjit Ahir v. State of Bihar,
           (2005) 10 SCC 369; Sherey and Others v. State of U.P.,
           1991 SCC (Cri) 1059 : (1991) Supp (2) SCC 437; Musa
E          Khan v. State of Maharashtra, (1977) 1 SCC 733;
           Munna Chanda v. State of Assam (2006) 3 SCC 752;
           Debashish Daw and Others v. State of West Bengal,
           (2010) 9 SCC 111 : [2010] 9 SCR 654; Manoj Kumar
           Sharma and Others v. State of Chhattisgarh and
           Another, (2016) 9 SCC 1 : [2016] 7 SCR 154; Jai
F          Prakash Singh v. State of Bihar and Another, (2012) 4
           SCC 379; Rajeevan & Anr. v. State of Kerala, (2003) 3
           SCC 355; Thulia Kali v. The State of Tamil Nadu, (1972)
           3 SCC 393; Mukhtiar Ahmed Ansari v. State (NCT of
           Delhi), (2005) 5 SCC 258 : [2005] 3 SCR 797; Raja
G          Ram v. State of Rajasthan, 2005 SCC (Cri) 1050 : (2005)
           5 SCC 272 – referred to.
                           Case Law Reference
      [2004] 2 SCR 925             referred to             Para 26
      [2017] 2 SCR 764             referred to             Para 26
H
    RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                              845
                      PRADESH

[2013] 11 SCR 212                 referred to                Para 26           A
[2009] 7 SCR 518                  referred to                Para 26
[2010] 9 SCR 654                  referred to                Para 26
[2016] 7 SCR 154                  referred to                Para 26
[2005] 3 SCR 797                  referred to                Para 26           B
[1976] 2 SCR 764                  relied on                  Para 33
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos.1384-1385 of 2009.
      From the Judgment and Order dated 17.02.2009 of the High Court           C
of M.P. Bench at Gwalior in CRLA Nos.84 and 90 of 1997.
      With
      Criminal Appeal No.700 of 2011.
      Sushil Kumar Jain, Sr. Adv., Puneet Jain, Ms. Christi Jain, Umang        D
Mehta, Ms. Shurti Singh, Yogit Kamat, Mann Arora, Ms. Akriti Sharma,
Ms. Shipra Singh, Ms. Pratibha Jain, Advs. for the Appellants.
      Gopal Jha, Pashupathi Nath Razdan, Prithviraj Singh, Mrs.
Maitreyee Jagat Joshi, Astik Gupta, Ms. Ayushi Mittal, Kuldeep Kumar
Shukla, Advs. for the Respondent.                                              E
      The Judgment of the Court was delivered by
      M. M. SUNDRESH, J.
       1. The application for condonation of delay in filing the application
for restoration as well as the application for restoration are allowed in
Criminal Appeal No.700 of 2011.                                                F
       2. Conviction and sentence rendered by the High Court of Madhya
Pradesh, Bench at Gwalior, confirming the life imprisonment rendered
by the 2nd Additional Sessions Judge, Shivpuri, while modifying a similar
sentencing to that of seven years, is under challenge before us.
      THE CASE AS UNFOLDED                          THROUGH           THE      G
      PROSECUTION’S EYES IS:
       3. The appellants, along with his group of men, and the deceased,
were having prior enmity. It arose pursuant to a water dispute, as the
appellants and the villagers allegedly did not appreciate entry into their
village facilitated by the purchase of properties by the deceased. The         H
846             SUPREME COURT REPORTS                          [2023] 1 S.C.R.


A     occurrence took place on 25.07.1992 at about 10.00 a.m. The first
      information was recorded by P.W.20, the Police Officer, who also
      conducted the investigation, from one of the deceased, Hukum Singh,
      who subsequently died on 28.07.1992.
              4. Under Ex. P-28, Dehati Nalishi, which was recorded as the
B     first information report, the deceased Hukum Singh allegedly made a
      statement about the prior incident. The Dehati Nalishi further proceeded
      to state that when he along with the other deceased Kishori Kachi and
      the eye witness P.W.12, Hakim Singh, went out to attend the nature’s
      call, the accused persons armed with weapons, including truncheon and
      axe, attacked them indiscriminately. In pursuance of the said common
C     objective, all three of them were taken by the attackers to their place, as
      witnessed by their family members and relatives. This was done despite
      the request made by one Bhogiram and Bhaggo Bai, P.W.18. They were
      also attacked, but Bhogiram was dumped on the way. The family
      members of the deceased Hukum Singh, inclusive of his daughters-in-
D     law, daughters, Bacchu (P.W.13) and Sirnam Kachi were not present at
      the place of occurrence, during the time of the offence. Complaint could
      not be lodged as the deceased Hukum Singh was not allowed to leave,
      while Kishori died.
            5. The statement made by the deceased Hukum Singh was
E     recorded by P.W.20 at the place of occurrence. He died subsequently
      on 28.07.1992, after three days in the hospital. It is to be noted that no
      attempt was made to record the statement either before the Jurisdictional
      Magistrate or in the presence of a doctor. On a perusal of the records,
      we find that the thumb impression of the deceased was affixed in the
      middle of Dehati Nalishi, and words have been written over it, thus
F     giving an impression that it was an after-thought.
             6. The appellants namely, Sardar Singh and Dhola Ram, were
      convicted along with the other accused for the offences punishable under
      Sections 148, 302/149 and 324/149 of the Indian Penal Code, 1860
      (hereinafter referred to as “IPC”), by the Trial Court for committing the
G     murder of two persons. However, the High Court, while confirming the
      life imprisonment for the death of the deceased Kishori Kachi, modified
      the same qua the deceased Hukum Singh, to one punishable under Section
      304 Part II IPC. Three of the accused convicted by the Trial Court died
      during the pendency of the present proceedings, while five of them had
      completed their sentence, and were therefore released. The appellants
H     have undergone incarceration for a period of nine years.
    RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                             847
             PRADESH [M. M. SUNDRESH, J.]

