2024 Supreme(SC) 544

SUPREME COURT OF INDIA
SURYA KANT, K.V. VISWANATHAN, JJ.
Dharmendra Kumar @ Dhamma – Appellant
Versus
State of Madhya Pradesh – Respondent
Criminal Appeal No. 2806 of 2024 [Arising out of Special Leave to Appeal (Crl.) No. 11793 of 2022]
Decided on : 08-07-2024

Headnote:

(1) Spot Map -- omission of marking a spot on site plan does not deflect prosecution's case -- site plan merely denotes location of incident without implying further details -- due weightage must be given to first-hand version of persons who had seen that to which they have testified -- their evidence cannot be jettisoned merely because IO forgot to describe room/location of incident as 'Bhairav Shastri's Jhuggi' on spot map -- eye-witnesses have corroborated each other -- their depositions are reinforced by deceased himself in his statement u/s. 161, CrPC -- location of incident is depicted on spot map as a 'brick room', thus, it stands established that there was another 'jhuggi' where deceased sought refuge and was eventually assaulted -- the so-called contradiction miserably fails to invade corpus delicti. (2010) 15 SCC 91 relied on. [Paras 33 & 34

(2) Witness -- eye-witnesses described room/location of incident as 'Bhairav Shastri's Jhuggi' -- omission of marking that spot on site plan does not deflect prosecution's case -- site plan merely denotes location of incident without implying further details -- due weightage must be given to first-hand version of persons who had seen that to which they have testified -- their evidence cannot be jettisoned merely because IO forgot to describe room/location of incident as 'Bhairav Shastri's Jhuggi' on spot map -- eye-witnesses have corroborated each other -- their depositions are reinforced by deceased himself in his statement u/s. 161, CrPC -- location of incident is depicted on spot map as a 'brick room', thus, it stands established that there was another 'jhuggi' where deceased sought refuge and was eventually assaulted -- the so-called contradiction miserably fails to invade corpus delicti. (2010) 15 SCC 91 relied on. [Paras 33 & 34

(3) FIR -- is not a substantive piece of evidence -- it can be used only to corroborate or contradict version of informant -- also not necessary that there should always be a written complaint to register FIR -- even oral communication to police disclosing commission of cognizable offence is sufficient to register FIR. [Para 38

(4) FIR -- object -- is three-fold -- firstly, to inform jurisdictional Magistrate and police administration of offence that has been reported to police station -- secondly, to acquaint Judicial Officer before whom case is ultimately tried as to what are the actual facts stated immediately after occurrence and on what materials the investigation commenced -- thirdly and most importantly, to safeguard accused against subsequent variations, exaggerations or additions. [Para 39

(5) Criminal P. C., 1973 -- S. 154 -- not reading contents of FIR to complainant -- effect -- question for consideration is whether such omission caused any prejudice to accused -- accused failed to demonstrate any prejudice -- stipulations outlined in S. 154 concerning reading over of information after it is written down, signing of said information by informant, and entry of its substance in prescribed manner, not obligatory -- these requirements are procedural in nature -- omission of any of them does not impact legal consequences resulting from information provided under the section. (2013) 3 SCC 594 relied on. [Paras 42 & 43

(6) Practice (Criminal) -- testimonies of eye-witnesses consistent, unimpeachable, and duly corroborated by medical evidence or recovery of incriminating material like weapon used -- deficiencies, if any, in recording of FIR alone do not constitute valid ground to overturn conviction or undermine prosecution case.

[Para 44

(7) Test Identification Parade -- not substantive evidence -- primarily intended to assist investigating agency in ensuring that their progress in investigating offence is on the correct path -- holding TIP not obligatory -- failure to hold TIP cannot be a ground to eschew testimony of witnesses whose evidence was concurrently accepted by trial and appellate Courts -- failure to hold parade would not make inadmissible the evidence of identification in Court. State (NCT of Delhi) (2005) 11 SCC 600 and (2007) 10 SCC 175 relied on. [Para 47

(8) Practice (Criminal) -- poor visibility owing to darkness -- incident occurring at night -- factors to be taken into account -- reiterated. (1998) 9 SCC relied on. [Para 48

