RANVIR SINGH ETC. ETC. versus THE STATE OF MADHYA PRADESH

[2023] 1 S.C.R. 841

RANVIR SINGH ETC. ETC.

THE STATE OF MADHYA PRADESH

(Criminal Appeal Nos. 1384-1385 of 2009)

JANUARY 12, 2023

[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 ofhaving committed an offence u/ss. 148, 302/149, 324/149 – DehatiNalishi (Ex. P-28) was recorded as an FIR, in pursuance of theinformation given by one of the deceased person ‘H’, in which hestated that he along with the other two persons (K and PW-12) wasattacked by the appellants – The Statement of the was recordedat the place of occurrence by PW-20 (Investigating officer) andlater died at the hospital – Trial Court convicted the appellants –High Court confirmed life imprisonment for death of ‘K’ and modifiedthe same qua deceased ‘H’ to u/s. 304 Part-II – On appeal, held :Itwas PW-20 who had recorded statement, it is highly doubtful as towhether the deceased would be conscious enough to give thestatement, particularly in light of the injuries suffered by him – Ona perusal of the records, there were writings over the thumbimpression made under Ex. P-28 – It is rather strange as thumbimpression would normally follow the statement; it has to find placeat the conclusion of the statement – This lends credence to the viewthat thumb impression must have been obtained on blank paper –The statement as the one actually given by the deceased to PW-20cannot be treated as dying declaration – The statement specificallyexcludes others and the same excluded were shown as witness bythe same investigating officer – There is no explanation given byPW-20 as to why the statement of deceased was not recorded in thepresence of the judicial magistrate and duly certified doctor – Also,the evidence adduced by the prosecution through eye witnesses isnot trustworthy – Witnesses were not able to name the accused –However, they have identified the accused after 2 to 3 years forfirst time in the Court – Test identification Parade ought to be havebeen done – Much reliance was placed on PW-12, however, PW-12was not examined by PW-20 – Statement of PW-12 u/s. 161 Cr.P.C.,

Aif recorded was not marked – PW-12 also identified accused firsttime 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. Thediscrepancy also extends to the place where the body was foundwhen the statement was recorded. An investigating officer isexpected to act in an un-biased, fair and in manner that isCrequired of public servant. His concern is to find out the truth.The suppression of the statement given by the other witnesseswould obviously go to the root of the matter. One does not knowthe clear picture, and therefore the benefit shall be extended tothe appellants. [Para 29][852-E-G]

2. P.W.20 is the one who recorded the statement. On thediscussion made, it is highly doubtful as to whether the deceasedwould be conscious enough to give the statement, particularly inlight of the injuries suffered by him. There are not only incisewounds, but there must have also been continuous bleeding,Ewhich would have naturally occurred, as the case was registereda day after the occurrence. The statement of witnesses contradictseach other on this aspect. Furthermore, as rightly submitted bythe counsel for the appellants, on perusal of the records, therewere writings over the thumb impression made under Ex. P-28.It is rather strange as thumb impression would normally followFthe statement; it has to find place at the conclusion of thestatement. It is found, on the scrutiny, that even after the thumbimpression over which there were obviously writings found, therewere some more sentences written. This obviously lends credenceto the view that thumb impression must have been obtained on aGblank paper and in hurry, the contents were filled upsubsequently. [Para 31][856-H; 857-A-C]

Dying Declaration

3. There is absolutely no explanation given by P.W.20 as towhy he has not utilized the services of either Magistrate or aHdoctor, even after his first recording. The fact that he deposed

that the statement was recorded once again which, however, wasnot part of the record. If the deceased ‘H’ was so badly injured,and therefore died within few days of his admission into thehospital, nothing prevented P.W.20 to record the statement inthe presence of Judicial Magistrate and duly certified by thedoctor. The irresistible conclusion arrived at already, is that thedeceased was not in state of consciousness fit enough to makea statement, and that is the reason why the thumb impressionwas obtained subsequently, and thereafter statement wascreated. [Para 33][857-F-H; 858-A]

Test Identification Parade

4. Having found that Ex. P-28 cannot be believed, this Courtis inclined to hold that the evidence adduced by the prosecutionthrough the eye witnesses also is not trustworthy. The witnessesare not able to name the accused. However, they have identifiedthe accused, only after 2 to 3 years for the first time in the Court.This Court is quite conscious about the evidentiary value of atest identification parade. Certainly, in case of this nature, itought to have been done. Though test identification parade isnot substantive piece of evidence, at times, it adds strength tothe case of the prosecution by giving more credibility to thestatements of the eye witnesses which this Court finds as grosslylacking.[Para 34][858-G-H; 859-A-B]

Testimony of the Eye Witness

5. Much reliance has been placed on the evidence ofP.W.12. There is no difficulty in appreciating the submission thatan injured witness has to be placed on higher pedestal. However,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 ofP.W.12 under Section 161 CrPC, if recorded, has also not beenmarked. Even P.W.20 at one stage acknowledges the said fact,though with some contradictions. This again brings to theconclusion that it would be unsafe to rely upon the evidence ofP.W.12, who once again identifies the accused for the first timebefore the Court. There is absolutely no explanation for notexamining him during the investigation. Thus, the evidence ofP.W.12 cannot be relied upon, particularly in the light of the

[2023] 1 S.C.R.