       7. Before the Trial Court, the prosecution examined 21 witnesses,      A
out of which 6 of them were eye witnesses. One eye witness, Bhogiram,
died during the pendency of the proceedings, and hence not examined
as a witness.
      8. We now proceed to discuss the depositions of the prosecution
witnesses.                                                                    B
      P.W.1:
       9. This witness is the wife of the deceased Hukum Singh. She
identified the accused persons only in the Court. Admittedly, no test
identification parade was done. Her deposition was recorded three years
after the incident. Though, she asserted that she was an eye witness, it      C
was obviously contrary to the Dehati Nalishi of the deceased Hukum
Singh. In her deposition, she has also stated that there were others who
egged on the accused persons to continue with the assault. It was her
evidence that the accused carried both the deceased and Bhogiram to
their place. A further deposition has been given that she was not told        D
about the names of the accused, and therefore she did not know any of
them by name. It is her further evidence that the accused persons present
in the Court cannot be named. She admits that there are number of
contradictions between the statement made by her under Section 161 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”)
and her deposition. One of her statements is to the effect that the village   E
watchman was present, but he was also prevented from reporting the
incident to the police. Both the deceased and Bhogiram were in a state
of unconsciousness. At the time of the assault, about 60 to 70 persons
belonging to the group of the accused were present.
       10. P.W.1 has made a categorical statement that P.W.13, Bacchu,        F
along with others went during the nighttime to report the incident to the
police personnel. He brought them back to the place of occurrence. Of
course, she retracted the statement to the effect that it is not correct to
state that all the five victims were in a state of unconsciousness, and
they gave their statements, except Kishori.                                   G
      P.W.4:
       11. Even this witness has identified the accused by their faces
only in the Court as she did not know their names. She could not even
identify one of the accused whom she was asked to identify. Like P.W.1,
her presence was also not recorded by the deceased, Hukum Singh.              H
848             SUPREME COURT REPORTS                           [2023] 1 S.C.R.


A     Claiming to be an eye witness, she narrated the incident. She also
      improved the prosecution version by placing certain facts which were
      not available. However, she has stated that the deceased was found
      lying at the door of the accused when the police party came. A statement
      has been made to the effect that both the deceased and the injured were
      lying unconscious. She has clearly stated that the police party arrived
B
      between 6.00 to 7.00 a.m. on 26.07.1992. The above deposition of P.W.4
      is intrinsically contrary to the very case projected by the prosecution
      starting from the alleged dying declaration of the deceased, Hukum Singh.
            P.W.12:
C            12. This witness is the eye witness even as per the Dehati Nalishi.
      He is also an injured witness. Strangely, he has not lodged any report of
      the incident, though his statement is stated to be recorded as per the
      prosecution version. He has stated on more than one occasion that his
      statement was not recorded by the police, and that he has come to depose
      in the court for the first time. He had also not narrated the incident to
D     anybody from the date of the incident till his deposition. This witness
      again makes a clear statement that on the date of incident there were
      about 50 to 100 persons on the side of the accused. All of them were
      involved in the incident of assault. He could not clearly identify any of
      them, while attributing a specific overt act amongst the aforesaid persons.
E     The entire crowd attacked the deceased. He did not tell the police that
      the named accused, tried to assault him. It is interesting to note that this
      witness did not speak about the presence of the other witnesses.
      Furthermore, reportedly he had seen the occurrence from a distance of
      one furlong, which is about 200 meters.

F             13. From the aforesaid narration, one cannot rely on the evidence
      recorded from P.W.12, as is the case of the other two witnesses discussed.
      It is also apparent that even this witness speaks about the presence of
      scores of others, gathered to assault the deceased.
            P.W.13:
G           14. This witness also claims to be an eye witness to the occurrence.
      According to him, he hid himself when the occurrence happened.
      Thereafter, he went to the police station, met the Superintendent of Police,
      and lodged a complaint. He is also a witness to the site plan, Ex. P-16
      and the arrest memo, Ex. P-19. Even during his chief-examination, he
      deposed that he returned with the police personnel to the place of
H
    RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                               849
             PRADESH [M. M. SUNDRESH, J.]

