AMIT CHATURVEDI & ORS vs STATE OF M P & ANR

The instant Criminal Appeal is preferred to challenge the judgment dated 08.07.1999 passed in Sessions Trial No. 251 of 1997 by Additional Sessions Judge, Shivpuri, whereby the Trial Court convicted the appellants for commission of offence punishable under Section 302 read with Section 34 of IPC and sentenced to undergo Life Imprisonment and fine of Rs.5000/- each, with default stipulation.

The facts necessary to be stated for disposal of the instant appeal are that on 9.6.1997, in the morning, Somwati, wife of deceased Ratan Singh and sister-in-law of Shivcharan (PW-4) went to a tube-well to fetch water. Appellant No.1-Kalyan stopped her to fetch the water and threw the utensils. Somwati came to her house and narrated the incident, then Ratan Singh went to Kalyan Singh and told him to allow his family to take the water from the tube-well. On this, an altercation took place between Kalyan Singh and Ratan Singh. When Ratan Singh was returning to his house, the accused persons surrounded Ratan Singh. Accused Kalyan Singh (appellant No.1) gave lathi blow on the head of Ratan Singh. Accused Jandel Singh (appellant No.2) caused injury by Kharera on his head, due to which blood was oozing. Gajendra assaulted him with stone on his left buttock. Shivraj came for his rescue then Gajendra caused injury by stone on his back. Ratan Singh got unconscious and fell down. After that, Shivcharan took his brother Ratan Singh by a bullock-cart to Padora and from there he took him to Police Station Kolaras in a tractor. Thereafter, he lodged the FIR Ex.P/12 at Police Station Kolaras bearing Crime No.114/1997 for the offences punishable under Sections 147, 148, 149, 307 and 323 of IPC. Dr. P.D.Gupta (PW-1) medically examined Ratan Singh and Shivcharan on 9.6.1997. Ratan Singh succumbed to the injuries and died on the same day. The Post mortem of the dead body was conducted by Dr. P.D.Gupta (PW-1). According to the Post Mortem report (Ex P-1) the death of Ratan Singh was homicidal in nature and had occurred on account of fatal injuries inflicted on the head which caused fracture at the parietal area of the head.

Consequently the police proceeded to file the chargesheet under sections 147, 148, 149, 307, 323, 302 of IPC against the appellants and the learned Trial Court framed charges against the appellants accordingly.

The prosecution examined as many as 11 witnesses to establish its story, whereas the defence also produced three witnesses to strengthen their version. However the Trial Court arrived at the conclusion that the prosecution has duly established its story and there is significant material available against the appellants which is sufficient to convict them for the offences charged against them. Consequently vide the impugned judgment the appellants were held guilty and were convicted under Section 302 read with Section 34 of IPC, with punishment to undergo Rigorous Life imprisonment. Against their conviction, the appellants have preferred this appeal.

The learned counsel for the appellants argued that, the impugned judgment suffers from several errors which are sufficient to set aside the same. It has been vehemently argued by the learned counsel for the appellants that, the present appellants have been falsely implicated in the present case. The trial Court has not appreciated the prosecution evidence in proper manner as there are material contradictions and discrepancies in the statements of the prosecution witnesses. Lastly, it has been argued that the appellants were not having any intention to commit murder of deceased Ratan Singh which can be seen from the fact that appellants have caused single blow by their respective weapons and the nature of injuries inflicted on the deceased are not sufficient in ordinary course to cause death, therefore the conviction made by the Trial Court under Section 302 of the IPC be converted into conviction under section 304 part II of the IPC.

To the contrary, learned counsel for the respondent supported reasoning of the learned Trial Court and submitted that, there is overwhelming evidence available against the present appellants, which is sufficient to uphold the conviction by the Trial Court.

We have duly examined the record and have considered the rival contention canvassed by both the parties.

