Important Point
Where injury on the victim was incised wound with blood oozing with 8.5 x 3.0 x brain deep on left temporal region and brain tissue was lying out of the wond it was held that even if the injured was able to mutter something or even speak out something after sustaining the above injuries it is extremely unsafe to place any credence on such statements as the brain functions of the injured would have impaired due to the brain injury.

Headnote:(i) Indian Penal Code, 1860-Section 302/149-Murder-Appeal against acquittal-Six accused persons allegedly entered into house of deceased in wee hours of morning and assauled deceased-Hostility over land and proceedings u/s 107 Cr.P.C. pending against accused persons-Witnesses, relatives of deceased, saw accused persons among whom A1 and A2 holding axes leaving house of deceased-Witness natural-Non-examination of independent witnesses not fatal-Recovery of weapon proved-Failure of serologist to detect origin of blood in one of axes not ground to doubt blood stain on axe was animal blood-Motely discrepancy in evidence of witnesses as to through which gates of house assailants left house after assault cannot be blown up to size of mountain to reject evidence-High Court not correct in acquitting accused persons 1 and 2-Conviction of A1 and A2 restored. (Paras 12 to 26)
       (ii) Indian Evidence Act, 1872-Section 32-Dying declaration-Injuries on victim 8.5 x 3.0 x brain deep on temporal region 3 cm above earpinna and brain tissue lying out of wond-Brain functions of injured would have impired due to brain injury-Even if injured was able to matter something or even speak and something it is extremely unsafe to place any credence on such statement. (Paras 10 & 11)
       (iii) Criminal trial-Appreciation of evidence-Evidence of eye witnesses-Relationship of witnesses to deceased/victim - Non-examination of independent witnesses not always fatal-Over insistence on witnesses having no relation with victims often results in criminal justice going awry-Motely discrepancy as to through which gate of house assailants left house cannot be depicted as material discrepancy so as to reject evidence.
       Held : High Court pointed out a discrepancy in the evidence as between two sets of witnesses, P.W. 4 Chhogalal and P.W. 15 Mota Ram said that the assailants were seen going out from the western gate of the house while P.W. 10 Oghada Ram and P.W. 18 Roopa Ram said that the assailants went out through the eastern gate. This according to the High Court is a very substantial contradiction between them. There is little justification for blowing up such a motely discrepancy of the size of a mountain and then to reject the whole evidence by depicting it as a material discrepancy. What the High Court over-looked in the above exercise was the core of the evidence and consideration of it on broad probabilities. We have to bear in mind time when the occurrence took place-the wee hours of the night, the sleeping locality was woken up by the yelling voice crying for help from one’s own kith and kin. When they rushed to the scene their focus would be on the victims and the identity of the fleeing assailants. Perhaps some of the assailants would have gone out through one gate and others through the other gate. After all both gates were of the same house and are situate close to each other. We have absolutely no doubt that whoever rushed to the spot on hearing the squeak or the out cry, it is most unlikely that they would have remained where they were even after hearing the cries. It is extremely probable that the witnesses would have seen the fleeing assailants in such a hudbub and if some witnesses did not correctly notice the exact gate (out of the two gates) through which each one of the assailants flushed out, it is not a good cause for drawing adverse inference against such witnesses. (Paras 17 to 19)
       Another reason which the High Court advanced to repel the testimony of such a good number of probable witnesses is that they are all close relatives of the deceased and that independent witnesses were not examined by the prosecution. The over-insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbour-hood may be replete with other residents also. (Para 20)
       (iv) Criminal Trial-Appreciation of evidence-Blood stain on weapon used by assailants-Recovery of weapon proved-Serologist not able to defect origin to blood in one of the weapons-Guess work that blood on weapon would have been animal blood unrealistic-Because insufficient stain or due to hematological changes and plasmatic coagulation a serologist might fail to detect origin of blood.
       Held : One of the circumstances which trial Court relied on as incriminating the accused is the recovery of two axes (Kulhadi) on the strength of statements of A1 Teja Ram and A2 Ram Lal. They were subjected to chemical examination and the result is that both axes were found stained with blood. When it was further subjected to test by Serologist the blood on one axe was found to be of human origin, while the blood stain on the other axe was found to have so disintegrated that its origin became undetectable. Failure of the Serologist to detect the origin of the blood, due to disintegration of the serum in the meanwhile, does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to hematological changes and plasmatic coagulation that a Serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such a guess work that blood on the other axe would have been animal blood is unrealistic and farfetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity no benefit can be claimed by the accused. (Paras 21 & 25)
       (v) Code of Criminal Procedure, 1973-Section 162 read with Section 27 of the Indian Evidence Act, 1872-Statement to police-Prohibition to secure signate on statement-Policy underlying rule is to keep witness free to testify in court-Prohibition is more a direction to investigating officer-Prohibition contained in Section 162(1) not applicable to proceedings made as per Section 27 of Evidence Act-Signature of accused on seizure memo would not vitiate evidence regarding recovery of weapon.
       Held : No doubt contained in Section 162(1) of Cr.P.C. is in peremptory terms. It is more a direction to the investigation officer than to the court because the policy underlying the rule is to keep witnesses free to testify in court unhampered by anything which the police claim to have elicited from them. But if any Investigating Officer, ignorant of the said provision, secures the signature of the person concerned in the statement, it does not mean that the witnesses’ testimony in the court would thereby become contaminated or vitiated. The Court will only reassume the witness that he is not bound by such statement albelt its signature finding a place thereon. That apart, the prohibition contained in sub-section (1) of Section 162 is not applicable to any proceedings made as per Section 27 of the Evidence Act. It is clearly provided in sub-Section (2) of Section 162. (Paras 28 & 29)
       The resultant position is that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. Hence, we cannot find any force in the contention of the learned counsel for the accused that the signatures of the accused in Ex. P3 and P.4 seizure memo would vitiate the evidence regarding recovery of the axes. (Para 30)
       (vi) Indian Evidence Act, 1872 -Section 27 read with Section 162 of the Code of Criminal Procedure Code, 1973-Information received from accused-Use of, against accused-Signature obtained on seizure memo-Would not vitiate evidence regarding recovery of weapon - Prohibition contained in Section 162(1) of Cr.P.C . not applicable to proceedings u/s 27 of Evidence Act. (Paras 28, 29 & 30)