occurrence around 3.00 to 4.00 p.m., which is again a contra-statement          A
to the case of the prosecution. In his cross-examination, he admits that
what he deposed in its entirety was not found in his statement under
Section 161 CrPC recorded as Ex. D-4. He met the Station Officer as
directed by the Superintendent of Police. It is his specific case that the
statement was recorded at the police station.
                                                                                B
      15. This witness found both the deceased and the injured witness
in an unconscious state when the police party reached the place of
occurrence. The statements of the injured witness, and the deceased
were recorded in the hospital at 5.00 p.m.
       16. Needless to state that the evidence of this witness strikes at       C
the very foundation of the prosecution’s version. With his evidence there
are three first information reports.
       P.W.18:
       17. P.W.18 is the wife of one of the deceased, Kishori. Like others,
she also claims to be an eye witness. After the occurrence, she went to         D
the police station and lodged the first information report by affixing her
thumb impression. She was accompanied by three persons, including
her brother-in-law. She also did not know the accused by name.
      18. Once again, the aforesaid statement reiterated the factum of
multiple first information reports given at different times leading to the      E
conclusion that it would not be appropriate to place reliance on the official
one.
       P.W.20:
       19. The investigating officer is arrayed as P.W.20. His role assumes
                                                                                F
significance as it is he who recorded the Dehati Nalishi from the
deceased, and converted it into a first information report. He puts up a
totally different version. In the chief-examination, he says that he received
a phone call from an unknown person. He has also recorded the statement
of the deceased Hukum Singh in the hospital, but no one knows about its
fate. Though he had stated that he also recorded the statement of P.W.12        G
(Hakim Singh), it was not done, as rightly deposed by the said person
who was made to depose for the first time only before the Court. Contrary
to the first information report, he has stated that the members of the
victim’s family were also present. Though, he has allegedly recorded
the statement of Hukum Singh, P.W.12 (Hakim Singh), Bhogiram and
                                                                                H
850            SUPREME COURT REPORTS                          [2023] 1 S.C.R.


A     P.W.18 (Bhaggo Bai), he did not mention the date and time, except with
      respect to the statement of the deceased Hukum Singh, which appears
      to be rather strange, giving credence to the contention that either they
      have been recorded at a different point of time or that there was no
      statement from Hukum Singh. He once again contradicted himself by
      stating that he did not record the statement of Hukum Singh on the spot,
B
      while acknowledging that the statements of P.W.12 (Hakim Singh) and
      Bhogiram were not taken by him. A further statement has been given
      that he was given a verbal order.
             20. As an Investigating Officer, this witness was expected to tell
      the truth. Though a report of the investigating officer would constitute
C     an opinion, the very case of the prosecution that it is he who recorded
      the statement of the deceased taken in the form of the first information
      report creates a very serious doubt. It is apparent that his evidence is
      not only contradictory, but also destructive.
           21. Having discussed the evidence available on record, we shall
D     now consider the approach of the Trial Court and the High Court.
            DECISIONS OF THE COURTS:
             22. Both the Courts below have relied upon the prosecution
      witnesses heavily. The depositions of the eye witnesses found favour
E     with the Courts. Much reliance was also placed on the statement by the
      deceased in the Dehati Nalishi. The contradictions pointed out were
      not taken due note of. The statements of the witnesses were corroborated
      with each other with respect to the occurrence. Having found that there
      were two homicidal deaths, a final conclusion was arrived at by holding
      the appellants guilty.
F
            SUBMISSIONS OF THE APPELLANTS:
             23. The learned counsel appearing for the appellants, placing
      reliance on the written arguments given, submitted that there are three
      different first information reports as per the prosecution version. The
      discrepancies in the statement of the prosecution witnesses are either
G
      self-contradictory or against each other.
             24. No witness has spoken about recording of Dehati Nalishi, as
      deposed by P.W.20. The condition of the deceased Hukum Singh was
      unconscious. The language used in Ex. P-28 indicates that of a legally
      trained mind. The thumb impression of the deceased Hukum Singh was
H
    RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                           851
             PRADESH [M. M. SUNDRESH, J.]

not proved, and its placement creates a serious doubt. P.W.20 contradicts   A
himself on various counts. He did not disclose the name of the person
who furnished the information. The earlier version of this report was
suppressed on purpose.
       25. There is absolutely no explanation for not examining P.W.12,
who even under Ex. P-28 was shown as an eye witness. There were             B
about more than 50 to 100 persons present and involved. The charge
under Section 149 IPC is not made out as there was no explanation for
not including the scores of other persons.
       26. To substantiate the aforesaid contentions, the Learned Counsel
has placed reliance on the following decisions of this Court:               C
      •      Charan Singh and Others v. State of U.P., (2004) 4 SCC
             205;
      •      Najabhai Desurbhai Wagh v. Valerabhai Deganbhai Vagh
             and Others, (2017) 3 SCC 261;
                                                                            D
      •      Balmukund Sharma v. State of Bihar, (2019) 5 SCC 469;
      •      Vyas Ram v. State of Bihar, (2013) 12 SCC 349;
      •      Akbar Sheikh and Others v. State of West Bengal, (2009)
             7 SCC 415;
      •      Nagarjit Ahir v. State of Bihar, (2005) 10 SCC 369;            E

      •      Sherey and Others v. State of U.P., 1991 SCC (Cri) 1059 :
             (1991) Supp (2) SCC 437;
      •      Musa Khan v. State of Maharashtra, (1977) 1 SCC 733;
      •      Munna Chanda v. State of Assam (2006) 3 SCC 752                F
             (paragraph 12);
      •      Debashish Daw and Others v. State of West Bengal, (2010)
             9 SCC 111 (paragraph 25);
      •      Manoj Kumar Sharma and Others v. State of Chhattisgarh
                                                                            G
             and Another, (2016) 9 SCC 1 (paragraph 30);
      •      Jai Prakash Singh v. State of Bihar and Another, (2012) 4
             SCC 379 (paragraph 12);
      •      Rajeevan & Anr. v. State of Kerala, (2003) 3 SCC 355
             (paragraph 12, 13);                                            H
852             SUPREME COURT REPORTS                         [2023] 1 S.C.R.


