Babbu alias Babulal, Israyal, Chhutla alias Chhote Khan and Gudda alias Motilal vs State of Madhya Pradesh

Brij Kishore Dube, J.—Feeling aggrieved by the judgment of conviction and order of sentence dated 31st January,1998 passed by the learned II Additional Sessions Judge, Vidisha, in Sessions Trial No. 58 of 1992 (State of Madhya Pradesh v. Hari Singh and others), convicting the Appellants under Sections 323/34, 324/34 and 302/34 of the IPC and thereby sentencing each of them to suffer rigorous imprisonment for six months, rigorous imprisonment for one year with fine of Rs. 2,000/and rigorous imprisonment for life with fine of Rs. 5,000/respectively, with stipulation that all the jail sentences shall run concurrently, the Appellants have preferred this appeal u/s 374(2) of the Code of Criminal Procedure, 1973.

The undisputed facts are that the Appellants, Babbu and Gudda are the real brothers. Complainant, Radheshyam (P.W.10) and Suresh (P.W.11) are the sons while P.W.12, Prem Bai is the wife of the Jwala Prasad. It is also not in dispute that there was enmity between the complainant party and the Appellants.

The prosecution case, in brief, may be narrated as under:

(i) That, on 04th October,1991 at about 7.30 to 8.00 hours in the evening Jwala Prasad (hereinafter referred to the deceased) and his wife Prem Bai (P.W.12) were sitting in the DALHAN (veranda at front face of the house) of their house.

Radeshyam alongwith his wife, Sunita was inside the house while Suresh (P.W.11) was at ATARI (room over the roof). At that juncture, 16 accused persons namely;

Hari Singh, Baka alias Bikam, Shibbulal alias Deviram, Salman Khan, Moti, Kailash, Hannu alias

Hanif, Gopal, Harinarayan, Kallu, Karan Singh, Munna, Babbu alias Babulal, Ismayel, Chhuta alias Chote and Gudda alias Motilal armed with Lathi, Farsi, Ballam came there and hurled the abuses and asked the complainant to come out, they will settle the dispute. On this, Radeshyam shut the doors of the house from inside but by pushing it was opened by the accused persons. The accused, namely; Babbu, Gudda, and Chhutla entered into the room and dragged out the deceased from the DEHLAN. The accused persons caused injuries to the deceased with their respective weapons, i.e., Lathi, Farsi and Ballam on his head, legs and hands.

Prem Bai and Suresh rushed to intervene and rescue the deceased, then the accused persons have also caused injuries to them. The accused persons threatened to kill them in case report of the incident was lodged and fled away ;

(ii) That, on receiving the information of the incident from Sarpanch, Village Pauwanala, the Head Constable, Balkrishna (P.W.14) alongwith Constable of Police Chowki, Kamkheda who were on patrol duty in rural area arrived at the place of incident. On lodging a report by Radeshyam (P.W.10), Dehati Nalishi (Exhibit P/4) was recorded and the same was sent for formal registration in the Police Station, Satpada by the Head Constable, Balkrishna,whereupon FIR was registered at Crime No. 151/91 on 05th October,1991;

(iii) That, Radheshyam carried the injured Jwala Prasad, Prem Bai and Suresh on a tractor to the hospital but Jwala Prasad succumbed to the injuries.

On the death of Jwala Prasad, a Merg (Exhibit P/49) was recorded at Police Station, Satpada, hence, a charge u/s 302 of the I.P.C., was added and after preparation of inquest report (Exhibit P/44), the dead body was sent for post mortem examination. Dr. V.C. Oswal (P.W.19), Assistant Surgeon, District Hospital,Vidisha who performed post mortem on 05th October,1991 at 11.00 a.m., gave a report (Exhibit P/44A) and opined that the death was caused due to syncope, fracture of skull and injury to vital organ (spleen) and excessive hemorrhage. The injured were examined by Dr. V.K. Pandey (P.W.15);

(iv) P.W.16, Ajit Patil, Station House Officer arrived at the place of occurrence and prepared site plan (Exhibit P/2) and seized blood stained and controlled earth from the spot (Exhibit P/3). The Investigating Officer recorded the statements of witnesses who were acquainted with the facts of the case, arrested the accused persons and on the basis of statement leading to recovery, the weapons used in the commission of the offence were seized. On completion of the investigation, a chargesheet was filed against 16 accused persons before the committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by the Trial Court for the trial.

