Holding

Minor variations in witness testimony do not undermine the trustworthiness of the evidence, and the non‑production of the seizure list did not prejudice the accused, so the conviction under IPC s.302 stands.

Summary

The appellants Sukhdev Yadav and others were convicted under IPC s.302 for the murder of Ram Dev Singh Mukhiya. The prosecution relied on five eye‑witnesses who placed the incident near Mahavir Modi's house, a mango tree, or a field, while a defence witness claimed a different location. The appellants argued that these variations created a material divergence that should have vitiated the prosecution case, and also contended that the non‑production of the seizure list prejudiced the trial. The Supreme Court held that minor discrepancies in witness testimony do not render the evidence untrustworthy when the overall evidence is reliable, and that the failure to produce the seizure list did not cause prejudice. Consequently, the Court affirmed the High Court’s judgment, upholding the conviction and life sentence, and dismissed the appeal.

Issues considered

Whether the variations in the testimonies of eye‑witnesses regarding the place of occurrence constitute a material divergence that defeats the prosecution case.
Whether the non‑production of the seizure list amounts to a procedural lapse that vitiates the trial or causes prejudice to the accused.
Whether minor discrepancies in witness statements affect the trustworthiness of the evidence sufficient to overturn a conviction under IPC s.302.

Legislation cited

Code of Criminal Procedures. 161, s. 162
Indian Evidence Act, 1872s. 145, s. 155, s. 162, s. 3
Indian Penal Code, 1860s. 302

Subjects

IPC 302murderevidence appraisalwitness credibilityminor discrepanciesseizure listconviction upheldcriminal appealSupreme Court

Judgment

SUKHDEV YADAV AND ORS. A
v.
STATE OF BIHAR

SEPTEMBER 13, 2001

[UMESH C. BANERJEE AND N. SANTOSH HEGDE, JJ.] B

Evidence Act, 1872 : Section 3:

Evidence-Appreciation of-Accused alleged to have fired at the
deceased-Testimony of witnesses-Minor discrepan.:ies-Trial Court convicted
the accused-High Court upheld conviction-On appeal, held if evidence in its
c
entirety trustworthy, d:vergence in evidence cannot oust the prosecution c4se-
Penal Code, 1860-S.302.

Criminal Trial :
D
Seizure List-Non-production qf-Does not vitiate the trial.

Appellants were convicted under section 302 of the Penal Code 1860
and were awarded life imprisonment. The prosecution case was that on the
fateful day when informant and his son were on their way back to the
village, the son reached the house of one 'M' and was surrounded by E
appellants. On the call of appellant No.1, One 'R' fired at the son who fell
down dead. Thereafter, the other accused persons fled away. At the trial,
five prosecution witnesses deposed that they had seen the actual occurrence
and that the accused persons surrounded that deceased and one 'R' fired
shot at him. However, defence witness stated that the place of occurrence
F
was different. Sessions Judge convicted and sentenced the appellants. On
appeal, High Court upheld the conviction and sentence. Hence the present
appeal.

Appellants contended that there has been a divergence of evidence as
regards the place of occurrence which displaces the prosecution case. G
Dismissing the appeal, the Court

HELD: 1.1. Court can sif't the chaff from the grain and find out the
truth from the evidence itself. There may be minor variations but if on a
perusal of the evidence in its entirety, it appears to be otherwise trustworthy, H
91
92 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A question of the evidence being non-trustworthy would not arise. (100-C;D]

1.2. In the instant case, there ate some variations in testimony of
witnesses regarding the place of occurrence and the manner in which the
incident took place but there exists no major contradiction on record.
Therefore, the evidence tendered lends credence to the prosecution case as
B regards the involvement of the appellants in the murder. [100-C; D]

Leela Ram (Dead) through Duli Chand v. State of Haryana & Am:,
[1999) 9 SCC 525; State of U.P. v. M.K. Anthony, [1985) 1SCC505; Rammi v.
State of M.P., [1999] 8 SCC 649; Tahsildar Singh v. State of U.P., AIR (1959)
SC 1012 and Appabhai and Am: v. State of Gujarat, [1988] Suppl. SCC 241,
c referred to.

