Supreme Court of India
THE STATE OF MADHYA PRADESHversusRAMJAN KHAN & ORS.
- Citation
- 2024 INSC 823
- Decided
- 25 October 2024
- Disposal
- Dismissed
- Bench
- C T RAVIKUMAR
Holding
An oral dying declaration to a close relative is a weak piece of evidence and, given the material omissions and contradictions in the testimonies, the prosecution failed to prove the accused’s guilt beyond reasonable doubt, so the High Court’s acquittal stands.
Summary
The State of Madhya Pradesh charged Ramjan Khan, Musab Khan and Habib Khan with murder of Naseem Khan under Sec. 302 read with Sec. 34 IPC. The trial court convicted them based largely on oral testimonies of the deceased’s mother (PW‑8) and his two minor brothers (PW‑5, PW‑9), treating an alleged oral dying declaration to the mother as substantive evidence. On appeal, the High Court set aside the conviction, holding that the oral dying declaration was unreliable, that the mother’s testimony contained material omissions and contradictions, and that the eyewitnesses’ statements were also unreliable. The Supreme Court examined whether the High Court was justified in discrediting the oral evidence and in granting the benefit of doubt. It affirmed that a verbal dying declaration to a close relative is a weak piece of evidence, that the omissions in PW‑8’s statements and contradictions in PW‑5 and PW‑9’s testimonies undermine their reliability, and that the prosecution failed to prove guilt beyond reasonable doubt. Consequently, the Supreme Court dismissed the appeal, upholding the acquittal.
Issues considered
- Whether the High Court was correct in setting aside the conviction under Sec. 302 read with Sec. 34 IPC.
- Whether an oral dying declaration made to a close relative can be relied upon as substantive evidence.
- Whether the omissions and contradictions in the testimonies of PW‑8, PW‑5 and PW‑9 render those testimonies unreliable.
- Whether the prosecution established the guilt of the accused beyond reasonable doubt.
- Whether the Supreme Court may interfere with a High Court’s acquittal under Section 374 of the CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 374
- Evidence Act, 1872s. 145, s. 157
- Indian Penal Code, 1860s. 302, s. 34
Headnote
Issue for Consideration Whether the High Court was right in setting aside the conviction of the respondents-accused under Section 302, IPC read with Section 34, IPC. Headnotes† Evidence – Dying declaration, allegedly made to a close relative – Reliance upon – When not inter alia relying on the dying declaration allegedly made to the mother of the deceased (PW-8) – Conviction set aside by High Court – Correctness: Held: Oral dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness – Dying
Subjects
Dying declaration made allegedly to a close relativeOcular evidenceBenefit of doubtVerbal/Oral dying declarationDying declaration not a strong piece of evidenceEyewitnessesMaterial contradictionOmissions and contradictionsGuilt not proved beyond reasonable doubtFIR not a substantial piece of evidenceFIR not encyclopediaAppeal against acquittal
Judgment
[2024] 10 S.C.R. 1876 : 2024 INSC 823
The State of Madhya Pradesh
v.
Ramjan Khan & Ors.
(Criminal Appeal No. 2129 of 2014)
25 October 2024
[C.T. Ravikumar* and Sudhanshu Dhulia, JJ.]
Issue for Consideration
Whether the High Court was right in setting aside the conviction
of the respondents-accused under Section 302, IPC read with
Section 34, IPC.
