Kishore Jadiya vs State of Madhya Pradesh

All the above appeals have been filed by the accused persons being aggrieved by judgment dated 24.12.2007 passed by 1st Additional

Sessions Judge, Sagar in S.T. No.450/2006, whereby the appellant Kishore has been convicted for offence under Section 302 of the IPC and

other appellants have been convicted for offences punishable under Sections 302/34 of the IPC and sentenced for imprisonment for life with fine of

Rs.3000/- with default stipulations.

Since co-accused Manoj Soni @ Noona is juvenile, he is facing trial at Juvenile Justice Board, Sagar.

It is alleged by the prosecution that, on 2.9.2006, in front of Vidhyapeeth School, Vivekanand Ward, Sagar, there was celebration of Ganesh

Utsav. The complainant Sonu was sitting along with his uncle Sunil in a bench. Suddenly, all the appellants came there from Bada Bazar and

surrounded Sunil Soni. Due to old enmity, the appellant Kishore caused multiple knife injuries to Sunil. Other appellants caught Sunil (since

deceased) while the appellant Kishore caused the injuries. Sunil died on the spot. Seeta, Jai Narayan, Bhagirath Soni and others, witnessed the

incident. On the same day, (FIR Ex.P/6) has been lodged by Sunil at Police Station, Moti Nagar, Sagar. Police registered crime for offence

punishable under Sections 302/34 of the IPC against the appellants. After concluding the investigation, charge sheet has been filed before the

Court of Judicial Magistrate First Class, Sagar.

After committal of the case, learned trial Court framed charges under Section 302 of IPC against the appellant Kishore and Sections 302/34 of

IPC against other appellants. They abjured guilt and pleaded that, they were falsely implicated by the complainant party. Dr. B.K. Mishra (DW-1)

has been examined as defence witness.

Learned trial Court found that the testimony of Sonu (PW-3) is reliable, which has been clearly corroborated by the medical evidence. He has

no ulterior motive to falsely implicate the appellants. Hence, after relying the said evidence, learned trial Court held the appellants guilty for

committing murder of Sunil in furtherance of their common intention. Hence, they were convicted and sentenced as mentioned above.

The appellants challenged the impugned judgment on the ground that the Court below wrongly believed the solitary evidence of Sunil (PW-3), a

real nephew of the deceased. Further that, the trial Court failed to appreciate that prosecution has failed to prove the motive of the appellants to

commit the offence. It was alleged by the appellants that the said incident have taken place on the spur of moment. Therefore, no case should have

been made out against the appellants under Sections 302 or 302/34 of the IPC. The appellants prayed that the impugned judgment be set aside

and they be acquitted from the charges levelled against them.

Learned Govt. Advocate has vehemently opposed the contention of learned counsel for the appellants and submitted that conviction can be

based on sole testimony of a witness with the aid of Section 34 of the IPC. Appellants Devendra and Ramu are liable to be convicted with the

main accused Kishore for offence under Section 302 of the IPC. There is sufficient evidence on record against them. Hence, he has prayed for

dismissal of the present appeals.

Perused the record.

After considering the above arguments, we are re-appreciating the prosecution evidence.

Learned trial Court has mainly relied the testimony of Sonu (PW-3). It is not in dispute that he is nephew of the deceased. He deposed that on

the date of incident at about 10:30 p.m., he was sitting along with his uncle Sunil on the strip of Vidhyapeeth School. Suddenly, all the appellants

with juvenile Noona came there and surrounded his uncle Sunil. Juvenile Noona and appellant Devendra caught hold the hands of Sunil, whereas

appellant Ramu caught hold the hairs of Sunil, they all were assaulting Sunil by kicks and fists. The appellant Kishore inflicted multiple blows by

knife on his abdomen and left side of his chest. When Sonu (PW- 3) shouted for help, the appellants tried to beat him. His uncle fell down on the

earth towards his face. Again, all the appellants were assaulting his uncle Sunil. Then, the appellant Kishore inflicted a knife blow on his back. Sunil

was unconscious but alive. Sonu''s father Jai Narayan, mother Vidhya, sister Sita and one neighbour Bhagchand came there. Then the appellants

ran away from the spot. Sunil was taken to Tilli Hospital, Sagar by Jai Narayan, where Sunil was declared dead. Thereafter, FIR (Ex.P/6) has

been lodged by Sonu (PW-3) at Police Station.

