MAHAVIR SINGHversusSTATE OF HARYANA

                        [2014] 6 ~.C.R. 370·


A                        MAHAVIR SINGH
                                 v.
                       STATE OF HARYANA
                (Criminal Appeal No. 2231 of 2010)
                           MAY 23, 2014
B
           [DR. B.S. CHAUHAN AND A.K. SIKRI, JJ.]

         Penal Code, 1860 - ss. 302, 1208 and 201 - Conviction
 ·. under - Prosecution case that accused and co-accused killed
C the deceesed at the instance of deceased's wife and threw
    away the body in the canal - Conspiracy among accused, co-
    accused and wife of the deceased to do away with the
    deceased - Wife acquitted but accused and co-accused
    convicted u/ss. 302, 1208 and 201 and senteneed
D accordingly by the courts below - On appeal, held: Courts
    below after appreciating the evidence on record rightly held
    the accused persons guilty of the offences - Chain of all the
    circumstantial evidence complete - No link missing and
    accused persons had an opportunity to commit the murder
E of the deceased - Evidence.

          Evidence - Last seen theory - When comes into play -
    Held: In a case where the time gap is small between the point
    of time when the accused and the deceased were seen alive
    and when the deceased was found dead.
F
       Evidence - Witness - Non-cross-examination on a
  particular issue - Effect of - Held: When question is not put
  to the witness in cross-examination who could furnish
  explanation on a particular issue, the correctness or legality
G of the said fact/issue could not be raised.

        According to the prosecution, it is alleged that co-
    accused 'JS' had illicit relationship with the wife of the
    deceased; and the appellant had a grudge on account of
H                               370
      MAHAVIR SINGH v. STATE OF HARYANA                37'1


the marriage of 'SR' with the deceased. The appellant and A
'JS' killed the deceased at the instance of deceased's wife ·
                                •
and threw away the body in the canal. PW 13-brother of
the deceased alongwith 'BS' filed a complaint alleging
that his brother who was missing for past few days, was
found dead· in the canal. FIR was lodged. Investigation B
was carried qut. The decea"sed's wife was acquitted of all
the charges; however, the appellant and 'JS' were
convicted sections 302 and 120 B and section 201 IPC
and sentenced accordingly. The High Court upheld the
order. Hence the instant appeal.                              c
    Dismissing the appeal, the. Court

    .HELD: 1.1. The chain of all the circumstantial
evidence is complete and no link is missing and the.
accused persons had an opportunity to commit the              D
murder of the deceased. Both the courts below after
appreciating the evidence on record held the appellant
guilty of the offences. [Paras 14, 15) [381-H; 382-A]

     1.2. There is ample evidence on record and               E
particularly the deposition of PW.6 that the appellant and
'JS', co-accused had been seen last alongwith deceased
on 21.6.1995. The dead body was recovered after several
days and post-mortem was conducted after about a week.
However, PW.1 opined that the deceased was murdered
                                                              F
one week prior to conducting the post-mortem. There is
no reason to disbelieve ·the said opinion. In such a fact-
situation, it is evident that deceased has been done away
in close proximity of time of last seen. None of the
accused could furnish any explanation in their statement
under Section 31.3 of the Code of Criminal Procedure,         G
1973 as where did they drop him or where he had gone.
In fact, PW.8, mother of deceased had deposed that PW.9,
a family member had last seen deceased with the
appellant and 'JS', co-accus~d on 21.6.1995. The
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    372 ·   SUPREME COURT REPORTS            [2014] 6 $;C.R.


A appellant and his younger brother have assaulted the
  deceased with a lathi and a matter was reported to the
  police. She further deposed about the illicit relation
  between her daughter-in-law and 'JS', co-accused. [Para
  7) [377-G-H; 378-A-D]
B
       1.3. As per the medical report, there were various
  grievous injuries on the neck and scalp of the deceased.
  There were multiple fractures on skull of the body of
  deceased. [Para 8) [378-F]

C      1.4. The recovery was made vide Exhibits, and in th~
  presence of the witnesses. At the disclosure statement'
  of co-accused, 'JS' and the appellant the recovered
  material contained the chappal of deceased, blood
  stained shirt and pant of appellant. The said clothes were
D sent for FSL and as per the report it contained human
  blood. Blood was also found on Hexa blade, frame of Aari
  (saw). [Para 9) (378-G-H; 379-8)

