{"file_name": "2024_10_1876_1889_EN.pdf", "text": "[2024] 10 S.C.R. 1876 : 2024 INSC 823\n\nThe State of Madhya Pradesh \nv. \nRamjan Khan & Ors.\n\n(Criminal Appeal No. 2129 of 2014)\n\n25 October 2024\n\n[C.T. Ravikumar* and Sudhanshu Dhulia, JJ.]\n\nIssue for Consideration\n\nWhether the High Court was right in setting aside the conviction \nof  the  respondents-accused  under  Section  302,  IPC  read  with \nSection 34, IPC.\n\nHeadnotes†\n\nEvidence  –  Dying  declaration,  allegedly  made  to  a  close \nrelative  –  Reliance  upon  –  When  not  proper  –  Respondents \nwere  convicted  inter  alia  relying  on  the  dying  declaration \nallegedly  made  to  the  mother  of  the  deceased  (PW-8)  – \nConviction set aside by High Court – Correctness:\n\nHeld: Oral dying declaration should be of such a nature as to inspire \nfull confidence of the Court in its correctness – Dying declaration \nis not a strong piece of evidence and therefore, when it is verbal \nand  that  too,  allegedly  made  to  a  close  relative,  it  ought  to  be \ntreated with care and caution – In the present case, the trial Court \ndealt with the same without due care and caution – Prosecution \nattempted to establish the existence of an oral dying declaration \nthrough  the  evidence  of  PW-8,  the  mother  of  the  deceased-\ninformant    –  However,  neither  in  the  FIR  nor  in  her  statement \nrecorded under Section 161, Cr.P.C., PW-8 stated about the oral \ndying  declaration  made  to  her  by  the  deceased  –  Except  her \nstatement in the Court there is no evidence in that regard – High \nCourt justified in taking note of the serious omissions in the oral \ntestimony of PW-8 and discrediting it – Further, the eyewitnesses \nPW-2  and  PW-17  did  not  support  the  case  of  the  prosecution \nand also the omissions on part of PWs 5 and 9 (minor brothers \nof  the  deceased)  amounted  to  material  contradiction  going  into \nthe  core  of  the  prosecution’s  case  –  In  view  of  the  omissions \nand contradictions, the oral testimonies of the witnesses are not \nreliable – Prosecution failed to prove the guilt of the respondents \n\n* Author\n\n\f[2024] 10 S.C.R.  \n\n1877\n\nbeyond  reasonable  doubt  –  Respondents  entitled  to  benefit  of \ndoubt, acquitted – Judgment of the High Court not interfered with. \n[Paras 17, 20, 27-30]\n\nCriminal Law – FIR:\n\nHeld: FIR is an important document but, not a substantial piece of \nevidence – Even though it is not an encyclopedia containing chronicle \nof all intricate and minute details, it could be used to corroborate \nits  maker  viz.,  the  informant  under  Section  157  of  the  Evidence \nAct or to contradict him under Section 145 of the Evidence Act to \nestablish whether he is a trustworthy witness or not – Whether the \nomission(s) is one which seriously impeaches the credibility of the \nwitness  and  is  sufficient  to  reject  the  testimony  of  the  informant \nwould depend upon whether it is of an important fact and whether \nthat fact was within the knowledge of the informant. [Paras 14, 15]\n\nCode  of  Criminal  Procedure,  1973  –  s.374  –  Appeals  from \nconvictions – Acquittal – Appeal against acquittal – Interference \nwith, when – Discussed. [Paras 6, 7, 8]\n\nCase Law Cited\n\nJai Karan & Ors. v. State of U.P. [2003] Supp. 4 SCR 995 : (2003) \n12 SCC 655; Govindaraju v. State by Sivaramapuram PS [2012] 5 \nSCR 67 : (2012) 4 SCC 722; State of U.P. v. Dharmaraj and Anr. \n(2003) 9 SCC 39; Superintendent of Police, CBI & Ors. v. Tapan \nKumar Singh [2003] 3 SCR 485 : (2003) 6 SCC 175; State of UP v. \nNaresh  &  Ors.  [2011]  4  SCR  1176  :  (2011)  4  SCC  324;  Lalitha \nKumari v. Government of UP & Ors. [2013] 14 SCR 713 : (2014) 2 \nSCC 1; Amish Devgan v. UOI & Ors. [2020] 14 SCR 198 : (2021) \n1 SCC 1; Dharma Rama Bhagare v. State of Maharashtra [1973] \n3  SCR  92  :  (1973)  1  SCC  537; Anil  Phukan  v.  State  of Assam \n[1993] 2 SCR 389 : (1993) 3 SCC 282; Chandu Bhai Shana Bhai \nParmar v. State of Gujarat, AIR 1982 SC 1022  – referred to.