BHAGCHANDRA versus STATE OF MADHYA PRADESH on 9 December 2021

[2021] 9 S.C.R. 765

BHAGCHANDRA

v.

STATE OF MADHYA PRADESH

(Criminal Appeal Nos. 255-256 of 2018)

DECEMBER 09, 2021

[L. NAGESWARA RAO, B. R. GAVAIAND B. V. NAGARATHNA, JJ.]

Penal Code, 1860 – s.302 r/w. s.201 and 506-B – Prosecutioncase that appellant committed murder of his two brothers and anephew – There was a property dispute of appellant with his bothbrothers – On the day of incident, PW-1-complainant had gone toattend the call of nature – While returning, she saw the appellantarmed with an axe getting out of her house – When she went insideher house she saw her brother-in-law lying dead in outer room –His neck was cut – When she came in the courtyard, she saw herson dead, having injuries on his neck and head – She followed theappellant towards the field – She saw the appellant assaulting herhusband with the axe – When she tried to stop the accused fromassaulting the deceased, the accused abused her and told her to goaway and threatened her – Her husband also died – Her other twochildren (PW-2 and PW-3) in house, who saw the incident escapedfrom the house – The trial Court convicted appellant for offencesu/s.302 r/w. s.201 and s.506B IPC and awarded him death sentence– His death sentence was confirmed by the High Court – On appeal,held: It is clear from the evidence of PW-1, that she had personallywitnessed the appellant assaulting deceased-husband – It is furtherclear from the evidence of PW-2 and PW-3 that they have personallywitnessed the appellant assaulting their brother and uncle – Theevidence of these three witnesses is duly corroborated by the otherwitnesses – PWs 4, 5 and 6 corroborated the testimony of PW-1 –PW-6 corroborated testimony of PW-2 and 3 – Upon perusal of theevidence of the witnesses as a whole, the evidence is cogent, reliableand trustworthy – As far as capital punishment is concerned, thetrial court as well as the High Court has only taken intoconsideration the crime but have not taken into consideration thecriminal, his state of mind, his socio-economic background etc –The appellant comes from a rural and economically poor

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Abackground – There are no criminal antecedents – The appellantcannot be said to be a hardened criminal – This is the first offencecommitted by the appellant – The certificate issued by the JailSuperintendent shows that the conduct of the appellant duringincarceration was satisfactory – It cannot be said that there is nopossibility of the appellant being reformed and rehabilitated –BTherefore, the death sentence awarded to the appellant is convertedto life imprisonment for a period of 30 years.

Partly allowing the appeals, the Court

HELD: 1. It could be seen that what is required to beCconsidered is whether the evidence of the witness read as a wholeappears to have a ring of truth. It has been held that minordiscrepancies on trivial matters not touching the core of the case,hypertechnical approach by taking sentences torn out of contexthere or there from the evidence, would not ordinarily permitrejection of the evidence as a whole. It has been held that theDprosecution evidence may suffer from inconsistencies here anddiscrepancies there, but that is a shortcoming from which nocriminal case is free. What is important is to see as to whetherthose inconsistencies go to the root of the matter or pertain toinsignificant aspects thereof. It has been held that there are alwaysEnormal discrepancies due to normal errors of observation, normalerrors of memory due to lapse of time, due to mental disposition,shock and horror at the time of occurrence. It is the duty of thecourt to separate falsehood from the truth in every case.[Para 31][779-E-H; 780-A]

FState of Uttar Pradesh v. Krishna Master and Others (2010)12 SCC 324 : [2010] 9 SCR 563 – relied on.

2. This Court is of the view that the minor discrepancies inthe evidence of the prosecution witnesses are not of such a naturewhich would persuade this Court to disbelieve their testimonies.GIt is further to be noted that the witnesses are rustic villagersand some inconsistencies in their depositions are bound to bethere. [Para 32][780-A-B]

3. This Court has held that in case of rustic witnesses, someinconsistencies and discrepancies are bound to be found. It hasbeen held that the inconsistencies in the evidence of the witnessesH

should not be blown out of proportion. To do so is to ignore hardrealities of village life and give undeserved benefit to the accused.It has been held that the evidence of such witnesses has to beappreciated as a whole. A rustic witness is not expected toremember every small detail of the incident and the manner inwhich the incident had happened. Further, a witness is bound toface shock of the untimely death of his near relatives. Uponperusal of the evidence of the witnesses as a whole, this Court isof the considered view that their evidence is cogent, reliable andtrustworthy. [Para 34][780-G-H; 781-A-B]

4. Insofar as the contention of the appellant that the medicalevidence does not support the prosecution case is concerned,the ocular evidence of the eye witnesses is cogent, reliable andtrustworthy. Apart from that, the oral version in the testimoniesof PWs 1, 2 and 3 is duly corroborated by the injuries as shownin the Post-Mortem Report of the deceased persons. Therefore,the contention in this regard is liable to be rejected.[Para 36][782-A-B]

5. Since the present case is a case of direct evidence, evenif the prosecution has failed to prove the other incriminatingcircumstances beyond reasonable doubt, in our view, it will nothave an effect on the prosecution case. In the present case,another factor that is to be noted is that immediately after theincident, FIR is lodged by PW-1 who was accompanied by PW-4.The FIR fully corroborates the ocular evidence of prosecutionwitnesses. [Para 38][782-C-D]

6. In that view of the matter, this Court of the consideredview that even upon reappreciation of the evidence, it cannot besaid that the trial court has committed an error in convictingthe appellant and the High Court in confirming the same.[Para 39][782-E]