       1.5. Last seen theory comes into play only in a case
E where the time gap is small between the point of time
  when the accused and the deceased were seen alive and
  when the deceased was found dead. Since the gap is
  very small there may not be any possibility that any
  person other than the accused may be the author of the
F crime. On examination of the medical report minutely, it
  becomes evident that the deceased had been murdered
  one week "prior to the post mortem. Thus, it becomes
  evident that he had been killed in a very proximity of time
  when the deceased was seen alive with the appellant and
  'JS'. [Para 10) [379-C-E]
G
       1.6. There had been some discrepancies in the
  inquest report as well as in the depositions of the
  witnesses. However, no material contradictions were
  brought to notice. Minor discrepancies are bound to
H occur in every case. [Para 10] [l79-F] ·                 ·
       MAHAVIR SINGH v. STATE OF HARYANA                373


     A. Shankar v. State of Karnataka AIR 2011 SC              A
2302:2011 (6) SCR 999; State of Rajasthan v. Rajendra
Singh AIR 1998 SC 2554:2009 (11) sec 106; State
Represented by Inspector of Police v. Saravanan AIR 2009
SC 152:2008 (14) SCR 405; Arumugam v. State, AIR 2009
SC 331:2008 (14) SCR 309; Mahendra Pratap Singh v. State       B
of Uttar Pradesh (2009) 11 SCC 334:2009 (2) SCR 1033;
Vijay alias Chinee v. State of M.P. (2010) 8 SCC 191:2010
(8) SCR 1150; State of U. P. v. Naresh & Ors. (2011) 4 SCC
324:2011 (4) SCR 1176; Brahm Swaroop v. State of U.P. AIR
2011 SC 280:2010 (15) SCR 1; Dr. Su nil Kumar                  C
Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC
657:2010 (15) SCR 452 - relied on.·
                                  .
      1.7. In case the question is not put to the witness in
 cross-examination who could furnish explanation on a
 particular issue, the correctness or legality of the said     D
~fact/issue could not be raised. In the instant case, on
 going through the cross-examination of witnesses who
 could furnish an explanation for the discrepancies, it is
 concluded that the defence had never put any question
 in these regards to PW.15, the Investigating Officer or       E
 PW.11, ASI or any other material witness who could
 furnish the explanation for the same. (Paras 13, 14] (381·
 E-G]

    Atluri Brahmanandam (D) Thr. LRs. v. Anne Sai Bapuji       F
AIR 2011 SC 545: 2010 (14) SCR 339; Laxmibai (dead) Thr.
L.Rs. & Anr. v. Bhagwantbuva (dead) Thr. L.Rs. & Ors, AIR
2013 SC 1204: 2013 (1) SCR 632 - relied on.
                     Case Law Reference:
                                                               G
     AIR 2011 SC 2302        Relied on             Para 11
     AIR 1998 SC 2554        Relied on            Para 11
     AIR 2009 SC 152         Relied on            Para 11
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    374       SUPREME COURT REPORTS               [2014] 6 S.C.R.


A         AIR 2009 SC 331          Relied on             Para 11

          (2009) 11 sec 334        Relied on             Para 11

          (201 O) a sec 191        Relied on             Para 11
          (2011 > 4 sec 324        Relied on             Para 11
B
          AIR 2011 SC 280          Relied on             Para 11

          (2010) 13 sec 657        Relied on             Para 11
          AIR 2011 SC 545          Relied on             Para 13
c
          AIR 2013 SC 1204         Relied on             Para 13

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2231 of 2010.

D       From the Judgment and Order dated 20.01.2010 in CRL
    Appeal No. 499-DB of 2001 of the High Court of Punjab &
    Haryana at Chandigarh.

          Sanjay Sharawat, Balraj S. Malik for the Appellant.
E       Nupur Choudhary, Samir Ali Khan, Sanjay Jain for the
    Respondent.

          The Judgment of the Court was delivered by

F         DR. B.S. CHAUHAN,J. 1. This appeal has been preferred
  against the impugned judgment and order dated 20.1.2010,
  passed by the High Court of Punjab & Haryana at Chandigarh
  in Criminal appeal No.499-DB of 2001, affirming the judgment
  and order of the learned Additional Sessions Judge, Panipat
G dated 4.9.2001/7.9.2001, passed in Sessions Trial No.49 of
  2000 by which and whereunder the appellant alongwith one
  Jagbir Singh stood convicted under Sections 302 and 1208
  of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC')
  and sentenced to imprisonment for life and a fine of Rs.5,000/
H
       MAHAVIR SINGH v. STATE OF HARYANA                  375
              [DR. B.S. CHAUHAN, J.]
- each. They had further been convicted under Section 201 IPC A
and sentenced to undergo two years RI and a fine of Rs.1,000/
- each. In default of payment, further undergo RI of six months.