\n\nList of Acts\n\nPenal Code, 1860; Code of Criminal Procedure, 1973; Evidence \nAct, 1872.\n\nList of Keywords\n\nDying  declaration  made  allegedly  to  a  close  relative;  Ocular \nevidence;  Benefit  of  doubt;  Verbal/Oral  dying  declaration;  Dying \n\nThe State of Madhya Pradesh v. Ramjan Khan & Ors.\f1878 \n\n[2024] 10 S.C.R.\n\ndeclaration not a strong piece of evidence; Eyewitnesses; Material \ncontradiction;  Omissions  and  contradictions;  Guilt  not  proved \nbeyond reasonable doubt; FIR not a substantial piece of evidence; \nFIR not encyclopedia; Appeal against acquittal.\n\nCase Arising From\n\nCRIMINAL  APPELLATE  JURISDICTION:  Criminal  Appeal  No.   \n2129 of 2014\n\nFrom the Judgment and Order dated 31.01.2013 of the High Court \nof M.P at Gwalior in CRLA No. 602 of 1998\n\nAppearances for Parties\n\nMs.  Rukhmini  Bobde,  Pashupathi  Nath  Razdan,  Ms.  Maitreyee \nJagat  Joshi,  Ms.  Soumya  Priyadarshinee, Ankit Ambasta, Amit \nSrivastava, Amlaan  Kumar, Astik  Gupta,  Ms. Akanksha  Tomar, \nMs. Priyanka, Advs. for the Appellant.\n\nLokesh  Kumar  Choudhary,  Devmani  Bansal, Ajay  Kumar  Rai, \nShubham Singh, Advs. for the Respondents.\n\nJudgment / Order of the Supreme Court\n\nJudgment\n\nC.T. Ravikumar, J.\n\n1.  This  appeal  is  against  the  judgment  of  acquittal  dated  31.01.2013 \npassed by the High Court of Madhya Pradesh at Gwalior in Criminal \nAppeal  No.  602  of  1998  in  reversal  of  the  judgment  of  conviction \nrecorded against the appellants therein viz., the respondents herein, \nby the Court of Additional Sessions Judge, Sironj in Sessions Trial \nNo. 320 of 1996 dated 28.10.1998.\n\n2.  Heard learned counsel for the appellant State and learned counsel \nfor  the  respondents,  the  convicts  who  were  acquitted  by  the  High \nCourt vide the impugned judgment.\n\n3.  The case of the prosecution, in succinct, was as under: -\n\n‘On  01.10.1996,  at  about  1.00  pm,  the  respondents  herein  viz., \nRamjan  Khan,  Musaf  Khan  @  Musab  Khan  and  Habib  Khan,  by \ncutting/beating with sickle, axe and stick caused death of Naseem \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1879\n\nKhan,  near  the  village  well  of  Karaikheda  and  thereby  committed \nthe crime punishable under Section 302 read with Section 34, of the \nIndian Penal Code (for short the ‘IPC’).’\n\n4.  As mentioned above, the respondents herein were tried by the Court \nof Additional Sessions Judge, Sironj. The prosecution had examined \n19 witnesses including Haseen Khan (PW-5) and Farid Khan (PW-\n9), who  are the real brothers of deceased  Naseem Khan and eye \nwitnesses. Documentary evidence including the postmortem report \nprepared by Dr. S.S. Thakur (PW-1) were tendered by the prosecution. \nOn the side of the defence two witnesses were examined. \n\n5.  The  trial  Court  relied  on  the  oral  testimonies  of  PW-5  and  PW-9, \nthe minor brothers of the deceased besides the testimony of PW-8, \nthe mother of the deceased who happened to be the informant and \nthe further found that the ocular evidence got corroboration from the \nmedical evidence, to enter conviction on the appellants for having \ncommitted murder of Naseem Khan. Consequently, the respondents \nherein were sentenced to undergo imprisonment for life and to pay a \nfine of Rs. 35,000/-. The respondents herein, the convicts preferred \nappeal  jointly,  against  the  judgment  of  conviction  for  the  offence \npunishable under Section 302, IPC read with Section 34, IPC and \nthe life sentence imposed therefor, the High Court acquitted them of \nthe offences with which they were charged and allowed the appeal \nin the impugned judgment of acquittal.\n\n6.  Before dealing with the rival contentions raised before us, we think \nit only appropriate to refer to some of the relevant decisions of this \nCourt laying law in regard to appeal against acquittal. It is true that the \njudgment of acquittal was passed after setting aside the judgment of \nconviction passed against the respondents herein by the trial Court.\n\n7. \n\nIn  the  decision  in  Jai  Karan  &  Ors.  v.  