A           •      Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393
                   (paragraph 12);
            •      Mukhtiar Ahmed Ansari v. State (NCT of Delhi), (2005) 5
                   SCC 258;
            •      Raja Ram v. State of Rajasthan, 2005 SCC (Cri) 1050 :
B                  (2005) 5 SCC 272
            SUBMISSIONS OF THE RESPONDENT:
            27. The Learned counsel appearing for the State while
      acknowledging the fact that there were reportedly three first information
C     reports, submitted that two injured witnesses have spoken about the
      occurrence, of whom one was the author of the first information report.
      The contradictions are minor in nature, and therefore, to be eschewed.
            28. The deceased Hukum Singh has made a statement before
      P.W.20, which has to be treated as a dying declaration. Both the Courts
D     below concurrently found that the appellants committed the offence,
      and therefore, the evidence need not be re-appreciated by this Court.
            DISCUSSION:
            Investigating Officer’s Role:
             29. We have already dealt with the statement given by the
E     prosecution witnesses. To sum it up, we find the witnesses speak about
      three first information reports. Even on the recording of the statement
      of the deceased Hukum Singh, P.W.20, the Investigating Officer was
      not very clear. The discrepancy also extends to the place where the
      body was found when the statement was recorded. An investigating
F     officer is expected to act in an un-biased, fair and in a manner that is
      required of a public servant. His concern is to find out the truth. The
      suppression of the statement given by the other witnesses would obviously
      go to the root of the matter. One does not know the clear picture, and
      therefore the benefit shall be extended to the appellants. We wish to
      place reliance on the decision of this Court in State of Madhya Pradesh
G     v. Ratan Singh and Others, (2020) 12 SCC 630:
            “8. As emphasised by this Court in Amitbhai Anil Chandra Shah
            v. CBI, (2013) 6 SCC 348 : (2014) 1 SCC (Cri) 309, only the
            earliest or the first information in regard to the commission of a
            cognizable offence satisfies the requirements of Section 154, and
H
   RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                             853
            PRADESH [M. M. SUNDRESH, J.]

     consequently there cannot be a second FIR. Rather it is absurd or       A
     ridiculous to call such information as second FIR. In Subramaniam
     v. State of T.N., (2009) 14 SCC 415 : (2010) 1 SCC (Cri) 1392,
     this Court observed that if an FIR is filed after recording the
     statement of the witnesses, such second information would be
     inadmissible in evidence. Moreover, in Nallabothu Ramulu v. State
                                                                             B
     of A.P., (2014) 12 SCC 261 : (2014) 6 SCC (cri) 673, the Court
     was of the view that the non-treatment of statements of injured
     witnesses as the first information cast doubt on the prosecution
     version.
     9. Thus, not only was there a delay in filing of the FIR (which
     remained unexplained) which was taken as the basis of the               C
     investigation in this case, but also there was a wilful suppression
     of the actual first information received by the police. These factors
     together cast grave doubts on the credibility of the prosecution
     version, and lead us to the conclusion that there has been an attempt
     to build up a different case for the prosecution and bring in as        D
     many persons as accused as possible.
     10. Additionally, the so-called eye witnesses to the incident have
     described different places as the scene of offence. None of the
     eye witnesses are consistent so far as the scene of offence is
     concerned. This means that each of the eye witness must have            E
     allegedly seen the incident at different places and happening in a
     different manner. The suppression of the actual FIR, coupled with
     the conflicting versions of the so-called eye witnesses relating to
     different scenes of offence and different stories collectively would
     reveal that the prosecution wanted to suppress and has suppressed
     the real incident and culpability of real culprits. The origin and      F
     genesis of the prosecution is clearly suppressed in the case.”
    30. In Arvind Kumar @Nemichand v. State of Rajasthan 2021
SCC OnLine SC 1099 : 2021(14) SCALE 6,
     “Fair, Defective, Colourable Investigation                              G
     40. An Investigating Officer being a public servant is expected to
     conduct the investigation fairly. While doing so, he is expected to
     look for materials available for coming to a correct conclusion.
     He is concerned with the offense as against an offender. It is the
     offense that he investigates. Whenever a homicide happens, an
                                                                             H
854      SUPREME COURT REPORTS                            [2023] 1 S.C.R.


A     investigating officer is expected to cover all the aspects and, in
      the process, shall always keep in mind as to whether the offence
      would come under Section 299 IPC sans Section 300 IPC. In
      other words, it is his primary duty to satisfy that a case would fall
      under culpable homicide not amounting to murder and then a
      murder. When there are adequate materials available, he shall not
B
      be overzealous in preparing a case for an offense punishable under
      Section 302 IPC. We believe that a pliable change is required in
      the mind of the Investigating Officer. After all, such an officer is
      an officer of the court also and his duty is to find out the truth and
      help the court in coming to the correct conclusion. He does not
C     know sides, either of the victim or the accused but shall only be
      guided by law and be an epitome of fairness in his investigation.
      41. There is a subtle difference between a defective investigation,
      and one brought forth by a calculated and deliberate action or
      inaction. A defective investigation per se would not enure to the
D     benefit of the accused, unless it goes into the root of the very
      case of the prosecution being fundamental in nature. While dealing
      with a defective investigation, a court of law is expected to sift
      the evidence available and find out the truth on the principle that
      every case involves a journey towards truth. There shall not be
      any pedantic approach either by the prosecution or by the court
E     as a case involves an element of law rather than morality.
          xxx                         xxx                          xxx
      44. We would only reiterate the aforesaid principle qua a fair
      investigation through the following judgment of Kumar v. State,
F     (2018) 7 SCC 536:
             “27. The action of investigating authority in pursuing the
             case in the manner in which they have done must be
             rebuked. The High Court on this aspect, correctly notices
             that the police authorities have botched up the arrest for
G            reasons best known to them. Although we are aware of the
             ratio laid down in Parbhu v. King Emperor [Parbhu v. King
             Emperor, AIR 1944 PC 73], wherein the Court had ruled
             that irregularity and illegality of arrest would not affect the
             culpability of the offence if the same is proved by cogent
             evidence, yet in this case at hand, such irregularity should
H
RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                            855
         PRADESH [M. M. SUNDRESH, J.]

