2024 INSC 480 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. ______ / 2024

[Arising out of Special Leave to Appeal (Crl.) No. 11793/2022]

Dharmendra Kumar @ Dhamma ….Appellant(s)

Versus

State of Madhya Pradesh ....Respondent(s)

JUDGEMENT

SURYA KANT, J.

Leave granted.

2. This appeal is directed against the judgment dated 19.12.2017,

passed by the High Court of Madhya Pradesh at Jabalpur (hereinafter,

‘High Court’), dismissing the Criminal Appeal filed by the Appellant

against his conviction and sentence under Section 302 read with

Section 34 of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) awarded

by the Learned Additional Sessions Judge, Bhopal (hereinafter, ‘Trial

Signature Not Verified

Digitally signed by
satish kumar yadav
Date: 2024.07.08

Court’) vide judgment and order dated 10.11.2005.

18:09:46 IST
Reason:

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FACTS :

3. At this juncture, it is imperative to delve into the factual matrix to

set out the context of the present proceedings.

4. FIR No. 268 dated 20.06.2004 was registered at Police Station

Kamla Nagar, Bhopal under Sections 307, 147, 148, and 149 of IPC on

the statement of Usha Bai (P.W.10). The said Complainant stated that

on the night of 20.06.2004, at around 9:30 pm, she was overseeing the

construction of the wall of her Jhuggi (hut) by Devi Singh @ Tillu, and

Tularam. At that moment, accused persons, Ahmad and his wife, Kanija

Bi, arrived and objected to the construction. Tillu asserted that it was

their Jhuggi and they had the right to build the wall. Meanwhile, other

accused persons, including Vijay, Dharmendra @ Dhamma (Appellant),

Katchu @ Ramswaroop, Ballu, Ravi, and Asgar, arrived and began

verbally abusing the Complainant, Tillu, and Tularam. The situation

intensified as all the accused, including the Appellant, rushed to

physically assault Tillu. In defence, Tillu sought refuge inside a nearby

unoccupied Jhuggi belonging to one Bhairav Shastri, locking the door

from inside. However, the accused forcibly entered Bhairav Shastri's

Jhuggi by breaking open the door. Once inside, they surrounded Tillu,

with the Appellant delivering a knife blow to Tillu in his abdomen, while

Asgar inflicted another blow slightly lower on his stomach. Following

this, the other accused persons also physically assaulted Tillu using

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their fists and sticks. Meanwhile, Tularam attempted to intervene, but

he too was subjected to blows from Katchu and Ahmad, resulting in

injuries to his head and hands. Upon hearing the commotion, residents

from the locality arrived at the scene, prompting the accused to flee. The

Complainant further stated that she attempted to intervene but was

threatened with dire consequences if she did not leave the area.

5. After the incident, Tillu and Tularam, both injured, were taken to

Katju Hospital for medical aid. The Emergency Medical Officer, Dr. R.S.

Vijayvargiya (P.W.4), noted Tillu's lack of pulse, as well as two stab

wounds in his chest and three stab wounds in his abdomen, indicating

a critical condition. Upon examining Tularam, Dr. Vijayvargiya observed

severe injuries to the occipital and temporal regions of his head.

Subsequently, both injured persons were referred to Hamidia Hospital

for further treatment.

6. Tillu unfortunately succumbed to his injuries and was declared

dead, while Tularam was still alive and was admitted to Hamidia

Hospital.

7. Dr. C.S. Jain (P.W. 13) conducted the post-mortem examination

on Tillu, determining that the cause of death was shock and

haemorrhage resulting from multiple stab wounds across the body and

head injuries. The wounds were inflicted by a sharp, penetrating

weapon, causing the stab injuries, while the head injuries were inflicted

3
by a hard and blunt object. The combined injuries to the head and

abdomen were deemed sufficient to cause death.

8. Girish Bohre, the Investigating Officer (P.W.14), commenced the

investigation by preparing a spot map (Ex.P.2) and also seized the blood-

stained pieces of the floor from the place of occurrence (Ex.P.31).

9. As Tularam was alive though critically injured, the Investigating

Officer (P.W. 14) documented his statement (Ex.P.40) under Section 161

of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’) wherein

Tularam recounted the events during the subject incident. Tularam

mentioned that he and Tillu were constructing the wall of Usha Bai's

Jhuggi at Navgrah Mandir. Around 9:15 pm, Ahmad and his wife,

Kanija Bi, approached and opposed the construction. Despite Tillu's

assertion that it was their wall, Ahmad persisted in preventing them.

Shortly after, Vijay, Dharmendra @ Dhamma (Appellant), Katchu @

Ramaswaroop, Ballu, Ravi, and Asgar arrived, initiating verbal abuse.

The accused then assaulted Tillu, who sought refuge inside Bhairav

Shastri's nearby Jhuggi, locking himself inside. The assailants forcibly

entered and surrounding Tillu, Dhamma (Appellant) inflicted a knife

blow to Tillu's abdomen, while Asgar also stabbed him near the navel.

Additionally, the other accused engaged in physical assault using

sticks, lathis, and fists. When Tularam attempted to intervene, Katchu

and Ahmad struck him with sticks, inflicting injuries to his head,

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hands, and body. Tularam noted that Lallu (P.W.11) and one Ramesh

were eyewitnesses to the incident.

10. Tularam too passed away approximately five days after

undergoing surgery in Hamidia Hospital. Dr. Neelam Srivastava

(P.W.15) conducted his post-mortem examination, concluding that the

cause of death was cardio-respiratory failure resulting from a head

injury. Moreover, the severity of the injury was such that it could have

led to death under normal circumstances. This injury, deemed

homicidal, was inflicted by hard, blunt, and heavy objects.