State  of  U.P.1  this  Court \nheld that where the trial Court and the High Court had concurrently \nfound  the  accused  guilty,  the  Supreme  Court  would  not  scrutinize \nthe evidence once again, unless there has been a total miscarriage \nof  justice.  We  may  hasten  to  add  here  that  this  Court  may  have \nto  re-appreciate  evidence  in  cases  where  a  prima  facie  perverse \nappreciation  of  evidence  is  brought  out,  even  in  such  cases.  We \nshall also not be understood to have held that merely because the \n\n1 \n\n[2003] Supp. 4 SCR 995 : (2003) 12 SCC 655\n\nThe State of Madhya Pradesh v. Ramjan Khan & Ors.\f1880 \n\n[2024] 10 S.C.R.\n\ntrial Court and the High Court have rendered divergent findings, this \nCourt should invariably scrutinize the evidence once again and in that \nregard this Court should entertain an appeal. In an appeal, against \nconviction in murder case under Section 374 of the Code of Criminal \nProcedure (for short the ‘Cr.P.C.’), a proper analysis of the evidence \nand accepting or rejecting, the appreciation of evidence by the trial \nCourt must reflect in the judgment of the High Court. In other words, \nthe disposal of the appeal under Section 374, Cr.P.C., shall not be \nby cryptic or non-reasoned order. In the decision in Govindaraju v. \nState  by  Sivaramapuram  PS,2  this  Court  held  that  a  very  vital \ndistinction  has to be kept in mind while dealing  with  appeal under \nSection 374, Cr.P.C., that interference would be justifiable only when \ndistinction is kept between perversity in appreciation of evidence and \nmere  possibility  of  another  view.  Furthermore,  it  was  held  therein \nthat it would not be appropriate for the High Court to merely record \nthat the judgment of the trial Court was perverse without specifically \ndealing with the facets of perversity relating to the issues of law and/\nor  appreciation  of  evidence,  as  otherwise  such  observation  of  the \nHigh Court would not be sustainable in law.\n\n8.  Having  taken  note  of  the  position  settled  thus  we  may  add  that \nwhen  the  High  Court  acquitted  the  convict(s)  in  the  appeal  filed \nunder Section 374, Cr.P.C., in reversal of conviction, by granting the \nbenefit of doubt after a proper appreciation of evidence interference \nis  permissible  and  justifiable  only  if  it  is  infected  with  perversity  in \ntroth, the prosecution was not successful in establishing the guilt of \nthe accused beyond reasonable doubt. In the decision in State of \nU.P.  v.  Dharmaraj  and  Anr.,3  which  involved  a  challenge  against \na  judgment  of  acquittal  in  a  murder  case  by  the  High  Court,  this \nCourt held that when on facts the view taken by the High Court was \na reasonably possible view, though not the only view that could be \ntaken, interference with acquittal would be uncalled for. \n\n9.  Bearing  in  mind  the  aforesaid  decisions  and  the  fact  that  the  trial \nCourt  and  the  High  Court  are  at  issue  on  the  question  whether \nthe respondents are guilty in the case on hand, we will proceed to \nconsider  the  captioned  appeal.  Obviously,  the  trial  Court  relied  on \n\n2 \n\n3 \n\n[2012] 5 SCR 67 : (2012) 4 SCC 722\n\n(2003) 9 SCC 39\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1881\n\nthe oral testimonies of PWs 5, 8 and 9 whereas in the appeal the \nHigh Court found the oral evidence of PWs 5, 8 and 9 as unreliable.\n\n10.  Before  dealing  with  the  oral  testimonies  of  the  minor  brothers  of \nthe deceased (PWs 5 and 9), we will deal with the oral evidence of \nPW-8, the mother of the deceased. She is the informant at whose \ninstance FIR No.78/96 was registered against the respondents herein. \nThough she was believed by the trial Court, on re-appreciation the \nHigh Court found her unreliable owing to the material improvements \nand omissions made while being examined as PW-8. It was brought \nout  while  being  cross-examined  that  she  had  not  deposed  at  all \nabout a dying declaration made to her by the deceased son. Before \nanalysing  her  evidence  further,  it  is  not  inappropriate  to  refer  to  a \nfew decisions having bearing on her testimony. \n\n11.  