7. From the judgment of the trial court as well as the HighCourt, it does not appear that the courts below have drawn abalance sheet of mitigating and aggravating circumstances. Thetrial court as well as the High Court has only taken intoconsideration the crime but have not taken into considerationthe criminal, his state of mind, his socio- economic backgroundetc. [Para 43][784-C-D]

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768SUPREME COURT REPORTS

A8. In view of the settled legal position, it is our boundenduty to take into consideration the probability of the accusedbeing reformed and rehabilitated. It is also our duty to take intoconsideration not only the crime but also the criminal, his stateof mind and his socio-economic conditions. The deceased as wellas the appellant are rustic villagers. In a property dispute, theBappellant has got done away with two of his siblings and a nephew.The State has not placed on record any evidence to show thatthere is no possibility with respect to reformation or rehabilitationof the convict. The appellant has placed on record the affidavitsof son of appellant and nephew of appellant and also the report ofCthe Jail Superintendent, Central Jail, Jabalpur. The appellantcomes from a rural and economically poor background. Thereare no criminal antecedents. The appellant cannot be said to be ahardened criminal. This is the first offence committed by theappellant, no doubt, a heinous one. The certificate issued by theJail Superintendent shows that the conduct of the appellant duringDincarceration has been satisfactory. 9. It cannot therefore be saidthat there is no possibility of the appellant being reformed andrehabilitated foreclosing the alternative option of a lesser sentenceand making imposition of death sentence imperative. Theconviction of the appellant for the offences punishable underESections 302, 201 and 506-B of the IPC is affirmed. However,the death sentence awarded to the appellant is converted tolife imprisonment for a period of 30 years. [Paras 44 and 46][785-D-G; 786-A-B]Mohd. Mannan alias Abdul Mannan v. State of BiharF(2019) 16 SCC 584 : [2019] 8 SCR 266; Mofil Khanand Another v. The State of Jharkhand RP (Criminal)No. 641/2015 in Criminal Appeal No.1795/2009 dated26.11.2021; Rajendra Pralhadrao Wasnik v. State ofMaharashtra (2019) 12 SCC 460 : [2018] 14 SCR 585– relied on.G

Krishnan and Another v. State represented by Inspectorof Police (2003) 7 SCC 56 : [2003] 1 Suppl. SCR 771;Pratap Singh and Another v. State of Madhya Pradesh(2005) 13 SCC 624 : [2005] 5 Suppl. SCR 439;Mohammed Ajmal Mohammad Amir Kasab alias Abu H

BHAGCHANDRA v. STATE OF MADHYA PRADESH

Mujahid v. State of Maharashtra (2012) 9 SCC 1 :[2012] 8 SCR 295; Dayanidhi Bisoi v. State of Orissa(2003) 9 SCC 310 : 2003 AIR 3915; Mohd. Arif aliasAshfaq v. Registrar, Supreme Court of India and Others(2014) 9 SCC 737 : [2014] 11 SCR 1009; R. Shaji v.State of Kerala (2013) 14 SCC 266 : [2013] 3 SCR1172; Rammi alias Rameshwar v. State of MadhyaPradesh (1999) 8 SCC 649 : [1999] 3 Suppl. SCR 1;Ravi s/o Ashok Ghumare v. State of Maharashtra (2019)9 SCC 622 : [2019] 15 SCR 712; Bachan Singh v. Stateof Punjab (1980) 2 SCC 684 : 1980 AIR 898; MachhiSingh and Others v. State of Punjab (1983) 3 SCC 470: [1983] 3 SCR 413 – referred to.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 255-256 of 2018.

From the Judgment and Order dated 19.12.2017 of the High Courtof Judicature at Madhya Pradesh at Jabalpur in CRRFC No.03 of 2017and Criminal Appeal No.1684 of 2017.

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N. Hariharan, Sr. Adv., Ms. Shivani Misra, Ms. Pratiksha Bhaskar,Varun Deswal, Vaibhav Sharma, Siddharth Singh Yadav, Prateek Bhalla,Ms. Punya Rekha Angara, Ms. Sridevi Panikkar, Advs. for the Appellant.

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AMs. Swarupma Chaturvedi, AAG, Sunny Choudhary, ShantanuSingh, Ms. Saumya Kapoor, Advs. for the Respondent.

The Judgment of the Court was delivered by

B. R. GAVAI, J.B

B1. The appellant has approached this Court, being aggrieved bythe judgment and order dated 19[th] December 2017, passed by the DivisionBench of the High Court of Madhya Pradesh at Jabalpur in CriminalAppeal No. 1684 of 2017, thereby dismissing the appeal preferred bythe appellant challenging the judgment and order passed by the SecondAdditional Sessions Judge (hereinafter referred to as the “trial judge”)Cdated 4[th] April 2017, vide which the appellant was convicted for theoffences punishable under Section 302 read with Section 201 and Section506-B of the Indian Penal Code, 1860 (hereinafter referred to as the“IPC”). The trial judge had awarded death sentence to the appellant forthe offences punishable under Section 302 of the IPC (3 counts) and 7Dyears’ rigorous imprisonment each for the offences punishable underSections 201 and 506-B of the IPC respectively. The trial judge has alsomade a reference being CRRFC No. 03 of 2017 to the High Courtunder Section 366 of the Code of Criminal Procedure, 1973 (hereinafterreferred to as “Cr.P.C.”) for confirmation of death penalty. Vide impugnedjudgment and order, the High Court confirmed the death penalty.E

2. The prosecution story in brief, is thus:

Appellant-Bhagchandra is the real brother of deceased ThakurDas and deceased Devki Prasad. Deceased Akhilesh was the son ofdeceased Devki Prasad and as such, the nephew of the appellant. PW-1-Kiran Patel is the wife of deceased Devki Prasad. PW-2-Urmila andFPW-3-Kamlesh are the daughter and son of deceased Devki Prasadand Kiran Patel (PW-1).