11. During the course of investigation, the Investigating Officer (P.W.

14), following a disclosure statement (Ex.P.14) made by the Appellant,

recovered a knife, which the Appellant had concealed in Barrack No. 2

of Police Line Nehru Nagar. Lallu Vishwakarma (P.W.11) was a witness

to this recovery. The knife was then submitted for forensic examination

(Ex.P.39), where the human blood on the knife was detected but the

blood group classification was inconclusive.

12. After the investigation, all the accused persons, including the

Appellant, were charged under Sections 147, 148, 302/149, 307/149

of IPC.

13. In the trial, the prosecution examined as many as 15 witnesses to

bring the guilt home, including Usha Bai, P.W.10 (Complainant) and

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Lallu Vishwakarma, P.W.11, both eyewitnesses. The prosecution case

is largely based upon the version of these two eyewitnesses, who

claimed that the fatal blows were caused to the victims in front of them.

14. The Trial Court, having found the version of the two eyewitnesses

(P.W.10 and P.W.11) to be trustworthy, which was duly corroborated by

the testimony of the Investigating Officer (P.W.14), the medical evidence

and the recovery of the weapon, held the Appellant guilty of offences

under Sections 302, 147, 148, and 149 of IPC and sentenced him to

undergo life imprisonment.

15. The High Court, vide the impugned judgment, upheld the

Appellant’s conviction under Section 302 read with Section 34 of the

IPC, though it has acquitted him under Sections 147 and 148 of the

IPC. The High Court has held that: (i) The presence of the Appellant

stood established through the testimony of Lallu Vishwakarma

(P.W.11), and his cross-examination further confirms that there was no

motive for falsely incriminating the Appellant; (ii) The allegations against

the Appellant, as detailed by eyewitnesses Usha Bai (P.W.10) and Lallu

Vishwakarma (P.W.11), were duly corroborated by the medical opinions

of Dr. C.S. Jain (P.W.13) and Dr. Neelam Shrivastava (P.W.15); (iii) The

statement given by deceased Tularam, as recorded by P.W.14, aligns

with other evidence relied upon for conviction; (iv) The weapon (knife)

was seized based on the disclosure statement of the Appellant, making

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the recovery admissible under Section 27 of the Indian Evidence Act,

1872 (hereinafter, ‘IEA’); and (v) the testimony of Investigating Officer,

P.W.14, also corroborated the weapon's seizure.

16. Discontented with his conviction, the Appellant is in appeal before

us.

CONTENTIONS OF PARTIES :

17. Mr. Dushyant Dave, learned Senior Counsel for the Appellant,

argued that the High Court erred in upholding the Appellant’s

conviction under Section 302/34 IPC. Substantiating this, he made the

following submissions:

a) The prosecution's case presented inherent contradictions. On

the one hand, the two eyewitnesses (P.W.10 and P.W.11), relied

upon by the courts below, testified that the entire incident

unfolded inside Bhairav Shastri's Jhuggi, situated near that of

the Complainant, (P.W.10). On the other hand, the Investigating

Officer (P.W.14), during his cross-examination, stated that no

quarrel took place near P.W.10's Jhuggi, and that there was no

‘Bhairon Baba Temple’ or residence near the site of occurrence.

It was argued that since the incident admittedly occurred inside

a Jhuggi, it is unbelievable that the eyewitnesses could have

seen it.

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b) It was contended that the presence of the Appellant at the place

of incident is stoutly disputed, and such an inference can be

well drawn from the statement of the Complainant herself. The

incident took place around 9:30 pm, posing visibility challenges

for the witnesses. Usha Bai (the Complainant, P.W.10) has

deposed that she was familiar with accused Ahamd, Asghar Ali,

Ravi, and Kanija Bi but was aware of the other accused by name

only. This clearly indicates that P.W.10 was not acquainted with

the Appellant. Barring the eyewitness account, there is no other

credible evidence to suggest that the Appellant was present or

participated in the occurrence.

c) Further, the knife injury could not be attributed to the

Appellant, as testified by Lallu Vishwakarma (P.W.11), who

explicitly stated that he couldn’t discern who assaulted whom.

d) That apart, it was urged that the weapon confiscated from the

Appellant underwent a Forensic Science Laboratory

(hereinafter, ‘FSL’) examination, producing inconclusive

results, which bolsters the Appellant’s case that he was falsely

implicated.

e) Finally, it was canvassed that the statement of the deceased

Tularam, recorded by Investigating Officer Girish Bohre

(P.W.14) under Section 161 CrPC, could not have been

8
 considered a ‘dying declaration’ due to the absence of

certification from the doctor regarding Tularam's mental fitness.

f) Even otherwise, a dying declaration made before the

Investigating Officer/ Police is always shrouded by suspicious

circumstances and no reliance thereupon can be made.

18. Per Contra, Ms. Mrinal Gopal Elker, learned counsel on behalf of

the State, argued that the impugned judgment dated 19.12.2017 does

not warrant any interference by this Court. She submitted as follows:

a) The Courts below have expressly affirmed the presence of the

Appellant at the site of incident and his involvement in the

occurrence, based on the testimony of Lallu Vishwakarma

(P.W.11). She argued that Vishwakarma's cross-examination

provides no reason to doubt his version qua the Appellant.

b) There is a specific accusation against the Appellant of inflicting

the knife blow on the deceased Tillu's abdomen, which is

supported by the Medical Legal Certificate (MLC) conducted by

Dr. R.S. Vijayvargiya (P.W.4), who confirmed the presence of a

stab wound on the abdomen with profuse bleeding.

c) After he was apprehended, the Appellant voluntarily disclosed

the location of the concealed knife to the Investigating Officer

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 in the presence of witnesses. Such a recovery is admissible in

evidence as an incriminating material against the Appellant.

d) Finally, Ms. Elker highlighted that the courts below have rightly

considered the statement of deceased Tularam recorded under

Section 161 of CrPC as a ‘dying declaration’, corroborating the

prosecution’s case against the Appellant beyond any doubt.