FIR is not an encyclopedia disclosing all facts and details relating the \nentire  prosecution  case.  (See  the  decisions  in  Superintendent  of \nPolice, CBI & Ors. v. Tapan Kumar Singh;4 State of UP v. Naresh \n& Ors.;5 Lalitha Kumari v. Government of UP & Ors.,6 and Amish \nDevgan v. UOI & Ors.7).\n\n12. \n\nIt is true that the aforementioned decisions would undoubtedly reveal \nthe  position  that  an  FIR  is  not  meant  to  be  a  detailed  document \ncontaining chronicle of all intricate and minute details.\n\n13.  Even  after,  referring  to  the  decisions  mentioned  above,  we  think \nit equally relevant to refer to the decision of this Court in Dharma \nRama Bhagare v. State of Maharashtra.8 It was held therein thus: -\n\n\"The first information report, it may be pointed out, is never \ntreated as a substantive piece of evidence. It can only be \nused for corroborating or contradicting its maker when he \nappears in court as a witness.”\n\n14.  There  can  be  no  doubt  with  respect  to  the  position  that  the  prime \nobject  of  FIR,  from  the  point  of  view  of  the  informant  is  to  set  the \ncriminal law in motion and from the point of the investigating authorities \n\n4 \n\n5 \n\n6 \n\n7 \n\n8 \n\n[2003] 3 SCR 485 : (2003) 6 SCC 175\n\n[2011] 4 SCR 1176 : (2011) 4 SCC 324\n\n[2013] 14 SCR 713 : (2014) 2 SCC 1\n\n[2020] 14 SCR 198 : (2021) 1 SCC 1\n\n[1973] 3 SCR 92 : (1973) 1 SCC 537\n\nThe State of Madhya Pradesh v. Ramjan Khan & Ors.\f1882 \n\n[2024] 10 S.C.R.\n\nis to obtain information about the alleged activity so as to enable to \ntake suitable steps to trace and book the guilty. Thus, it can be said \nthat FIR is an important document, though not a substantial piece of \nevidence, and may be put in evidence to support or contradict the \nevidence of its maker viz., the informant. Whether the omission(s) \nis one which seriously impeaches the credibility of the witness and \nis  sufficient  to  reject  the  testimony  of  the  informant  would  depend \nupon the question whether it is of an important fact and whether that \nfact was within the knowledge of the informant, going by the case \nof prosecution unraveled through the witness concerned.\n\n15.  Thus,  the  position  with  respect  to  FIR  is  clear  from  the  decisions \nreferred supra that even though it is not meant to be an encyclopedia \ncontaining  chronicle  of  all  intricate  and  minute  details,  it  could  be \nused to corroborate its maker under Section 157 of the Evidence Act \nor to contradict its maker viz., the informant under Section 145 of the \nEvidence Act to establish whether he is a trustworthy witness or not. \n\n16.  Realising and recognizing the aforesaid position with respect to FIR \nwe  will  proceed  to  consider  whether  the  disinclination  on  the  part \nof  the  High  Court  to  rely  on,  rather,  treating  the  evidence  of  the \ninformant – PW8 as unreliable is justifiable and sustainable in law.\n\n17.  Through the evidence of PW8, the mother of the deceased, who is \nalso the informant, the prosecution has attempted to establish the \nexistence  of  an  oral  dying  declaration.  It  is  to  be  noted  that  dying \ndeclaration  itself  is  not  a  strong  piece  of  evidence  and  therefore, \nwhen  it  is  verbal  and  that  too,  allegedly  made  to  a  close  relative \n(in this case allegedly to the mother), evidence of mother about the \noral dying declaration was to be treated with care and caution. To \nshow that the trial Court dealt with the same without due care and \ncaution self- evident from paragraph 32 of the judgment of the Trial \nCourt, which reads thus: - \n\n\"32.  During  the  arguments,  ld.  