Before venturing into the rival contentions, it is to be considered as to whether the death of the deceased was homicidal in nature or not and whether the injuries caused are sufficient in ordinary course of nature to cause death. In this regard, the evidence given by Dr. P.D.Gupta (PW-1) is pertinent, who performed the postmortem on the body of the deceased Ratan Singh and gave a report Ex.P-1. He found following injuries on the body of the deceased :-

(i) Large lacerated wound, size 7 cm x 2 cm x 3 cm on the right parietal region caused by hard and blunt object.

(ii) Lacerated wound, size 3 cm x 1 cm x 1 cm at occipital region, caused by hard and blunt object.

According to the opinion of Dr. P.D.Gupta, the injuries were sufficient in ordinary course of nature to cause death. Since lacerated wounds and fractures were found on the skull of the deceased and naturally such injuries could neither be caused by the deceased himself nor could they be sustained by him in any accident, therefore, the opinion given by Dr. P.D.Gupta (PW-1) is acceptable that the death of the deceased was homicidal in nature.

The prosecution has examined Shivcharan (PW-4), Somobai (PW-5), Jagdish (PW-6) and Shishupal (PW-7) as eye-witnesses. They have categorically stated in their statement that one year ago on 9.6.1997 at 8.30 am they were in their house. After hearing the noise of quarrel they came outside the house and saw that appellants Kalyan and Jandel Singh were abusing with Ratan Singh. When Ratan Singh stopped them from abusing then accused Kalyan Singh gave lathi blow on his head. Accused Jandel Singh also inflicted injury on the head of Ratan Singh by Kharera, due to which he fell down on the ground and blood was oozing from the wound. When Shivcharan came for his rescue then Gajendra caused injuries to him by stone. After that, they took Ratan Singh to Police Station Kolaras where Shivcharan lodged FIR (Ex.P/12).

As per the statements of the witnesses the incident took place at about 8.30 am on 9.6.1997 and FIR was lodged at 10.15 am whereas the police station was situated 20 Kms. away from the spot. Shvicharan (PW-4) stated that he took the deceased RatanSingh by bullockcart up to village Padora and then he was brought by tractor to Kolaras. Looking to these circumstances, it is clear that the FIR was lodged without causing any delay. As per the FIR (Ex.P/12), Somobai (PW-5), wife of the deceased Ratan Singh, went to a tube-well to fetch water where appellant No.1-Kalyan stopped her to fetch the water and threw her utensil. After that, Somwati came to her house and narrated the incident to Ratan Singh then Ratan Singh went to the house of Kalyan Singh and told him to allow his family members to take the water from tube-well but Somobai (PW-5) admitted in her crossexamination that Atar Singh is her husband and she neither went to the tube-well of accused persons for fetching the water nor Kalyan stopped her to take the water and there was no quarrel between them. Shivcharan (PW-4), who has lodged the FIR (Ex.P/12), clarified this discrepancy by stating that Ratan Singh is his elder brother and Prembai is the wife of Ratan Singh and quarrel between Prembai and Kalyan Singh took place when Kalyan Singh stopped Prembai to fetch the water from his tube-well. From the contents of the FIR it appears that the quarrel took place between Kalyan Singh and wife of Ratan Singh at the handpump and if in the FIR the name of wife of Ratan Singh is erroneously mentioned as Somwatibai in place of Prembai, that itself is not sufficient to doubt the whole prosecution story. Therefore, the contention raised by learned counsel for the appellants is not found acceptable.