ANALYSIS :

19. Having heard learned Senior Counsel/Counsel for the parties at a

considerable length and on perusal of the statements of eyewitnesses

along with other relevant material on record, we find that the following

three questions fall for our consideration in the present appeal:

A. Have the Courts below erred in not appreciating the

contradictions or discrepancies which would dislodge the

prosecution’s case?

B. Is the absence of blood group classification or inconclusive FSL

results on the recovered weapon detrimental to the

prosecution’s case?

C. Does the Investigating Officer’s failure to obtain a fitness

certificate from the medical officer invalidate the consideration

of the statement of Tularam recorded under Section 161 CrPC

before his death, as a ‘dying declaration’?

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A. CONTRADICTIONS IN THE PROSECUCTION’S CASE:

20. Since the prosecution case against the Appellant predominantly

hinges upon the testimonies of Usha Bai (P.W.10), Lallu Vishwakarma

(P.W.11), Dr. C.S. Jain (P.W.13), Dr. Neelam Shrivastava (P.W.15) and

Girish Bohre (P.W.14), we deem it appropriate to briefly summarise their

testimonies hereunder:

21. Usha Bai (P.W.10) swore that on 20.06.2004, around 9.00 p.m.,

she was overseeing the construction of wall of her Jhuggi by Devi Singh

alias Tillu and Tularam. Ahmad and Kanija Bi, two of the accused,

arrived and ordered them to halt construction. Following this, Ahmad

struck Tularam on the head with a lathi. Subsequently, Asgar, Ahmad’s

son, incited the other accused to attack, prompting all the accused to

rush in and assault Tillu, Tularam, and Lalaram with various weapons

like sticks, rods, and pipes. When P.W.10 attempted to intervene by

grabbing Ahmad’s lathi, she was verbally abused and told to step aside.

Consequently, she retreated to the sidelines. The accused continued to

beat Tillu and Tularam until they were incapacitated. Tillu succumbed

to his injuries at the scene, while Tularam was barely breathing.

Immediately after the incident, Tillu, Tularam, and Lalaram were

rushed to Hamidia Hospital for treatment by the Kamla Nagar Police

Station. Tillu passed away en route to the hospital. P.W.10 lodged a First

Information Report (FIR) (Ex.P.7) detailing the incident.

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22. Lallu Vishwakarma (P.W.11) recounted that the incident occurred

near a wall owned by Usha Bai (P.W.10). Around 8-9:30 pm, Ahmad

arrived wielding a lathi at the place of construction of Usha Bai’s wall,

where P.W.11 and Tillu were sharing a meal. Ahmad confronted them,

objecting to the wall’s construction. In response, Tillu urged them to

allow the construction to proceed. Subsequently, all the other accused

arrived and assaulted Tillu and another individual, although P.W.11

couldn’t discern the specific assailants. The accused wielded various

weapons such as lathis, knives, sticks, rods, and pipes during the

attack. Tillu was found injured inside Bhairon Baba’s room, while

Tularam lay injured at the construction site. P.W.11 then arranged for

the injured to be transported in an auto. He noted that Tillu’s intestines

were protruding, which he wrapped in cloth and placed in the auto.

Additionally, Tularam had suffered traumatic and haemorrhagic shock

due to multiple injuries. The injured were then taken to Hamidia

Hospital. The Police subsequently confiscated the knife and sticks from

the Appellant (Ex.P.14) and prepared a memorandum, which P.W.11

signed.

23. In addition to the two eyewitnesses, the prosecution so as to lend

corroboration to the ocular evidence, called upon medical experts,

namely Dr. C.S. Jain (P.W.13) and Dr. Neelam Shrivastava (P.W.15),

12
who conducted the post-mortem examinations of Tillu and Tularam,

respectively.

24. Dr. C.S. Jain, P.W.13, reported that Tillu’s body was brought in

for post-mortem examination on 21.06.2004, revealing four stab

wounds on the front side of the abdomen, along with a laceration on the

head and three abrasions. He concluded that the stab wounds were

inflicted by a hard, sharp, and penetrating weapon, while the head

injuries were caused by a hard and blunt object. The combined injuries

to the head and abdomen were deemed sufficient to cause death.

25. Dr. Neelam Shrivastava, P.W.15, testified that Tularam’s body was

brought for post-mortem examination on 24.06.2004, revealing

multiple radial fractures, subdural subarachnoid haemorrhage, and

various wounds. She concluded that Tularam’s death resulted from

respiratory failure due to a head injury and its associated

complications. The severity of the injury was sufficient to cause death

in the ordinary course of nature, and it was determined to be homicidal,

inflicted by a hard, blunt, and heavy weapon. During cross-

examination, she clarified that Tularam did not sustain any injuries

from knives or swords on his body.

26. The prosecution also examined Girish Bohre, Investigating Officer

(P.W.14), of the subject incident. He testified how the investigation was

conducted, a spot map (Ex.P.2) of the location was prepared, and a

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blood-stained piece of flooring was also seized from the place of the

incident. Additionally, he conducted a panchnama on Tillu’s dead body

(Ex.P.32). He apprehended the Appellant and interrogated him in the

presence of witnesses. During interrogation, the Appellant confessed to

hiding the knife used in the assault in Barrack No. 2 of the Police Line

Nehru Nagar. P.W.14 then drafted a memorandum, leading to the

recovery of an iron knife at the instance of the Appellant. Following this,

he arrested the Appellant and other co-accused. P.W.14 also prepared

a panchnama (Ex.P.34) of Tularam’s dead body.

