Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. It was very emphatically contended by Shri Gambhir that as in the First Information Report (FIR) there is no mention about the dying declaration, we should discard the evidence of PWs. I and 2 regarding H A dying declaration, because of what has been pointed out by this Court in Ram Kumar v. State of Madhya Pradesh, AIR (1975) SC 1024. We do not, however, agree with Shri Gambhir, for the reason that what was observed in Ram Kumar's case, after noting the broad facts, was that material omission in the FIR would cast doubt on the veracity of the prosecution case, despite the general law being that statements made in the FIR can be B used to corroborate or contradict its maker. This view owes its origin to the thinking that if there be material departure in the prosecution case as unfolded in the FIR, which would so if material facts not mentioned in the FIR are deposed to by prosecution witnesses in the court, the same would cause dent to the edifice on which the prosecution case is built, as the substratum of the prosecution case then gets altered. It is apparent that C prosecution cannot project two entirely different versions of a case. This is entirely different from thinking that some omission in the FIR would require disbelieving of the witnesses who depose about the fact not mentioned in the FIR. Evidence of witnesses has to be tested on its own strength or weakness. While doing so, if the fact deposed be a material part of prosecution case, about which, however, no mention was made in D the FIR, the same would be borne in mind while deciding about the credibility of the evidence given by the witness in question.
12. We, therefore, do not agree with Shri Gambhir that Ram Kumar's case would require us to disbelieve the evidence of PWs. I and 2 regarding E dying declaration of the deceased, only because the FIR has not mentioned about it. It is a settled law that F!Rs are not taken as encyclopedia and omission of a fact therein, even if material, cannot by itself make the witness deposing about that fact unbelievable at that point.
13. PW.I was thus not a witness to have been disbelieved on the two F aforesaid grounds. Her evidence finds corroboration, as already mentioned, from the findings of the autopsy surgeon. This apart, her evidence the respondent had killed Munibai by firing has also received corroboration from the recovery of a revolver from the possession of the respondent, to which aspect we shall advert later, supplemented by ballistic expert's report G that very revolver had been used is tiring at Munibai. (iv) Recovery of revolver.
14. As to the recovery of the revolver, Shri Gambhir's very strenuous submission was that we may not accept this inasmuch as out of two witnesses H examined on this point, PW.6–Santoshilal, did not support the prosecution. STATE OF M.P. v. DHIRENDRA KR. [HANSARIA, J.) It is no doubt correct that PW.6 had to be declared hostile, but he is a A witness who has destroyed his own veracity because, though he stated in examination-in-chief that his blank signatures were taken on some papers by calling him to the police station when he was passing by the road, in cross-examination the version given was that the signatures had been taken when he had come to the police station to do hair cut-he being a barber by profession. These two statements definitely cannot stand together. This B apart, it is difficult to believe that PW.6 would have actually given his signatures on blank papers, without making any complaint about the same to anybody. The hostility of PW.6 has, therefore, caused no damage to the prosecution case relating to recovery, about which there is the confidence inspiring evidence of PW.IO.
15. Shri Gambhir has made effort, and strenuous effort at that to persuade us to hold that the prosecution case that the respondent had stolen the revolver from the Police Malkhana is unbelievable. This aspect had, however, come to be accepted by the trial court because of the evidence c of PW. I I, who was the Head Constable and was the in-charge of the Malkhana. His evidence is that as nobody can perform duty all the 24 D hours, practice has been that in the night keys of Malkhana are entrusted to Constable Muharrir, as was the respondent. He has deposed that on the night intervening 19 and 20 May, respondent was detailed in the night, which aspect is m·entioned in the Rojnamcha. Thereafter, the witness left to his house around 10. p.m. and returned back next day morning at about 8.30 am. The respondent then handed over the keys. On this being done, E the witness desired that the repondent could go after checking the Malkhana.
