Major Singh and Another vs State of M.P.

Rakesh Saksena, J.—Since both the aforesaid appeals arise out of the common impugned judgment of conviction, this judgment shall govern the disposal of both the appeals.

Appellants have filed this appeal against the judgment dated 30th September, 2005, passed by Additional Sessions Judge, Sohagpur District Hoshangabad in Sessions Trial No. 84/99, convicting the appellants under Sections 302/ 149 and 148 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 500/- and rigorous imprisonment for two years with fine of Rs. 100/-, on each count respectively. Both the sentences are to run concurrently.

The prosecution case in brief is that on 13.1.1999, at about 7:55 A.M., Halke Bhaiya (PW6) lodged report at police station, Pipariya that when he was at his betel shop, at about 7 P.M. Sakun Bai, the mother of Mukesh Sarathe came shouting that Mongia people were assaulting Mukesh and sought his help. He along with Virendra Singh (PW7) and Naval Kishore (PW2) rushed to the house of Mukesh and saw accused persons assaulting him. Accused Chatru and Major were armed with swords and rest of other accused were armed with bakka. As soon as he reached there, accused persons ran away. There were bleeding injuries on the body of Mukesh. They carried Mukesh to hospital, but doctor declared him dead. According to him, Mukesh told to him that accused persons assaulted him because of a case pertaining to a girl.

Station Officer R.P. Kusmakar (PW8) recorded First Information Report Ex. P/12 under Sections 147, 148 and 302/ 149 of the Indian Penal Code and also registered merg Ex. P/15. After recording inquest memorandum Ex. P/7 before the witnesses, he sent the body of Mukesh for postmortem examination to Community Health Centre, Pipariya. Dr. A.K. Agrawal (PW1) conducted postmortem examination and found number of incised injuries on the body of deceased. He recorded the injuries of deceased in his postmortem examination report Ex. P/1.

After arresting the accused persons, Investigating Officer recovered weapons of offences from accused persons and sent them to F.S.L. for chemical examination. On completion of the investigation, he filed charge sheet in the Court of Judicial Magistrate First Class, Pipariya, who then committed the case for trial.

On charges being framed, accused persons abjured their guilt and pleaded false implication. According to them, deceased himself was a criminal.

Prosecution, to substantiate its case examined Naval Kishore (PW2), Sakun Bai (PW3), Kamlesh (PW4), Halke Bhaiya (PW6) and Virendra Singh (PW7) as eye witnesses of the occurrence and Dr. A.K. Agrawal (PW1) as a medical witness. Kamlesh, Virendra Singh and Halke Bhaiya did not support the prosecution version so they were declared hostile. However, relying mainly on the evidence of Naval Kishore (PW2) and Sakun Bai (PW3), and finding it corroborated by the medical evidence and the F.S.L. report learned trial Judge held the appellants guilty, convicted and sentenced them as aforementioned.

Shri S.C. Datt, learned senior counsel and Shri A.D. Mishra, learned counsel for the appellants submitted that the evidence of eye witnesses viz. Naval Kishore (PW2) and Sakun Bai (PW3) was inconsistent, discrepant and contradictory, therefore, not reliable. These witnesses were also declared hostile on some aspects. None of these witnesses saw whole of the incident, therefore, learned trial Judge committed error in relying on their evidence. On the other hand, Shri Umesh Pandey, learned Govt. Advocate for the State submitted that the evidence adduced by the prosecution was fully reliable. The evidence of aforesaid eye witnesses could not have been discarded merely on the ground of minor discrepancies and inconsistencies. Their evidence was natural and convincing. It stood corroborated by the medical evidence as well as by the recovery of weapons effected at the instance of accused persons. He justified the finding of conviction of appellants recorded by the trial Court in the impugned judgment.

We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully.

It has not been disputed that deceased died of a homicidal death. Naval Kishore (PW2) and Sakun Bai (PW3) categorically stated that accused persons assaulted deceased with sharp edged weapons. Kamlesh (PW4), Halke Bhaiya (P W6) and Virendra Singh (PW7) stated that they saw deceased lying in the injured condition. There were injuries all over his body. Virendra Singh (PW7) stated that he and Halke Bhaiya (PW6) went to police station, Pipariya and lodged the report. Thereafter, they carried him to Govt. Hospital, Pipariya. After the death of deceased, Investigating Officer before Kamlesh and Halke Bhaiya recorded inquest memorandum Ex. P/7 and sent the dead body for postmortem examination. Dr. A.K. Agrawal (PW1) performed the postmortem examination and found following injuries on the body of deceased:

(i) Incised wound on left parietal bone obliquely directed downward and backward 8 x 2 x 2 cm deep up to bone. Margins clean cut.

(ii) Incised wound over left parietal bone and temporal bone behind and above ear 5 x 2 x 2.5 cm deep. Bones are cut.

(iii) Two incised wounds over left arm outer side 3 x 2 x 1 cm and 2 x 1 x 1 cm. Fracture of left humerus bone.

(iv) Incised wound over right hand between index and middle finger through and through 6 x 2 x 2 cm.