Counsel  for  the  accused \nargued that complainant Sitara Bi has stated in her court \nstatement  that  when  she  reached  at  well,  at  that  time, \nher son Naseem Khan told her that all the three accused \nRamjan Khan, Musab Khan and Habib Khan have caused \nhis  murder  after  beating  him  with  sickle,  axe  and  lathi. \nThough,  this  fact  is  not  written  in  the  police  statement \nExh. D-3 of Sitara Bi that when he reached, at that time, \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1883\n\naccused Naseem had told her to be beaten by accused \npersons, even thereafter, I don’t find it proper to give it’s \nbenefit to the accused persons because I don’t find any \nreason to disbelieve the statement, which has been given \nby her before the court.”\n\n18.  Paragraph 42 of the judgment of the Trial Court carries the further \nrecital with respect to the aforesaid aspect and it, in so far as relevant, \nreads thus: - \n\n\"42… Sitara Bi (PW-8) has stated in para-5 of her cross-\nexamination  that  if  the  police  has  not  written  the  fact  of \ngoing of Farid Khan and Haseen Khan alongwith Naseem \nKhan for bathing is not written in the police statement of \nExh. D-3, then, she cannot tell its reason. Similarly, when \ncomplainant  Sitara  Bi  reached  on  the  spot,  at  that  time, \nNaseem Khan was lying on the ground and Naseem Khan \ntold her that accused have beaten him. If, this fact is also \nnot  written  in  her  police  statement,  then  she  cannot  tell \nits reason...”\n\n19.  The Judgment of the Trial Court would reveal that after considering \nthe  aforesaid  aspect  in  such  a  light  manner,  believing  the  oral \nevidence  of  PW8  as  well,  the  Trial  Court  arrived  at  the  finding \nthat accused Ramjan Khan had beaten Naseem Khan with sickle, \naccused Musab had beaten him with bamboo lathi (equipped with \nFarsa) and accused Habib inflicted axe blow on Naseem Khan and \nthereby caused his murder.\n\n20.  The undisputed and indisputable position obtained from the evidence \non  record  is  that  the  defence  had  brought  out  that  neither  in  Ext. \nP12 FIR nor in Ext. D3 statement of PW8 recorded under Section \n161,  Cr.P.C.,  PW8  stated  about  the  oral  dying  declaration  made \nto  her  by  the  deceased.  That  apart,  the  prosecution  had  failed \nto  establish  that  when  PW8  reached  the  place  of  occurrence  the \ndeceased was in a fit state of mind to speak or talk relevantly. Except \nthe statement of PW8 in the Court there is no scrap of evidence in \nthat regard in the case on hand. As a matter of fact, on this aspect \nnothing  was  brought  out  from  PW5  and  PW9  or  from  any  other \nwitnesses. There can be no doubt that oral dying declaration should \nbe of such a nature as to inspire full confidence of the court in its \ncorrectness. In the contextual situation revealed as above, we have \n\nThe State of Madhya Pradesh v. Ramjan Khan & Ors.\f1884 \n\n[2024] 10 S.C.R.\n\nno  hesitation to hold that the  High Court was perfectly justified in \nconsidering the oral testimony  of PW8 and taking serious note of \nthe serious omission brought out from her, on being confronted with \nExt. P12 FIR and Ext. D3, which is her previous statement made to \npolice, that she had not stated anything about such an oral dying \ndeclaration made by her deceased son. The High Court also took \nnote of the fact that neither PW5 nor PW9 had spoken about any \nsuch oral dying declaration made by the deceased brother to their \nmother-  PW8. Add  to  it,  the  oral  testimony  of  PW8  would  reveal \nthat while being examined-in-chief she deposed what Haseen Khan \n(PW5) and Fareed Khan (PW9) divulged to her. She would depose: \n“When my sons Fareed Khan and Haseen Khan told me at home \nthat accused persons have killed Naseem Khan then I reached the \nplace of incident.” \n\n(underline supplied)\n\n21. \n\nIn this context, it is also relevant to refer to her oral evidence while \nbeing cross-examined. She deposed thus on being cross-examined: - \n\n“It is incorrect to say that Fareed and Haseen did not tell \nme that accused persons have killed Naseem.\"\n\n22.  