Headnotes†
Evidence – Dying declaration, allegedly made to a close
relative – Reliance upon – When not proper – Respondents
were convicted inter alia relying on the dying declaration
allegedly made to the mother of the deceased (PW-8) –
Conviction set aside by High Court – Correctness:
Held: Oral dying declaration should be of such a nature as to inspire
full confidence of the Court in its correctness – Dying declaration
is not a strong piece of evidence and therefore, when it is verbal
and that too, allegedly made to a close relative, it ought to be
treated with care and caution – In the present case, the trial Court
dealt with the same without due care and caution – Prosecution
attempted to establish the existence of an oral dying declaration
through the evidence of PW-8, the mother of the deceased-
informant – However, neither in the FIR nor in her statement
recorded under Section 161, Cr.P.C., PW-8 stated about the oral
dying declaration made to her by the deceased – Except her
statement in the Court there is no evidence in that regard – High
Court justified in taking note of the serious omissions in the oral
testimony of PW-8 and discrediting it – Further, the eyewitnesses
PW-2 and PW-17 did not support the case of the prosecution
and also the omissions on part of PWs 5 and 9 (minor brothers
of the deceased) amounted to material contradiction going into
the core of the prosecution’s case – In view of the omissions
and contradictions, the oral testimonies of the witnesses are not
reliable – Prosecution failed to prove the guilt of the respondents
* Author
[2024] 10 S.C.R. 1877
The State of Madhya Pradesh v. Ramjan Khan & Ors.
beyond reasonable doubt – Respondents entitled to benefit of
doubt, acquitted – Judgment of the High Court not interfered with.
[Paras 17, 20, 27-30]
Criminal Law – FIR:
Held: FIR is an important document but, not a substantial piece of
evidence – Even though it is not an encyclopedia containing chronicle
of all intricate and minute details, it could be used to corroborate
its maker viz., the informant under Section 157 of the Evidence
Act or to contradict him under Section 145 of the Evidence Act to
establish whether he is a trustworthy witness or not – Whether the
omission(s) is one which seriously impeaches the credibility of the
witness and is sufficient to reject the testimony of the informant
would depend upon whether it is of an important fact and whether
that fact was within the knowledge of the informant. [Paras 14, 15]
Code of Criminal Procedure, 1973 – s.374 – Appeals from
convictions – Acquittal – Appeal against acquittal – Interference
with, when – Discussed. [Paras 6, 7, 8]
Case Law Cited
Jai Karan & Ors. v. State of U.P. [2003] Supp. 4 SCR 995 : (2003)
12 SCC 655; Govindaraju v. State by Sivaramapuram PS [2012] 5
SCR 67 : (2012) 4 SCC 722; State of U.P. v. Dharmaraj and Anr.
(2003) 9 SCC 39; Superintendent of Police, CBI & Ors. v. Tapan
Kumar Singh [2003] 3 SCR 485 : (2003) 6 SCC 175; State of UP v.
Naresh & Ors. [2011] 4 SCR 1176 : (2011) 4 SCC 324; Lalitha
Kumari v. Government of UP & Ors. [2013] 14 SCR 713 : (2014) 2
SCC 1; Amish Devgan v. UOI & Ors. [2020] 14 SCR 198 : (2021)
1 SCC 1; Dharma Rama Bhagare v. State of Maharashtra [1973]
3 SCR 92 : (1973) 1 SCC 537; Anil Phukan v. State of Assam
[1993] 2 SCR 389 : (1993) 3 SCC 282; Chandu Bhai Shana Bhai
Parmar v. State of Gujarat, AIR 1982 SC 1022 – referred to.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973; Evidence
Act, 1872.
List of Keywords
Dying declaration made allegedly to a close relative; Ocular
evidence; Benefit of doubt; Verbal/Oral dying declaration; Dying
1878 [2024] 10 S.C.R.
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declaration not a strong piece of evidence; Eyewitnesses; Material
contradiction; Omissions and contradictions; Guilt not proved
beyond reasonable doubt; FIR not a substantial piece of evidence;
FIR not encyclopedia; Appeal against acquittal.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2129 of 2014
From the Judgment and Order dated 31.01.2013 of the High Court
of M.P at Gwalior in CRLA No. 602 of 1998
Appearances for Parties
Ms. Rukhmini Bobde, Pashupathi Nath Razdan, Ms. Maitreyee
Jagat Joshi, Ms. Soumya Priyadarshinee, Ankit Ambasta, Amit
Srivastava, Amlaan Kumar, Astik Gupta, Ms. Akanksha Tomar,
Ms. Priyanka, Advs. for the Appellant.