3. Deceased Devki Prasad resided in village Pur along with hisbrother deceased Thakur Das, his wife PW-1-Kiran Patel, daughter PW-2-Urmila, sons PW-3-Kamlesh, deceased Akhilesh, and Kisiyabai, motherGof the appellant.

4. It is the prosecution case that on the fateful early morning of11[th] October 2015 at around 05.00-05.30 am, complainant-Kiran Patel(PW-1) had gone to attend the call of nature. While returning, she sawthe appellant armed with an axe getting out of her house. It is theH

prosecution case that there was previous enmity between the appellanton one hand and deceased Thakur Das and deceased Devki Prasad onthe other. She therefore suspected some foul play. Immediately afterentering the house, she saw Thakur Das lying dead smeared with bloodand his neck was detached from the body. In the courtyard, she alsofound her son Akhilesh lying dead. It is the prosecution case that deceasedDevki Prasad had gone to his field in the night so as to guard the crops.Suspecting something might be done to him, PW-1 rushed towards thefield which was nearby the house. She saw the appellant assaulting herhusband Devki Prasad with an axe. She tried to stop the appellant but hethreatened to kill her. In the meanwhile, the relatives and the neighbourshad gathered at the spot.

5. Immediately after the incident, a First Information Report(hereinafter referred to as “FIR”) came to be registered on the basis ofthe oral complaint given by Kiran Patel (PW-1), in the Police Station,Maharajpur. After investigation, charge-sheet came to be filed beforethe concerned court which committed the case to the Sessions Judge.

6. The trial judge framed charges against the appellant underSections 302 (3 counts), 201 and 506 Part-II of the IPC. The appellantdenied all the charges and claimed that he was falsely implicated byKiran Patel (PW-1) to grab the property.

7. At the conclusion of the trial, the trial judge found the appellantguilty of committing the offences he was charged with and as such,awarded sentences as stated hereinabove. The trial court also made aReference being CRRFC No. 03 of 2017 to the High Court forconfirmation of the capital punishment awarded by it.

8. Being aggrieved by the judgment of conviction and sentencepassed by the trial court, the appellant preferred an appeal being CriminalAppeal No. 1684 of 2017 before the High Court. The High Courtdismissed the appeal and confirmed the death penalty awarded by thetrial court. Being aggrieved thereby, the present appeal.

9. We have heard Shri N. Hariharan, learned Senior Counsel,appearing on behalf of the appellant and Smt. Swarupama Chaturvedi,learned Assistant Advocate General, appearing on behalf of therespondent-State.

10. Shri Hariharan would submit that the entire case against theappellant is a fabricated one and has been framed at the instance of A

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AKiran Patel (PW-1). The learned Senior Counsel submitted that theevidence as placed on record by the prosecution does not establish theguilt of the accused-appellant beyond reasonable doubt.

11. The learned Senior Counsel submitted that firstly, the time ofthe incident as shown by the prosecution is itself doubtful. He submittedBthat the Post-Mortem Report of all the three deceased persons wouldshow that semi-digested food was found in the stomach of the deceasedpersons. He therefore submitted that the death would have occurredaround 3-4 hours after their last meal. He submitted that from theevidence brought on record, it would show that deceased Devki Prasadhad left for the field at around 09.00 pm. He submitted that therefore theCdeceased must have taken their meal at around 09.00 pm. As such, thedeath has occurred between 12.00 midnight and 01.00 am.

12. He further submitted that there are material contradictions inthe testimonies of PW-1-Kiran Patel, PW-2-Urmila and PW-3-Kamlesh.He submitted that even the conduct of PW-1 is unnatural. She has statedDthat, while going to answer the call of nature, she had put a latch to closethe door of the house. He submitted that normally a person would not dosuch an act. He further submitted that the evidence of PW-7-RakeshVishwakarma is totally unnatural. From the evidence of PW-7, it is clearthat though he has witnessed the incident, he has not informed the sameEto the police, who were very much available in the village. He has onlyinformed PW-6-Kamlesh Patel s/o Gulabchandra Patel (for the sake ofconvenience, hereinafter referred to as “Kamlesh-II”). He submittedthat it is clear that PW-7 is an introduced witness.

13. Shri Hariharan further submitted that the prosecution hasFwithheld the most important witness i.e. Kisiyabai, mother of deceasedThakur Das and Devki Prasad as well as the appellant, though herstatement was recorded under Section 161 Cr.P.C. He submitted thatsince the prosecution has withheld an important witness, an adverseinference needs to be drawn against the prosecution. The learned SeniorCounsel, in this respect, relies on the judgment of this Court in the caseGof Pratap Singh and Another v. State of Madhya Pradesh[1].