The  oral  testimony  of  PW-8  would  further  go  to  show  that  with \nrespect to the attack allegedly done by the three accused persons \nviz.,  the  respondents  herein  on  her  deceased  son  Naseem  Khan, \nher evidence is nothing but ‘hearsay evidence’ as according to her \nshe was told about their attack on Naseem Khan only by her sons, \nPW-5 and PW-9 and there is no case for the prosecution that she \nhad witnessed the respondents herein attacking Naseem Khan.\n\n23.  A scanning of the oral testimony of PW-8 would show that on many \nother materials points the defence could brought out, upon confronting \nher  with  Ext.P12-FIR,  Ext.D3-previous  statement,  various  serious \nomissions. About her statement in Court that PW-5 and PW-9 went \nalong with deceased Naseem Khan on 01.10.1996 for taking bath \nnothing  was  seen  recorded  in  Ext.D3. As  noted  earlier,  as  to  the \nalleged oral dying declaration made to her by the deceased from the \nplace of occurrence after sustaining injuries nothing was recorded \nin  Ext.P12-FIR  as  also  in  Ext.D3. Though  she  deposed  that  upon \nseeing her Ramjan, Musaf Khan and Habib Khan ran away from the \nplace of occurrence this fact was not recorded in Ext.D3. So also, \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1885\n\nabout the attack by the accused persons on deceased Naseem Khan \nthough she deposed that PW-5 and PW-9 told her and in turn she \ntold such facts to police they were not recorded in Ext.D3. She would \ndepose that she got no enmity with the family of accused persons \nand got no dispute in respect of land. In view of the aforementioned \naspects revealed from the testimony of PW-8 which were not given \ndue  weight  by  the  trial  Court  while  considering  whether  PW-8  is \nreliable  or  not,  we  are  of  the  considered  view  that  the  High  Court \nhad rightly given due consideration to all such aspects and ultimately \ndiscredited her testimony. \n\n24.  Before  considering  the  oral  testimonies  of  the  witnesses  claimed \nby  the  prosecution  as  eye  witnesses,  it  is  to  be  noted  that  with \nrespect to the nature of death of Naseem Khan there is actually no \ncleavage in the findings of the trial Court and the High Court. The \nconcurrent finding is that it is culpable homicide amounting to murder. \nThe necroscopical evidence consists of the oral testimony of PW-1,  \nDr. S.S. Thakur, and the postmortem report prepared and proved by \nhim as Ext.P1. Going by the said necroscopical evidence the following \nantemortem injuries were present on the body of the Naseem Khan: -\n\n\"1.  A punctured wound measuring ½ inch x ½ inch on \nthe left side of face, clotted blood was present.\n\n2.  An  incised  wound  measuring  1  inch  x  ½  inch  on \nthe ½, 1/3 portion back side of left wrist, which was \nhaving the clotted blood. \n\n3.  An incised wound measuring 3 inch x ½ inch x deep \nto bone, margin on the occipital region of head having \nclotted blood. \n\n4.  An incised wound measuring 3 inch x. ½ inch x deep \nbone,  on  the  frontal  region  of  head,  having  clotted \nblood. \n\n5.  An  incised  wound  measuring  3  x  ½  inch  x  dee  on \nthe temporal region of left side of head, in which the \nclotted blood was present.”\n\n25.  PW-1 opined that all the aforesaid injuries except injury Nos.1 and 2 \nwere sufficient in the ordinary course of nature to cause death and \nthat the cause of death was comma as a result of head injuries. In \n\nThe State of Madhya Pradesh v. Ramjan Khan & Ors.\f1886 \n\n[2024] 10 S.C.R.\n\nshort,  in  view  of  the  necroscopical  evidence  as  above  the  Courts \nwere  perfectly  right  in  holding  that  the  death  of  Naseem  Khan  is \nculpable homicide amounting to murder.\n\n26.  Now,  the  surviving  question  is  only  whether  the  prosecution  had \nsucceeded in establishing conclusively beyond any reasonable doubt \nthat the culprits for the murder of Naseem Khan, are the respondents \nherein as held by the trial Court or whether they are entitled to the \nbenefit  of  doubt  and  consequential  acquittal  as  held  by  the  High \nCourt. In the decision in Anil Phukan v. State of Assam,9 this Court \nheld that conviction could be based on testimony of a single witness \nprovided his testimony is found reliable and inspires confidence. In the \ndecision in Chandu Bhai Shana Bhai Parmar v. State of Gujarat,10 \nthis Court held that when the ocular evidence in a murder case is \nunreliable benefit of doubt to be given to all accused. \n\n27.  