27. It is pertinent to mention at this stage that Ajjharruddin (P.W.1),

Sukhram (P.W.2), and Reshambai (P.W.3) were also brought in as

eyewitnesses to the incident. However, they were deemed hostile by the

prosecution, as according to them, no incident occurred in their

presence.

28. It is noteworthy to mention here that during the trial of the

Appellant and other co-accused, one of the accused, Vijay Singh

absconded. Subsequent to the judgment of the Trial Court in 2005, that

Vijay Singh was apprehended and tried. The Trial Court vide another

judgment delivered in the year 2007, convicted him based on the

testimony of eyewitness Usha Bai (P.W.10), duly supported by the

medical opinions of Dr. C.S. Jain (P.W.13) and Dr. Neelam Shrivastava

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(P.W.15) as well as the testimony of Girish Bohre, the Investigating

Officer (P.W.14).

29. Having elaborated on the testimonies of the key witnesses in the

instant case, we may now dredge up the contradictions highlighted on

behalf of the Appellant.

A.1 BHAIRAV SHASTRI’S JHUGGI

30. It was vehemently agitated that there is a latent dissension in the

testimonies of the witnesses regarding the location of the occurrence.

While Usha Bai, P.W.10 and Lallu Vishwakarma, P.W.11, deposed that

the deceased Tillu entered the Jhuggi of Bhairav Shastri, where he was

subsequently surrounded and assaulted in the abdomen by the

Appellant wielding a knife, the Investigating Officer (P.W.14) veraciously

admitted during cross-examination that he was unaware of any

individual named Bhairon Baba residing near the scene of the incident.

The I.O. further clarified that there was no house or temple associated

with Bhairon Baba in the vicinity of the incident, which is why he did

not name it in the spot map (Ex.P.2).

31. We have thoroughly scrutinized the testimonies of the witnesses

in this regard. We find a consistent mention of Bhairav Shastri across

all prosecution accounts, with Bhairav Shastri also being loosely

referred to as Bhairon Baba. Lallu Vishwakarma, P.W. 11, has

15
unerringly stated in his testimony that the deceased Tillu was

discovered inside Bhairon Baba's room following the incident.

Additionally, the presence of Bhairon Shastri's Jhuggi is noted in

Section 161 CrPC statement of the deceased Tularam recorded by Girish

Bohre, the Investigating Officer (P.W.14), wherein he unequivocally

stated that Tillu sought refuge inside Bhairav Shastri's hut and locked

himself in. The mention of Bhairon Shastri's Jhuggi is also evident in

the FIR (Ex.P.7) filed by the Complainant, P.W.10, as well as in her

statement (Ex.D.1) recorded under Section 161 CrPC.

32. It is true that while Girish Bohre (P.W.14), as per his statement,

was unaware of any Bhairon Baba near the scene of occurrence, the

location referred to as ‘Bhairon Shastri's Jhuggi’ by the other witnesses

is indeed depicted on the spot map (Ex.P.2) prepared by him. A plain

examination of the spot map (Ex.P.2) reveals a marked structure

labelled ‘B’, identified as a `brick room’ where the deceased took refuge.

Even though the said structure is not captioned as Bhairav Shastri's

Jhuggi or by any other name, it gives credence to the version of the eye

witnesses that Tillu was attacked in the neighbouring Jhuggi. Moreover,

the defence has not disputed the depictions in the spot map while cross-

examining the I.O. (P.W.14).

33. A mere omission on the part of the Investigating Officer in marking

a spot on the site plan does not deflect the prosecution’s case. It is well-

16
established that the site plan merely denotes the location of the incident

without implying further details.1 In light of the fact that the persons

who had seen that to which they have testified, due weightage must be

given to their first-hand version. Their evidence cannot be jettisoned

merely because the I.O. forgot to describe the room as ‘Bhairav Shastri’s

Jhuggi’ on the spot map.

34. It is a case where eyewitnesses have corroborated each other; their

depositions are reinforced by deceased Tularam himself in his

statement recorded under Section 161 CrPC, and the location of the

incident is depicted on the spot map (Ex.P.2) as a `brick room’. It, thus,

stands established that there was another Jhuggi where the deceased

sought refuge and was eventually assaulted. Given these

circumstances, the so-called contradiction miserably fails to invade the

corpus delicti.

A.2 LEGAL EFFECT OF NON-READING OF CONTENTS OF FIR TO THE

COMPLAINANT

35. It was then argued that the Complainant, Usha Bai (P.W.10), in

her cross-examination, has candidly admitted that the FIR (Ex.P.7) was

not read out to her and she put her thumb impression under the

instructions of the Police. Reliance is placed on her deposition during

1 Shivanna v. State of Hunsur Town Police (2010) 15 SCC 91.

17
cross-examination where she claims to have thumb marked on a blank

paper, whereupon Ex.P.7 was prepared.

36. In order to appreciate the contention, we have gone through the

translated version of the statement of Usha Bai (P.W.10), which the

Appellant has appended along with the original paper book as well as a

part of “Compilation of Depositions of Witnesses”. Since the translated

version was seemingly incorrect, making it difficult to discern as to what

the witness had deposed, we have also gone through the original Hindi

version of Usha Bai’s (P.W.10) statement.

37. The statement of a witness has to be extolled in its entirety. It may

be recapitulated that Usha Bai (P.W.10), in her complaint which led to

the registration of the subject FIR, had categorically stated that, “Vijay,

Dharmendra @ Dhamma, Katchu @ Ramswaroop, Ballu, Ravi, Asgar all

came shouting that Tillu was indulging in Dadagiri and he be finished

today……...” The FIR further states that, “ye sabhee log” [all these

persons] started attacking, Tillu ran towards Bhairav Shastri’s Jhuggi,

entered and closed the door from inside to save himself. “Sabhee ne” (all

of them) forcefully broke the door open and entered the Jhuggi and

surrounded Tillu ….. and Dharmendra @ Dhamma (Appellant) then

gave a knife blow in the abdomen of Tillu.