Lokesh Kumar Choudhary, Devmani Bansal, Ajay Kumar Rai,
Shubham Singh, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
C.T. Ravikumar, J.
1. This appeal is against the judgment of acquittal dated 31.01.2013
passed by the High Court of Madhya Pradesh at Gwalior in Criminal
Appeal No. 602 of 1998 in reversal of the judgment of conviction
recorded against the appellants therein viz., the respondents herein,
by the Court of Additional Sessions Judge, Sironj in Sessions Trial
No. 320 of 1996 dated 28.10.1998.
2. Heard learned counsel for the appellant State and learned counsel
for the respondents, the convicts who were acquitted by the High
Court vide the impugned judgment.
3. The case of the prosecution, in succinct, was as under: -
‘On 01.10.1996, at about 1.00 pm, the respondents herein viz.,
Ramjan Khan, Musaf Khan @ Musab Khan and Habib Khan, by
cutting/beating with sickle, axe and stick caused death of Naseem
[2024] 10 S.C.R. 1879
The State of Madhya Pradesh v. Ramjan Khan & Ors.
Khan, near the village well of Karaikheda and thereby committed
the crime punishable under Section 302 read with Section 34, of the
Indian Penal Code (for short the ‘IPC’).’
4. As mentioned above, the respondents herein were tried by the Court
of Additional Sessions Judge, Sironj. The prosecution had examined
19 witnesses including Haseen Khan (PW-5) and Farid Khan (PW-
9), who are the real brothers of deceased Naseem Khan and eye
witnesses. Documentary evidence including the postmortem report
prepared by Dr. S.S. Thakur (PW-1) were tendered by the prosecution.
On the side of the defence two witnesses were examined.
5. The trial Court relied on the oral testimonies of PW-5 and PW-9,
the minor brothers of the deceased besides the testimony of PW-8,
the mother of the deceased who happened to be the informant and
the further found that the ocular evidence got corroboration from the
medical evidence, to enter conviction on the appellants for having
committed murder of Naseem Khan. Consequently, the respondents
herein were sentenced to undergo imprisonment for life and to pay a
fine of Rs. 35,000/-. The respondents herein, the convicts preferred
appeal jointly, against the judgment of conviction for the offence
punishable under Section 302, IPC read with Section 34, IPC and
the life sentence imposed therefor, the High Court acquitted them of
the offences with which they were charged and allowed the appeal
in the impugned judgment of acquittal.
6. Before dealing with the rival contentions raised before us, we think
it only appropriate to refer to some of the relevant decisions of this
Court laying law in regard to appeal against acquittal. It is true that the
judgment of acquittal was passed after setting aside the judgment of
conviction passed against the respondents herein by the trial Court.
7. In the decision in Jai Karan & Ors. v. State of U.P.1 this Court
held that where the trial Court and the High Court had concurrently
found the accused guilty, the Supreme Court would not scrutinize
the evidence once again, unless there has been a total miscarriage
of justice. We may hasten to add here that this Court may have
to re-appreciate evidence in cases where a prima facie perverse
appreciation of evidence is brought out, even in such cases. We
shall also not be understood to have held that merely because the
1 [2003] Supp. 4 SCR 995 : (2003) 12 SCC 655
1880 [2024] 10 S.C.R.
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trial Court and the High Court have rendered divergent findings, this
Court should invariably scrutinize the evidence once again and in that
regard this Court should entertain an appeal. In an appeal, against
conviction in murder case under Section 374 of the Code of Criminal
Procedure (for short the ‘Cr.P.C.’), a proper analysis of the evidence
and accepting or rejecting, the appreciation of evidence by the trial
Court must reflect in the judgment of the High Court. In other words,
the disposal of the appeal under Section 374, Cr.P.C., shall not be
by cryptic or non-reasoned order. In the decision in Govindaraju v.