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

The court emphasized that statements made by an injured person after sustaining severe brain injuries, such as incised wounds with brain tissue exposed, should be treated with skepticism. The impairment of brain functions makes it unsafe to rely on such statements for credible testimony (!) (!) .
The case involved a double murder where the accused persons, armed with axes and lathis, attacked victims during the night, resulting in grievous injuries and deaths. The prosecution relied on eyewitness testimonies, recovery of weapons, and other circumstantial evidence to establish guilt (!) .
Witnesses who reached the scene shortly after the incident, particularly neighbors and relatives of the victims, provided crucial testimonies about the presence and actions of the accused. Their immediate proximity and natural witnesses to the event were considered significant, even if some discrepancies existed in their accounts (!) (!) (!) (!) .
Discrepancies in minor details, such as the specific gate through which the accused left the scene, were deemed not material enough to reject the overall credibility of eyewitness testimonies, especially given the circumstances of the incident occurring during late night hours in a sleeping locality (!) (!) (!) .
The recovery of weapons (axes) stained with blood was a significant circumstantial evidence. Even if serological tests failed to conclusively establish the origin of the blood due to disintegration or insufficient staining, such failures do not automatically negate the possibility that the blood was human and linked to the crime (!) (!) (!) (!) .
The court clarified that the signature of an accused on seizure memos or statements during investigation does not necessarily vitiate the evidence, especially when such signatures are obtained in proceedings under Section 27 of the Evidence Act, which are exempt from certain restrictions under the criminal procedure code (!) (!) (!) .
Evidence obtained from witnesses, including their prior statements, can be challenged and used to assess credibility. The court highlighted that failure to recall or confront witnesses with their previous statements may be a procedural lapse, but it does not automatically invalidate the evidence unless it significantly affects the case's integrity (!) (!) .
The court found that the High Court had erred in rejecting the circumstantial and ocular evidence, including the testimonies of neighbors and the recovery of weapons, which collectively pointed to the guilt of the accused. The rejection was based on trivial discrepancies and unfounded doubts (!) (!) .
Ultimately, the court restored the convictions and sentences of the accused who had been acquitted by the lower appellate court, emphasizing that the evidence against them was compelling and that the earlier acquittal was unjustified (!) (!) .