(9) Penal Code, 1860 -- S. 302/34 -- place of occurrence adjacent to that of complainant -- easy for witnesses to observe and identify accused persons -- each accused, particularly appellant, familiar to eye-witnesses -- incident occurred on a summer night, there would have been minimal obstruction to visibility -- most importantly, appellant has nowhere taken plea of alibi in his statement u/s. 313, CrPC -- did not pursue this defence during cross-examination of witnesses -- did not adduce any evidence in support thereof -- no reason to doubt that appellant was not only present at scene of crime, but he actively participated in occurrence and gave one of the fatal blows to deceased -- where two people are killed in a heated altercation, it is highly unlikely that eye-witnesses would want real perpetrators to escape justice -- in absence of any prior motive, not plausible that they would falsely accuse appellant -- rather, name of appellant surfaced in the very first version, duly recorded within less than two hours of occurrence -- statements of eye-witnesses do not suffer from discrepancy of such nature that they should be discarded -- testimony of Investigating Officer devoid of any ulterior motive or attempt to fabricate evidence or falsely implicate appellant and his co-accused -- appeal dismissed. [Paras 49 to 51 & 57

(10) Plea of Alibi -- whosoever pleads alibi in contrast and derogation of eye-witness version, is under cumbrous onus to prove absence from scene and time of crime. [Para 50

(11) Evidence Act, 1872 -- S. 27 -- admissibility of disclosure statement -- appellant voluntarily made disclosure statement in police custody, pursuant to which, weapon of offence (knife) was recovered -- whether said statement was voluntary or was secured through coercion is essentially a question of fact -- disclosure statement duly witnessed -- held -- disclosure statement, to the extent it led to recovery of knife, fulfils basic tenets of S. 27 -- correctly admitted in evidence. 1946 SCC Online PC 47 relied on.

[Paras 55 & 56

(12) Jurisdiction -- jurisdictional magnification -- ought to be an exception -- ought to be invoked with great circumspection, in a case of extreme hardship, after taking into consideration the socio-economic conditions of victim(s), accused, as well as vulnerable witnesses. [Para 57

(13) Witness -- rustic witness -- eye-witnesses illiterate labourers -- testimonies recorded after considerable length of time after occurrence -- emphatically denied that they were tutored -- held -- unfiltered testimony of rustic witness, even if marred with some minor inconsistencies or discrepancies, cannot debilitate its perseverance -- has to be evaluated comprehensively and carefully -- especially when cross-examination discreetly suggests that accused person(s) made a bid to win them over -- held further -- statements of witnesses do not suffer from discrepancy of such nature that they should be discarded -- it would be too unfair and unreasonable to expect witness, unless parroted, to recall every minute detail of occurrence and present it with a totally accumulative narrative. [Paras 57 & 58

(14) Evidence Act, 1872 -- S. 106 -- burden of proof -- human blood on knife recovered at instance of appellant -- no traces of human blood found on other weapons, including lathis and even knife attributed to co-accused -- non-explanation of human blood on weapon of crime constitutes a circumstance against accused -- incumbent upon accused to explain presence of human blood on weapon -- appellant failed to do so -- it may not be a decisive factor to determine guilt, but conspicuous silence does lend support to prosecution case. (2015) 11 SCC 43 and (2010) 14 SCC 129 relied on. [Paras 60 & 61

(15) Criminal P. C., 1973 -- Ss. 161 and 162(2) -- Evidence Act, 1872 -- S. 32(1) -- considering statement u/s. 161 as dying declaration -- statement made to police officer and recorded u/s. 161 CrPC, as to cause of his death or to circumstances of transaction which resulted in his death, shall be relevant and admissible, notwithstanding the express bar against use of such statement in evidence -- such statement assumes character of dying declaration -- since extraordinary credence has been given to such dying declaration, Court ought to be extremely careful and cautious in placing reliance thereupon. (2010) 12 SCC 224, (2013) 12 SCC 137 and (2019) 11 SCC 500 referred to. [Paras 64 & 65

(16) Evidence Act, 1872 -- S. 32 -- fit state of mind -- it is indubitably the responsibility of Court to ensure that declarant was in sound state of mind -- there are no rigid procedures mandated for recording dying declaration -- if eye-witness asserts that deceased was conscious and capable of making declaration, medical opinion cannot override such affirmation -- nor can dying declaration be disregarded solely for want of doctor's fitness certification -- requirement of dying declaration to be recorded in presence of doctor, following certification of declarant's mental fitness, is merely a matter of prudence. (1999) 9 SCC 562 and (2002) 6 SCC 710 relied on. [Para 66

(17) Criminal P. C., 1973 -- Ss. 161 and 162(2) -- Evidence Act, 1872 -- S. 32(1) -- considering statement u/s. 161 as dying declaration -- absence of medical fitness certificate -- effect -- Investigating Officer recorded statement instantly, a day after incident -- he categorically stated that medical report did not mention that condition of declarant was serious in nature -- held -- declarant was in fit condition as not only did he properly explain the incident but also markedly specified role of appellant -- injuries found during post-mortem examination duly corroborated statement of deceased -- mere non-obtainment of medical fitness certificate will not deter this Court from considering a properly recorded statement u/s. 161, CrPC to be a dying declaration. [Paras 68 & 69