38. It must also be borne in mind that FIR is not a substantive piece

of evidence, and it can be used only to corroborate or contradict the

18
version of an Informant. It is also not necessary that there should

always be a written complaint to register the FIR. Even an oral

communication to the Police disclosing the commission of a cognizable

offence is sufficient to register the FIR.

39. The object of the FIR is three-fold: firstly, to inform the

jurisdictional Magistrate and the Police Administration of the offence

that has been reported to the Police Station; secondly, to acquaint the

Judicial Officer before whom the case is ultimately tried as to what are

the actual facts stated immediately after the occurrence and on what

materials the investigation commenced; thirdly and most importantly,

to safeguard the accused against subsequent variations, exaggerations

or additions.

40. The subject FIR (Ex.P.7) fully satisfies all the ingredients of

Section 154 CrPC. The occurrence is reported to have taken place on

20.06.2004 at 9.30 p.m., and the FIR was recorded on the same day at

10.45 p.m. The names of all the eight accused who allegedly

participated in the occurrence are duly recorded. The FIR is written in

a natural, consistent flow of handwriting, with no signs of spaces being

left, words being overwritten or shrunken, or any word or sentence

being interpolated. The last line of the FIR categorically records that the

report was read out and explained to the Informant. The FIR is in the

19
prescribed format and Usha Bai (P.W.10) has thereafter put her thumb

impression.

41. It is true that during her cross-examination, Usha Bai (P.W.10),

has claimed that the Police neither read out the FIR (Ex.P.7) to her nor

did it mention the contents of her statements which were recorded by

the Police on 5-6 occasions. She further stated that it could not be

determined what version was included in Ex.P.7 since she is not a

literate person. It seems that the Appellant made an overt attempt to

influence the witness. However, despite Usha Bai’s innocuous intent to

help the Appellant from the wrath of law, she could not deny the fact

that the FIR was registered on her complaint or that Tillu and Tularam

suffered fatal injuries in the occurrence reported by her.

42. Assuming that the Police failed to read out or apprise the

informant about the contents of the FIR, the question that falls for

consideration is whether such omission has caused any prejudice to the

Appellant? In our considered opinion, the answer has to be in the

negative. This is not a case where the Appellant was not provided with

a copy of the FIR or the charge sheet, which could have hindered his

ability to effectively cross-examine the Informant. The record reveals

that Shri A.K. Shrivastava, Advocate, cross-examined Usha Bai (P.W.10)

on behalf of the Appellant. Usha Bai did try to help the Appellant by not

disclosing his name as one of the accused, but she could not hide the

20
fact that besides Ahmad, Asgar, Ravi and Kanija Bi, she also knew the

other accused by their names. The Appellant is admittedly one of those

accused. She has further deposed that sabhee ne (all of them) assaulted

Tillu with lathi, rods and pipes. She further stated that when she tried

to intervene, Ahmad abused her and threatened to kill her. She then

went and stood at some distance and witnessed that those aaropigan,

i.e., all the accused, had given fatal assaults to Tillu and Tularam. Most

importantly, she further testified that she, along with Lalaram, then

went to the Police Station Kamla Nagar, whereafter the Police Officials

immediately sent Lalaram and Tularam for treatment at Hamidia

Hospital. Tillu, however, could not reach the hospital as he succumbed

to the injuries on the way. Additionally, in paragraph 4 of her

deposition, Usha Bai (P.W.10) unmistakably states that she reported

the matter to Police Station Kamla Nagar through Ex.P.7, which is

thumb marked by her. This part of her deposition has not been

questioned by the Appellant while cross-examining Usha Bai (P.W.10).

We have also gone through the Appellant’s own statement recorded

under Section 313 CrPC. Aside from a vague denial and claims of false

implication, there is no suggestion that he was not present at the scene;

that he did not participate in the incident, or that he was falsely

implicated for any reason. The Appellant, thus, has failed to

demonstrate any prejudice resulting from the alleged non-reading of the

21
contents of the FIR to the Informant. The contention raised in this

regard is entirely misconceived.

43. Be that as it may, this Court in State v. N.S. Gnaneswaran2 has

ruled that the stipulations outlined in Section 154 CrPC concerning the

reading over of the information after it is written down, the signing of

the said information by the informant, and the entry of its substance in

the prescribed manner are not obligatory. These requirements are

procedural in nature, and the omission of any of them does not impact

the legal consequences resulting from the information provided under

the section.

44. It is equally well-settled that when the testimonies of eyewitnesses

are consistent, unimpeachable, and duly corroborated by medical

evidence or the recovery of incriminating material like the weapon used,

the deficiencies, if any, in the recording of FIR alone do not constitute a

valid ground to overturn the conviction or undermine the prosecution

case.

A.3 PRESENCE OF APPELLANT ON THE PLACE OF OCCURRENCE

45. Learned Senior Counsel for the Appellant argued that it is a case

of false implication as the presence of the Appellant at the spot of

occurrence has not been established beyond doubt. He relied upon the

2 (2013) 3 SCC 594.

22
statement of Usha Bai (P.W.10), who, in the opening statement of her

examination-in-chief, named Ahmad, Asgar, Ravi and Kanija Bi as

accused and claimed that she did not know anyone else. It was

highlighted that Usha Bai (P.W.10) not only failed to name the Appellant

in her entire statement but also admitted during the cross-examination

that she never provided the names of the assailants, as mentioned by

the Police in the FIR (Ex.P.7).