Bhagirath (PW-8) also witnessed the incident. He deposed similar version of Sonu (PW-3) and narrated that at the time of incident, he was

present at the spot and was present at a distance of 20-25 ft. He also deposed that only the appellant Kishore inflicted knife blows to Sunil,

whereas, other appellants caught him. In para 5, he gave same statement. He also established the presence of Sonu on the spot. We find that

presence of Sonu (PW-3) on the spot is strongly established by his crossexamination. Therefore, we have no reason to disbelieve his testimony.

Learned counsel for the appellants has submitted that the testimony of Bhagirath is contradictory with his police statement Ex.D/1. We are not

inclined to accept this contention because there is no material contradiction or omission in his statement. The gist of Sonu''s testimony is that the

appellants Ramu and Devendra surrounded Sunil and caught him, while the main accused Kishore assaulted Sunil by knife.

In case of Sudip Kumar Sen @ Biltu Vs. State of West Bengal and others, (2016) 3 SCC 26, it has been held as under:-

Section 34 IPC embodies the principle of joint liability in the doing of a criminal act and essence of that liability is the existence of common

intention. Common intention implies acting in concert and existence of a pre-arranged plan which is to be proved/inferred either from the conduct

of the accused persons or from attendant circumstances. To invoke Section 34 IPC, it must be established that the criminal act was done by more

than one person in furtherance of common intention of all. It must, therefore, be proved that:- (i) there was common intention on the part of several

persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention. Common intention

implies pre-arranged plan. Under Section 34 IPC, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The essence

of liability under Section 34 IPC is conscious mind of persons participating in the criminal action to bring about a particular result. The question

whether there was any common intention or not depends upon inference to be drawn from the proved facts and circumstances of each case. The

totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit

an offence with which they could be convicted. See also. Ranbeer Singh (dead) by Legal Representative Vs. State of Uttar Pradesh and others,

(2015) 12 SCC 221 and Rajkishore Purohit Vs. State of Madhya Pradesh and others, (2017) 9 SCC 483.

It is not possible to read a person''s mind. There can hardly be direct evidence of common intention. Existence or non-existence of common

intention amongst accused has to be deciphered cumulatively from their conduct and behavior in facts and circumstances of each case. Events prior

to occurrence as also after and during occurrence, are all relevant to deduce if there existed any common intention. There can be no straitjacket

formula. Absence of any overt act of assault, exhortation or possession of weapon, cannot be singularly determinative of absence of common

intention"".

Thus, we hold that the testimony of Sonu (PW-3) and Bhagirath (PW-8) are cogent and trustworthy. There is no reasonable ground to discard

their testimony. They duly proved that the appellant Kishore killed Sunil by inflicting several blows by knife on the vital parts of his body.

Jai Naranyan Soni (PW-4) deposed that he heard hue and cry of his son Sonu at a distance of 10 ft. The appellants ran away from the spot

then, he reached the spot and saw the injuries of the deceased. His daughter Sita (PW-5) also saw the scene of occurrence. Jai Narayan Soni

(PW-4) and Seeta (PW-5) also established the presence of Bhagirath (PW- 8) nearby the spot and stated that Bhagirath came on the spot. Under

Section 134 of the Indian Evidence Act, no number of witness has been prescribed to prove any fact. This provision is based on the principle the

quality of evidence and be considered not quantity. In case of Prithipal Singh Vs. State of Punjab, (2012) 1 SCC 10 it was held as under:-

This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly

reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the

Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the

quality that is material. The timehonoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring

of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than

on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and

record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.