The learned Trial Judge on the basis of the material placed on record framed the charge punishable under Sections 148, 452/149, 506(II)/149, 324/149 and 302/149 of the IPC against all the 16 accused persons including the Appellants. The accused persons including the Appellants denied the charge and claimed to be tried. The defence of the accused persons including the Appellants is of false implication and the same defence they set forth in their statements recorded u/s 313 of the Code of Criminal Procedure, 1973.

To bring home the charge, the prosecution has examined as many as 19 witnesses and placed Exhibits P/1 to P/49A, the documents on record. The Appellants have examined Kushal Chand (D.W.1) and Kamal Singh (D.W.2), in their defence.

The learned Trial Judge on the basis of evidence placed on record came to hold that charge under Sections 148, 452/149, 506(II) 149 of the IPC has not been proved against the Appellants, eventually, acquitted them from these offence, however, charge under Sections 323/34, 324/34 and 302/34 of the IPC, has been found proved against the Appellants as a result of which convicted them and passed the sentence as mentioned hereinabove.

The learned Trial Judge on the basis of the same set of evidence came to hold that charge under Sections 148, 452/149, 506B/149, 324/149 and 302/149 of the IPC has not been proved against the 12 coaccused, namely; Hari Singh, Baka alias Bikam, Shibbulal alias Deviram, Salman Khan, Moti, Kailash, Hannu alias Hanif, Gopal, Harinarayan, Kallu, Karan Singh and Munna and, eventually, acquitted all of them.

The State has not preferred any appeal against the acquittal of the Appellants in respect of the charge under Sections 148, 452/149, 506(II)/149 of the IPC and acquittal of the other 12 coaccused persons in respect of all the charge mentioned hereinabove, hence, the findings of the learned Trial Court regarding acquittal become final.

The contention of Shri Atul Gupta, learned Counsel for the Appellants, is that in the present case, the prosecution has examined 03 persons as eyewitnesses, they are;

Radheshyam (P.W.10), Suresh (P.W.11) and Prem Bai (P.W.12) and all of them are thickly related to the deceased as Radheshyam (P.W.10), Suresh (P.W.11) are happens to be sons of the deceased while Prem Bai (P.W.12) is his wife and the enmity has also been admitted and, therefore, implicating the Appellants falsely cannot be ruled out.

Learned Counsel further submitted that as per the case of the prosecution, all the acquitted coaccused persons and the Appellants in all 16 caused marpeet to the deceased while 12 coaccused persons were acquitted. The facts and evidence are very much interlinked that they cannot be separated from each other in order to hold that only 12 acquitted coaccused persons were falsely implicated and not the present Appellants. Learned Counsel for the Appellants has further submitted that there are material contradictions and inconsistencies between the testimony of the eyewitnesses and the testimony of the eyewitnesses have also not been corroborated by the medical evidence, therefore, no reliance can be placed on the testimony of the socalled eyewitnesses.

In support of his contention, learned Counsel has placed reliance on the decisions of the Supreme Court in State of Rajasthan Vs. Rajendra Singh, and Kapildeo Mandal and Others Vs. State of Bihar, .

On these premised submissions, it has been further argued by the learned Counsel that by allowing this appeal, the judgment of conviction and order of sentence passed by the learned Trial Court be set aside.

Per contra, Shri C.S. Dixit, learned Public Prosecutor for the Respondent/State has argued in support of the impugned judgment and has submitted that the maxim ''Falsus in uno falsus in omnibus'' is not application in our country and in order to take out the grain from chaff, the testimony of the eyewitnesses, Radheshyam (P.W.10), Suresh (P.W.11) and Prem Bai (P.W.12) can be relied upon.

The learned Trial Court has rightly convicted the Appellants.

Having heard learned Counsel for the parties, we are of the considered view that this appeal deserves to be allowed.

In the present case, three persons have been examined as eyewitnesses, they are; Radheshyam (P.W.10), Suresh (P.W.11) and Prem Bai (P.W.12).

Needless to say, Radheshyam (P.W.10) and Suresh (P.W.11) are the sons of the deceased and Prem Bai (P.W.12) is his wife. Suresh (P.W.11) and Prem Bai (P.W.12) are the injured witnesses. Admittedly, there was enmity between the complainant party and the Appellants one, therefore, the evidence of the eyewitnesses, Radheshyam (P.W.10), Suresh (P.W.11) and Prem Bai (P.W.12) is required to be scrutinized with great care and caution.