2. In case of a lapse on the part of the prosecution the issue has to be
considered from the point of view of prejudice to the accused. If prejudice
has been caused by reason of at such a lapse it will have a serious impact on
D the trial but if no prejudice is caused the question of the trial being vitiated
would not arise. Therefore, on facts the eye-witnesses account as available
on record cannot but be termed to be trustworthy and by reason therefor,
the lapses of non-production of the seizure list stands over-shadowed by
the testimony of the eye-witnesses. [102-E; F]

E Shivnath Singh & Am: v. State of U.P., [1994) 2 SCC 563 and Baleshwar
Manda! & Am: v. State of Bihar, AIR (1997) SC 347, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 482
of 2000.

F From the Judgment and Order dated 20.12.99 of the Patna High Court
in Cr!. A. No. 154 of 1993.

K.T.S. Tulsi, Ms. J.S. Wad, Ashish Wad, Ms. Niharika Bahl for Mis. J.S.
Wad & Co. for the Appellants.

G Saket Singh, B.B. Singh, Prabhash Kr. Yadav and Dr. K.S. Chauhan for
the Respondent.

The Judgment of the Court was delivered by

BANERJEE, J. It is now well-settled that the Court can sift the chaff
H from the grain and find out the truth from the testimony of the witnesses. The

r
SUKHDEV YADAV v. STATE OF BIHAR [RAJENDRA BABU, J.J . 93
evidence is to be considered from the point of view of trustworthiness and once A
the same stands satisfied, it ought to inspire confidence in the mind of the Court
to accept the stated evidence. This Court in Leela Ram (Dead) Through Duli
Chand v. State ~f Haryana and Am:, [1999] 9 SCC 525 relying upon an earlier
decision of this Court in State ~f U.P. v. M.K. Anthony, [1985] 1 SCC 505
observed:
B
" ... There are bound to be some discrepancies between the
narrations of different witnesses when they speak on details, and
unless the contradictions are of a material dimension, the same
should not be used to jettison the evidence in its entirety.
I
Incidentally, corroboration of evidence with mathematical niceties c
cannot be expected in criminal cases. Minor embellishment, there
may be, but variations by reason therefor should not render the
evidence of eyewitnesses unbelievable. Trivial discrepancies
ought not to obliterate an otherwise acceptable evidence."

In Rammi v. State ~f M.P., [1999] 8 SCC 649, this Court further observed: D

"24. When an eyewitness is examined at length it is quite possible
for him to make some discrepancies. No true witness can possibly
escape from making some discrepant details. Perhaps an untrue
witness who is well tutored can successfully make his testimony E
totally non-discrepant. But courts should bear in mind that it is
only when discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the court is
justified in jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in the narration of an incident
(either as between the evidence of two witnesses or as between F
two statements of the same witness) is an unrealistic approach for
judicial scrutiny."·

This Court went on to state : (SCC pp.656-57, paras 25-27)
G
"25. It is a common practice in trial courts to make out
contradictions from the previous statement of a witness for
confronting him during cross-examination. Merely because there
is inconsistency in evidence it is not sufficient to impair the credit
of the witness. No doubt Section 155 of the Evidence Act provides
scope for impeaching the credit of a witness by proof of an H
94 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A inconsistent former statement. But a reading of the section would
indicate that all inconsistent statements are not sufficient to
impeach the credit of the witness. The material portion of the
section is extracted below:

'J 55. Impeaching credit o.f witness.- The credit of a witness may
B be impeached in the following ways by the adverse party, or, with
the consent of the court, by the party who calls him -

(1)-(2)

(3) by proof of former sta~ements inconsistent with any part of
c his evidence which is liable to be contradicted;'