Shivcharan (PW-4) claims to be eye-witness and he narrated in his examination in chief as to how the incident has happened. Although in para 12 of his crossexamination he admitted that when he reached on the spot, the deceased Ratan Singh was lying on the ground but it does not mean that he has not seen the incident because in para 10 of his cross-examination he stated that at the time when quarrel had started, he was in his house and after hearing the noise of quarrel he reached at the spot and tried to rescue Ratan Singh, then accused Gajendra assaulted him with stone, due to which he sustained injury on his back. The trial Court has also found proved that Gajendra Singh inflicted injry to Shivcharan during the incident and he was convicted for the offence punishable under Section 323 of IPC and sentenced to under six months RI along with fine of Rs.1000/- and his conviction has not been challenged by Gajendra Singh. It is also pertinent to note that the FIR (Ex.P/12) is promptly lodged by Shivcharan, in which he narrated the entire incident chronologically which also finds place in his examination-in-chief and corroborated by the statements of other eye-witnesses, namely, Somobai (PW-5), Jagdish (PW-6) and Shishupal Singh (PW-7). In these circumstances, the presence of Shivcharan at the scene of crime cannot be disbelieved merely on the admission by Shivcharan that when he reached on spot, Ratan Singh was lying on the ground. It is also noticeable that Shivcharan Singh is the brother of the deceased and he stated in para 10 of his crossexamination that he was residing with his brother and at the time of incident he was in his house and after hearing the noise of quarrel he came out and saw the incident. As per spot map (Ex.P/16) it reveals that the house of Ratan Singh is located near the place of the incident and from where the incident seems to be visible.

Somobai (PW-5) admitted in her cross-examination that at the time of incident she was at her house and after hearing the noise of quarrel when she came out from the house, she found that there was hue and cry and then the accused persons fled away from the spot but she has denied that at the time of incident she was in her house and she has not seen the incident. From the spot map (Ex.P/16) it is also clarified that the house of Atar Singh, husband of Somobai (PW-5), is situated adjacent to the house of Ratan Singh. Therefore, it cannot be disbelieved that Somobai has seen the incident.

The statements of Jagdish (PW-6) and Shishupal Singh (PW-7) are consistent on the point that they have seen the incident and accused Kalyan and Jandel gave a blow of lathi and Kharera respectively, on the head of Ratan Singh, due to which he sustained injuries and he fell down on the ground. Therefore, the testimony of these witnesses cannot be discarded and they appear to be the truthful witnesses.

Learned counsel for the appellants submitted that the trial Court has failed to appreciate the evidence properly. There are discrepancies and contradictions in the statements of the witnesses. The contention raised by the counsel, in our opinion, has no substance as the discrepancies or contradictions pointed out by the learned counsel are not so material which affect the credibility of the evidence of the witnesses and on the basis of which the judgment of conviction can be reversed.

The Hon''ble Apex Court in State of Rajasthan v. Smt. Kalki and another [AIR 1981 SC 1390] has held :

"6. The second ground on which the High Court refused to place reliance on the evidence of P.W. 1 was that there were "material discrepancies". As indicated above we have perused the evidence of P.W. 1. We have not found any "material discrepancies" in her evidence. The discrepancies referred to by the High Court are, in our opinion, minor, insignificant, natural and not ''material''. The discrepancies are with regard to as to which accused "pressed the deceased and at which part of the body to the ground and sat on which part of the body; with regard to whether the respondent Kalki gave the axe blow to the deceased while the latter was standing or lying on the ground, and whether the blow was given from the side of the head or from the side of the legs. In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. As indicated above we have not found any material discrepancies in the evidence of the P. W.1."

In Babasaheb Apparao Patil v. State of Maharashtra [AIR 2009 SC 1461] the Hon''ble Apex Court held :

"12. It is to be borne in mind that some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Merely because there is inconsistency in evidence, it is not sufficient to impair the credibility of the witness. It is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence.

In State of U.P. Vs. M.K. Anthony (AIR 1985 SC 48), this Court indicated the proper approach which needs to be adopted while appreciating the evidence of a witness. It was observed as under:

"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."

In Appabhai & Anr. Vs. State of Gujarat (AIR 1988 SC 696), this Court had again emphasized that while appreciating the evidence, the court should not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy.