The FIR (Exhibit P/40) was lodged by Radheshyam (P.W.10). The MLC reports of Suresh (P.W.11) and Prem Bai (P.W.12) are Exhibit P/41A and Exhibit P/42A respectively which were proved by Dr. V.K. Pandey (P.W.15). After death of the deceased, the post mortem of his body was conducted by Dr. V.C. Oswal (P.W.19) and his post mortem report is Exhibit P/44A.

On bare perusal of testimony of MLC Dr. V.K. Pandey and autopsy surgeon, Dr. V.C. Oswal (P.W.19) and their MLC reports (Exhibit P/41A & Exhibit P/42A) and the post mortem report (Exhibit P/44A), we find the following injuries on the person of Suresh (P.W.11), Prem Bai (P.W.12) and Jwala Prasad.

Suresh:

(1) Lacerated wound 5 cms. x 1 cm x 2 cms deep (Bone deep) over right parietal region obliquely placed;

(2) Subcutaneous hematoma 3 cms x 3 cms in size over left parietal region;

(3) Contusion bluish pink in colour over left arm medial 1/3rd. Tender.

Object: Hard & blunt Nature: For injuries (1) and (2) advised xray of skull. Injury (3) is simple in nature.

MLC report of Prem Bai:

(1) Incised wound 3.5 cms. x 0.5 cms., x 1 cm., deep (Bone deep) obliquely placed over frontal region (medially) near the hair creaze.

(2) Lacerated wound 2.5 cms. x 0.5 cms., x 1 cm., deep (Bone deep) over forehead about 2 cms., left to injury No. 1.

(3) Contusion 3 cms. x 2 cms., over right shoulder. Bluish pink in colour.

(4) Abrasion linear 6 cms., in length over left scapular region.

Object: Injuries No. (1) and (4) by sharp cutting object. Injuries No. (2) and (3) by hard and blunt object.

Nature: Injury No. 4 is simple in nature. For injuries No. 1, 2 and 3, advised xray of skull and right shoulder.

Jawala Prasad (deceased):

(1) one lacerated wound of size 6 cms., x 1 cm x 1/2 cm over right side of forehead.

(2) one abrasion of size 1 cm x 1/2 cm x 1/2

cm over post part and middle of left arm.

(3) One abrasion of size 8 cms x 2 cms. x 1 cm., above left scapula. Obliquely placed.

(4) One abrasion of size 10 cms., x 2 cms., over right scapula. Obliquely placed.

(5)One lacerated wound of size 10 cms. x 1/2 cm x 1/2 cm below the lower end of rib of left side started from lateral side thorax medially.

(6) One abrasion of size 8 cms. x 2 cms., over upper part of left buttock.

(7) One abrasion of size 3 cms. x 1 cm., over upper part of lateral side of left leg.

(8) One lacerated wound of size 8 cms.x 2 cms x 1/2 cm., over occipital bone vertically placed.

(9) Shape of left leg changed due to fracture of bone at lateral junction of upper 1/3rd and lower 2/3rd .

According to Autopsy surgeon, the death was caused due to syncope, fracture of skull and injury to vital organ (spleen) and excessive hemorrhage.

According to Radheshyam (P.W.10), who is also author of the FIR (Exhibit P/40) at the relevant point of time after having dinner, he was sleeping inside the house whereas his parents (Jawala Prasad and Prem Bai) were sitting on a cot in the DALHAN. At that juncture, accused, Babulal Kumhar, Chhutla Muslaman, Israyel Miyan and Gudda came there. Babbu and Gudda were having Farsi while Israyel was having LAKADI (stick) and Chhutla was armed with lathi. Israyel caught hold of the hand of his father and dragged out him from the DALHAN. Babbu gave a Farsi blow which landed on his father''s head. Gudda also gave a Farsi blow on his head. Chhutla gave lathi blow which hit on his leg. The accused persons hurled abuses and said to settle the dispute. On this, his father told them that he will enter into a compromise in the next morning.