(See Vadivelu Thevar Vs. State of Madras, AIR 1957 SC 614, Sunil Kumar Vs. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, Namdeo

Vs. State of Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal Vs. State of W.B, (2010) 12 SCC 91.

In view of the evidence on record, the prosecution would not be required to establish that, one particular accused is responsible for causing the

fatal injuries in as much as the ingredients of Section 34 of the IPC would be squarely attracted in the present case, as the principles laid down by

the Apex Court in case of Kara Bhai Vs. State of Gujrat, AIR 2017 SC 5413.

The testimony of Sonu (PW-3) and Bhagirath (PW-8) is sufficient to prove that with in furtherance of common intention of the appellants, the

appellant Kishore inflicted blows of knife to Sunil. Sunil sustained fatal injuries on his chest and abdomen and he died just after the incident.

Learned counsel for the appellants has placed reliance on the cases of Mohan Singh and Anr. Vs. State of Punjab, AIR 1963 SC 174,

Vijendra Singh Vs. State of Uttar Pradesh, Mahendra Singh Vs. State of Uttar Pradesh, (2017) 11 SCC 129 and Megha Singh Vs. State of

Haryana, (1996) 11 SCC 709 and urged that the acts of appellants Devendra and Ramu are not covered under the purview of crime punishable

with the aid of Section 34 of the IPC.

In the present case, it was established that the appellants Devendra and Ramu had actively participated in the crime with the main accused

Kishore. They surrounded the deceased and caught hold him to restrain the deceased.

After meticulously examined the facts and circumstances of the case and testimony of Sonu (PW-3) & Bhagirath (PW-8), we hold that the

appellants Devendra and Ramu have similar liability with the aid of Section 34 of the IPC. With regard to some omission and exaggeration in the

evidence of aforesaid witnesses as indicated by learned counsel for the appellants, we are of the view that such omission and exaggeration normally

occurs in the testimony of reliable witnesses because it cannot be expected from anyone to explain the incident in exact wordings such as a parrot

speaking as the Supreme Court has observed in case of State of U.P. Vs. Naresh (2011) 4 SCC 324.

Similarly, in case of Sheesh Ram and others vs. State of Rajasthan (2014) 3 SCC 689, the Supreme Court has held that :-

It is trite that the maxim ''falsus in uno falsus in omnibus'' has no application in India. It is merely a rule of caution. It does not have the status of rule

of law. In Balaka Singh v. State of Punjab[2], this Court has said that where it is not feasible to separate truth from falsehood, because the grain

and the chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential

details presented by the prosecution completely from the context and background against which they are made,

Witnesses tend to exaggerate the prosecution story. If the exaggeration does not change the prosecution story or convert it into altogether new

story, allowance can be made for it. If the evidence of witness is to be disbelieved merely because he has made some improvement in his evidence.

There would hardly be any witness on whom reliance can be placed by the Court.

Learned counsel for the appellants further contended that Sonu (PW-3) is related witness of the deceased. The conviction cannot be based on

related eye-witness. Normally, this is a common objection raised by defence side. It is settled law that the evidence of related or interested

witnesses is not always suspected. It has to be scrutinized with cautious and can be accepted, if it is found reliable.

In case of ""Arjun vs. State of C.G. [2017 (2) MPLJ (Cri.) 305]"", the Hon''ble Supreme Court has held as under :

Evidence of related witness is of evidentiary value. Court has to scrutinize evidence with care as a rule of prudence and not as a rule of law. Fact

of witness being related to victim or deceased does not by itself discredit evidence.

In case of ""Kartik Malhar Vs. State of Bihar [(1996) 1 SCC 614]"" the Hon''ble Supreme Court has held as under :-

A close relative who is a natural witness cannot be regarded as an interested witness, for the term ""interested"" postulates that the witness must

have some interest in having the accused, somehow or the other convicted for some animus or for some other reason.

In this case, the testimony of Sonu (PW-3) corroborated by other evidence is found reliable and credible. Inspector G.P. Mishra (PW-10) has

established that FIR Ex.P/6 was promptly lodged by Sonu (PW-3). The facts of FIR Ex.P/6 was duly established by direct evidence.