We have already held, for the reasons given earlier, that the High \nCourt  had  rightly  held  the  oral  testimony  of  PW-8  as  unreliable.  \nAs  a  matter  of  fact,  the  case  of  the  prosecution  is  that  Isab  Khan \n(PW-2), Haseen Khan (PW-5), Fareed Khan (PW-9), and Anees Khan \n(PW-17) had witnessed the incident that led to the death of Naseem \nKhan. In the light of the decisions in Anil Phukan’s case and Chandu \nBhai’s  case  (supra)  the  oral  testimonies  of  PWs  2,  5,  9  &  17  are \nto be appreciated to answer the aforementioned surviving question. \nPW-2 was declared hostile by the prosecution and concurrently his \nevidence was held unreliable. Though PW-17 also turned hostile, the \ntrial Court held that on that account the accused / the respondents \nherein  are  not  entitled  to  any  benefit  as  PW-5  and  PW-9  proved \nthe  fact  that  accused/the  respondents  herein  had  caused  murder \nof  Naseem  Khan  using  sickle,  danda  affixed  with  farsa,  and  axe. \nHowever, the High Court held the evidence of PW-17 as unreliable. \nThe High Court found that though PW-17 was declared hostile prior \nto  such  declaration  he  deposed  that  the  accused  Ramjan/the  first \nrespondent  herein  had  thrown  the  deceased  on  a  stone  boulder. \nHe had not deposed anything against the other accused / the other \nrespondents herein. The High Court found his testimony unreliable \nas according to him the first respondent Ramjan threw the deceased \n\n9 \n\n[1993] 2 SCR 389 : (1993) 3 SCC 282\n\n10  AIR 1982 SC 1022\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1887\n\n28. \n\non a stone boulder which caused head injuries, but that is not the \ncase of the prosecution at all and that apart he had stated so, for \nthe  first  time  only  in  the  Court.  In  that  regard  he  was  confronted \nwith  his  previous  statement  -  Ext.P22.  Besides  the  same,  there  is \nnothing in the opinion of PW-1, the Doctor who conducted autopsy \non the body of Naseem Khan, which would indicate that the head \ninjury was caused on account of the deceased being thrown on the \nstone  boulder.  When  that  be  the  nature  of  evidence  of  PW-17,  it \ncan only be held that the finding of the trial Court that the evidence \nof  PW-17  would  not  fetch  any  benefit  for  the  accused  cannot  be \nsustained. Hence, according to us, the High Court held his evidence \nunreliable correctly.\n\nIn  the  aforesaid  circumstances  the  question  is  with  respect  to  the \nreliability  on  the  oral  testimonies  of  PW-5  and  PW-9  who  are  the \nyounger brothers of deceased Naseem Khan. As noticed hereinbefore, \ntheir oral testimonies were held as reliable by the trial Court and at \nthe same time the High Court found their testimonies as unreliable. \nAt  the  outset,  it  is  to  be  noted  that  as  in  the  case  of  PW-8,  the \ndefence had succeeded in bringing out the fact that both PW-5 and \nPW-9 had omitted to mention certain material facts to police while \ntheir statements were recorded. The question is whether they were \nomissions tantamounting to discredit the said witnesses. PW-5, while \nbeing examined in chief, deposed to have seen Ramjan causing injury \nby  parena  (sickle),  Musaf  Khan  causing  injury  by  stick  and  Habib \ncausing injury by axe on his brother Naseem Khan. However, during \ncross-examination he would depose that regarding the infliction of \ninjuries by the respondents using the aforementioned weapons on \nNaseem Khan, he did not make any statement before the police and \nstated so for the first time before the Court. PW-2, Isab Khan, and \nPW-17, Anees Khan, are respectively the sons of Yaseem Khan and \nMohar Khan, who are the cousin brothers of Munne Khan, the father \nof  PWs  5  and  9. As  noticed  hereinbefore,  both  PW-2  and  PW-17 \ndid  not  support  the  case  of  the  prosecution.  