P.W.10, Radheshyam further stated that the accused, Babbu also gave a Farsi blow on the head of his mother while Gudda gave a Farsi blow which landed on the head of his brother, Suresh. After causing injuries, the accused fled away from the spot. Thereafter, he alongwith his injured father went to the Police Chowki, Khamkeda and lodged FIR (Exhibit P/40) there and put his thumb impression on it.

On scanning the testimony of P.W.10, Radheshyam, we find that there are following material omissions and contradictions in his testimony:

(i) The FIR (Exhibit P/40) and the statement u/s 161 of the Cr.P.C., (Exhibit P/41) suggested that Hari Singh, Bhikam, Buddhu, Babbu, Israyel, Salam Khan, Moti, Kailash, Chhutla, Hannu, Gopal, Harinarayan, Kallu, Karan Singh, Gudda and Munna, total 16 persons armed with lathi, Farsa, Ballam arrived and assaulted but in his sworn testimony he clearly deposed that a group comprised; Babbu, Israyel, Chhutla and Gudda (04 persons) arrived and have assaulted.

(ii) He did not support the corresponding recitals of the FIR that 16 assailants formed as an assembly and assaulted.

(iii) P.W.10, Radheshyam clearly deposed that he alongwith his injured father went to the Police Chowki, Khemkada and lodged the FIR (Exhibit P/40) there. He never lodged the report (Exhibit P/40) in his village. But the testimony of its writer Head Constable, Balkishan (P.W.14) shows that the FIR (Exhibit P/40) was lodged on the spot in the village Pauwanala.

(iv) He deposed that Israyel caught hold of the hand of his father and dragged out him from the DALHAN but the same does not find place in the FIR (Exhibit P/40) as well as in the casediary statement (Exhibit P/41).

(v) He has stated that Babbu gave a Farsi blow which landed on his father''s head. Gudda also gave a Farsi blow on his head. Chhutla gave a lathi blow which hit on his leg but the same does not find place in the FIR (Exhibit P/40) as well as in his casediary statement (Exhibit P/41).

(vi) As per his statement, accused, Babbu also gave Farsi on the head of his mother and Guuda gave a Farsi blow which landed on the head of his brother, Suresh but the same does not find place in the FIR (Exhibit P/40) as well as the casediary statement (Exhibit P/41).

On going through the casediary statements (Exhibit P/

42) and (Exhibit P/43) of other eyewitnesses, Suresh (P.W.11) and Prem Bai (P.W.12) respectively and their Court statements, we find that there are material contradictions and omissions in respect of the number of assailants, weapons which they carried, the injuries caused by them and also the overt act of the assailants in their testimonies.

The aforesaid omissions and contradictions are not formal but material and goes to the root of the case, therefore, the evidence of Radhesyma (P.W.10), Suresh (P.W.11) and Prem Bai (P.W.12) does not inspire confidence.

Regarding the effect of discrepancies/improvement/embellishments and contradictions in the statements of the witnesses, the Apex Court in the recent decision in the case of Dr. Sunil Kumar Sambhudayal Gupta and Ors. V. State of Maharashtra 2011 Cri. L. J. 705 has held that:

Material Contradiction: While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial Court after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (vide: State rep. by Inspector of Police Vs. Saravanan and Another, ).

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 such evidence, (Vide: State of Rajasthan Vs. Rajendra Singh, )

The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded. In such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh Vs. State of Uttar Pradesh, .

In case, the complainant in the FIR or the witness in his statement u/s 161 Cr. P.C. has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide: State represented by Inspector of Police, Tamil Nadu Vs. Sait @ Krishnakumar, ).

In State of Rajasthan Vs. Smt. Kalki and Another, , while dealing with this issue, this Court observed as under:

In the depositions of witnesses there are always 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.

The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party''s case, material discrepancies do so. (see: Syed Ibrahim Vs. State of Andhra Pradesh, and Arumugam v. State AIR 2009 SC 331).

In Bihari Nath Goswami Vs. Shiv Kumar Singh and Others, , this Court examined the issue and held:

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 touchstone of credibility.

While deciding such a case, the Court has to apply the aforesaid tests.

Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e.go to the root of the case/materially affect the trial or core of the prosecution''s case, render the testimony of the witness liable to be discredited.