26. A former statement though seemingly inconsistent with the evidence
need not necessarily be sufficient to amount to contradiction. Only
such of the inconsistent statement which is liable to be 'contradicted'
would affect the credit of the witness. Section 145 of the Evidence Act
also enables the cross-examiner to use any former statement of the
witness, but it cautions that if it is intended to 'contradict' the witness
the cross-examiner is enjoined to comply with the formality prescribed
therein. Section 162 of Code also permits the cross-examiner to use the
previous statement of the witness (recorded under Section 161 of the
E Code) for the only limited purpose i.e. to 'contradict' the witness.

27. To contradict a witness, therefore, must be to discredit the particular
version of the witness. Unless the former statement has the potency to
discredit the present statement, even ifthe latter is at variance with the
former to some extent it would not be helpful to contradict that witness
F (vide Tahsildar Singh v. State of U.P., AIR (1959) SC 1012).

It is indeed necessary however to note that there would hardly be a
witness whose evidence does not contain some amount of exaggeration or
embellishment-sometimes there would be a deliberate attempt to offer the same
G and sometimes the witnesses in their over anxiety to do better from the witness
box details out an exaggerated account. In Appabhai and Am: v. State o.f
Gujarat, [1988] Suppl. SCC 241, this Court in paragraph 13 of the Report
observed:

" ......... .The court while appreciating the evidence must not attach
H undue importance to minor discrepancies. The discrepancies which do
SUKHDEV YADAV v. STATE OF BIHAR [RAJENDRA BABU J.] 95
not shake the basic version of the prosecution case may be discarded. A
The discrepancies which are due to normal errors of perception or
observation should not be given importance. The errors due to lapse
of memory may be given due allowance. The court by calling into aid
its vast experience of men and matters in different cases must evaluate
the entire material on record by excluding the exaggerated version
B
given by any witness. When a doubt arises in respect of certain facts
alleged by such facts, the proper course is to ignore. that fact only
unless it goes into the root of the matter so as to demolish the entire
prosecution story. The witnesses now a days go on adding ·
embellishments to their version perhaps for the fear of their testimony
being rejected by the court. The courts, however, should not disbelieve c
the evidence of such witnesses altogether if they are otherwise
trustworthy........... "

Having dealt with the basics of the legal issue as regards probative value

r of the evidence and the acceptability thereof and adverting to the factual matrix
of the matter at this juncture, be it noted that against a judgment of affirmation D
as regards the conviction under Section 302 of the I.P.C. and sentence of
imprisonment for life awarded to the appellants, the present petitioners being
the accused in Sessions case No.288 of 1989, moved this Court under Article
136 of the Constitution for leave to Appeal and upon the leave being granted,
the matter came up for consideration before this Court. E
Be it noted that against the judgment of the Additional Sessions Judge,
two criminal appeals were moved before the Patna High Court [Crl. Appeal
No.154 of 1993 (Sukhdev Yadav & Ors. v. State of Bihar) and Crl. Appeal No.
209 of 1993 (Rakesh Monda! v. State of Bihar)] and in the common judgment
for both the appeals, the High Court was of the view that the prosecution has F
succeeded in proving its case beyond all reasonable doubts and conviction and
sentence awarded to the appellants do not require any interference.

Incidentally this Court on 7 .8.2000 was pleased to reject the special leave
petition against the order and judgment dated 20.12.1999 in Criminal Appeal
G
No.209 of 1993. This Court however on 9th May, 2000 admitted the instant
appeal by the grant of leave in S.LP. (Cr!.) No.1606 of2000 as regards the other
appeal being Cr!. Appeal No. 154 of 1993 before the High Court.