State by Sivaramapuram PS,2 this Court held that a very vital
distinction has to be kept in mind while dealing with appeal under
Section 374, Cr.P.C., that interference would be justifiable only when
distinction is kept between perversity in appreciation of evidence and
mere possibility of another view. Furthermore, it was held therein
that it would not be appropriate for the High Court to merely record
that the judgment of the trial Court was perverse without specifically
dealing with the facets of perversity relating to the issues of law and/
or appreciation of evidence, as otherwise such observation of the
High Court would not be sustainable in law.
8. Having taken note of the position settled thus we may add that
when the High Court acquitted the convict(s) in the appeal filed
under Section 374, Cr.P.C., in reversal of conviction, by granting the
benefit of doubt after a proper appreciation of evidence interference
is permissible and justifiable only if it is infected with perversity in
troth, the prosecution was not successful in establishing the guilt of
the accused beyond reasonable doubt. In the decision in State of
U.P. v. Dharmaraj and Anr.,3 which involved a challenge against
a judgment of acquittal in a murder case by the High Court, this
Court held that when on facts the view taken by the High Court was
a reasonably possible view, though not the only view that could be
taken, interference with acquittal would be uncalled for.
9. Bearing in mind the aforesaid decisions and the fact that the trial
Court and the High Court are at issue on the question whether
the respondents are guilty in the case on hand, we will proceed to
consider the captioned appeal. Obviously, the trial Court relied on
2 [2012] 5 SCR 67 : (2012) 4 SCC 722
3 (2003) 9 SCC 39
[2024] 10 S.C.R. 1881
The State of Madhya Pradesh v. Ramjan Khan & Ors.
the oral testimonies of PWs 5, 8 and 9 whereas in the appeal the
High Court found the oral evidence of PWs 5, 8 and 9 as unreliable.
10. Before dealing with the oral testimonies of the minor brothers of
the deceased (PWs 5 and 9), we will deal with the oral evidence of
PW-8, the mother of the deceased. She is the informant at whose
instance FIR No.78/96 was registered against the respondents herein.
Though she was believed by the trial Court, on re-appreciation the
High Court found her unreliable owing to the material improvements
and omissions made while being examined as PW-8. It was brought
out while being cross-examined that she had not deposed at all
about a dying declaration made to her by the deceased son. Before
analysing her evidence further, it is not inappropriate to refer to a
few decisions having bearing on her testimony.
11. FIR is not an encyclopedia disclosing all facts and details relating the
entire prosecution case. (See the decisions in Superintendent of
Police, CBI & Ors. v. Tapan Kumar Singh;4 State of UP v. Naresh
& Ors.;5 Lalitha Kumari v. Government of UP & Ors.,6 and Amish
Devgan v. UOI & Ors.7).
12. It is true that the aforementioned decisions would undoubtedly reveal
the position that an FIR is not meant to be a detailed document
containing chronicle of all intricate and minute details.
13. Even after, referring to the decisions mentioned above, we think
it equally relevant to refer to the decision of this Court in Dharma
Rama Bhagare v. State of Maharashtra.8 It was held therein thus: -
"The first information report, it may be pointed out, is never
treated as a substantive piece of evidence. It can only be
used for corroborating or contradicting its maker when he
appears in court as a witness.”
14. There can be no doubt with respect to the position that the prime
object of FIR, from the point of view of the informant is to set the
criminal law in motion and from the point of the investigating authorities
4 [2003] 3 SCR 485 : (2003) 6 SCC 175
5 [2011] 4 SCR 1176 : (2011) 4 SCC 324
6 [2013] 14 SCR 713 : (2014) 2 SCC 1
7 [2020] 14 SCR 198 : (2021) 1 SCC 1
8 [1973] 3 SCR 92 : (1973) 1 SCC 537
1882 [2024] 10 S.C.R.