14. The learned Senior Counsel submitted that the so-calledrecovery of axe on the memorandum of appellant under Section 27 ofthe Indian Evidence Act, 1872 (hereinafter referred to as the “Evidence H1 (2005) 13 SCC 624

Act”) is also of no relevance. He submitted that firstly, the SerologyReport does not support the prosecution case. He submitted that therecovery on memorandum would be relevant only if the prosecution is ina position to establish that the article recovered was used in the crime.He submitted that apart from the Serology Report not supporting theprosecution case, the said axe has not been put to any of the witnessesto establish that it was the same weapon which was used in the crime.

15. Shri Hariharan would submit that the trial court as well as theHigh Court has not considered the evidence in its correct perspective.He submitted that the evidence has been considered in a totally erroneousmanner. He submitted that though this Court is exercising the jurisdictionunder Article 136 of the Constitution of India, since the matter pertainsto death penalty, it is necessary that this Court should reappreciate theentire evidence. He relies on the judgments of this Court in the cases ofMohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v.State of Maharashtra[2], Dayanidhi Bisoi v. State of Orissa[3] and Mohd.Arif alias Ashfaq v. Registrar, Supreme Court of India and Others[4].

16. Shri Hariharan, in the alternative, submitted that in nocircumstances, the death penalty was warranted in the facts of the presentcase. He submitted that firstly, the trial court has imposed the deathpenalty on the same day on which the conviction was recorded. Hesubmitted that a sufficient period of time between the order of convictionand the sentence ought to have been given to the appellant so that theappellant would have availed of his right to point out the aggravating andmitigating circumstances. He further submitted that the courts belowhave also failed to take into consideration that the accused was not ahardened criminal. The accused did not have any criminal antecedentsand it was his first crime. He further submitted that the trial court aswell as the High Court has not taken into consideration the possibility ofthe appellant being reformed. It is therefore submitted that the deathpenalty is not warranted at all in the facts and circumstances of thepresent case.

17. Smt. Chaturvedi, on the contrary, submitted that both the courtsbelow have rightly convicted the appellant and also awarded death penalty.She submitted that minor inconsistencies in the evidence of the witnesses 2 (2012) 9 SCC 13 (2003) 9 SCC 3104 (2014) 9 SCC 737

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Ashould not be given much importance. She further submitted that whenocular evidence has been found by the court to be cogent, trustworthyand reliable, then some inconsistencies in the medical evidence wouldnot be relevant. She relies on the judgment of this Court in the case ofKrishnan and Another v. State represented by Inspector of Police[5 ]toassert the said contention. She further submitted that merely becauseBthe Serology Report is not conclusive, it cannot be a ground to disbelievethe prosecution case. For the said proposition, she relies on the judgmentof this Court in the case of R. Shaji v. State of Kerala[6].

18. Smt. Chaturvedi, in order to meet the challenge about theevidence of PW-7-Rakesh, submitted that the reaction of a witness to aCsituation may differ from person to person. She submitted that merelybecause PW-7-Rakesh has informed PW-6-Kamlesh first, which wasprior to informing the police, it does not put a dent on his testimony. Forthis, she relies on the judgment of this Court in the case of Rammi aliasRameshwar v. State of Madhya Pradesh[7].D

19. She further submitted that taking into consideration the brutalityof murder, wherein three blood relatives have been done away with forno fault of theirs, warrants no lesser penalty than the death penalty. Shesubmitted that the necks of all the three persons were segregated due tothe brutal attack and as such, the trial court has rightly awarded deathEpenalty and the High Court has rightly confirmed the same. She relieson the judgment of this Court in the case of Ravi s/o Ashok Ghumarev. State of Maharashtra[8].

20. Shri Hariharan, in rejoinder, submitted that in view of the lawlaid down by this Court, relevant material is required to be placed beforeFthe court while considering as to whether the death penalty should beawarded or not. He submitted that accordingly, an affidavit of the closerelatives of the appellant has been placed on record. He further submittedthat the certificate from the prison authority is also placed on recordwhich would show that the conduct of the appellant is satisfactory, notwarranting death penalty.G

21. With the assistance of the learned counsel for the parties, wehave examined the materials placed on record.

5 (2003) 7 SCC 566 (2013) 14 SCC 2667 (1999) 8 SCC 649H8 (2019) 9 SCC 622

22. PW-1-Kiran Patel is the wife of deceased Devki Prasad. Shehas stated in her evidence that on the date of the incident, at around05.00 am, she had gone out to answer the call of nature. At that time,her brother-in-law Thakur Das, sons Akhilesh and Kamlesh, daughterUrmila and mother-in-law Kisiyabai were sleeping at home. When shereturned after around 10 minutes, she saw appellant armed with an axecoming out of her house. She suspected some foul play. When she enteredthe house, she saw her brother-in-law Thakur Das lying dead in outerroom. His neck was cut. When she came in the courtyard, she saw herson Akhilesh dead, having injuries on his neck and head. She stated thather son Kamlesh and daughter Urmila had gone to the place of Gulabafter seeing the appellant assaulting their uncle and brother. Both ofthem came and informed her that Thakur Das and Akhilesh wereassaulted by the appellant. She suspected that the appellant had gonetowards the field and therefore, she followed the appellant towards thefield. She saw the appellant assaulting her husband Devki Prasad withthe axe. When she tried to stop the accused from assaulting the deceased,the accused abused her and told her to go away and threatened her thatshe would also meet the same fate. She stated that when she was returninghome, she saw PW-7-Rakesh. Thereafter, PW-4-Rammilan, PW-5-KhilluPatel and PW-6-Kamlesh-II also came. She has further stated in herevidence that deceased Thakur Das was residing with the appellant for10 years. However, the appellant started demanding the land of ThakurDas and his tractor. As such, the appellant forced Thakur Das to leavehis house. Thereafter, Thakur Das had started residing with the familyof deceased Devki Prasad. She has stated that the appellant thoughtthat Thakur Das’s property would come to the family of Devki Prasadand so, the appellant had assaulted and killed her brother-in-law, herhusband and son. PW-1 has been cross-examined at length. However,in spite of lengthy cross-examination, her evidence insofar as the incidentis concerned, has gone unchallenged.