       be shown deference as the investigating authorities are           A
       responsible for suppression of facts.
       28. The criminal justice must be above reproach. It is
       irrelevant whether the falsity lie in the statement of
       witnesses or the guilt of the accused. The investigative
       authority has a responsibility to investigate in a fair manner    B
       and elicit truth. At the cost of repetition, I must remind the
       authorities concerned to take up the investigation in a neutral
       manner, without having regard to the ultimate result. In this
       case at hand, we cannot close our eyes to what has
       happened; regardless of guilt or the asserted persuasiveness
       of the evidence, the aspect wherein the police has actively       C
       connived to suppress the facts, cannot be ignored or
       overlooked.”
 45. A fair investigation would become a colourable one when there
 involves a suppression. Suppressing the motive, injuries and other
 existing factors which will have the effect of modifying or altering    D
 the charge would amount to a perfunctory investigation and,
 therefore, become a false narrative. If the courts find that the
 foundation of the prosecution case is false and would not conform
 to the doctrine of fairness as against a conscious suppression,
 then the very case of the prosecution falls to the ground unless        E
 there are unimpeachable evidence to come to a conclusion for
 awarding a punishment on a different charge.”
     xxx                        xxx                          xxx
 Falsus In Uno-Falsus in Omnibus
                                                                         F
 48. The principle that when a witness deposes falsehood, the
 evidence in its entirety has to be eschewed may not have strict
 application to the criminal jurisprudence in our country. The
 principle governing sifting the chaff from the grain has to be
 applied. However, when the evidence is inseparable and such an
 attempt would either be impossible or would make the evidence           G
 unacceptable, the natural consequence would be one of avoidance.
 The said principle has not assumed the status of law but continues
 only as a rule of caution. One has to see the nature of discrepancy
 in a given case. When the discrepancies are very material shaking
 the very credibility of the witness leading to a conclusion in the
                                                                         H
856            SUPREME COURT REPORTS                             [2023] 1 S.C.R.


A           mind of the court that it is neither possible to separate it nor to rely
            upon, it is for the said court to either accept or reject.
            49. The said principle of law has been dealt with by this court in
            Anand Ramachandra Chougule v. Sidarai Laxman Chougala,
            (2019) 8 SCC 50, which states thus:
B                  “9. We have considered the respective submissions and
                   perused the materials on record. The relationship between
                   parties and the existence of a land dispute regarding which
                   a civil suit was also pending are undisputed facts. The fact
                   that a verbal duel followed by scuffle took place between
C                  the parties culminating in injuries is a concurrent finding of
                   fact by two courts. The fact that the accused also lodged
                   an FIR with regard to the same occurrence stands
                   established by the evidence of PWs 19 and 22, the
                   investigating officers, who have admitted that the
                   respondent-accused had also lodged BRPS Cr. No. 79/02
D                  — marked Ext. D-10, which was not investigated by them.
                   Similarly, PW 11, the police constable, deposed that two of
                   the accused were admitted in the District Hospital, Belgaum
                   and that he was posted on watch duty. The occurrence is
                   of 7-6-2002 and respondent-Accused 1 and 2 were
E                  discharged on 11-6-2002. Their injury report has not been
                   brought on record by the prosecution and no explanation
                   has been furnished in that regard.
                   10. The burden lies on the prosecution to prove the
                   allegations beyond all reasonable doubt. In contradistinction
F                  to the same, the accused has only to create a doubt about
                   the prosecution case and the probability of its defence. An
                   accused is not required to establish or prove his defence
                   beyond all reasonable doubt, unlike the prosecution. If the
                   accused takes a defence, which is not improbable and
                   appears likely, there is material in support of such defence,
G                  the accused is not required to prove anything further. The
                   benefit of doubt must follow unless the prosecution is able
                   to prove its case beyond all reasonable doubt.””
            31. P.W.20 is the one who recorded the statement. On the
      discussion made, it is highly doubtful as to whether the deceased would
H     be conscious enough to give the statement, particularly in light of the
    RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                             857
             PRADESH [M. M. SUNDRESH, J.]