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is to obtain information about the alleged activity so as to enable to
take suitable steps to trace and book the guilty. Thus, it can be said
that FIR is an important document, though not a substantial piece of
evidence, and may be put in evidence to support or contradict the
evidence of its maker viz., the informant. Whether the omission(s)
is one which seriously impeaches the credibility of the witness and
is sufficient to reject the testimony of the informant would depend
upon the question whether it is of an important fact and whether that
fact was within the knowledge of the informant, going by the case
of prosecution unraveled through the witness concerned.
15. Thus, the position with respect to FIR is clear from the decisions
referred supra that even though it is not meant to be an encyclopedia
containing chronicle of all intricate and minute details, it could be
used to corroborate its maker under Section 157 of the Evidence Act
or to contradict its maker viz., the informant under Section 145 of the
Evidence Act to establish whether he is a trustworthy witness or not.
16. Realising and recognizing the aforesaid position with respect to FIR
we will proceed to consider whether the disinclination on the part
of the High Court to rely on, rather, treating the evidence of the
informant – PW8 as unreliable is justifiable and sustainable in law.
17. Through the evidence of PW8, the mother of the deceased, who is
also the informant, the prosecution has attempted to establish the
existence of an oral dying declaration. It is to be noted that dying
declaration itself is not a strong piece of evidence and therefore,
when it is verbal and that too, allegedly made to a close relative
(in this case allegedly to the mother), evidence of mother about the
oral dying declaration was to be treated with care and caution. To
show that the trial Court dealt with the same without due care and
caution self- evident from paragraph 32 of the judgment of the Trial
Court, which reads thus: -
"32. During the arguments, ld. Counsel for the accused
argued that complainant Sitara Bi has stated in her court
statement that when she reached at well, at that time,
her son Naseem Khan told her that all the three accused
Ramjan Khan, Musab Khan and Habib Khan have caused
his murder after beating him with sickle, axe and lathi.
Though, this fact is not written in the police statement
Exh. D-3 of Sitara Bi that when he reached, at that time,
[2024] 10 S.C.R. 1883
The State of Madhya Pradesh v. Ramjan Khan & Ors.
accused Naseem had told her to be beaten by accused
persons, even thereafter, I don’t find it proper to give it’s
benefit to the accused persons because I don’t find any
reason to disbelieve the statement, which has been given
by her before the court.”
18. Paragraph 42 of the judgment of the Trial Court carries the further
recital with respect to the aforesaid aspect and it, in so far as relevant,
reads thus: -
"42… Sitara Bi (PW-8) has stated in para-5 of her cross-
examination that if the police has not written the fact of
going of Farid Khan and Haseen Khan alongwith Naseem
Khan for bathing is not written in the police statement of
Exh. D-3, then, she cannot tell its reason. Similarly, when
complainant Sitara Bi reached on the spot, at that time,
Naseem Khan was lying on the ground and Naseem Khan
told her that accused have beaten him. If, this fact is also
not written in her police statement, then she cannot tell
its reason...”
19. The Judgment of the Trial Court would reveal that after considering
the aforesaid aspect in such a light manner, believing the oral
evidence of PW8 as well, the Trial Court arrived at the finding
that accused Ramjan Khan had beaten Naseem Khan with sickle,
accused Musab had beaten him with bamboo lathi (equipped with
Farsa) and accused Habib inflicted axe blow on Naseem Khan and
thereby caused his murder.
20. The undisputed and indisputable position obtained from the evidence
on record is that the defence had brought out that neither in Ext.
P12 FIR nor in Ext. D3 statement of PW8 recorded under Section
161, Cr.P.C., PW8 stated about the oral dying declaration made
to her by the deceased. That apart, the prosecution had failed
to establish that when PW8 reached the place of occurrence the
deceased was in a fit state of mind to speak or talk relevantly. Except
the statement of PW8 in the Court there is no scrap of evidence in
that regard in the case on hand. As a matter of fact, on this aspect
nothing was brought out from PW5 and PW9 or from any other
witnesses. There can be no doubt that oral dying declaration should
be of such a nature as to inspire full confidence of the court in its
correctness. In the contextual situation revealed as above, we have
1884 [2024] 10 S.C.R.