46. We are, however, not impressed by the submission. We say so for

the following reasons :

(a) The statement of Usha Bai (P.W.10) has to be read and

appreciated in its entirety and not in piecemeal.

(b) She, as discussed earlier, deposed that she knew the remaining

accused by name. She was indisputably referring to the

remaining accused who were present in court which included

the Appellant as well.

(c) She deposed that “all the accused” attacked Lalaram, Tularam

and Devi Singh @ Tillu with dandas, rods and pipes.

(d) She further deposed that all the accused assaulted Tillu and

Tularam with the intention to kill them.

23
(e) She also admitted that she went to Police Station Kamla Nagar

and got the FIR (Ex.P.7) lodged, which bore her thumb

impression.

(f) Having admitted these material facts, it would be too far-fetched

to dissect Usha Bai’s version to hold that the Appellant was not

present or participated in the occurrence.

(g) In any case, Lallu Vishwakarma (P.W.11), another eyewitness,

explicitly stated that the Appellant was present and he

participated in the incident by delivering a knife blow to Tillu's

abdomen.

(h) The knife injury attributed to the Appellant has been duly

established by Dr. R.S. Vijayvargiya (P.W.4) and Dr. C.S. Jain

(P.W.13).

(i) The Investigating Officer (P.W.14) successfully established the

recovery of the weapon of offence, namely a knife, based on the

Appellant's disclosure statement. Lallu Vishwakarma (P.W.11),

who witnessed the recovery, supported the Investigating

Officer's testimony.

(j) To dispel any doubts, Lallu Vishwakarma (P.W.11) identified the

Appellant in court and specifically pointed out, "The person

standing in front wearing a check shirt is Dharmendra".

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47. It is trite law that identification tests (TIP) do not serve as

substantive evidence but are primarily intended to assist the

investigating agency in ensuring that their progress in investigating the

offence is on the correct path. Holding a TIP is not obligatory. Further,

a failure to hold TIP cannot be a ground to eschew the testimony of

witnesses whose evidence was concurrently accepted by the trial and

appellate courts.3 Additionally, a failure to hold a parade would not

make inadmissible the evidence of identification in the court.4

48. Similarly, the contention of poor visibility owing to darkness at the

spot of occurrence is also not tenable. In analysing the incidents

occurring at night, this Court in Nathuni Yadav v. State of Bihar5

has taken into account several factors, including:

(i) The proximity at which the assailants would have confronted

the injured.

(ii) The possibility of some ambient light reaching the scene from

the stars.

(iii) The familiarity of the witnesses with the appearance of each

assailant.

3 State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.

4 Heera v. State of Rajasthan, (2007) 10 SCC 175.
5 (1998) 9 SCC 238.

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49. In the instant case, firstly, the place of occurrence, i.e., Bharav

Shastri’s Jhuggi, was adjacent to that of the Complainant (P.W.10)

making it easier for the witnesses to observe and identify the accused

persons. Secondly, each accused, particularly the Appellant, was

familiar to the eyewitnesses. Thirdly, considering that the incident

occurred on a summer night, there would have been minimal

obstruction to visibility for the witnesses. Fourthly and most

importantly, the Appellant, in his 313 CrPC Statement, has nowhere

taken the plea of alibi. He did not pursue this defence during the cross-

examination of witnesses either.

50. There is no gainsaying that whosoever pleads alibi in contrast and

derogation of the eyewitness version, is under cumbrous onus to prove

absence from the scene and time of crime. The Appellant not only failed

to raise this defence but also did not adduce any evidence in support

thereof. Taking into consideration the cumulative effect of all these

factors, we have no reason to doubt that the Appellant was not only

present at the scene of crime, but he actively participated also in the

occurrence and gave one of the fatal blows to Tillu (deceased).

51. We cannot overlook the fact that in a situation where two people

are killed in a heated altercation, it is highly unlikely that the

eyewitnesses would want the real perpetrators to escape justice. In the

absence of any prior motive, it is not plausible that they would falsely

26
accuse the Appellant in this case. This is not a scenario where the

Complainant or P.W.11 held grudges against the Appellant and

fabricated a story to implicate him after the incident. Rather, the name

of the Appellant surfaced in the very first version, duly recorded vide

Ex.P.7, within less than two hours of the occurrence. Pertinently, no

motive to falsely implicate the Appellant has been suggested during the

cross-examination of the eyewitnesses.

A.4 ATTRIBUTION OF KNIFE INJURY ON THE APPELLANT

52. It was maintained by Learned Senior Counsel for the Appellant

that since the incident took place inside the Jhuggi and at night, it is

highly improbable that the witnesses could see the manner in which the

incident took place. Further, reliance was placed on the statement of

Lallu Vishwakarma, P.W.11, who stated that he could not see who

assaulted whom, and he could not tell which weapon was seized from

whom. It was, thus, asserted that there is not even an iota of evidence

to conclude that the knife injury was caused by the Appellant.

53. We have deeply analysed the submission. It is essential for this

Court to examine the Disclosure Statement (Ex.P.14) of the Appellant,

which resulted in the discovery of the weapon (knife) in question. The

statement reads as under:

“On 20.04.2004, I along with my companions

Ahmad, Asgar, Ravi, Vijay, Katchu @Ramswaroop,

27
 Ballu, and Kanija Bi committed Maarpeet with Tillu
@ Devi Singh with knife and stick voluntarily, the
knife, by which Tillu @ Devising was assaulted by
me, has been hidden by me in the Barrack No. 2 of
Police Line Nehru Nagar. Come with me, I will hand
over it to you.”