Acharges under Section 149 IPC, and insofar as the appellants areconcerned. [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 :B2021(14) SCALE 6, Munnu Raja and Another v. TheState of Madhya Pradesh (1976) 3 SCC 104 : [1976] 2SCR 764; State of Jharkhand v. Shailendra Kumar Rai2022 SCC OnLine SC 1494; Gireesan Nair and Othersv. State of Kerala, (2023) 1 SCC 180; Binay KumarSingh v. State of Bihar, (1997) 1 SCC 283 – relied on.

Charan Singh and Others v. State of U.P., (2004) 4 SCC205 : [2004] 2 SCR 925; Najabhai Desurbhai Wagh v.Valerabhai Deganbhai Vagh and Others, (2017) 3 SCC261 : [2017] 2 SCR 764; Balmukund Sharma v. Stateof Bihar, (2019) 5 SCC 469; Vyas Ram v. State of Bihar,D(2013) 12 SCC 349 : [2013] 11 SCR 212; Akbar Sheikhand 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; MusaEKhan 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 KumarSharma and Others v. State of Chhattisgarh andAnother, (2016) 9 SCC 1 : [2016] 7 SCR 154; JaiFPrakash Singh v. State of Bihar and Another, (2012) 4SCC 379; Rajeevan & Anr. v. State of Kerala, (2003) 3SCC 355; Thulia Kali v. The State of Tamil Nadu, (1972)3 SCC 393; Mukhtiar Ahmed Ansari v. State (NCT ofDelhi), (2005) 5 SCC 258 : [2005] 3 SCR 797; RajaGRam v. State of Rajasthan, 2005 SCC (Cri) 1050 : (2005)5 SCC 272 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos.1384-1385 of 2009.

From the Judgment and Order dated 17.02.2009 of the High Courtof 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, UmangMehta, 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 KumarShukla, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. M. SUNDRESH, J.

1. The application for condonation of delay in filing the applicationfor restoration as well as the application for restoration are allowed inCriminal Appeal No.700 of 2011.

2. Conviction and sentence rendered by the High Court of MadhyaPradesh, Bench at Gwalior, confirming the life imprisonment renderedby the 2[nd] Additional Sessions Judge, Shivpuri, while modifying similarsentencing to that of seven years, is under challenge before us.

THE CASE AS UNFOLDED THROUGH THE

PROSECUTION’S EYES IS:

3. The appellants, along with his group of men, and the deceased,were having prior enmity. It arose pursuant to water dispute, as theappellants and the villagers allegedly did not appreciate entry into theirvillage facilitated by the purchase of properties by the deceased. The

Aoccurrence took place on 25.07.1992 at about 10.00 a.m. The firstinformation was recorded by P.W.20, the Police Officer, who alsoconducted 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 theBfirst information report, the deceased Hukum Singh allegedly made astatement about the prior incident. The Dehati Nalishi further proceededto state that when he along with the other deceased Kishori Kachi andthe eye witness P.W.12, Hakim Singh, went out to attend the nature’scall, the accused persons armed with weapons, including truncheon andaxe, attacked them indiscriminately. In pursuance of the said commonCobjective, all three of them were taken by the attackers to their place, aswitnessed by their family members and relatives. This was done despitethe request made by one Bhogiram and Bhaggo Bai, P.W.18. They werealso attacked, but Bhogiram was dumped on the way. The familymembers of the deceased Hukum Singh, inclusive of his daughters-in-Dlaw, daughters, Bacchu (P.W.13) and Sirnam Kachi were not present atthe place of occurrence, during the time of the offence. Complaint couldnot be lodged as the deceased Hukum Singh was not allowed to leave,while Kishori died.

5. The statement made by the deceased Hukum Singh wasErecorded by P.W.20 at the place of occurrence. He died subsequentlyon 28.07.1992, after three days in the hospital. It is to be noted that noattempt was made to record the statement either before the JurisdictionalMagistrate or in the presence of doctor. On perusal of the records,we find that the thumb impression of the deceased was affixed in themiddle of Dehati Nalishi, and words have been written over it, thusFgiving an impression that it was an after-thought.

6. The appellants namely, Sardar Singh and Dhola Ram, wereconvicted along with the other accused for the offences punishable underSections 148, 302/149 and 324/149 of the Indian Penal Code, 1860(hereinafter referred to as “IPC”), by the Trial Court for committing theGmurder of two persons. However, the High Court, while confirming thelife imprisonment for the death of the deceased Kishori Kachi, modifiedthe same qua the deceased Hukum Singh, to one punishable under Section304 Part II IPC. Three of the accused convicted by the Trial Court diedduring the pendency of the present proceedings, while five of them hadcompleted their sentence, and were therefore released. The appellantsHhave undergone incarceration for period of nine years.