    2. Facts and circum.stances giving rise to this appeal are:
                                                                 8
     A. That one Ram Chander (PW.13), brother of Suraj Mal
(since deceased) alleged that his brother Suraj Mal was
missing from 21.6.1995 and his dead body was found on
26.6.1995 floating in the canal after recovery of his chappal on
the path to canal near the bridge. Initially, the report in this C
respect was lodged on 25.6.1995 as a missing person by the
mother of the deceased, namely, Smt. Bharto Devi (PW.8) at
Police Station, Mathlauda, Panipat. On 28.6.1995, an FIR was
lodged at 8 A.M. under Sections 302/201/1208/34 IPC on the
basis of complaint made by Shri Ram Chander (PW.13), D
brother of deceased alongwith one Balbir Singh who had also
gone to search the deceased on a motorcycle and that on
reaching canal bridge of Kavi village, they saw one chappal,
one saw, two pieces of blade, some blood and two pieces of
meat lying on the path and the dead body lying on the surface E
of the river.

      B. Pursuant to the registration of F,IR, the matter was
investigated and during investigation it is alleged that Jagbir
Singh, co-accused had illicit relationship with Sudesh Rani
(wife of deceased) and deceased's wife was also involved and F
all of them had conspired to remove the deceased from the way.
The appellant also had a grudge on account of marriage of
Sudesh Rani with the deceased and there had also been
incident of "maar peet" between them and some cases are
pending also. Thus, investigation revealed that the deceased G
was killed on intervening night of 21.6.1995/22.6.1995 by the
appellant and Jagbir Singh, co-accused at the instance of
Sudesh Rani and threw away the dead body in the canal.

    C. After conclusion ofthe investigation, a chargesheet was    H
    376       SUPREME COURT REPORTS                [2014] 6 S.C.R.


A   filed under Sections 302/201/1208 IPC against the appellant,
    Jagbir Singh, co-accused and Sudesh Rani. The proceedings
    were committed to the Sessions Court and charges were
    framed vide order dated 17.1.1996.

B        D. To prove its case, the prosecution examined 15
    witnesses and on conclusion of the trial, the learned Sessions
    Judge, Panipat convicted the appellant alongwith Jagbir Singh,
    co-accused for the offences referred to hereinabove and
    sentenced them accordingly. However, Sudesh Rani was
c   acquitted of all the charges.

        E. Aggrieved, the appellant filed Criminal Appeal No.499-
    DB of 2001 before the High Court while Jagbir Singh, co-
    accused filed Criminal Appeal No.520-DB of 2001. Both the
    appellants were heard together and their appeals had been
0   dismissed by way of impugned judgment and order.

          Hence, this appeal.

          3. So far as co-accused Jagbir Singh is concerned, he has
E   filed separate appeal in this court, i.e. Criminal Appeal No.2232
    of 2010, but his advocate refused to argue the case. So we
    have adjourned the matter to be .heard in ordinary course. In
    such a fact-situation, the appeal of Mahavir Singh - appellant
    is heard.
F
        4. Shri Sanjay Sharawat, learned counsel appearing for
  the appellant has submitted that there could be no motive for
  committing the offence so far as the appellant is concerned. It
  was alleged that co-accused Jagbir Singh has developed illicit
G relations with the wife of deceased. The courts below committed
  an error in applying the las.t seen theory. There is evidence on
  record to the extent that the appellant and Jagbir Singh, co-
  accused had been in the company of deceased on 21.6.1995,
  but the missing person report. was lodged on 25.6.1995, and
H
      MAHAVIR SINGH v. STATE OF HARYANA                  377
             [DR. S.S. CHAUHAN, J.]
an FIR had been lodged at a subsequent stage i.e. on             A
27.6.1995. When there is such a long gap in the last seen and
the recovery of the dead body, such a doctrine has no
application whatsoever. The recovery of the clothes of the
appellant as well as other incriminating material had not been
proved in accordance with law. No independent witness had        B
been examined. Therefore, the appeal deserves to be allowed.