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no hesitation to hold that the High Court was perfectly justified in
considering the oral testimony of PW8 and taking serious note of
the serious omission brought out from her, on being confronted with
Ext. P12 FIR and Ext. D3, which is her previous statement made to
police, that she had not stated anything about such an oral dying
declaration made by her deceased son. The High Court also took
note of the fact that neither PW5 nor PW9 had spoken about any
such oral dying declaration made by the deceased brother to their
mother- PW8. Add to it, the oral testimony of PW8 would reveal
that while being examined-in-chief she deposed what Haseen Khan
(PW5) and Fareed Khan (PW9) divulged to her. She would depose:
“When my sons Fareed Khan and Haseen Khan told me at home
that accused persons have killed Naseem Khan then I reached the
place of incident.”
(underline supplied)
21. In this context, it is also relevant to refer to her oral evidence while
being cross-examined. She deposed thus on being cross-examined: -
“It is incorrect to say that Fareed and Haseen did not tell
me that accused persons have killed Naseem."
22. The oral testimony of PW-8 would further go to show that with
respect to the attack allegedly done by the three accused persons
viz., the respondents herein on her deceased son Naseem Khan,
her evidence is nothing but ‘hearsay evidence’ as according to her
she was told about their attack on Naseem Khan only by her sons,
PW-5 and PW-9 and there is no case for the prosecution that she
had witnessed the respondents herein attacking Naseem Khan.
23. A scanning of the oral testimony of PW-8 would show that on many
other materials points the defence could brought out, upon confronting
her with Ext.P12-FIR, Ext.D3-previous statement, various serious
omissions. About her statement in Court that PW-5 and PW-9 went
along with deceased Naseem Khan on 01.10.1996 for taking bath
nothing was seen recorded in Ext.D3. As noted earlier, as to the
alleged oral dying declaration made to her by the deceased from the
place of occurrence after sustaining injuries nothing was recorded
in Ext.P12-FIR as also in Ext.D3. Though she deposed that upon
seeing her Ramjan, Musaf Khan and Habib Khan ran away from the
place of occurrence this fact was not recorded in Ext.D3. So also,
[2024] 10 S.C.R. 1885
The State of Madhya Pradesh v. Ramjan Khan & Ors.
about the attack by the accused persons on deceased Naseem Khan
though she deposed that PW-5 and PW-9 told her and in turn she
told such facts to police they were not recorded in Ext.D3. She would
depose that she got no enmity with the family of accused persons
and got no dispute in respect of land. In view of the aforementioned
aspects revealed from the testimony of PW-8 which were not given
due weight by the trial Court while considering whether PW-8 is
reliable or not, we are of the considered view that the High Court
had rightly given due consideration to all such aspects and ultimately
discredited her testimony.
24. Before considering the oral testimonies of the witnesses claimed
by the prosecution as eye witnesses, it is to be noted that with
respect to the nature of death of Naseem Khan there is actually no
cleavage in the findings of the trial Court and the High Court. The
concurrent finding is that it is culpable homicide amounting to murder.
The necroscopical evidence consists of the oral testimony of PW-1,
Dr. S.S. Thakur, and the postmortem report prepared and proved by
him as Ext.P1. Going by the said necroscopical evidence the following
antemortem injuries were present on the body of the Naseem Khan: -
"1. A punctured wound measuring ½ inch x ½ inch on
the left side of face, clotted blood was present.
2. An incised wound measuring 1 inch x ½ inch on
the ½, 1/3 portion back side of left wrist, which was
having the clotted blood.
3. An incised wound measuring 3 inch x ½ inch x deep
to bone, margin on the occipital region of head having
clotted blood.