7. Before the Trial Court, the prosecution examined 21 witnesses,out of which 6 of them were eye witnesses. One eye witness, Bhogiram,died during the pendency of the proceedings, and hence not examinedas witness.

8. We now proceed to discuss the depositions of the prosecutionwitnesses.

9. This witness is the wife of the deceased Hukum Singh. Sheidentified the accused persons only in the Court. Admittedly, no testidentification parade was done. Her deposition was recorded three yearsafter the incident. Though, she asserted that she was an eye witness, itwas obviously contrary to the Dehati Nalishi of the deceased HukumSingh. In her deposition, she has also stated that there were others whoegged on the accused persons to continue with the assault. It was herevidence that the accused carried both the deceased and Bhogiram totheir place. further deposition has been given that she was not toldabout the names of the accused, and therefore she did not know any ofthem by name. It is her further evidence that the accused persons presentin the Court cannot be named. She admits that there are number ofcontradictions between the statement made by her under Section 161 ofthe Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”)and her deposition. One of her statements is to the effect that the villagewatchman was present, but he was also prevented from reporting theincident to the police. Both the deceased and Bhogiram were in stateof unconsciousness. At the time of the assault, about 60 to 70 personsbelonging to the group of the accused were present.

10. P.W.1 has made categorical statement that P.W.13, Bacchu,along with others went during the nighttime to report the incident to thepolice personnel. He brought them back to the place of occurrence. Ofcourse, she retracted the statement to the effect that it is not correct tostate that all the five victims were in state of unconsciousness, andthey gave their statements, except Kishori.

11. Even this witness has identified the accused by their facesonly in the Court as she did not know their names. She could not evenidentify 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.

CDE

AClaiming to be an eye witness, she narrated the incident. She alsoimproved the prosecution version by placing certain facts which werenot available. However, she has stated that the deceased was foundlying at the door of the accused when the police party came. statementhas been made to the effect that both the deceased and the injured werelying unconscious. She has clearly stated that the police party arrivedBbetween 6.00 to 7.00 a.m. on 26.07.1992. The above deposition of P.W.4is intrinsically contrary to the very case projected by the prosecutionstarting from the alleged dying declaration of the deceased, Hukum Singh.

P.W.12:

C12. 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 ofthe incident, though his statement is stated to be recorded as per theprosecution version. He has stated on more than one occasion that hisstatement was not recorded by the police, and that he has come to deposein the court for the first time. He had also not narrated the incident toDanybody from the date of the incident till his deposition. This witnessagain makes clear statement that on the date of incident there wereabout 50 to 100 persons on the side of the accused. All of them wereinvolved in the incident of assault. He could not clearly identify any ofthem, while attributing specific overt act amongst the aforesaid persons.EThe entire crowd attacked the deceased. He did not tell the police thatthe named accused, tried to assault him. It is interesting to note that thiswitness did not speak about the presence of the other witnesses.Furthermore, reportedly he had seen the occurrence from distance ofone furlong, which is about 200 meters.F13. From the aforesaid narration, one cannot rely on the evidencerecorded 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 ofscores of others, gathered to assault the deceased.

P.W.13:

G14. 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 complaint. He is also witness to the site plan, Ex. P-16and the arrest memo, Ex. P-19. Even during his chief-examination, hedeposed that he returned with the police personnel to the place ofH

occurrence around 3.00 to 4.00 p.m., which is again contra-statementto the case of the prosecution. In his cross-examination, he admits thatwhat he deposed in its entirety was not found in his statement underSection 161 CrPC recorded as Ex. D-4. He met the Station Officer asdirected by the Superintendent of Police. It is his specific case that thestatement was recorded at the police station.

15. This witness found both the deceased and the injured witnessin an unconscious state when the police party reached the place ofoccurrence. The statements of the injured witness, and the deceasedwere recorded in the hospital at 5.00 p.m.

16. Needless to state that the evidence of this witness strikes atthe very foundation of the prosecution’s version. With his evidence thereare 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 tothe police station and lodged the first information report by affixing herthumb impression. She was accompanied by three persons, includingher brother-in-law. She also did not know the accused by name.

18. Once again, the aforesaid statement reiterated the factum ofmultiple first information reports given at different times leading to theconclusion that it would not be appropriate to place reliance on the officialone.

P.W.20:

19. The investigating officer is arrayed as P.W.20. His role assumessignificance as it is he who recorded the Dehati Nalishi from thedeceased, and converted it into first information report. He puts up atotally different version. In the chief-examination, he says that he receiveda phone call from an unknown person. He has also recorded the statementof the deceased Hukum Singh in the hospital, but no one knows about itsfate. Though he had stated that he also recorded the statement of P.W.12(Hakim Singh), it was not done, as rightly deposed by the said personwho was made to depose for the first time only before the Court. Contraryto the first information report, he has stated that the members of thevictim’s family were also present. Though, he has allegedly recordedthe statement of Hukum Singh, P.W.12 (Hakim Singh), Bhogiram and

AP.W.18 (Bhaggo Bai), he did not mention the date and time, except withrespect to the statement of the deceased Hukum Singh, which appearsto be rather strange, giving credence to the contention that either theyhave been recorded at different point of time or that there was nostatement from Hukum Singh. He once again contradicted himself bystating that he did not record the statement of Hukum Singh on the spot,Bwhile acknowledging that the statements of P.W.12 (Hakim Singh) andBhogiram were not taken by him. further statement has been giventhat he was given verbal order.