High  Court  also  took \nnote of the fact that PW-5 did not depose that when he along with \nhis  mother (PW-8) reached the place of occurrence the deceased \nwas alive and gave oral dying declaration to PW-8.\n\n29.  While being cross-examined PW-9 deposed that he did not tell the \npolice that Ramjan with parena, Musaf Khan with farsa and, Habib \nKhan  with  axe  assaulted  his  brother  Naseem  Khan.  While  being \n\nThe State of Madhya Pradesh v. Ramjan Khan & Ors.\f1888 \n\n[2024] 10 S.C.R.\n\nexamined in chief he would depose that his mother was also beaten \nby  the  accused  persons.  It  is  to  be  noted  that  there  is  absolutely \nno such case even for PW-8, the mother of PW-9. As can be seen \nfrom  paragraph  6  of  his  oral  testimony  the  defence  had  brought \nout some other omissions and contradictions. The aforementioned \nomissions on the part of PWs 5 and 9 cannot be said to be minor \ncontradictions  to  be  taken  lightly  as  according  to  them  they  did \nnot name the accused persons in their previous statements made \nto  the  police.  Hence,  omissions  thus  brought  amount  to  material \ncontradiction which will go into the core of the prosecution case. Their \noral testimonies would reveal that they stated about the infliction of \ninjuries  on  Naseem  Khan,  their  elder  brother  by  the  respondents \nwith  the  weapons  mentioned  above  for  the  first  time  only  before \nthe  Court  while  being  examined.  That  apart,  it  is  to  be  noted  that \nthough  the  case  of  the  prosecution  is  that  both  PWs  5  and  9  had \ngone with deceased Naseem Khan for taking bath on the fateful day \nthe evidence of PW-8 would reveal that in her previous statement to \nthe police she had not disclosed the said fact to the police. In this \ncontext, it is relevant to note that the prosecution had not revealed, \nrather established, the genesis of the incident that led to the death \nof  Naseem  Khan.  In  other  words,  none  of  the  witnesses  including \nPWs 5 and 9 had deposed as to the genesis of the incident. This \nassumes relevance as PW-8 herself deposed that she got no enmity \nwith the families of the accused and got no land dispute with them. \nWhen this be the nature of the evidence of PWs 5 and 9 as also the \nevidence of PWs 2, 8 and 17, we are of the considered view that there \ncan be no good reason to hold that the prosecution had succeeded \nin conclusively proving the guilt of the accused/respondents herein \nbeyond reasonable doubt warranting displacement of the finding of \nthe High Court that in view of the omissions and contradictions, the \noral testimonies of the aforesaid witnesses are not reliable and the \nrespondents  herein  are  entitled  to  the  benefit  of  doubt.  We  have \nalready  taken  note  of  the  decision  in  Dharmaraj’s  case  (supra) \ninvolving  a  challenge  against  judgment  of  acquittal  in  a  murder \ncase  in  reversal  of  conviction  entered  against  the  accused  by  the \ntrial Court holding that if on facts the view taken by the High Court \nis a reasonable possible view, though not the only view that could \nbe taken, interference with acquittal would be uncalled for. In view \nof  the  nature  of  the  evidence  discussed  above  and  the  finding  of \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1889\n\nthe High Court that the respondents/accused are entitled to benefit \nof doubt and consequently for acquittal, we do not find any reason \nto hold that it is not a reasonably possible view though not the only \nview that could be taken. \n\n30.  The  long  and  short  of  the  above  discussion  is  that  we  are  not \ninclined  to  interfere  with  the  judgment  of  acquittal  passed  by  the \nHigh Court in Criminal Appeal No. 602 of 1998. Hence the appeal \nstands dismissed.\n\nResult of the case: Appeal dismissed.\n\n†Headnotes prepared by: Divya Pandey\n\nThe State of Madhya Pradesh v. Ramjan Khan & Ors.\f"}