4. An incised wound measuring 3 inch x. ½ inch x deep
bone, on the frontal region of head, having clotted
blood.
5. An incised wound measuring 3 x ½ inch x dee on
the temporal region of left side of head, in which the
clotted blood was present.”
25. PW-1 opined that all the aforesaid injuries except injury Nos.1 and 2
were sufficient in the ordinary course of nature to cause death and
that the cause of death was comma as a result of head injuries. In
1886 [2024] 10 S.C.R.
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short, in view of the necroscopical evidence as above the Courts
were perfectly right in holding that the death of Naseem Khan is
culpable homicide amounting to murder.
26. Now, the surviving question is only whether the prosecution had
succeeded in establishing conclusively beyond any reasonable doubt
that the culprits for the murder of Naseem Khan, are the respondents
herein as held by the trial Court or whether they are entitled to the
benefit of doubt and consequential acquittal as held by the High
Court. In the decision in Anil Phukan v. State of Assam,9 this Court
held that conviction could be based on testimony of a single witness
provided his testimony is found reliable and inspires confidence. In the
decision in Chandu Bhai Shana Bhai Parmar v. State of Gujarat,10
this Court held that when the ocular evidence in a murder case is
unreliable benefit of doubt to be given to all accused.
27. We have already held, for the reasons given earlier, that the High
Court had rightly held the oral testimony of PW-8 as unreliable.
As a matter of fact, the case of the prosecution is that Isab Khan
(PW-2), Haseen Khan (PW-5), Fareed Khan (PW-9), and Anees Khan
(PW-17) had witnessed the incident that led to the death of Naseem
Khan. In the light of the decisions in Anil Phukan’s case and Chandu
Bhai’s case (supra) the oral testimonies of PWs 2, 5, 9 & 17 are
to be appreciated to answer the aforementioned surviving question.
PW-2 was declared hostile by the prosecution and concurrently his
evidence was held unreliable. Though PW-17 also turned hostile, the
trial Court held that on that account the accused / the respondents
herein are not entitled to any benefit as PW-5 and PW-9 proved
the fact that accused/the respondents herein had caused murder
of Naseem Khan using sickle, danda affixed with farsa, and axe.
However, the High Court held the evidence of PW-17 as unreliable.
The High Court found that though PW-17 was declared hostile prior
to such declaration he deposed that the accused Ramjan/the first
respondent herein had thrown the deceased on a stone boulder.
He had not deposed anything against the other accused / the other
respondents herein. The High Court found his testimony unreliable
as according to him the first respondent Ramjan threw the deceased
9 [1993] 2 SCR 389 : (1993) 3 SCC 282
10 AIR 1982 SC 1022
[2024] 10 S.C.R. 1887
The State of Madhya Pradesh v. Ramjan Khan & Ors.
on a stone boulder which caused head injuries, but that is not the
case of the prosecution at all and that apart he had stated so, for
the first time only in the Court. In that regard he was confronted
with his previous statement - Ext.P22. Besides the same, there is
nothing in the opinion of PW-1, the Doctor who conducted autopsy
on the body of Naseem Khan, which would indicate that the head
injury was caused on account of the deceased being thrown on the
stone boulder. When that be the nature of evidence of PW-17, it
can only be held that the finding of the trial Court that the evidence
of PW-17 would not fetch any benefit for the accused cannot be
sustained. Hence, according to us, the High Court held his evidence
unreliable correctly.
28. In the aforesaid circumstances the question is with respect to the
reliability on the oral testimonies of PW-5 and PW-9 who are the
younger brothers of deceased Naseem Khan. As noticed hereinbefore,
their oral testimonies were held as reliable by the trial Court and at
the same time the High Court found their testimonies as unreliable.