      5. Per contra, Ms. Nupur Choudhary, learned counsel for
the respondent has opposed the appeal contending that there
was sufficient motive on the part of the appellant's also as the c
appellant's family was not happy with the marriage of Sudesh
Rani with the deceased as she belonged to their original village
and earlier there had been criminal case between the parties
wherein the appellant had thrashed the family of the deceased.
As far as the question of missing independent witness is D
concerned, no question has been put to the Investigating Officer
in this regard. Had such an issue been raised he ought to have
fur{lished some explanation. Not only the recovery of
incriminating material, but the clothes of the appellant had been
recovered beneath the canal bridge on the basis of disclosure E
statement made by the appellant himself. The concurrent
findings recorded by two courts below do not warrant ~ny
interference. Thus, the appeal is liable to be dismissed.

     6. We have considered the rival submissions made by         F
learned counsel for the parties and perused the record.

     7. There is ample evidence on record and particularly the
deposition of Jai Singh (PW.6) that the appellant and Jagbir
Singh, co-accused had been seen last alongwith deceased on
21.6.1995. The dead body was recovered after several days G
and post-mortem was conducted after about a week. However,
Dr. P.K. Dhaliwal (PW.1) had opined that the deceased was
murdered one week prior to conducting the post-mortem. We
do not see any reason to disbelieve the said opinion. In such
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    378      SUPREME COURT REPORTS                [2014] 6 S.C.R.


A   a fact-situation, it is evident that deceased has been done away
    in close proximity of time of last seen. None of the accused
    could furnish any explanation in their statement under Section
    313 of the Code of Criminal Procedure, 1973 (hereinafter
    referred to as 'Cr.P.C.') as where did they drop him or where
B   he had gone. In fact, Bharto Devi (PW.8), mother of deceased
    had deposed that one Nafe Singh (PW.9) had last seen
    deceased with the appellant and Jagbir Singh, co-accused on
    21.6.1995. Nafe Singh (PW.9) was' a family member of
    deceased family and he had informed Bharto Devi (PW.8) that
C   the deceased was seen with them. Mahavir Singh, appellant
    and his younger brother have assaulted Suraj Mal, deceased
    with a lathi and a matter was reported to the police. She has
    further deposed about the illicit relation between her daughter-
    in-law and Jagbir Singh, co-accused. The actual narration
D   about the last seen as per Bharto Devi (PW.8) had been that
    Suraj Mal (deceased) had gone with Nafe Singh (PW.9) for
    irrigating the agricultural land, however, he returned alone. On
    being asked by Bharto Devi (PW.8), Nafe Singh (PW.9) replied
    that Suraj Mal (deceased) had been talking with Jagbir Singh
E   and Mahavir Singh at the outskirt of the village and in the
    morning when deceased did not return, she called Jagbir Singh
    and she was told by him that there was strike and Suraj Mal
    was taken away by the police alongwith others, so, it may take
    some time for him to come back.
F
          8. As per the medical report, there were various grievous
    injuries on the neck and scalp of the deceased. There were
    multiple fractures on skull of the body of deceased.

G        9. So far as recovery is concerned, it was made vide
    Ex.PM, Ex.PN, Ex.PQ, Ex.PR and in the presence of the
    witnesses. At the disclosure statement of co-accused, Jagbir
    Singh and the appellant the recovered material also contained
    the chappal of deceased, blood stained shirt and pant of
H   appellant which were found in a polythene under the bridge in
       MAHAVIR SINGH v. STATE OF HARYANA                     379
              [DR. B.S. CHAUHAN, J.]
Bhusalana Road on 3.7.1995. Again in Ex.PL there was                A
another recovery memo of blood stained clothes of Mahavir
Singh hidden up near the village in a pulia which had been
recovered on his own disclosure statement. The said clothes
were sent for FSL and as per the report it contained human
blood. Blood was also found on Hexa blade, frame of Aari            B
(saw) and traces of blood were also found on the pant
recovered at the instance of the appellant.

     10. Undoubtedly, it is a seUled legal proposition that last
seen theory comes into play only in a case where the time' gap      c
between the point of time when the accused and the deceased
                       1
were seen alive and when the deceased was found dead.
Since the gap is very small there may not be any possibility that
any person other than the accused may be the author of the
crime. In the instant case, if we examine the medical report        o
minutely, it becomes evident that ttie deceased Suraj Mal had
been murdered one week prior to the post mortem. Thus, it
becomes evident that he had been killed in a very proximity of
time when the deceased was seen alive with the appellant and
Jagbir Singh, co-accused.                                           E

     It has been pointed out that there had been some
discrepancies in the inquest report as well as in the depositions
of the witnesses. However, no material contradictions could be
brought to our notice. Minor discrepancies are bound to occur
                                                                    F
in every case.