Dr. Shailendra Shukla (PW-2) conducted autopsy of the deceased on the date of incident and he found the following injuries:-

(i) A stab wound conical shape on sternum at 6th ribs size of 3 cm. x 1.5 cm. x bone deep,

(ii) A stab wound on right side of back at lumber portion size of 3.5 cm. x 2 cm. x 2 cm. x deep,

(iii) A stab wound on right buttock size of 1.5 cm. x 1/2 cm. x muscle deep,

(iv) A stab wound below the injury no.3 at right buttock size of 1 cm. x 1/2 cm. x muscle deep,

(v) A stab wound below the injury no.4 at right buttock about 1 cm. x 1/2 cm. x muscle deep,

(vi) A stab wound on right thigh in middle portion at back side size of 2.5 cm. x 1 cm. x muscle deep,

(vii) A stab wound on right thigh at back side about 1.5 cm. x 1 cm. x muscle deep,

(viii) An incised wound below injury no.7 on right thigh size of 1.5 c.m. x 1 cm. x muscle deep,

(ix) A stab wound on right thigh in upper side about 1 c.m. x 1/2 cm. x muscle deep,

(x) A stab wound on right side of scapula about 2.5 cm. x 1.5 cm. x muscle deep,

(xi) A stab wound transverse on abdomen above navel about 3 c.m. x 2 c.m.

Due to above injuries, upper side of peritoneum and abdomen were in cut condition. These wounds reached upto right lob and posterior and

interior side of right lob of liver. There was torn about 2 cm. x 1.5 cm. x 1.5. cm. entire thoracic and abdominal cavity were full of blood.

Dr. Shukla opined that the deceased died due to above injuries on liver and due to shock within 24 hours from postmortem. All the injuries were

caused by hard, sharp and pointed weapon and ante mortem in nature. In our opinion, all the above injuries were sufficient to cause death of the

deceased in ordinary course of nature.

We do not find any reason to disbelieve the findings of Dr. Shailendra Shukla (PW-2). The ocular version of prosecution case is duly

supported by medical evidence also.

Learned counsel for the appellants has submitted that the prosecution has failed to prove the seizure of incriminating weapon from the

appellants. With regard to testimony of G.P. Mishra (PW-10), who seized a knife from the possession of appellant Kishore is duly corroborated

by Panch-witness Bunty (PW-6). He established that in his presence, police seized a knife as per memorandum of appellant Kishore. The knife

was sent to the FSL for examination. As per FSL report (Ex.P/18), blood was found on the knife seized from the possession of appellant Kishore.

Hence, it cannot be a reason to discard or brush aside the whole prosecution case, which was otherwise duly established by medical and direct

evidence on record.

The appellants examined B.K. Mishra (DW-1) as defence witness, who was Civil Surgeon of District Hospital, Sagar. He deposed that in pre

MLC register for the period of 21.9.2006 to 25.9.2007, no pre MLC report has been mentioned for the injuries of the deceased. But in his cross-

examination, he has admitted that in police information register, there was an entry for Sunil that after he was brought to the hospital, Sunil died.

Therefore, it is established that an information was sent to the police station. The testimony of defence witness is not sufficient to disprove the

prosecution story.

On the basis of aforesaid discussion and taking of over all view of the matter, which are examined by us in the light of principles laid down by

the Supreme Court, we are of the opinion that no interference is warranted in the impugned judgment and sentence. Hence, all the appeals filed by

the appellants Kishore, Devendra Dubey and Ramu @ Hansraj Namdeo are hereby dismissed.

If the appellants are on bail, it is directed that their bail bonds stands cancelled. They are directed to surrender before the trial Court to

undergo the remaining part of jail sentence awarded by the trial Court, failing which the trial Court shall take appropriate action under intimation to

the Registry.

Copy of the judgment be sent to the trial Court alongwith the record for information and necessary compliance.