20. As an Investigating Officer, this witness was expected to tellthe truth. Though report of the investigating officer would constituteCan opinion, the very case of the prosecution that it is he who recordedthe statement of the deceased taken in the form of the first informationreport creates very serious doubt. It is apparent that his evidence isnot only contradictory, but also destructive.

21. Having discussed the evidence available on record, we shallDnow consider the approach of the Trial Court and the High Court.

DECISIONS OF THE COURTS:

22. Both the Courts below have relied upon the prosecutionwitnesses heavily. The depositions of the eye witnesses found favourEwith the Courts. Much reliance was also placed on the statement by thedeceased in the Dehati Nalishi. The contradictions pointed out werenot taken due note of. The statements of the witnesses were corroboratedwith each other with respect to the occurrence. Having found that therewere two homicidal deaths, final conclusion was arrived at by holdingthe appellants guilty.F

SUBMISSIONS OF THE APPELLANTS:

23. The learned counsel appearing for the appellants, placingreliance on the written arguments given, submitted that there are threedifferent first information reports as per the prosecution version. Thediscrepancies in the statement of the prosecution witnesses are eitherGself-contradictory or against each other.

24. No witness has spoken about recording of Dehati Nalishi, asdeposed by P.W.20. The condition of the deceased Hukum Singh wasunconscious. The language used in Ex. P-28 indicates that of legallytrained mind. The thumb impression of the deceased Hukum Singh wasH

not proved, and its placement creates serious doubt. P.W.20 contradictshimself on various counts. He did not disclose the name of the personwho furnished the information. The earlier version of this report wassuppressed 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 wereabout more than 50 to 100 persons present and involved. The chargeunder Section 149 IPC is not made out as there was no explanation fornot including the scores of other persons.

26. To substantiate the aforesaid contentions, the Learned Counselhas placed reliance on the following decisions of this Court:

•Charan Singh and Others v. State of U.P., (2004) 4 SCC205;

•Najabhai Desurbhai Wagh v. Valerabhai Deganbhai Vaghand Others, (2017) 3 SCC 261;

•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;

•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(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 Chhattisgarhand Another, (2016) 9 SCC 1 (paragraph 30);

•Jai Prakash Singh v. State of Bihar and Another, (2012) 4SCC 379 (paragraph 12);

•Rajeevan & Anr. v. State of Kerala, (2003) 3 SCC 355(paragraph 12, 13);

A•Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393(paragraph 12);

•Mukhtiar Ahmed Ansari v. State (NCT of Delhi), (2005) 5SCC 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 whileacknowledging the fact that there were reportedly three first informationCreports, submitted that two injured witnesses have spoken about theoccurrence, 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 statement beforeP.W.20, which has to be treated as dying declaration. Both the CourtsDbelow 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 theEprosecution witnesses. To sum it up, we find the witnesses speak aboutthree first information reports. Even on the recording of the statementof the deceased Hukum Singh, P.W.20, the Investigating Officer wasnot very clear. The discrepancy also extends to the place where thebody was found when the statement was recorded. An investigatingFofficer is expected to act in an un-biased, fair and in manner that isrequired of public servant. His concern is to find out the truth. Thesuppression of the statement given by the other witnesses would obviouslygo to the root of the matter. One does not know the clear picture, andtherefore the benefit shall be extended to the appellants. We wish toplace reliance on the decision of this Court in State of Madhya PradeshGv. Ratan Singh and Others, (2020) 12 SCC 630:

“8. As emphasised by this Court in Amitbhai Anil Chandra Shahv. CBI, (2013) 6 SCC 348 : (2014) 1 SCC (Cri) 309, only theearliest or the first information in regard to the commission of acognizable offence satisfies the requirements of Section 154, and

consequently there cannot be second FIR. Rather it is absurd orridiculous to call such information as second FIR. In Subramaniamv. State of T.N., (2009) 14 SCC 415 : (2010) 1 SCC (Cri) 1392,this Court observed that if an FIR is filed after recording thestatement of the witnesses, such second information would beinadmissible in evidence. Moreover, in Nallabothu Ramulu v. Stateof A.P., (2014) 12 SCC 261 : (2014) 6 SCC (cri) 673, the Courtwas of the view that the non-treatment of statements of injuredwitnesses as the first information cast doubt on the prosecutionversion.

9. Thus, not only was there delay in filing of the FIR (whichremained unexplained) which was taken as the basis of theinvestigation in this case, but also there was wilful suppressionof the actual first information received by the police. These factorstogether cast grave doubts on the credibility of the prosecutionversion, and lead us to the conclusion that there has been an attemptto build up different case for the prosecution and bring in asmany persons as accused as possible.