23. PW-2-Urmila was about 11-12 years old at the time of incident.After putting preliminary questions to her, the trial judge found that shewas capable of understanding the questions and answering the sameand as such, her statement was recorded without administering oath toher.

24. She stated that on the day of the incident, after her motherwent to answer the call of nature, she was doing the household work.

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AShe heard the sound of ‘dham dham’ and thought that it might be adog’s sound. She went towards the place from where the sound wascoming and saw that the appellant was assaulting the deceased with anaxe. Her brother Akhilesh was sleeping in the courtyard. She tried towake him up but he did not get up. The appellant came to the courtyardalong with the axe and started assaulting Akhilesh. She got frightenedBand therefore went to PW-6-Kamlesh-II’s house. Her brother Kamlesh(PW-3) had also woken up. He also tried to wake Akhilesh up but he didnot get up. The appellant tried to catch hold of Kamlesh (PW-3) too,however, Kamlesh (PW-3) ran away with Urmila to Kamlesh-II’s house.She further stated that thereafter, her mother came. She informed aboutCthe incident to her mother. Thereafter, her mother went to the field. Shestated that her mother saw the appellant assaulting the deceased.Thereafter, her mother came home and started shouting and raising hueand cry. As such, PW-6-Kamlesh-II and PW-4-Rammilan came there.The said child witness has also been thoroughly cross-examined.However, her evidence insofar as the main incident is concerned, hasDgone unchallenged. Similar is the evidence of PW-3-Kamlesh who wasaged 12-13 years at the time of the incident.

25. It will be thus clear from the evidence of PW-1-Kiran Patel,that she has personally witnessed the appellant assaulting deceased DevkiPrasad. It will be further clear from the evidence of PW-2-Urmila andEPW-3-Kamlesh that they have personally witnessed the appellantassaulting deceased Thakur Das and deceased Akhilesh. The evidenceof these three witnesses would also reveal that immediately after PW-1came from field, she was informed by PW-2 and PW-3 about the assaultby the appellant on Thakur Das and Akhilesh. The testimony of theseFthree witnesses is duly corroborated by the other witnesses. PW-4-Rammilan is the son of Shyambihari. Shyambihari is another brother ofdeceased Thakur Das, deceased Devki Prasad and appellantBhagchandra. He has stated in his deposition that on the date of incidentwhen he was going out at around 5.30 am, his aunt Kiran Patel was shouting maar dala, maar dala. When he went near his aunt KiranGPatel, he saw that inside the house, Thakur Das and Akhilesh were lyingdead. When he went to the field, he saw Devki Prasad lying dead infront of the tractor. He stated that Kiran informed him about the incident.This witness had accompanied PW-1 to the Police Station for lodgingthe report. This witness has also undergone lengthy cross-examination.HNothing damaging has come on record in the cross-examination. This witness would be in a sense a neutral witness inasmuch as his relationwith both, the appellant and the deceased, is of the same degree. PW-1had immediately disclosed about the incident to him and he hadaccompanied her to lodge the FIR.

26. Similar is the testimony of PW-5-Khillu Patel.

27. PW-6-Kamlesh-II is also related to the witnesses, deceasedand the appellant. He stated that on the date of the incident at around04.00 am, he had gone to answer the call of nature. While returning, hereceived a message on his mobile and in that light, he saw the appellantrunning towards him. On him questioning the appellant as to what hewas doing there, the appellant said, “I thought that you are Thakur Das”.At that time, the appellant was having an axe with him. Thereafter, PW-6 came home and was resting. At around 05.00-05.30 am, the childrenof Devki Prasad namely Urmila (PW-2) and Akhilesh (PW-3) came tohim. Both were frightened and told him that Bhagchandra uncle hadhacked Thakur Das and Akhilesh with the axe. He further stated that hetoo was afraid as he was alone and could not do anything. He stated thatin the meantime, Kiran Bhabhi had come and informed about the incident.

28. It could thus be seen that all these witnesses establish thepresence of each other. PW-1-Kiran Patel stated about the presence ofPW-4-Rammilan, PW-5-Khillu Patel and PW-6-Kamlesh-II and aboutthem immediately coming to the spot and her informing them about theincident. PWs 4, 5 and 6 corroborated the testimony of PW-1 in thataspect. PW-2-Urmila and PW-3-Kamlesh stated about witnessing theincident of appellant assaulting deceased Thakur Das and Akhilesh, andrunning towards the house of Kamlesh-II and informing him about thesame. PW-6 too corroborated this version of PWs 1, 2 and 3.

29. Insofar as the evidence of PW-7-Rakesh is concerned, wefind that the conduct of the said witness appears to be somewhatunnatural. He stated that after witnessing the incident, he had gone toanother village on motorcycle to see his friend. From there, he had goneto the Hospital at Maharajpur. After that, he came home at around 10.00-10.30 am. Though, the police were present in the village, he did notinform them about the incident. On his own, he stated that he had informedKamlesh-II about the incident. We therefore find that it will not beappropriate to rely on his testimony. However, even if the testimony ofPW-7 is eschewed, we find that the ocular testimonies of PWs 1 to 6

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Aestablish the case of the prosecution beyond reasonable doubt that it isthe appellant who had assaulted the deceased persons.