(Emphasis supplied by us)

It is true that the ''maxim Falsus in uno falsus in omnibus'' has no application in India and the witness or witnesses cannot be branded as lier(s). The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. It is the duty of the Court to separate grain from the chaff. Where chaff can be separated from grain, it would be open to the Court to convict the accused. Where the grain cannot be separated from the chaff, the whole evidence should be discarded. In this regard the Apex Court in the case of Balaka Singh and Others Vs. The State of Punjab, has observed as under:

... It is true that, as laid down by this Court in Zwinglee Ariel Vs. State of Madhya Pradesh, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.

It is noteworthy that the complainant, Radheshyam (P.W.10) adopted the method of pick and choose during the trial and stated that only 04 accused, Babbu, Chhutla, Israyel and Gudda have assaulted his father Jwali, mother Prem Bai and brother Suresh. Very cleverly, he omitted the names of the other 12 accused mentioned in the FIR (Exhibit P/40). When asked to explain this discrepancy in the FIR, he has stated that he had not named their names in the FIR (Exhibit P/40) and also in the casediary statement (Exhibit P/41). The aforesaid explanation of Radheshyam (P.W.10) is not at all satisfactory and the fact that he chose 04 persons as assailants during the trial and left out the other 12, renders the witness unworthy of belief. The FIR is the important check regarding the truthfulness of the informant who in this case is the complainant himself, therefore, we are of the considered view that it would be unsafe to leave the fate of the 04 assailants in the hands of a person who adopted the method of pick and choose.

[ Balaka Singh and Others Vs. The State of Punjab, referred to].

Similar to that of complainant, Radheshyam (P.W.10), the other two eyewitnesses, Suresh (P.W.11) and Prem Bai (P.W.12) have also adopted the method of pick and choose during their testimony and stated that only 04 accused persons, namely; Babbu, Israyel, Chhutla, and Gudda have assaulted the deceased themselves and they omitted the names of the other 12 acquitted coaccused.

Thus, in view of the aforesaid, we are satisfied that the evidence of P.W.10, Radheshyam, P.W.11, Suresh and P.W.12, Prem Bai who have implicated the Appellants can also implicate the other 12 coaccused equally with regard to the assault on the deceased, it seems to be not proper to reject the prosecution case with respect to 12 accused and accept it with regard to the other 04 Appellants, therefore, we are of the considered view that their evidence again does not inspire confidence.

Apart from that, if we xray the testimony of P.W.10, Radheshyam visavis to Suresh (P.W.11), Prem Bai (P.W.12) and the medical evidence, we find that P.W.10, Radheshyam has deposed that Babulal and Gudda were having Farsi while Israyel was having Lakadi (stick) and Chhutla was having lathi. Israyel caught hold of the hand of his father and dragged out from the DALHAN. Babulal gave Farsi blow which landed on his father''s head. Gudda also gave a Farsi blow on his head while P.W.11, Suresh stated that Israyel, Chhutla and Gudda were having Farsi while Babulu armed with Ballam. They caused injuries to his father by the arms which they were carrying as a result of which, there was a cut in his neck, hand and leg. P.W.12, Prem Bai has deposed that all the 04 accused persons were armed with Farsi. Babbu, Gudda and Chhutla inflicted Farsi blow on the head of her husband while Israyel caused Farsi blow on the leg of her husband. The version of Radheshyam (P.W.10), Suresh (P.W.11) and Prem Bai (P.W.12) are completely falsified by the medical evidence of Autopsy surgeon, Dr. V.C. Oswal (P.W.19) and the post mortem report (Exhibit P/44). According to medical evidence, all the injuries were lacerated wounds and abrasions which were mentioned in detail hereinabove.

Moreover, out of the 09 injuries which Jwala Prasad received on his body not a single one could be caused by a sharp cutting instrument because there was no penetrating or incised wound. The injuries were either lacerated wounds or abrasions. Thus, the aforesaid discrepancy in medical evidence and occular evidence amounts to a fundamental defect in the prosecution case and is sufficient to discredit the occular evidence. [ Thaman Kumar Vs. State of Union Territory of Chandigarh, and Kapildeo Mandal and Others Vs. State of Bihar, referred to].

In view of these circumstances and the evidence discussed above, we are clearly of the view that the prosecution case against the four Appellants has also not been proved beyond reasonable doubt.

The result is that the appeal is allowed and the judgment of conviction and order of sentence passed on all the Appellants is set aside. The Appellants are acquitted of the charge under Sections 323/34, 324/34 and 302/34 of the IPC. The Appellants are on bail, their bail bonds are discharged.