10. Additionally, the so-called eye witnesses to the incident havedescribed different places as the scene of offence. None of theeye witnesses are consistent so far as the scene of offence isconcerned. This means that each of the eye witness must haveallegedly seen the incident at different places and happening in adifferent manner. The suppression of the actual FIR, coupled withthe conflicting versions of the so-called eye witnesses relating todifferent scenes of offence and different stories collectively wouldreveal that the prosecution wanted to suppress and has suppressedthe real incident and culpability of real culprits. The origin andgenesis of the prosecution is clearly suppressed in the case.”

30. In Arvind Kumar @Nemichand v. State of Rajasthan 2021SCC OnLine SC 1099 : 2021(14) SCALE 6,

“Fair, Defective, Colourable Investigation

40. An Investigating Officer being public servant is expected toconduct the investigation fairly. While doing so, he is expected tolook for materials available for coming to correct conclusion.He is concerned with the offense as against an offender. It is theoffense that he investigates. Whenever homicide happens, an

investigating officer is expected to cover all the aspects and, inthe process, shall always keep in mind as to whether the offencewould come under Section 299 IPC sans Section 300 IPC. Inother words, it is his primary duty to satisfy that case would fallunder culpable homicide not amounting to murder and then amurder. When there are adequate materials available, he shall notbe overzealous in preparing case for an offense punishable underSection 302 IPC. We believe that pliable change is required inthe mind of the Investigating Officer. After all, such an officer isan officer of the court also and his duty is to find out the truth andhelp the court in coming to the correct conclusion. He does notknow sides, either of the victim or the accused but shall only beguided by law and be an epitome of fairness in his investigation.

41. There is subtle difference between defective investigation,and one brought forth by calculated and deliberate action orinaction. defective investigation per se would not enure to thebenefit of the accused, unless it goes into the root of the verycase of the prosecution being fundamental in nature. While dealingwith defective investigation, court of law is expected to siftthe evidence available and find out the truth on the principle thatevery case involves journey towards truth. There shall not beany pedantic approach either by the prosecution or by the courtas case involves an element of law rather than morality.

xxx xxx xxx

44. We would only reiterate the aforesaid principle qua fairinvestigation through the following judgment of Kumar v. State,(2018) 7 SCC 536:

“27. The action of investigating authority in pursuing thecase in the manner in which they have done must berebuked. The High Court on this aspect, correctly noticesthat the police authorities have botched up the arrest forreasons best known to them. Although we are aware of theratio laid down in Parbhu v. King Emperor [Parbhu v. KingEmperor, AIR 1944 PC 73], wherein the Court had ruledthat irregularity and illegality of arrest would not affect theculpability of the offence if the same is proved by cogentevidence, yet in this case at hand, such irregularity should

be shown deference as the investigating authorities areresponsible for suppression of facts.

28. The criminal justice must be above reproach. It isirrelevant whether the falsity lie in the statement ofwitnesses or the guilt of the accused. The investigativeauthority has responsibility to investigate in fair mannerand elicit truth. At the cost of repetition, I must remind theauthorities concerned to take up the investigation in neutralmanner, without having regard to the ultimate result. In thiscase at hand, we cannot close our eyes to what hashappened; regardless of guilt or the asserted persuasivenessof the evidence, the aspect wherein the police has activelyconnived to suppress the facts, cannot be ignored oroverlooked.”45. fair investigation would become colourable one when thereinvolves suppression. Suppressing the motive, injuries and otherexisting factors which will have the effect of modifying or alteringthe charge would amount to perfunctory investigation and,therefore, become false narrative. If the courts find that thefoundation of the prosecution case is false and would not conformto the doctrine of fairness as against conscious suppression,then the very case of the prosecution falls to the ground unlessthere are unimpeachable evidence to come to conclusion forawarding punishment on different charge.”

xxx xxx xxx

Falsus In Uno-Falsus in Omnibus

48. The principle that when witness deposes falsehood, theevidence in its entirety has to be eschewed may not have strictapplication to the criminal jurisprudence in our country. Theprinciple governing sifting the chaff from the grain has to beapplied. However, when the evidence is inseparable and such anattempt would either be impossible or would make the evidenceunacceptable, the natural consequence would be one of avoidance.The said principle has not assumed the status of law but continuesonly as rule of caution. One has to see the nature of discrepancyin given case. When the discrepancies are very material shakingthe very credibility of the witness leading to conclusion in the

mind of the court that it is neither possible to separate it nor to relyupon, it is for the said court to either accept or reject.

49. The said principle of law has been dealt with by this court inAnand Ramachandra Chougule v. Sidarai Laxman Chougala,(2019) 8 SCC 50, which states thus:

“9. We have considered the respective submissions andperused the materials on record. The relationship betweenparties and the existence of land dispute regarding whicha civil suit was also pending are undisputed facts. The factthat verbal duel followed by scuffle took place betweenthe parties culminating in injuries is concurrent finding offact by two courts. The fact that the accused also lodgedan FIR with regard to the same occurrence standsestablished by the evidence of PWs 19 and 22, theinvestigating officers, who have admitted that therespondent-accused had also lodged BRPS Cr. No. 79/02— marked Ext. D-10, which was not investigated by them.Similarly, PW 11, the police constable, deposed that two ofthe accused were admitted in the District Hospital, Belgaumand that he was posted on watch duty. The occurrence isof 7-6-2002 and respondent-Accused 1 and 2 weredischarged on 11-6-2002. Their injury report has not beenbrought on record by the prosecution and no explanationhas been furnished in that regard.