injuries suffered by him. There are not only incise wounds, but there         A
must have also been continuous bleeding, which would have naturally
occurred, as the case was registered a day after the occurrence. The
statement of witnesses contradicts each other on this aspect. Furthermore,
as rightly submitted by the counsel for the appellants, on a perusal of the
records, we do find that there were writings over the thumb impression
                                                                              B
made under Ex. P-28. It is rather strange as a thumb impression would
normally follow the statement; it has to find place at the conclusion of
the statement. We find, on our scrutiny, that even after the thumb
impression over which there were obviously writings found, there were
some more sentences written. This obviously lends credence to the view
that thumb impression must have been obtained on a blank paper and in         C
a hurry, the contents were filled up subsequently.
       32. From the above analysis, we are not inclined to treat the so-
called statement as the one actually given by the deceased to P.W.20. In
any case, it cannot be taken as a dying declaration, particularly in the
light of the evidence adduced by the other prosecution witnesses. We do       D
find force in the submission made by the counsel for appellants that Ex.
P-28 does appear to be created by a legally trained mind. The deceased
Hukum Singh merely knows how to put a signature, leave alone the fact
that he put his thumb impression, which could have been possible because
of the injuries suffered by him. A reading of the statement would clearly
show that a legal mind was at work, as the deceased may not know the          E
difference between a common object and common intention. The
statement also excludes others specifically for reasons which we do not
know. The excluded persons were shown as witnesses by the same
investigating officer.
      Dying Declaration:                                                      F

       33. There is absolutely no explanation given by P.W.20 as to why
he has not utilized the services of either a Magistrate or a doctor, even
after his first recording. We have already discussed the fact that he
deposed that the statement was recorded once again which, however,
was not a part of the record. If the deceased Hukum Singh was so badly        G
injured, and therefore died within few days of his admission into the
hospital, nothing prevented P.W.20 to record the statement in the presence
of a Judicial Magistrate and duly certified by the doctor. The irresistible
conclusion which we have arrived at already, is that the deceased was
not in a state of consciousness fit enough to make a statement, and that      H
858            SUPREME COURT REPORTS                            [2023] 1 S.C.R.


A     is the reason why the thumb impression was obtained subsequently, and
      thereafter a statement was created. On the issue of recording of dying
      declarations by the investigating officer, we would like to reiterate the
      decision of this Court in Munnu Raja and Another v. The State of
      Madhya Pradesh (1976) 3 SCC 104:
B           “11. We might, however, mention before we close that the High
            Court ought not to have placed any reliance on the third dying
            declaration, Ex. P-2, which is said to have been made by the
            deceased in the hospital. The investigating officer who recorded
            that the statement had undoubtedly taken the precaution of keeping
            a doctor present and it appears that some of the friends and relations
C           of the deceased were also present at the time when the statement
            was recorded. But, if the investigation officer thought that Bahadur
            Singh was in a precarious condition, he ought to have requisitioned
            the services of a magistrate for recording the dying declaration.
            Investigating officers are naturally interested in the success of
D           the investigation and the practice of the investigating officer himself
            recording a dying declaration during the course of investigation
            ought not to be encouraged. We have therefore excluded from
            our consideration the dying declaration, Ex. P-2, recorded in the
            hospital.”
E          This Court in State of Jharkhand v. Shailendra Kumar Rai
      2022 SCC OnLine SC 1494
            “45. There is no rule to the effect that a dying declaration is
            inadmissible when it is recorded by a police officer instead of a
            Magistrate. Although a dying declaration ought to ideally be
F           recorded by a Magistrate if possible, it cannot be said that dying
            declarations recorded by police personnel are inadmissible for that
            reason alone. The issue of whether a dying declaration recorded
            by the police is admissible must be decided after considering the
            facts and circumstances of each case.”

G           Test Identification Parade:
            34. Having found that Ex. P-28 cannot be believed, we are inclined
      to hold that the evidence adduced by the prosecution through the eye
      witnesses also is not trustworthy. The witnesses are not able to name
      the accused over which we do not wish to say anything. However, they
      have identified the accused, only after 2 to 3 years for the first time in
H
    RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                                859
             PRADESH [M. M. SUNDRESH, J.]

the Court. We are quite conscious about the evidentiary value of a test          A
identification parade. Certainly, in a case of this nature, it ought to have
been done. Though a test identification parade is not a substantive piece
of evidence, at times, it adds strength to the case of the prosecution by
giving more credibility to the statements of the eye witnesses which we
find as grossly lacking. This Court in Gireesan Nair and Others v.
                                                                                 B
State of Kerala, (2023) 1 SCC 180, held:
      “28. We may, at the outset, note that the eyewitnesses questioned
      by the prosecution did not give out the names or identities of the
      accused participating in the riot and involved in the destruction of
      public property. Therefore, the IO (PW 84) had to necessarily
      conduct a TIP. The object of conducting a TIP is threefold. First,         C
      to enable the witnesses to satisfy themselves that the accused
      whom they suspect is really the one who was seen by them in
      connection with the crime. Second, to satisfy the investigating
      authorities that the suspect is the real person whom the witnesses
      had seen in connection with the said occurrence. Third, to test            D
      the witnesses’ memory based on first impression and enable the
      prosecution to decide whether all or any of them could be cited as
      eyewitnesses to the crime (Mulla v. State of U.P. [Mulla v. State
      of U.P., (2010) 3 SCC 508, paras 44, 45 & 55 : (2010) 2 SCC
      (Cri) 1150] ).
                                                                                 E
      29. TIPs belong to the stage of investigation by the police. It assures
      that investigation is proceeding in the right direction. It is a rule of
      prudence which is required to be followed in cases where the
      accused is not known to the witness or the complainant (Matru v.
      State of U.P. [Matru v. State of U.P., (1971) 2 SCC 75, para 17 :
      1971 SCC (Cri) 391] ; Mulla v. State of U.P. [Mulla v. State of            F
      U.P., (2010) 3 SCC 508, paras 41 & 43 : (2010) 2 SCC (Cri)
      1150] and C. Muniappan v. State of T.N. [C. Muniappan v. State
      of T.N., (2010) 9 SCC 567, para 42 : (2010) 3 SCC (Cri) 1402] ).
      The evidence of a TIP is admissible under Section 9 of the
      Evidence Act. However, it is not a substantive piece of evidence.          G
      Instead, it is used to corroborate the evidence given by witnesses
      before a court of law at the time of trial. Therefore, TIPs, even if
      held, cannot be considered in all the cases as trustworthy evidence
      on which the conviction of an accused can be sustained (State of
      H.P. v. Lekh Raj [State of H.P. v. Lekh Raj, (2000) 1 SCC 247,
                                                                                 H
860             SUPREME COURT REPORTS                            [2023] 1 S.C.R.