54. The disclosure statement made by the Appellant led to the

discovery and subsequent seizure of the knife, namely, the weapon of

offence. Subsequently, a seizure memo (Ex.P.20) was prepared, which

stated as follows:

“One knife made of iron with wooden handle the

total length of which is about 14 ½ inches, the
length of handle is about 4 ¾ inches and length of
blade is about 10 inches and width of blade is about
1 ¼ inches, the tip of knife is pointed, blood is
present in the front (agla) part of the blade which
has dried up. On producing by accused
Dharmendra @ Dhamma, the same was taken in
possession of Police and sealed pack on the spot
itself as evidence.”

55. The question that requires determination is whether the above-

stated disclosure statement is admissible in evidence? The issue

regarding the admissibility of a disclosure statement within the

meaning of Section 27 of the IEA was comprehensively addressed by

this Court in Pulukuri Kottaya v. Emperor,6 delineating the following

briefly summed up criteria:

(i) There should be a discovery of the fact.

6 1946 SCC OnLine PC 47.

28
 (ii) The discovery of fact should be in consequence of information

received from a person accused of an offence.

(iii) The person giving the information should be in the custody of

a Police Officer.

(iv) Only that portion of information which relates distinctly or

strictly to the fact discovered can be proved.

56. The testimony of the Investigating Officer (P.W.14) unfolds that

the Appellant voluntarily made the disclosure statement while he was

in police custody, pursuant to which the weapon of offence (knife) was

recovered. Whether the said statement was made voluntarily or was

secured through coercion is essentially a question of fact. In this regard,

the testimony of Lallu Vishwakarma (P.W.11) assumes significance as

the disclosure statement was duly witnessed by him. In our considered

opinion, the disclosure statement of the Appellant to the extent it led to

the recovery of a knife fulfils the basic tenets of Section 27 of IEA and

has been correctly admitted in evidence.

57. We may hasten to add at this stage that the prosecution version

was not only accepted by the Trial Court but the High Court has also

affirmed it in appeal. In our quest to find out whether the Appellant is

guilty beyond a reasonable doubt, we have expanded the wings of our

limited jurisdiction and assumed the role akin to that of the 1st Appellate

29
Court. We are conscious of the fact that the jurisdictional magnification

ought to be an exception and be invoked with great circumspection, in

a case of extreme hardship, after taking into consideration the socio-

economic conditions of the victim(s) of a crime, the accused, as well as

the vulnerable witnesses. Keeping such parameters in view, it cannot

be ignored that both eyewitnesses, P.W.10 and P.W.11, are illiterate

labourers, and their testimonies were recorded after a considerable

length of time had passed since the occurrence. Both the witnesses have

emphatically denied that they were tutored by Police or anyone else. The

unfiltered testimony of a rustic witness, even if marred with some minor

inconsistencies or discrepancies, cannot debilitate its perseverance. The

evidence of such witnesses has to be evaluated comprehensively and

carefully, especially when the cross-examination discreetly suggests

that the accused person(s) did make a bid to win them over by exerting

some extraneous pressure. We are, thus, satisfied that the statements

of P.W.10 and P.W.11 do not suffer from the discrepancy of such a

nature that they should be discarded. Even the testimony of the

Investigating Officer (P.W.14) is devoid of any ulterior motive or attempt

to fabricate evidence or falsely implicate the Appellant and his co-

accused.

58. It would be too unfair and unreasonable to expect a witness,

unless parroted, to recall every minute detail of the occurrence and

30
present it with a totally accumulative narrative. The Appellant’s

contention is thus bereft of any merit.

B. EFFECT OF ABSENCE OF BLOOD GROUP CLASSIFICATION ON

PROSECUTION’S CASE

59. Learned Senior Counsel on behalf of Appellant asserted that the

knife purportedly retrieved from him underwent examination at the

Forensic Science Laboratory, where the test results were inconclusive,

particularly regarding the determination of the blood group on the

weapon. Consequently, the absence of a conclusive match in the blood

group analysis should be construed in favour of the Appellant and

against the prosecution.

60. Upon a thorough examination of the FSL report, it stands

confirmed that the blood group classification test conducted on the

recovered knife yielded inconclusive results. However, it is crucial to

note that human blood was detected on the knife recovered at the

instance of the Appellant (Exhibit “I” before FSL). This fact gains some

importance, considering that various weapons, including lathis and

even the knife attributed to accused Asgar, underwent an FSL

examination, yet, no traces of human blood were found on them.

Notably, human blood was solely found on the knife used by the

Appellant.

31
61. In line with the precedents set forth by this Court in Raja @

Rajinder v. State of Haryana7 and John Pandian v. State8, the non-

explanation of human blood on the weapon of crime constitutes a

circumstance against the accused. It is incumbent upon the accused to

provide an explanation regarding the presence of human blood on the

weapon. The Appellant has failed to do so. The judgments delivered by

both the Trial Court and the High Court also do not reveal that the

Appellant rendered any satisfactory explanation concerning the

presence of blood on the recovered knife. While it may not be a decisive

factor to determine the guilt, but a conspicuous silence does lend

support to the prosecution case.

C. CONSIDERATION OF SECTION 161 CRPC STATEMENT OF DECEASED

TULARAM AS DYING DECLARATION

62. It is contended on behalf of the Appellant that the courts below

have erred in relying on the statement of Tularam (Ex.P.40) given to

Investigating Officer, Girish Bohre (P.W.14) and that the said statement

cannot be considered to be a ‘dying declaration’ as the Investigating

Officer did not take any certification from the doctor regarding the

fitness of mind of Tularam.

7 (2015) 11 SCC 43.

8 (2010) 14 SCC 129.