10. The burden lies on the prosecution to prove theallegations beyond all reasonable doubt. In contradistinctionto the same, the accused has only to create doubt aboutthe prosecution case and the probability of its defence. Anaccused is not required to establish or prove his defencebeyond all reasonable doubt, unlike the prosecution. If theaccused takes defence, which is not improbable andappears likely, there is material in support of such defence,the accused is not required to prove anything further. Thebenefit of doubt must follow unless the prosecution is ableto prove its case beyond all reasonable doubt.””

31. P.W.20 is the one who recorded the statement. On thediscussion made, it is highly doubtful as to whether the deceased wouldHbe conscious enough to give the statement, particularly in light of the

injuries suffered by him. There are not only incise wounds, but theremust have also been continuous bleeding, which would have naturallyoccurred, as the case was registered day after the occurrence. Thestatement of witnesses contradicts each other on this aspect. Furthermore,as rightly submitted by the counsel for the appellants, on perusal of therecords, we do find that there were writings over the thumb impressionmade under Ex. P-28. It is rather strange as thumb impression wouldnormally follow the statement; it has to find place at the conclusion ofthe statement. We find, on our scrutiny, that even after the thumbimpression over which there were obviously writings found, there weresome more sentences written. This obviously lends credence to the viewthat thumb impression must have been obtained on blank paper and ina 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. Inany case, it cannot be taken as dying declaration, particularly in thelight of the evidence adduced by the other prosecution witnesses. We dofind force in the submission made by the counsel for appellants that Ex.P-28 does appear to be created by legally trained mind. The deceasedHukum Singh merely knows how to put signature, leave alone the factthat he put his thumb impression, which could have been possible becauseof the injuries suffered by him. reading of the statement would clearlyshow that legal mind was at work, as the deceased may not know thedifference between common object and common intention. Thestatement also excludes others specifically for reasons which we do notknow. The excluded persons were shown as witnesses by the sameinvestigating officer.

Dying Declaration:

33. There is absolutely no explanation given by P.W.20 as to whyhe has not utilized the services of either Magistrate or doctor, evenafter his first recording. We have already discussed the fact that hedeposed that the statement was recorded once again which, however,was not part of the record. If the deceased Hukum Singh was so badlyinjured, and therefore died within few days of his admission into thehospital, nothing prevented P.W.20 to record the statement in the presenceof Judicial Magistrate and duly certified by the doctor. The irresistibleconclusion which we have arrived at already, is that the deceased wasnot in state of consciousness fit enough to make statement, and that

Ais the reason why the thumb impression was obtained subsequently, andthereafter statement was created. On the issue of recording of dyingdeclarations by the investigating officer, we would like to reiterate thedecision of this Court in Munnu Raja and Another v. The State ofMadhya Pradesh (1976) 3 SCC 104:

B“11. We might, however, mention before we close that the HighCourt ought not to have placed any reliance on the third dyingdeclaration, Ex. P-2, which is said to have been made by thedeceased in the hospital. The investigating officer who recordedthat the statement had undoubtedly taken the precaution of keepinga doctor present and it appears that some of the friends and relationsCof the deceased were also present at the time when the statementwas recorded. But, if the investigation officer thought that BahadurSingh was in precarious condition, he ought to have requisitionedthe services of magistrate for recording the dying declaration.Investigating officers are naturally interested in the success ofDthe investigation and the practice of the investigating officer himselfrecording dying declaration during the course of investigationought not to be encouraged. We have therefore excluded fromour consideration the dying declaration, Ex. P-2, recorded in thehospital.”EThis Court in State of Jharkhand v. Shailendra Kumar Rai2022 SCC OnLine SC 1494

“45. There is no rule to the effect that dying declaration isinadmissible when it is recorded by police officer instead of aMagistrate. Although dying declaration ought to ideally beFrecorded by Magistrate if possible, it cannot be said that dyingdeclarations recorded by police personnel are inadmissible for thatreason alone. The issue of whether dying declaration recordedby the police is admissible must be decided after considering thefacts and circumstances of each case.”