In Baijnath and another vs. State of MP [ILR (2009) MP 3041], it has been held by the Hon''ble Apex Court :

"5. We have given very careful consideration to the matter, more particularly, as we are dealing with a judgment of reversal. It is true that the trial court has given certain findings with respect to the evidence which had led to the acquittal, but we are of the opinion that some of the findings recorded by the trial Court were unjustified and unrealistic. The broad principles dealing with appreciation of evidence in a criminal matter have been laid down in Bhoginbhai Hirjibhai vs. State of Gujarat [AIR 1983 SC 753], and we respectfully produce the same:-

"...........Over much importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person''s mind whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

(8) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."

Learned counsel for the appellants submitted that Shivcharan (PW-4) is the brother of deceased Ratan Singh; Somobai is neighbour whereas Jagdish and Shishupal also admitted that they belong to community of Ratan Singh and the prosecution has failed to examine the independent witnesses, therefore, their statements cannot be taken into account.

This contention of learned counsel for the appellants can be best answered by referring to the observation given by Hon''ble Supreme Court in the case of Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, in the following manner:

"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

In another Judgment by Hon?ble Supreme Court in the case of Seeman v. State, (2005) 11 SCC 142, following has been observed:

"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested sole witness. The prosecution''s non-production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."

In the context of the above reproduced portion of the judgment, if the contention of the learned counsel for the appellants is examined, then we have no hesitation to conclude that the statements of Shivcharan (PW-4), Somobai (PW-5), Jagdish (PW-6) and Shishupal (PW-7) are consistent and establish the prosecution version of the story. These witnesses clearly narrated the events as they transpired on 9.6.1997 and the role played by the appellants which found support from the post-mortem report (Ex.P/1). Therefore, merely because these witnesses are relatives of the deceased Ratan Singh, their testimony cannot be discarded.

The next contention canvassed by learned counsel for the appellants is that the trial Court ought to have convicted the appellants under Section 304 Part-I of IPC in view of the fact that there was no pre-meditation and the incident occurred due to sudden quarrel and the appellants gave only single blow on the head of the deceased from which it is clear that they have not given repeated blows to the deceased despite having enough opportunity but we do not agree with the submissions of learned counsel for the appellants for the reason firstly it is not a case of single blow but the deceased Ratan Singh sustained two injuries on the head and, secondly, when the deceased Ratan Singh was coming back from the residence of Kalyan Singh after reporting his complaint regarding the incident taken place at the handpump, the appellants came with deadly weapons. They surrounded him and caused injuries on the vital part of the body of the deceased. The deceased fell down on the ground and brain matters came out, which indicates that the appellants gave blows on the head of the deceased so forcefully that the deceased got unconscious on the spot. In that event, intention to commit murder can definitely be attributed to the appellants.

In the case of Virsa Singh vs. State of Punjab, AIR 1958 SC 465, the Hon''ble Apex Court has held as under:- "(12) To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly" ;

First, it must establish, quite objectively, that a bodily injury is present ; Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

(13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S.300 , "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."

The Hon''ble Apex Court in Mahesh Balmiki vs. State of MP, 2000 (1) Vidhi Bhasvar 1, has held as under:-

"9. Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."

The appellants took a defence that the deceased Ratan Singh fell down from the tree, due to which he sustained injuries but the trial Court examined the defence of the accused persons very carefully and it was not found to be believable and we are also of the view that the defence taken by the accused persons is devoid of any base and, therefore, the trial Court has rightly rejected the same.

Taking this view of the matter, we are of the considered opinion that the trial Court has not committed any error in convicting the appellants for the offence punishable under Section 302 read with Section 34 of IPC. Therefore, this appeal is hereby dismissed by confirming the conviction and sentence passed by the trial Court.

The appellants are on bail. Their bail bonds are cancelled. They are directed to surrender before the trial Court without any delay so that they may be sent to jail for execution of remaining part of their jail sentence. A copy of the judgment be sent to the trial Court along with the record for information and compliance.