On the factual score it appears that the occurrence dates back to 1st
December, 1986 at about 9.30 a.m. in village Khaira within Kharagpur P.S. of H
96 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A Munger district in which Ramdeo Singh Mukhia fell a victim of gun shot
injury. The prosecution case as made out depicts that the informant had gone
to Fasiyabad to get labourers for his field and on his way back to village Khaira,
he met his son who went ahead of him and as the son reached the house of one
Mahabir Modi, the son was surrounded by the appellants herein together with
one Munindra alias Bimal Singh besides some unknown persons on the road.
B
On the call of appellant Sukhdev Yadav, Rakesh Manda! fired at the deceased
who immediately fell down dead on the spot. The accused persons thereafter
fled away. The informant alleged that the occurrence took place as the deceased
was an active member of a political party and opposed to that of another
political party of which Rakesh and others were members.
c
The post-mortem examination on the body of the deceased was conducted
by Dr. Nageshwar Prasad Jha (P.W.6) at Munger and he had found ante mortem
injuries on the body as appears from his deposition.

"1. One lacerated wound 2W'x11/2" on left side of scalp in fro!ltal and
D temporal region with burnt hairs and inverters edges (wounds of
enteries) and fracture of left side o( frontal Bone, left temporal
Bone and left perital bone. On dissection laceration of manages,
bring substance, hamhoerhage and clot in the brain substance
from left cerebral hemisphere to right cerebral hemisphere.
E
Lacerated wound right side of scalp in occipital and perital region
4'12'' x 31/2'' with fragmentation of right perital and temporal
Bones and from this area of wound bone chsaps were absent.
There was laceration in the scalp arid blood in the scalp. Blood
oozing from left ear and both nasal cavity.
F.·
2. Rigor Mortis was present on all from limbs. In my opinion death
was due to commia and brain injuries caused by missible (fire
arm) age within 24 hours.

3. Sees the P.M. report and states. It is in my pen and bears my
G
signature."(Mar1c exhibit 2).

4. From Injury no.I it appears that fire arm was made from close
range because burnt hairs were found

H xxx examination xxx
SUKHDEV YADAV v. STATE OF BIHAR [RAJENDRA BABU J.] 97
5. Injury no.l was upto brain. Meninge is the memb:-ane which A
covers the brain. This membrane is covered by skull bones.
Injury no.l had affected all the membranes of the brain. Membrane
on both sides of the brain were affected. Even the piamater was
effected on back side of the brain.

6. I also found exit wound. Injury no.(ii) is wound of exit. I h~ve B
not mentioned it in my report. Non mentioning of "exit wound"
in injury no. (ii) is merely slip of pen."

At the trial the prosecution examined eight (8) witnesses, five (5) of
whom were on the point of occurrence and the other three (3) were formal C
witnesses including the doctor who held the post-mortem examination on the
body of the deceased. The accused persons also examined one Shyam Sunder
Manda! as D. W. l and who in turn stated that the occurrence had taken place
at a place different as also in a manner contra, the prosecution case, on account
of a dispute between the accused and the mother of Rakesh Manda!, namely
Urmila Devi. At the conclusion of the trial, however, the learned Sessions D
-:7f Judge convicted the appellants herein as noticed herein before but acquitted
Moninder alias Bimal Singh. The appeals therefrom stand rejected by the High
Court and hence this appeal as noticed herein before more fully.

Mr. Tulsi, the learned Senior Advocate appearing in support of the
appeal rather strenuously contended that there has been a serious divergence E
of evidence as regards the place of occurrence which in turn completely
displaces the prosecution case and the High Court has clearly fallen into an
error in not taking note of such a divergent view pertaining to the place of
occurrence. As noticed above five (5) of the prosecution witnesses claimed to
have seen the actual occurrence to wit, the accused persons surrounded the F
deceased and one Rakesh Manda! firing shot at him-let us therefore, have a
short scrutiny of the evidence pertaining to the place of occurrence : The
informant being the father of the deceased in his First Information Report
recorded:

" ..... today at about 9.00 O'clock I had gone to call labour..... I was G
returning from there when my son Ram Dev Singh Mukhiya met me
while going from the west to the village. My son went ahead and I
remained behind a little and between this, I saw on the road near the
hut of Mahavir Manjhi, that Sukhdev Yadav, :he leader of S.U.C.I.
Resident of Muzaffar Ganj, Rakesh Manda! son of Shyan Sunder H
98 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
A Mandal, Muninder @ Vimal Singh son of Bangali Singh, Ram Avtar
Singh son of Biso Singh, all residents of Khaira, Parmeshwar Bind, son
of unknown, resident of Pakuri, Police Station: Kharagpur, District
Monger, and some unknown outside people, surrounded Mukhiya ji.
Sukhdev Yadav ordered that "fire the bullet immediately". On his
order Rakesh Mandal fired the bullet, then Mukhiya ji fell on the
B
ground. All the above said accused by firing bullet ran towards the
East."

The following are the necessary and relevant extracts from the depositions
available on record as regards the place of occurrence so far as the prosecutio~
C witnesses are concerned:

P.W.1 :

" .... .I saw that Sukhdev Yadav, Ram Autar Mandal and Vimal
Mandal and one more person whom I did not recognise, came out
D of the field of Rhar. Mukhiaji who was coming from the west,
was grabbed by Parmeshwar Bind and Rakesh Manda] and the
rest of the people surrounded him. Sukhdev Yadav said what you
are looking for fire the bullet, on which Rakesh Mandal took out
the pistol from the waist and fired the bullet at Mukhia Ram Dev
Singh, which hit on his head. Thereafter Rakesh Mandal and
E Parmeshwar Bind ran towards South East. The rest of the people
ran towards North.

In cross examination however, P. W.I stated:

"Rakesh and Parmeshwar had caught both the hands of
F the deceased. When other accused came out of the field of 'Rahad'
then the hand of the deceased was caught. When the hand was
caught, by then, other accused reached there and surrounded the
deceased. I do not remember that I had made such a statement
before Darogaji or not, when the four persons by coming out of
G the field of Rahad surrounded Mukhiaji, then Rakesh and
Parmeshwar joined with the accused.

"At the time when the deceased was hit by bullet, at that
H time I was at a distance of about 25-30 yards from the deceased.
SUKHDEV YADAV v. STATE OF BIHAR [RAJENDRA BABU J.] 99
After being hit by bullet, Mukhiaji fell on the road towards the A
western corner, due to which a lot of blood oozed out on the land.
At the place of incident there is a slight curve on the road which
has taken a turn towards western side. I had seen only that injury
which occurred as a result of the bullet which hit Mukhiaji in the
head; could not see any other injury......... .
B
After this incident, I also alongwith other people started
driving away the accused, who had run towards the North."

PW 2:
c
"When I reached towards the west from the house of
Mahavir Modi, then saw that near the Mango tree Sukhdev Yadav,
Ram Autar Mandal, Rakesh Mandal, Parmeshwar Bind and
Munim Mandal @ Vimal Mandal were there. Vimal was going
from there towards the village at a distance of about 100 yards.
Rakesh Mandal and others were surrounding deceased Ramdev D
Mukhia. Accused Sukhdev Yadav said Rakesh what you are
looking - fire the bullet. On this Rakesh fired bullet, Mukhiaji
fell and the accused ran away. Sukhdev Yadav and Ram Autar
had run towards North and Rakesh Mandal and Parmeshwar Bind
ran towards the East." E
PW 3:

" ...... When I reached near the house of Mahavir Modi, then saw
that at a little distance near the Mango tree, 5-6 persons were going
running, out of which I recognised Sukhdev Yadav, Rakesh Mandal F
and Parmeshwar Bind and on going ahead, I saw that Ram Dev Sing)1
(Mukhiaji) was lying on the road who had expired. In the head of
Mukhiaji bullet had hit and blood was oozing out from there. The
reason for the incident is political quarrel between Sukhdev Yadav and
deceased Ram Dev Singh." G

PW4:

"The informant in his deposition however, clarified that the
incident took place on the road going North-Sou:h near the place in
East-West direction ... " H
100 SUPREME COURT REPORTS [2001] SUPP. 3 S,C.R.
A PW5:

." ...... When Mukhiaji reached near Mahavir Modi's basa, Sukhdev,
Ramautar and two other accused came out from Rahar field and
encircled Mukhiya. Rakesh and Parmeshwar, who were going ahead
were also amongst those who encircled Mukhiya. Thereafter, Sukhdev
B ordered to fire bullet and 'Rakesh fired at Mukhiyaji. Thereafter, all the
accused fled away... :."

The evidence on record does not, however, lend any credence to the
submissions of Mr. Tulsi. There may be some variations but there exists n~
major contradiction on record. Modi's house and Rahar field are the two places
c which have been mentioned by the accused persons but the factum of being
surrounded and the firing done at the instance of the appellant No. I stands
uncontradicted. As noticed above, minor variations may be there but if on a
perusal of the evidence in its entirety, it appears to be otherwise trustworthy,

D
question of the evidence being non-trustworthy would not arise. As noticed
above, the Court can sift the chaff from the grain and find out the truth from
the evidence itself. The evidence teQdered lends credence to the prosecution
...
'\

case as regards the involvement of the appellant herein in the murder. It is in
this context, the High court observed:

"As they were deposing in court after more than five years of the
E occurrence, there might be some inconsistency..... but being minor in
nature they have to be ignored. The evidence of eye-witnesses being
c.onsistent, we have no reason to disbelieve the prosecution case".

Mr. Tulsi next contended that the earliest version of the occurrence had
F been suppressed in as much as although the chowkidar visited the place of
occurrence and thereafter passed on the information to the investigating officer,
on the basis of which the latter came to the place of occurrence has been
withheld deliberately -- this creates, Mr. Tulsi contended, some doubt regarding
the verasity of the prosecution case and benefit whereof ought to be given to
the appellants: While it is on record that the Chowkidar happened to visit the
G place of occurrence before he came again with the investigating officer, but a
positive evidence of the investigating officer to the effect that the latter reached
the village on hearing a rumour about the murder of Ram Dev Singh and it so
happened that there was no cross-examination on this score and in the absence
of which the statement of the investigating officer cannot but be accepted. In
H any event, what would be the effect by reason of non production of the

t
SUKHDEV YADAV v. STATE OF BIHAR [RAJENDRA BABU J.] 101
chowkidar? The Chowkidar may or may not be there or it may be a sheer co- A
incidence that both the investigating officer and the chowkidar came together
but that by itself does not affect the verasity of the prosecution case neither it
is possible to have any conjectures to the effect that the chowkidar had gone
to the Police Station and brought the investigating officer at the site - it is
however too trivial a matter to be considered at length and as such we do not
B
find any reason to dictate further on the issue neither the same lends any
credence to the submissions in support of the appeal or as regards the conclusion
arrived by the High Court.

The other aspect pertains to non production of the seizure list in Court
as a part of the records - undoubtedly, a lapse on the part of the prosecution c
but the issue however, needs to be considered from the point of view of
credibility of the witnesses and in the event of there being credible evidence
on record, a lapse pertaining to non production of seizure list does not really
affect the prosecution case in any way - the issue has to be considered from
the point of view of prejudice to the accused, before however detailing thereon,
D
the observations of this Court in Shivnath Singh and Anr. v. State of U.P.,
[1994] 2 SCC 563 may be noticed. This Court observed:

"7. Learned counsel also argued that the bloodstains must have been
found at. the place where the deceased was beaten and also at the place
where the head was cut and the investigating officer did not collect the E
bloodstained earth. Therefore, the place of occurrence is doubtful. This
aspect has been examined by both the courts below and it has been
noticed that presence of bloodstains were noted in the site plan and if
the investigating officer did not collect the bloodstains at all the places,
that by itself is not an infirmity. Learned counsel vehemently argued
F
that there is a grave doubt whether the recovered head was tha~ of
Mohan Lal. In this context reliance is placed on the evidence of PW
6 the doctor, who stated that the trunk of which he conducted the post-
mortem was stoutly built and that the head was that of a young man.
According to the learned counsel the deceased was not a young man
and therefore the prosecution has not proved that it was the head of G
Mohan Lal. In our view this is not at all an infirmity. Even assuming
that the prosecution has not conclusively proved that the head wh\ch
was recovered was that of Mohan Lal, witness after witness has clearly
deposed that Mohan Lal was killed and his head was severed and there
cannot be any doubt that Mohan Lal was beheaded in the manner stated H
102 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.K
A by these witnesses. As a matter of fact it is also mentioned in the FIR
that the head was cut-off. An argument was advanced regarding the
identification of the body on the ground that PW 5 the grandson of the
brother of the deceased filed an affidavit that he did not identify the
body. We cannot give any weight to this affidavit even if it had been
filed in that manner. PW 5 deposed that he came from the fields after
B
hearing about the occurrence and to the dictation of PW 3 he wrote the
complaint. He was also a witness to some of the recoveries including
the head. This witness was cross-examined at length on several days
regarding the recoveries particularly that of the head. We do not
find any serious infirmity in his evidence. We have to point out
c that all the submissions of the learned counsel involve only appreciation
of evidence and both the courts below have considered the evidence
of the material witnesses in great detail and as already mentioned
we have also examined the same and we are satisfied with their
evidence. Learned counsel, however, lastly submitted that it is not
D possible to separate grain from the chaff in such cases and some of the
accused are not attributed any specific overt acts and that the appellants
cannot be convicted on such omnibus allegations. The way the crime
has been perpetrated would manifest the object of the unlawful assembly
and every member of such unlawful assembly would be squarely
liable."
E
True, as noticed above there are lapses, but the question that arises for
consideration is whether any prejudice has been caused by reason of such a
lapse, if the answer thereto is in the affirmative obviously 1t will have a serious
impact on to the trial but if in the event however, it is on the negative, no
prejudice can be said to have been caused and correspondingly question of the
F
trial being vitiated would not arise. The eye-witnesses account as available on
record cannot but be termed to be trustworthy and by reason therefor, the lapses
stand over-shadowed by the testimony of the eye-witnesses. The observations
above obtain support from the decision of this Court in Baleshwar Manda! and
Am: v. State. o.f Bihar, AIR (1997) SC 3471.
G
Mr. Tulsi lastly contended that evidence available on record discloses
that the shoes of the deceased were found kept by the side of the head
alongwith a bag and on the basis thereof it has been contended that the place
of occurrence was thus different from the place where the dead body was found
by the investigating officer. The High Court on this score observed as below:
H
SUKHDEV YADAV v. STATE OF BIHAR [RAJENDRA BABU J.] 103
"12. It is true that there is no apparent explanation regarding keeping A
the shoes on the side of the head of the deceased, which is borne out
not only by the inquest report, but this fact by itself is not sufficient
to create reasonable doubt so as to disbelieve the entire prosecution
case. It may be pointed that as per the inquest report one pair of shoes
was found on ihe side of the head of the deceased but it is not clear
B
as to whether the.feet of the deceased were bare, that is, no shoes were
put on. It is also not clear as to whether while going to his village; the
deceased had 11ut on the shoes. No question was put to either
investigating officer or any other witness in this regard." (Emphasis
supplied)
c
On the state of evidence as emphasized above, we do not feel it inclined
to lend concurrence to the submissions in support of the appeal that the factum
of placement of shoes at a particular place would vitiate the entire trial.

In the view as above, we do not find any merit in the appeal, neither there
is any reason to interfere with the judgment of affirmance. The appeal, therefore, D ·
fails and is thus dismissed.

N.J. Appeal dismissed.