Test Identification Parade:G

34. Having found that Ex. P-28 cannot be believed, we are inclinedto hold that the evidence adduced by the prosecution through the eyewitnesses also is not trustworthy. The witnesses are not able to namethe accused over which we do not wish to say anything. However, theyhave identified the accused, only after 2 to 3 years for the first time inH

the Court. We are quite conscious about the evidentiary value of testidentification parade. Certainly, in case of this nature, it ought to havebeen done. Though test identification parade is not substantive pieceof evidence, at times, it adds strength to the case of the prosecution bygiving more credibility to the statements of the eye witnesses which wefind as grossly lacking. This Court in Gireesan Nair and Others v.State of Kerala, (2023) 1 SCC 180, held:

“28. We may, at the outset, note that the eyewitnesses questionedby the prosecution did not give out the names or identities of theaccused participating in the riot and involved in the destruction ofpublic property. Therefore, the IO (PW 84) had to necessarilyconduct TIP. The object of conducting TIP is threefold. First,to enable the witnesses to satisfy themselves that the accusedwhom they suspect is really the one who was seen by them inconnection with the crime. Second, to satisfy the investigatingauthorities that the suspect is the real person whom the witnesseshad seen in connection with the said occurrence. Third, to testthe witnesses’ memory based on first impression and enable theprosecution to decide whether all or any of them could be cited aseyewitnesses to the crime (Mulla v. State of U.P. [Mulla v. Stateof U.P., (2010) 3 SCC 508, paras 44, 45 & 55 : (2010) 2 SCC(Cri) 1150] ).

29. TIPs belong to the stage of investigation by the police. It assuresthat investigation is proceeding in the right direction. It is rule ofprudence which is required to be followed in cases where theaccused 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 ofU.P., (2010) 3 SCC 508, paras 41 & 43 : (2010) 2 SCC (Cri)1150] and C. Muniappan v. State of T.N. [C. Muniappan v. Stateof T.N., (2010) 9 SCC 567, para 42 : (2010) 3 SCC (Cri) 1402] ).The evidence of TIP is admissible under Section 9 of theEvidence Act. However, it is not substantive piece of evidence.Instead, it is used to corroborate the evidence given by witnessesbefore court of law at the time of trial. Therefore, TIPs, even ifheld, cannot be considered in all the cases as trustworthy evidenceon which the conviction of an accused can be sustained (State ofH.P. v. Lekh Raj [State of H.P. v. Lekh Raj, (2000) 1 SCC 247,

[2023] 1 S.C.R.

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 matter of great importance both for the investigatingagency and for the accused and fortiori for the properBadministration of justice that TIP is held without avoidable andunreasonable delay after the arrest of the accused. This becomesnecessary to eliminate the possibility of the accused being shownto the witnesses before the test identification parade. This is avery common plea of the accused, and therefore, the prosecutionhas to be cautious to ensure that there is no scope for makingCsuch an allegation. If, however, circumstances are beyond controland there is some delay, it cannot be said to be fatal to theprosecution. But reasons should be given as to why there was adelay (Mulla v. State of U.P. [Mulla v. State of U.P., (2010) 3SCC 508, para 45 : (2010) 2 SCC (Cri) 1150] and Suresh ChandraDBahri 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 largegroup of persons belonging to the side of the accused. In fact, the evidenceEis to the effect that they also participated in the occurrence. In caseinvolving the applicability of Section 149 IPC, little more scrutiny isrequired on the part of the Court as there may be tendency to implicatepersons along with the actual accused who committed the offence. TheCourts will have to be very circumspect while sifting through the evidenceFin such cases. In the case on hand, we find that it would be unsafe toimplicate the accused persons under Section 149 IPC which obviouslydeals with an element of vicarious liability, as held by this Court in ArvindKumar (supra),

“Scope of Section 149

50. Section 149 of the Code deals with common object. Toattract this provision there must be evidence of an assembly withthe common object becoming an unlawful one. The concept ofconstructive or vicarious liability is brought into this provision bymaking the offense committed by one member of the unlawfulassembly to the others having the common object. It is the sharing

of the common object which attracts the offense committed byone to the other members. Therefore, the mere presence in anassembly per se would not constitute an offense, it does becomeone when the assembly is unlawful. It is the common object tocommit an offense which results in the said offense beingcommitted. Therefore, though it is committed by one, deemingfiction is created by making it applicable to the others as well dueto the commonality in their objective to commit an offense. Thus,it is for the prosecution to prove the factors such as the existenceof the assembly with requisite number, the common object foreveryone, the object being unlawful, and an offense committedby one such member. Courts will have to be more circumspectand cautious while dealing with case of accused charged underSection 149 IPC, as it involves deeming fiction. Therefore, ahigher degree of onus is required to be put on the prosecution toprove that person charged with an offense is liable to be punishedfor the offence committed by the others under section 149 IPC.The principle governing the aforesaid aspect is taken note of bythis court in Ranjit Singh v. State of Punjab, (2013) 16 SCC752:“35. Baladin v. State of U.P. [AIR 1956 SC 181 : 1956 Cri LJ345] was one of the early cases in which this Court dealt withSection 149 IPC. This Court held that mere presence in anassembly does not make person member of the unlawfulassembly, unless it is shown that he had done or omitted to dosomething which would show that he was member of theunlawful assembly or unless the case fell under Section 142IPC. Resultantly, if all the members of family and otherresidents of the village assembled at the place of occurrence,all such persons could not be condemned ipso facto as membersof the unlawful assembly. The prosecution in all such casesshall have to lead evidence to show that particular accusedhad done some overt act to establish that he was member ofthe unlawful assembly. This would require the case of eachindividual to be examined so that mere spectators who had justjoined the assembly and who were unaware of its motive maynot 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.