    11. This Court in A Shanker v. State of Karnataka, AIR
2011 SC 2302 held:

     "17. In all criminal cases, normal discrepancies are           G
     bound to occur in the depositions of witnesses due to
     normal errors of observation, namely, errors of memory
     due to lap.se of time or due to mental disposition such
     as shock and horror at the time of occurrence. Where the
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    380        SUPREME COURT REPORTS                 [2014] 6 S.C.R.


A         omissions amount to a contradiction, creating a serious
          doubt about the truthfulness of the witness and other
          witnesses also make material improvement while
          deposing in the court, such evidencfi cannot be safe to
          rely upon.         However,        minor contradictions,
B         inconsistencies, embellishments or improvements on
          trivial matters which do not affect the core of the
          prosecution case, should not be made a ground on which
          the evidence can be rejected in its entirety. The court has
          to form its opinion about the credibility of the witness and
C         record a finding as to whether his deposition inspires
          confidence. "Exaggerations per se do not render the
          evidence brittle. But it can be one of the factors to test
          credibility of the prosecution version, when the entire
          evidence is put in a crucible for being tested on the
D         touchstone of credibility." Therefore, mere marginal
          variations in the statements of a witness cannot be
          dubbed as improvements as the same may be
          elaborations of the statement made by the witness
          earlier. "Irrelevant details which do not in any way corrode
E         the credibility of a witness cannot be labelled as
          omissions or contradictions." The omissions which
          amount to contradictions in material particulars, i.e.,
          materially affect the trial or core of the prosecution's case,
          render the testimony of the witness liable to be
F         discredited. Where the omission(s) amount to a
          contradiction, creating a serious doubt about the
          truthfulness of a witness and other witness also make
          material improvements before the court in order to make
          the evidence acceptable, it cannot be safe to rely upon
G         such evidence.

      (See also: State of Rajasthan v. Rajendra Singh, AIR
  1998 SC 2554; State Represented by Inspector of Police v.
  Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR
H 2009 SC 331; Mahendra Pratap Singh v. State of Uttar
      MAHAVIR SINGH v. STATE OF HARYANA                        381
             [DR. B.S. CHAUHAN, J.]
Pradesh, (2009) 11 SCC 334; Vijay alias Chinee v. State of             A
M.P., (2010) 8 SCC 191; State of UP. v. Naresh & Ors.,
(2011) 4 SCC 324; Brahm Swaroop & Anr. v. State of UP.,
AIR 2011 SC 280; and Dr. Sunil Kumar Sambhudaya/ Gupta
& Ors. v. State of Maharashtra, (2010) 13 SCC 657).
                                                                       B
    In view of the above, we do not see any force in the
submissions so advanced on behalf of the appellant.

     12. A large number of issues have been raised by learned
counsel for the appellant particularly that independent witness        C
had not been examined. Various issues have been raised
regarding recovery of crothes of Suraj Mal, recovery of V-
shaped chappals, serious discrepancies in the inquest report
and recovery of the cloth of the appellant. In the trial court, no
question had been put to Ramphal (PW.15), the Investigating
                                                                       0
Officer or Lakhpal Singh (PW.11 ), ASI or any other material
witness who could furnish explanation for such discrepancies.

     13. It is a settled legal proposition that in case the question
is not put to the witness in cross-examination who could furnish
explanation on a particular issue, the correctness or legality of      E
the said fact/issue could not be raised. (Vide: Atluri
Brahmanandam (D}, Thr. LRs. v. Anne Sai Bapuji, AIR 2011
SC 545; and Laxmibai (dead) Thr. L. Rs. & Anr. v.
Bhagwantbuva (dead} Thr. L.Rs. & Ors., AIR 2013 SC 1204).
                                                                       F
     14. In the instant case, we had gone through the cross-
examination of witnesses who could furnish an explanation for
the discrepancies pointed out by learned counsel for the
appellant. Ho_wever, we came to the conclusion that the defence
had never put any question in these regards to the material            G
witness who could furnish the explanation for the same. So the
chain of all the circumstantial evidence is complete and no link
is missing and the accused persons had an opportunity to
commit the murder of the deceased.
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    382          SUPREME COURT REPORTS           [2014) 6 S.C.R.


A        15. Both the courts below after appreciating the evidence
    on record held the appellant guilty of the offences.

         In view of the above, the appeal is devoid of merit and it
    is accordingly dismissed.

B   Nidhi Jain                                     Appeal dismissed.