A           para 3 : 2000 SCC (Cri) 147] and C. Muniappan v. State of T.N.
            [C. Muniappan v. State of T.N., (2010) 9 SCC 567, para 42 :
            (2010) 3 SCC (Cri) 1402] ).
            30. It is a matter of great importance both for the investigating
            agency and for the accused and a fortiori for the proper
B           administration of justice that a TIP is held without avoidable and
            unreasonable delay after the arrest of the accused. This becomes
            necessary to eliminate the possibility of the accused being shown
            to the witnesses before the test identification parade. This is a
            very common plea of the accused, and therefore, the prosecution
            has to be cautious to ensure that there is no scope for making
C           such an allegation. If, however, circumstances are beyond control
            and there is some delay, it cannot be said to be fatal to the
            prosecution. But reasons should be given as to why there was a
            delay (Mulla v. State of U.P. [Mulla v. State of U.P., (2010) 3
            SCC 508, para 45 : (2010) 2 SCC (Cri) 1150] and Suresh Chandra
D           Bahri v. State of Bihar [Suresh Chandra Bahri v. State of Bihar,
            1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60]).”
            Section 149 of Indian Penal Code, 1860:
             35. The witnesses clearly speak about the presence of a large
      group of persons belonging to the side of the accused. In fact, the evidence
E     is to the effect that they also participated in the occurrence. In a case
      involving the applicability of Section 149 IPC, a little more scrutiny is
      required on the part of the Court as there may be a tendency to implicate
      persons along with the actual accused who committed the offence. The
      Courts will have to be very circumspect while sifting through the evidence
F     in such cases. In the case on hand, we find that it would be unsafe to
      implicate the accused persons under Section 149 IPC which obviously
      deals with an element of vicarious liability, as held by this Court in Arvind
      Kumar (supra),
            “Scope of Section 149
G           50. Section 149 of the Code deals with a common object. To
            attract this provision there must be evidence of an assembly with
            the common object becoming an unlawful one. The concept of
            constructive or vicarious liability is brought into this provision by
            making the offense committed by one member of the unlawful
            assembly to the others having the common object. It is the sharing
H
RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                           861
         PRADESH [M. M. SUNDRESH, J.]

 of the common object which attracts the offense committed by           A
 one to the other members. Therefore, the mere presence in an
 assembly per se would not constitute an offense, it does become
 one when the assembly is unlawful. It is the common object to
 commit an offense which results in the said offense being
 committed. Therefore, though it is committed by one, a deeming
                                                                        B
 fiction is created by making it applicable to the others as well due
 to the commonality in their objective to commit an offense. Thus,
 it is for the prosecution to prove the factors such as the existence
 of the assembly with a requisite number, the common object for
 everyone, the object being unlawful, and an offense committed
 by one such member. Courts will have to be more circumspect            C
 and cautious while dealing with a case of accused charged under
 Section 149 IPC, as it involves a deeming fiction. Therefore, a
 higher degree of onus is required to be put on the prosecution to
 prove that a person charged with an offense is liable to be punished
 for the offence committed by the others under section 149 IPC.
                                                                        D
 The principle governing the aforesaid aspect is taken note of by
 this court in Ranjit Singh v. State of Punjab, (2013) 16 SCC
 752:
    “35. Baladin v. State of U.P. [AIR 1956 SC 181 : 1956 Cri LJ
    345] was one of the early cases in which this Court dealt with
    Section 149 IPC. This Court held that mere presence in an           E
    assembly does not make a person a member of the unlawful
    assembly, unless it is shown that he had done or omitted to do
    something which would show that he was a member of the
    unlawful assembly or unless the case fell under Section 142
    IPC. Resultantly, if all the members of a family and other          F
    residents of the village assembled at the place of occurrence,
    all such persons could not be condemned ipso facto as members
    of the unlawful assembly. The prosecution in all such cases
    shall have to lead evidence to show that a particular accused
    had done some overt act to establish that he was a member of
    the unlawful assembly. This would require the case of each          G
    individual to be examined so that mere spectators who had just
    joined the assembly and who were unaware of its motive may
    not be branded as members of the unlawful assembly.
    36. The observations made in Baladin case [AIR 1956 SC 181
    : 1956 Cri LJ 345] were considered in Masalti v. State of U.P.      H
862   SUPREME COURT REPORTS                         [2023] 1 S.C.R.