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Judgment

Thomas, J.-It was by a midnight blitz that two sleeping inmates of a dwelling house were axed to death by armed assailants. One of the victims was the old mother of the other victim. The younger among them was not the target of the assailants but he was mistaken for his brother. In the Sessions court seven persons were put on trial as the assailants in the aforesaid double murder episode. Out of them six were convicted under Section 302 read with Section 149 of the Indian Penal Code and for certain other lesser but allied offences. They were sentenced to imprisonment for life for the principal offence and for lesser terms for the lesser offences. When they appealed a Division Bench of the Court of Rajasthan set aside the conviction and sentence and acquitted them all. State of Rajasthan has, therefore, come up in appeal to this Court by special leave.

2. As there were seven accused in the case, out of which six are the respondents now, they can be referred to as accused in the same rank as they were arrayed in the trial Court so that possible mistake in identifying them can be prevented. A1 Teja Ram, A2 Ram Lal and A3 Bhanwar Lal are the sons of one Maga Ram and they are cousins of deceased Ram Lal. Other accused are close relatives of those two accused. The backdrop of the case unfurls a story of continued hostility which existed as between the cousins on account of disputes over landed properties. P.W. 15 Mota Ram (son of deceased Smt. Gamni) had launched litigation against A1 and A2. On a motion made by him the authorities concerned have initiated proceedings under Section107 of the Code of Criminal Procedure against A1 Teja Ram and A2 Ram Lal. Thus, they looked upon each other with bitterness.

3. The incident happened on the night next morning of which was a Sunday (13.9.1981). Prosecution case is that all the seven accused, armed with axe and lathis etc. travelled in a tractor and at a subsequent stage they walked on foot and reached the house of the deceased by midnight.

4. Deceased Ram Lal and his mother Gamni were sleeping inside the room adjoining the gate of their house. Mota Ram used to sleep at that place but on the fateful night Ram Lal thought it convenient to sleep there as that was the cruel game of his fate. The assailants entered into the room and hacked both the deceased with axe. The squall of the victims rumbled the neighbour-hood. All those who heard it rushed to the scene but by the time they reached the assailants took to their heels and escaped from the place. Other inmates of the house carried the injured in a vehicle to the hospital and on the way Mota Ram (P.W. 15) informed the police about the incident at the Police Out Post at Auwa. From there he proceeded to Kharchi police station and lodged the FIR. The SHO (P.W. 21) recorded the statement of both the injured who were removed to the hospital thereafter. Ram Lal died on the same night, while his mother lived for a week more fighting with death and she too succumbed to the injuries on 21.9.1981.

5. Trial Court, while convicting six accused, mainly relied on Ex. P31 and Ex. P32 which are the two dying declarations attributed to deceased Ram Lal and Gamni respectively which were recorded P.W. 21, the Investigating Officer. Besides the above, the trial Court relied on certain circumstances, such as the testimony of witnesses who reached the scene saw the accused running away with axes and lathis, and recovery of the weapons effected pursuant to the informations elicited from the accused.

6. But the Division Bench of the High Court of Rajasthan declined to act on the two dying declarations. High Court was not persuaded to place any reliance on the witnesses who claimed to have seen the assailants running away. High Court put-forth two reasons for adopting that course. First is that prosecution failed to examine any independent witness even though such persons were residing in the neighbour-hood, and the witnesses examined by the prosecution for

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1999 Supreme(SC) 351

Cases Referred (5)