1999(2) Crimes 45 (SC)
Supreme Court of India
(From Rajasthan High Court)
K.T. Thomas & D.P. Mohapatra, JJ.
State of Rajasthan — Appellant
versus
Teja Ram & Ors. — Respondents
Criminal Appeal No. 431 of 1991
Decided on 19-3-1999
Counsel for the Parties :
For the Appellant : Arunashwar Gupta, Srilok Nath Rath, Advocates.
For the Respondents : Doongar Singh, Sushil Kumar Jain, Umesh Kumar Bonre, Advocates.

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 wound 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 assaulted 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—Witnesses 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 ear pin­na and brain tissue lying out of wound—Brain functions of injured would have impaired due to brain injury—Even if injured was able to mutter something or even speak out something it is extremely unsafe to place any credence on such statement. (Paras 10 & 11)

       (iii) Criminal trial—Appreciation of evidence—Evidence of eyewitness­es—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 to 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 the 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 hubbub 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 any 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 detect origin of 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 signature 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 prohibition 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 reassure 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. P-3 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)

       Result : Order accordingly.