The respondent said that he would come back within five minutes after taking tea and the checking could be done thereafter. As the respondent did not return, Malkhana was opened and PW.I I found that one revolver of. 455 bore was missing. This was immediately brought to the notice of the Station House Officer. The reporting was by Ex. 11-C and was around F 8.40 a.m. 'n this exhibit the substances of the aforesaid evidence finds place and the number of the revolver has also been mentioned, which is 356354. It is the revolver bearing this number which was subsequently recovered from the respondent on 20th May itself around 11.30 a.m. This fast movement was because, after receiving the information of missing of the revolver, the Station House Officer went to the place where respondent G was residing which, as already noted, was a part of the house it which Munibhai was residing. Going there, the Station House Officer knew about the killing and this led to the search of the respondent, about whom PW.I had stat<d that he had left towards the field.
16. Despite the aforesaid evidence being on record, Shri Gambhir H A has urged that the prosecution case relating to stealing was rightly disbelieved by the High Court because the rules did not permit giving of Malkhana key to anybody else. Though this is correct, but then as deposed by PW.I I a practice to that effect had grown, which came to be adopted because of the physical impossibility ofany body to be atthe Police Station throughout 24 hours. It may be pointed out that when PW. I I deposed about this B practice, he was not challenged in cross-examination.
17. Yet another connection made in this regard by Shri Gambhir what that as a departmental proceedjng against PW. I I is pending regarding lhis very aspect, the same shows that even, according to the authorities, PW. l l might have beenTesponsible for stealing the revolver. As the chilJ'ge C framed in the departmental proceeding is not available to us, we do not know what precisely has been alleged against PW. I l. It may be that the allegation is that he allowed the stealing to take place. As, however, the proceeding is said to be pending, we would observe that whatever we have held in this case relating to stealing of revolver would not be used by PW. I I in the proceeding to demand his exoneration from the charge as D framed against him.
18. The second reason given by the High Court to disbelieve this part of prosecution is that the Rojnamcha bad not been properly maintained, as there was no pagination in it. PW. I I gave valid explanation for this- E the same being that prescribed forms being not available, the Traffic Register was used as Rojnamcha. Judicial notice can be taken of the fact that many a time prescribed registers are not available, and so, they are kept in non-prescribed way. Many a time even a Case Diary is not maintained in prescribed form.
19. Shri Gambhir then referred to the omission in Ex. P.11-C about the respondent's statement to PW.I I in the morning of 20th that he would come back after taking tea, as deposed by PW. I I in court. We do not think if this omission can throw any doubt on the very prompt report about missing of the revolver and about Malkhana key having been given to the G respondent on the night of 19th May. In Ex. P.11 it was mentioned that the Head Constable suspected that the respondent had stolen the revolver. The recovery of that revolver from the person of the respondent on 20th May itself would bear the statement of PW. I I regarding the respondent having had been stolen the revolver. It may be pointed about that under Illustration (a) to section 114 of Evidence Act, it is permissible to presume that if a H man is in possession of stolen goods soon after the theft, he is the thief. STATE OF M.P. v. DHIRENDRA KR. [HANSARIA, J.]
20. The aforesaid being the position regarding the materials brought A on record by the prosecution to bring home the guilt of the respondent we are of the firm opinion that the High Court has taken a view which cannot be called reasonable at all. The law, therefore, permits this Court to set aside the acquittal, which we hereby do.
21. This leaves for consideration the question of sentence. The trial B court had awarded the death sentence; but we would refrain from doing so for two reasons : (I) the present is not a case of 'rarest of the rare' type; and (2) the respondent having enjoyed acquittal ever since High Court's judgment dated 19.11.1982, death sentence, even if it would have been merited, would r1ot have been imposed by us. We may refer in this context in the decision of this Court in State of Haryana v. Sher Singh, [1981] 2 C SCC 300, to which our attention has invited by Shri Garnbhir. In that case it has been stated in para 21 that despite the murder being ghastly and brutal deserving death sentence, as awarded by the Sessions Judge, the same was not being awarded because of the acquittal enjoyed by the convict after High Court's judgment. 21. The impugned judgment is, therefore, set aside and we convict the respondent under section 302, for which offence we award the sentence of imprisonment for life. The respondent is on bail; his bail bonds are cancelled. He would be taken in custody to serve out the sentence. S.V.K.I. Appeal allowed.