32
63. In this regard, the following part of the testimony of Investigating

Officer, Girish Bohre (P.W.14), who recorded the statement of Tularam

under Section 161 CrPC, becomes quintessential:

“It is correct that I did not take permission from the

Doctor about the condition of giving statement of
Tularam before recording statement of Tularam. It
is correct that I knew this fact at the time of
recording statement that one person has died in
this case. As head injury was not told to be serious
in the Medical Report, so it is incorrect to say that
I knew this fact that Tularam had sustained lathi
blow on his head and his condition was serious. It
is incorrect to say that head injury caused to
Tularam was serious and his condition was told to
be serious in his medical report. It is correct that
proceedings of recording dying declaration of
Tularam was not conducted by me till Tularam was
alive. It is incorrect to say that Tularam was not
able to speak after sustaining the injuries and till
his death, so I did not record his dying declaration.
It is incorrect to say that due to this reason the
statement of Exhibit P.40 has been falsely
prepared.”

64. Before we proceed further, it would be apt to recapitulate Section

32(1) of the IEA, whereunder the statement made by a person, who is

dead, as to the cause of his death or as to any of the circumstances of

the transaction which resulted in his death, is relevant and admissible,

irrespective of the fact that such person at the time of making the

statement was not under expectation of death.

65. Section 161 CrPC empowers the Police to examine orally any

person who is acquainted with the facts and circumstances of the case

33
under investigation. The Police may reduce such statement into writing

also. Section 162(1) CrPC, nonetheless, mandates that no statement

made by any person to a Police Officer, if reduced to writing, be signed

by the person making it, nor shall such statement be used in evidence

except to contradict a witness in the manner provided by Section 145 of

the IEA. However, Sub-Section (2) of Section 162 CrPC carves out an

exception to Sub-Section (1) as it explicitly provides that nothing in

Section 162 shall be deemed to apply to any statement falling within the

ambit of clause (1) of Section 32 of the IEA. In other words, a statement

made by a person who is dead, as to the cause of his death or to the

circumstances of the transaction which resulted in his death, to a Police

Officer and which has been recorded under Section 161 CrPC, shall be

relevant and admissible, notwithstanding the express bar against use

of such statement in evidence contained therein. In such eventuality,

the statement recorded under Section 161 CrPC assumes the character

of a dying declaration. Since extraordinary credence has been given to

such dying declaration, the court ought to be extremely careful and

cautious in placing reliance thereupon. There are a catena of decisions

of this Court which lend support to the inter-play between provisions of

the CrPC and the IEA, as explained above9.

9 See: i) Mukeshbhai Gopalbhai Barot v. State of Gujarat, (2010) 12 SCC 224; (ii) Sri
Bhagwan v. State of U.P., (2013) 12 SCC 137; (iii) Pradeep Bisoi v. State of Odisha,
(2019) 11 SCC 500.

34
66. As regard to the assessment of mental fitness of the person

making a dying declaration, it is indubitably the responsibility of the

court to ensure that the declarant was in a sound state of mind. This is

because there are no rigid procedures mandated for recording a dying

declaration. If an eyewitness asserts that the deceased was conscious

and capable of making the declaration, the medical opinion cannot

override such affirmation, nor can the dying declaration be disregarded

solely for want of a doctor's fitness certification. The requirement for a

dying declaration to be recorded in the presence of a doctor, following

certification of the declarant's mental fitness, is merely a matter of

prudence.10

67. The Constitution Bench in Laxman v. State of Maharashtra11

has authoritatively ruled that:

“3. … …But where the eyewitnesses state that the

deceased was in a fit and conscious state to make the
declaration, the medical opinion will not prevail, nor can
it be said that since there is no certification of the doctor
as to the fitness of the mind of the declarant, the dying
declaration is not acceptable. A dying declaration can
be oral or in writing and any adequate method of
communication whether by words or by signs or
otherwise will suffice provided the indication is positive
and definite. In most cases, however, such statements
are made orally before death ensues and is reduced to
writing by someone like a Magistrate or a doctor or a
police officer. … … What is essentially required is that
the person who records a dying declaration must be
satisfied that the deceased was in a fit state of mind.
Where it is proved by the testimony of the Magistrate

10 Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC 562.

11
(2002) 6 SCC 710

35
 that the declarant was fit to make the statement even
without examination by the doctor the declaration can
be acted upon provided the court ultimately holds the
same to be voluntary and truthful. A certification by
the doctor is essentially a rule of caution and therefore
the voluntary and truthful nature of the declaration can
be established otherwise.”

68. It is important in this case to appreciate that the Investigating

Officer recorded the statement instantly, a day after the incident. He

has categorically stated that the medical report did not mention that the

condition of the declarant, Tularam, was serious in nature. More

importantly, Tularam was able to convey his statement properly.

Furthermore, on perusal of the statement, it is clear that the declarant

Tularam was in a fit condition as not only did he properly explain the

incident but has also markedly specified the role of the Appellant. That

apart, the injuries found during the post-mortem examination

conducted by P.W.13 and P.W.15 have duly corroborated the statement

of deceased Tularam.

69. From the above discussion, it is manifest that the mere non-

obtainment of a medical fitness certificate will not deter this Court from

considering a properly recorded statement under Section 161 CrPC to

be a dying declaration.

CONCLUSION :

70. For the reasons stated above, we are satisfied that there are no

contradictions or discrepancies in the prosecution case of such a nature

36
that would compel us to take a view different than that of the Trial Court

and the High Court. We, therefore, do not find any merit in this appeal,

which is, consequently, dismissed. If the Appellant is on bail, his bail

bonds are cancelled, and he is directed to surrender and undergo the

remainder of the sentence. However, if the Appellant is already in

custody, in that event, he shall complete the remainder of the sentence.

71. Ordered accordingly.

……………………………….. J.
[SURYA KANT]

……………………………… J.
[K.V. VISWANATHAN]

NEW DELHI
DATED : 08.07.2024

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