[AIR 1965 SC 202 : (1965) 1 Cri LJ 226] where this Courtexplained that cases in which persons who are merely passivewitnesses and had joined the assembly out of curiosity, withoutsharing the common object of the assembly stood on differentfooting; otherwise it was not necessary to prove that the personhad committed some illegal act or was guilty of some omissionin pursuance of the common object of the assembly before hecould be fastened with the consequences of an act committedby any other member of the assembly with the help of Section149 IPC. The following passage is apposite in this regard :(Masalti case [AIR 1965 SC 202 : (1965) 1 Cri LJ 226], AIRp. 211, para 17)

“17. …The crucial question to determine in such case iswhether the assembly consisted of five or more personsand whether the said persons entertained one or more ofthe common objects as specified by Section 141. Whiledetermining this question, it becomes relevant to considerwhether the assembly consisted of some persons who weremerely passive witnesses and had joined the assembly as amatter of idle curiosity without intending to entertain thecommon object of the assembly. It is in that context thatthe observations made by this Court in Baladin [AIR 1956SC 181 : 1956 Cri LJ 345] assume significance; otherwise,in law, it would not be correct to say that before personis held to be member of an unlawful assembly, it mustbe shown that he had committed some illegal overt actor had been guilty of some illegal omission in pursuance

of the common object of the assembly. In fact, Section149 makes it clear that if an offence is committed byany member of an unlawful assembly in prosecution ofthe common object of that assembly, or such as themembers of that assembly knew to be likely to becommitted in prosecution of that object, every personwho, at the time of the committing of that offence, is amember of the same assembly, is guilty of that offence;and that emphatically brings out the principle that thepunishment prescribed by Section 149 is in sensevicarious and does not always proceed on the basis

that the offence has been actually committed by everymember of the unlawful assembly.”

(emphasis supplied)

37. Again in Bajwa v. State of U.P. [(1973) 1 SCC 714] thisCourt held that while in faction-ridden society there is always atendency to implicate even the innocent with the guilty, the onlysafeguard against the risk of condemning the innocent with theguilty lies in insisting upon acceptable evidence which in somemeasure implicates the accused and satisfies the conscience ofthe court.

39. That in faction-ridden village community, there is tendencyto implicate innocents also along with the guilty, especially when alarge number of assailants are involved in the commission of anoffence is matter of common knowledge. Evidence in such casesis bound to be partisan, but while the courts cannot take an easyroute to rejecting out of hand such evidence only on that ground,what ought to be done is to approach the depositions carefullyand scrutinise the evidence more closely to avoid any miscarriageof justice.”

36. This Court in Binay Kumar Singh v. State of Bihar, (1997)1 SCC 283, observed that:

“31. …There is no rule of evidence that no conviction can bebased unless certain minimum number of witnesses haveidentified particular accused as member of the unlawfulassembly. It is axiomatic that evidence is not to be counted butonly weighed and it is not the quantity of evidence but the qualitythat matters. Even the testimony of one single witness, if whollyreliable, is sufficient to establish the identification of an accusedas member of an unlawful assembly. All the same, when thesize of the unlawful assembly is quite large (as in this case) andmany persons would have witnessed the incident, it would be aprudent exercise to insist on at least two reliable witnesses tovouchsafe the identification of an accused as participant in therioting. In Masalti v. State of U.P. [AIR 1965 SC 202 : (1964) 8SCR 133] Bench of four Judges of this Court has adopted sucha formula. It is useful to extract it here:

864SUPREME COURT REPORTS

[2023] 1 S.C.R.

“… where criminal court has to deal with evidencepertaining to the commission of an offence involving largenumber of offenders and large number of victims, it isusual to adopt the test that the conviction could be sustainedonly if it is supported by two or three or more witnesseswho give consistent account of the incident.”

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 witnesshas to be placed on higher pedestal. However, P.W.12 has not beenCexamined by P.W.20 at all. In his deposition, P.W.12 repeatedly makesthis position clear. The statement of P.W.12 under Section 161 CrPC, ifrecorded, has also not been marked. Even P.W.20 at one stageacknowledges the said fact, though with some contradictions. This againbrings us to the conclusion that it would be unsafe to rely upon theevidence of P.W.12, who once again identifies the accused for the firstDtime before the Court. There is absolutely no explanation for notexamining him during the investigation. Thus, we find that the evidenceof P.W.12 cannot be relied upon, particularly in the light of the chargesunder Section 149 IPC, and insofar as the appellants are concerned.

38. Having found the above contradictions, we have no other optionEexcept to allow these appeals. We find that both the Trial Court and theHigh Court did not apply their mind to the various aspects, as we discussedabove. In such view of the matter, we are constrained to set aside theaforesaid judgments by conferring the benefit of doubt to the appellants.

39. The appeals are allowed and the appellant (Dhola @FDholaram) is directed to be released forthwith, if not required in anyother case.

40. Pending application(s), if any, stand(s) disposed of.

Ankit GyanG(Assisted by : Mahendra Yadav, LCRA)

Appeals allowed.