A     [AIR 1965 SC 202 : (1965) 1 Cri LJ 226] where this Court
      explained that cases in which persons who are merely passive
      witnesses and had joined the assembly out of curiosity, without
      sharing the common object of the assembly stood on a different
      footing; otherwise it was not necessary to prove that the person
      had committed some illegal act or was guilty of some omission
B
      in pursuance of the common object of the assembly before he
      could be fastened with the consequences of an act committed
      by any other member of the assembly with the help of Section
      149 IPC. The following passage is apposite in this regard :
      (Masalti case [AIR 1965 SC 202 : (1965) 1 Cri LJ 226], AIR
C     p. 211, para 17)
         “17. …The crucial question to determine in such a case is
         whether the assembly consisted of five or more persons
         and whether the said persons entertained one or more of
         the common objects as specified by Section 141. While
D        determining this question, it becomes relevant to consider
         whether the assembly consisted of some persons who were
         merely passive witnesses and had joined the assembly as a
         matter of idle curiosity without intending to entertain the
         common object of the assembly. It is in that context that
         the observations made by this Court in Baladin [AIR 1956
E        SC 181 : 1956 Cri LJ 345] assume significance; otherwise,
         in law, it would not be correct to say that before a person
         is held to be a member of an unlawful assembly, it must
         be shown that he had committed some illegal overt act
         or had been guilty of some illegal omission in pursuance
F        of the common object of the assembly. In fact, Section
         149 makes it clear that if an offence is committed by
         any member of an unlawful assembly in prosecution of
         the common object of that assembly, or such as the
         members of that assembly knew to be likely to be
         committed in prosecution of that object, every person
G        who, at the time of the committing of that offence, is a
         member of the same assembly, is guilty of that offence;
         and that emphatically brings out the principle that the
         punishment prescribed by Section 149 is in a sense
         vicarious and does not always proceed on the basis
H
   RANVIR SINGH ETC. ETC. v. THE STATE OF MADHYA                             863
            PRADESH [M. M. SUNDRESH, J.]

           that the offence has been actually committed by every             A
           member of the unlawful assembly.”
                                                    (emphasis supplied)
     37. Again in Bajwa v. State of U.P. [(1973) 1 SCC 714] this
     Court held that while in a faction-ridden society there is always a
     tendency to implicate even the innocent with the guilty, the only       B
     safeguard against the risk of condemning the innocent with the
     guilty lies in insisting upon acceptable evidence which in some
     measure implicates the accused and satisfies the conscience of
     the court.
     39. That in a faction-ridden village community, there is a tendency     C
     to implicate innocents also along with the guilty, especially when a
     large number of assailants are involved in the commission of an
     offence is a matter of common knowledge. Evidence in such cases
     is bound to be partisan, but while the courts cannot take an easy
     route to rejecting out of hand such evidence only on that ground,       D
     what ought to be done is to approach the depositions carefully
     and scrutinise the evidence more closely to avoid any miscarriage
     of justice.”
     36. This Court in Binay Kumar Singh v. State of Bihar, (1997)
1 SCC 283, observed that:                                                    E
     “31. …There is no rule of evidence that no conviction can be
     based unless a certain minimum number of witnesses have
     identified a particular accused as a member of the unlawful
     assembly. It is axiomatic that evidence is not to be counted but
     only weighed and it is not the quantity of evidence but the quality     F
     that matters. Even the testimony of one single witness, if wholly
     reliable, is sufficient to establish the identification of an accused
     as a member of an unlawful assembly. All the same, when the
     size of the unlawful assembly is quite large (as in this case) and
     many persons would have witnessed the incident, it would be a
     prudent exercise to insist on at least two reliable witnesses to        G
     vouchsafe the identification of an accused as a participant in the
     rioting. In Masalti v. State of U.P. [AIR 1965 SC 202 : (1964) 8
     SCR 133] a Bench of four Judges of this Court has adopted such
     a formula. It is useful to extract it here:
                                                                             H
864              SUPREME COURT REPORTS                           [2023] 1 S.C.R.


A                    “… where a criminal court has to deal with evidence
                     pertaining to the commission of an offence involving a large
                     number of offenders and a large number of victims, it is
                     usual to adopt the test that the conviction could be sustained
                     only if it is supported by two or three or more witnesses
                     who give a consistent account of the incident.”
B
             Testimony of the Eye Witness:
             37. Much reliance has been placed on the evidence of P.W.12.
      There is no difficulty in appreciating the submission that an injured witness
      has to be placed on a higher pedestal. However, P.W.12 has not been
C     examined by P.W.20 at all. In his deposition, P.W.12 repeatedly makes
      this position clear. The statement of P.W.12 under Section 161 CrPC, if
      recorded, has also not been marked. Even P.W.20 at one stage
      acknowledges the said fact, though with some contradictions. This again
      brings us to the conclusion that it would be unsafe to rely upon the
      evidence of P.W.12, who once again identifies the accused for the first
D     time before the Court. There is absolutely no explanation for not
      examining him during the investigation. Thus, we find that the evidence
      of P.W.12 cannot be relied upon, particularly in the light of the charges
      under Section 149 IPC, and insofar as the appellants are concerned.
            38. Having found the above contradictions, we have no other option
E     except to allow these appeals. We find that both the Trial Court and the
      High Court did not apply their mind to the various aspects, as we discussed
      above. In such view of the matter, we are constrained to set aside the
      aforesaid judgments by conferring the benefit of doubt to the appellants.
            39. The appeals are allowed and the appellant (Dhola @
F     Dholaram) is directed to be released forthwith, if not required in any
      other case.
             40. Pending application(s), if any, stand(s) disposed of.

      Ankit Gyan                                                    Appeals allowed.
G     (Assisted by : Mahendra Yadav, LCRA)




H