30. No doubt that there are minor discrepancies in the evidenceof these PWs. It will be relevant to refer to the following observations ofthis Court in the case of State of Uttar Pradesh v. Krishna MasterBand Others[9]:- “15. Before appreciating evidence of the witnesses examined inthe case, it would be instructive to refer to the criteria forappreciation of oral evidence. While appreciating the evidenceof a witness, the approach must be whether the evidence ofCthe witness read as a whole appears to have a ring of truth.Once that impression is found, it is undoubtedly necessaryfor the court to scrutinise the evidence more particularlykeeping in view the deficiencies, drawbacks and infirmitiespointed out in the evidence as a whole and evaluate them tofind out whether it is against the general tenor of the evidenceDand whether the earlier evaluation of the evidence is shakenas to render it unworthy of belief. Minor discrepancies ontrivial matters not touching the core of the case,hypertechnical approach by taking sentences torn out ofcontext here or there from the evidence, attaching importanceEto some technical error committed by the investigating officernot going to the root of the matter would not ordinarily permitrejection of the evidence as a whole.

16. If the court before whom the witness gives evidence had theopportunity to form the opinion about the general tenor of theFevidence given by the witness, the appellate court which had notthis benefit will have to attach due weight to the appreciation ofevidence by the trial court and unless the reasons are weightyand formidable, it would not be proper for the appellate court toreject the evidence on the ground of variations or infirmities in thematter of trivial details. Minor omissions in the police statementsGare never considered to be fatal. The statements given by thewitnesses before the police are meant to be brief statementsand could not take place of evidence in the court. Small/Trivialomissions would not justify a finding by court that the witnessesconcerned are liars. The prosecution evidence may suffer from H9 (2010) 12 SCC 324

inconsistencies here and discrepancies there, but that is ashortcoming from which no criminal case is free. The mainthing to be seen is whether those inconsistencies go to the rootof the matter or pertain to insignificant aspects thereof. In theformer case, the defence may be justified in seeking advantageof incongruities obtaining in the evidence. In the latter, however,no such benefit may be available to it.

17. In the deposition of witnesses, there are always normaldiscrepancies, howsoever honest and truthful they may be.These discrepancies are due to normal errors of observation,normal errors of memory due to lapse of time, due to mentaldisposition, shock and horror at the time of occurrence andthreat to the life. It is not unoften that improvements in earlierversion are made at the trial in order to give a boost to theprosecution case, albeit foolishly. Therefore, it is the duty of thecourt to separate falsehood from the truth. In sifting theevidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandonedon the ground that the case is baffling unless the evidence is reallyso confusing or conflicting that the process cannot reasonably becarried out. In the light of these principles, this Court will have todetermine whether the evidence of eyewitnesses examined in thiscase proves the prosecution case.”

[emphasis supplied]

31. It could thus be seen that what is required to be considered iswhether the evidence of the witness read as a whole appears to have aring of truth. It has been held that minor discrepancies on trivial mattersnot touching the core of the case, hypertechnical approach by takingsentences torn out of context here or there from the evidence, would notordinarily permit rejection of the evidence as a whole. It has been heldthat the prosecution evidence may suffer from inconsistencies here anddiscrepancies there, but that is a shortcoming from which no criminalcase is free. What is important is to see as to whether thoseinconsistencies go to the root of the matter or pertain to insignificantaspects thereof. It has been held that there are always normaldiscrepancies due to normal errors of observation, normal errors ofmemory due to lapse of time, due to mental disposition, shock and horror AB

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Aat the time of occurrence. It is the duty of the court to separate falsehoodfrom the truth in every case.

32. Applying these principles, we are of the view that the minordiscrepancies in the evidence of the prosecution witnesses are not ofsuch a nature which would persuade this Court to disbelieve theirBtestimonies. It is further to be noted that the witnesses are rustic villagersand some inconsistencies in their depositions are bound to be there.

33. In this respect, it will be apposite to refer to the followingobservations of this Court in the case of Krishna Master (supra):

“23. The record of the case shows that this witness JhabbulalCwas cross-examined at great length. He was subjected to gruellingcross-examination which runs into 31 pages. The first and firmimpression which one gathers on reading the testimony of thiswitness is that he is a rustic witness. A rustic witness, who issubjected to fatiguing, taxing and tiring cross-examination for daysDtogether, is bound to get confused and make some inconsistentstatements. Some discrepancies are bound to take place if awitness is cross-examined at length for days together. Therefore,the discrepancies noticed in the evidence of a rustic witness whois subjected to gruelling cross-examination should not be blownout of proportion. To do so is to ignore hard realities of village lifeEand give undeserved benefit to the accused who have perpetratedheinous crime.

24. The basic principle of appreciation of evidence of a rusticwitness who is not educated and comes from a poor strata ofsociety is that the evidence of such a witness should be appreciatedFas a whole. The rustic witness as compared to an educated witnessis not expected to remember every small detail of the incident andthe manner in which the incident had happened more particularlywhen his evidence is recorded after a lapse of time. Further, awitness is bound to face shock of the untimely death of his nearGrelative(s). Therefore, the court must keep in mind all these relevantfactors while appreciating evidence of a rustic witness.”