At the outset, it is to be noted that as in the case of PW-8, the
defence had succeeded in bringing out the fact that both PW-5 and
PW-9 had omitted to mention certain material facts to police while
their statements were recorded. The question is whether they were
omissions tantamounting to discredit the said witnesses. PW-5, while
being examined in chief, deposed to have seen Ramjan causing injury
by parena (sickle), Musaf Khan causing injury by stick and Habib
causing injury by axe on his brother Naseem Khan. However, during
cross-examination he would depose that regarding the infliction of
injuries by the respondents using the aforementioned weapons on
Naseem Khan, he did not make any statement before the police and
stated so for the first time before the Court. PW-2, Isab Khan, and
PW-17, Anees Khan, are respectively the sons of Yaseem Khan and
Mohar Khan, who are the cousin brothers of Munne Khan, the father
of PWs 5 and 9. As noticed hereinbefore, both PW-2 and PW-17
did not support the case of the prosecution. High Court also took
note of the fact that PW-5 did not depose that when he along with
his mother (PW-8) reached the place of occurrence the deceased
was alive and gave oral dying declaration to PW-8.
29. While being cross-examined PW-9 deposed that he did not tell the
police that Ramjan with parena, Musaf Khan with farsa and, Habib
Khan with axe assaulted his brother Naseem Khan. While being
1888 [2024] 10 S.C.R.
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examined in chief he would depose that his mother was also beaten
by the accused persons. It is to be noted that there is absolutely
no such case even for PW-8, the mother of PW-9. As can be seen
from paragraph 6 of his oral testimony the defence had brought
out some other omissions and contradictions. The aforementioned
omissions on the part of PWs 5 and 9 cannot be said to be minor
contradictions to be taken lightly as according to them they did
not name the accused persons in their previous statements made
to the police. Hence, omissions thus brought amount to material
contradiction which will go into the core of the prosecution case. Their
oral testimonies would reveal that they stated about the infliction of
injuries on Naseem Khan, their elder brother by the respondents
with the weapons mentioned above for the first time only before
the Court while being examined. That apart, it is to be noted that
though the case of the prosecution is that both PWs 5 and 9 had
gone with deceased Naseem Khan for taking bath on the fateful day
the evidence of PW-8 would reveal that in her previous statement to
the police she had not disclosed the said fact to the police. In this
context, it is relevant to note that the prosecution had not revealed,
rather established, the genesis of the incident that led to the death
of Naseem Khan. In other words, none of the witnesses including
PWs 5 and 9 had deposed as to the genesis of the incident. This
assumes relevance as PW-8 herself deposed that she got no enmity
with the families of the accused and got no land dispute with them.
When this be the nature of the evidence of PWs 5 and 9 as also the
evidence of PWs 2, 8 and 17, we are of the considered view that there
can be no good reason to hold that the prosecution had succeeded
in conclusively proving the guilt of the accused/respondents herein
beyond reasonable doubt warranting displacement of the finding of
the High Court that in view of the omissions and contradictions, the
oral testimonies of the aforesaid witnesses are not reliable and the
respondents herein are entitled to the benefit of doubt. We have
already taken note of the decision in Dharmaraj’s case (supra)
involving a challenge against judgment of acquittal in a murder
case in reversal of conviction entered against the accused by the
trial Court holding that if on facts the view taken by the High Court
is a reasonable possible view, though not the only view that could
be taken, interference with acquittal would be uncalled for. In view
of the nature of the evidence discussed above and the finding of
[2024] 10 S.C.R. 1889
The State of Madhya Pradesh v. Ramjan Khan & Ors.
the High Court that the respondents/accused are entitled to benefit
of doubt and consequently for acquittal, we do not find any reason
to hold that it is not a reasonably possible view though not the only
view that could be taken.
30. The long and short of the above discussion is that we are not
inclined to interfere with the judgment of acquittal passed by the
High Court in Criminal Appeal No. 602 of 1998. Hence the appeal
stands dismissed.
Result of the case: Appeal dismissed.
†
Headnotes prepared by: Divya Pandey
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