34. It can thus be seen that this Court has held that in case ofrustic witnesses, some inconsistencies and discrepancies are bound tobe found. It has been held that the inconsistencies in the evidence of thewitnesses should not be blown out of proportion. To do so is to ignoreH

hard realities of village life and give undeserved benefit to the accused.It has been held that the evidence of such witnesses has to be appreciatedas a whole. A rustic witness is not expected to remember every smalldetail of the incident and the manner in which the incident had happened.Further, a witness is bound to face shock of the untimely death of hisnear relatives. Upon perusal of the evidence of the witnesses as a whole,we are of the considered view that their evidence is cogent, reliable andtrustworthy.

35. Having held that the ocular testimony of the witnessesestablishes the guilt of the accused beyond reasonable doubt, we cometo the other contentions of the appellant. Insofar as the contention of theappellant that the medical evidence does not support the prosecutioncase, it will be appropriate to rely on the judgment of this Court in thecase of Krishnan and Another (supra):- “18. The evidence of Dr Muthuswami (PW 7) and Dr Abbas Ali(PW 8) do not in any way run contrary to the ocular evidence. Inany event, the ocular evidence being cogent, credible andtrustworthy, minor variance, if any, with the medical evidence isnot of any consequence.

20. Coming to the plea that the medical evidence is at variancewith ocular evidence, it has to be noted that it would be erroneousto accord undue primacy to the hypothetical answers of medicalwitnesses to exclude the eyewitnesses’ account which had to betested independently and not treated as the “variable” keepingthe medical evidence as the “constant”.

21. It is trite that where the eyewitnesses’ account is foundcredible and trustworthy, medical opinion pointing to alternativepossibilities is not accepted as conclusive. Witnesses, as Benthamsaid, are the eyes and ears of justice. Hence the importance andprimacy of the quality of the trial process. Eyewitnesses’ accountwould require a careful independent assessment and evaluationfor its credibility which should not be adversely prejudged makingany other evidence, including medical evidence, as the soletouchstone for the test of such credibility. The evidence must betested for its inherent consistency and the inherent probability ofthe story; consistency with the account of other witnesses held tobe creditworthy; consistency with the undisputed facts, the “credit”of the witnesses; their performance in the witness box; their power A

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Aof observation etc. Then the probative value of such evidencebecomes eligible to be put into the scales for a cumulativeevaluation.”

36. As already discussed hereinabove, the ocular evidence of theeye witnesses is cogent, reliable and trustworthy. Apart from that, theBoral version in the testimonies of PWs 1, 2 and 3 is duly corroborated bythe injuries as shown in the Post-Mortem Report of the deceased persons.Therefore, the contention in this regard is liable to be rejected.

37. The attack of the appellant is on the other circumstances likethe recovery of the axe under Section 27 of the Evidence Act not beingCrelevant, since the same not being established to be used in the offencenor in the Serology Report, etc.

38. Since the present case is a case of direct evidence, even if theprosecution has failed to prove the other incriminating circumstancesbeyond reasonable doubt, in our view, it will not have an effect on theDprosecution case. In the present case, another factor that is to be notedis that immediately after the incident, FIR is lodged by PW-1 who wasaccompanied by PW-4. The FIR fully corroborates the ocular evidenceof prosecution witnesses.

39. In that view of the matter, we are of the considered view thatEeven upon reappreciation of the evidence, it cannot be said that the trialcourt has committed an error in convicting the appellant and the HighCourt in confirming the same.

40. That leaves us with the question of sentence. We will have toconsider as to whether the capital punishment in the present case iswarranted or not.F

41. Recently, this Court in the case of Mohd. Mannan aliasAbdul Mannan v. State of Bihar[10], after considering earlier judgmentsof this Court on the present issue in the cases of Bachan Singh v. Stateof Punjab[11]and Machhi Singh and Others v. State ofPunjab[12],observed thus:-G

“72. The proposition of law which emerges from the judgmentsreferred to above is itself death sentence cannot be imposed except 10 (2019) 16 SCC 584

11 (1980) 2 SCC 684H12 (1983) 3 SCC 470

in the rarest of rare cases, for which special reasons have to berecorded, as mandated in Section 354(3) of the Criminal ProcedureCode. In deciding whether a case falls within the category of therarest of rare, the brutality, and/or the gruesome and/or heinousnature of the crime is not the sole criterion. It is not just the crimewhich the Court is to take into consideration, but also the criminal,the state of his mind, his socio-economic background, etc. Awardingdeath sentence is an exception, and life imprisonment is the rule.”

42. This Bench, recently, in the case of Mofil Khan and Anotherv. The State of Jharkhand[13] has observed thus:-

“8. One of the mitigating circumstances is the probability of theaccused being reformed and rehabilitated. The State is under aduty to procure evidence to establish that there is no possibility ofreformation and rehabilitation of the accused. Death sentenceought not to be imposed, save in the rarest of the rare cases whenthe alternative option of a lesser punishment is unquestionablyforeclosed (See: Bachan Singh v. State of Punjab (1980) 2 SCC684). To satisfy that the sentencing aim of reformation isunachievable, rendering life imprisonment completely futile, theCourt will have to highlight clear evidence as to why the convictis not fit for any kind of reformatory and rehabilitation scheme.This analysis can only be done with rigour when the Court focuseson the circumstances relating to the criminal, along with othercircumstances (See: Santosh Kumar Satishbhushan Bariyar v.State of Maharashtra (2009) 6 SCC 498). In RajendraPralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC460, this Court dealt with the review of a judgment of this Courtconfirming death sentence and observed as under:

“45. The law laid down by various decisions of this Court clearlyand unequivocally mandates that the probability (not possibilityor improbability or impossibility) that a convict can be reformedand rehabilitated in society must be seriously and earnestlyconsidered by the courts before awarding the death sentence.This is one of the mandates of the “special reasons”requirement of Section 354(3) CrPC and ought not to be takenlightly since it involves snuffing out the life of a person. To 13 RP(Criminal) No. 641/2015 in Criminal Appeal No.1795/2009 dated 26.11.2021

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Aeffectuate this mandate, it is the obligation on the prosecutionto prove to the court, through evidence, that the probability isthat the convict cannot be reformed or rehabilitated. This canbe achieved by bringing on record, inter alia, material about hisconduct in jail, his conduct outside jail if he has been on bail forsome time, medical evidence about his mental make-up, contactBwith his family and so on. Similarly, the convict can produceevidence on these issues as well.””

43. In the present case, it is to be noted that the trial court hadconvicted the appellant and imposed death penalty on the very sameday. From the judgment of the trial court, it does not appear that theCappellant was given a meaningful time and a real opportunity of hearingon the question of sentence. From the judgment of the trial court as wellas the High Court, it does not appear that the courts below have drawna balance sheet of mitigating and aggravating circumstances. The trialcourt as well as the High Court has only taken into consideration theDcrime but have not taken into consideration the criminal, his state ofmind, his socio-economic background etc. At this juncture, it will berelevant to refer to the following observations of this Court in the caseof Rajendra Pralhadrao Wasnik v. State of Maharashtra[14]:-

“47. Consideration of the reformation, rehabilitation andEreintegration of the convict into society cannot be overemphasised.Until Bachan Singh [Bachan Singh v. State of Punjab, (1980)2 SCC 684 : 1980 SCC (Cri) 580] , the emphasis given by thecourts was primarily on the nature of the crime, its brutality andseverity. Bachan Singh [Bachan Singh v. State of Punjab,(1980) 2 SCC 684 : 1980 SCC (Cri) 580] placed the sentencingFprocess into perspective and introduced the necessity of consideringthe reformation or rehabilitation of the convict. Despite the viewexpressed by the Constitution Bench, there have been severalinstances, some of which have been pointed outin Bariyar [Santosh Kumar Satishbhushan Bariyar v. State ofGMaharashtra, (2009) 6 SCC 498 : (2009) 2 SCC (Cri) 1150] andin Sangeet v. State of Haryana [Sangeet v. State of Haryana,(2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] where there is atendency to give primacy to the crime and consider the criminal ina somewhat secondary manner. As observed in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452 :(2013) 2 SCC (Cri) 611] “In the sentencing process, both thecrime and the criminal are equally important.” Therefore, weshould not forget that the criminal, however ruthless he might be,is nevertheless a human being and is entitled to a life of dignitynotwithstanding his crime. Therefore, it is for the prosecution andthe courts to determine whether such a person, notwithstandinghis crime, can be reformed and rehabilitated. To obtain and analysethis information is certainly not an easy task but must neverthelessbe undertaken. The process of rehabilitation is also not a simpleone since it involves social reintegration of the convict into society.Of course, notwithstanding any information made available andits analysis by experts coupled with the evidence on record, therecould be instances where the social reintegration of the convictmay not be possible. If that should happen, the option of a longduration of imprisonment is permissible.”

44. In view of the settled legal position, it is our bounden duty totake into consideration the probability of the accused being reformedand rehabilitated. It is also our duty to take into consideration not onlythe crime but also the criminal, his state of mind and his socio-economicconditions. The deceased as well as the appellant are rustic villagers. Ina property dispute, the appellant has got done away with two of hissiblings and a nephew. The State has not placed on record any evidenceto show that there is no possibility with respect to reformation orrehabilitation of the convict. The appellant has placed on record theaffidavits of Prahalad Patel, son of appellant and Rajendra Patel, nephewof appellant and also the report of the Jail Superintendent, Central Jail,Jabalpur. The appellant comes from a rural and economically poorbackground. There are no criminal antecedents. The appellant cannotbe said to be a hardened criminal. This is the first offence committed bythe appellant, no doubt, a heinous one. The certificate issued by the JailSuperintendent shows that the conduct of the appellant duringincarceration has been satisfactory. It cannot therefore be said that thereis no possibility of the appellant being reformed and rehabilitatedforeclosing the alternative option of a lesser sentence and makingimposition of death sentence imperative.

45. We are therefore inclined to convert the sentence imposed onthe appellant from death to life. However, taking into consideration the AB

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Agruesome murder of two of his siblings and one nephew, we are of theview that the appellant deserves rigorous imprisonment of 30 years.

46. Accordingly, the appeals are partly allowed. The conviction ofthe appellant for the offences punishable under Sections 302, 201 and506-B of the IPC is affirmed. However, the death sentence awarded toBthe appellant is converted to life imprisonment for a period of 30 years.

47. Before we part with the judgment, we must appreciate thevaluable assistance rendered by Shri N. Hariharan, learned Senior Counselappearing on behalf of the appellant and Smt. Swarupama Chaturvedi,learned Assistant Advocate General appearing on behalf of theCrespondent-State.

Ankit Gyan

Appeals partly allowed.

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