(v) Three incised wounds on right forearm 7 x 2 x 2 cm, 6 x 3 x 3 cm and 3 x 2 x 2 cm. Radius on ulna bones of left forearm were fractured.

(vi) Incised wound on right elbow 5 x 3 x 3 cm. Upper olecranon process of right radius bone cut.

(vii) Incised wound on left knee 1 x 1 x 1/2 cm.

(viii) Incised wound on right leg 2 x 1 x 1 cm &

(ix) Incised wound on right foot 1 x 1/2 x 1/2 cm.

All the aforesaid injuries were caused by sharp edged weapons. On internal examination, Dr. A.K. Agrawal found laceration of left hemisphere and left temporal lobe of brain. Blood was present in upper and lower meninges. In his opinion, the cause of death was shock caused by injuries to vital organ brain and hemorrhage (Internal and External) from injuries. Death was homicidal in nature. Postmortem examination report Ex. P/1 was written and signed by him.

From the evidence of aforesaid witnesses, we find it established that deceased died due to injuries caused to him and his death was homicidal in nature.

The next question before us is whether appellants caused the death of deceased. Prosecution examined Naval Kishore (PW2), Sakun Bai (PW3), Kamlesh (PW4), Halke Bhaiya (PW6) and Virendra Singh (PW7) as eye witnesses. Out of these witnesses, Kamlesh, Halke Bhaiya and Virendra Singh resiled from their earlier versions and did not support the prosecution case. They were declared hostile. As far as Naval Kishore (PW2) and Sakun Bai (PW3) is concerned, on some points they were also declared hostile, but they, in substance deposed against the accused persons. It is well settled that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to a close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted ( State of U.P. Vs. Ramesh Prasad Misra and another,

Naval Kishore (PW2) stated that at about 7 P.M., when he was with Halke Bhaiya, the mother of deceased came running and shouting that Mongia people were assaulting Mukesh. When he, Virendra and Halke Bhaiya rushed to the spot they saw accused persons assaulting Mukesh with bakka and sword. This witness could not say as to which accused was armed with which weapon or which accused was wearing which clothes. He also could not point out that which accused was standing at what place. He, however, denied to have stated in the police statement Ex. P/4 that accused Phullu, Hakam, Gunchi and Ganesh had bakka and Chatru and Major had swords in their hands. This contradiction, in our opinion, does not militate against the credibility of this witness. He deposed that they reached the spot first, the mother of deceased reached behind them. They saw deceased lying on the ground and that as soon as they reached and Halke Bhaiya shouted accused persons took to their heels. He along with Halke Bhaiya carried Mukesh to hospital, but later he came to know that he died. Naval Kishore (PW2) admitted that number of criminal cases were proceeding against deceased. He was facing the cases of violence and rape also and many people were his enemies. Learned counsel for the appellants submitted that this witness admitted that Munshi of the Court made him to understand as to how he had to depose in the Court, therefore, the evidence of this witness was not reliable. On perusal of the evidence of PW-2, it appears that he gave evidence in a natural manner. There appeared some minor contradictions from his police statement, but they, in our opinion, added to his trustworthy-ness. Examination-in-chief of this witness was recorded on 10.2.2000, but on the request of learned counsel for the accused, cross examination of witness was deferred. The witness was then cross examined on 25.6.2003 i.e. after about three years of his chief examination. In these circumstances, witness admitted that he was read over the statement given by him in the Court earlier. In our opinion, this admission further reveals the simplicity and innocence of witness. He cannot be branded as a tutored witness. The Apex Court in case of Gagan Kanojia and Another Vs. State of Punjab, observed that even if a part of deposition of a witness can be treated to be tutored, remaining part, if inspires confidence, can be believed or at least taken into consideration for the purpose of corroboration. Naval Kishore (PW2) stated that on way when they were taking Mukesh, he told that he was assaulted because of the enmity developed by the rape of daughter of accused Phullu. He, Halke Bhaiya and Virendra had gone to police station for lodging the report.

Sakun Bai (PW3), the mother of deceased stated that at the time of occurrence Mukesh was sitting at platform outside the gate of her house. She was cooking in the inner room. When she heard noise, she went out and saw accused persons assaulting Mukesh with ballam and farsa. As soon as she saw her son being assaulted, she rushed to call Halke Bhaiya, Naval Kishore and Virendra Singh. When they came and shouted accused persons ran away. While assaulting accused Phullu was telling that he will not let Mukesh live because he enticed his daughter. About two months before the occurrence, the daughter of Phullu had eloped with Mukesh. She reiterated story as given by Naval Kishore (PW2). This witness was declared hostile probably because she stated that at the time of occurrence she was cooking food inside the house, whereas in her police statement Ex. P/5, she stated that she was sitting with Mukesh in front of the house. This contradiction, in our opinion, is not of much substance. It is true that she stated that accused persons wielded ballam and farsa, whereas in her police statement, she stated that accused persons were armed with bakka and swords. This discrepancy also, in our opinion, does not render the evidence of this witness altogether unreliable, since Sakun Bai (PW3) happened to be a rustic village woman who witnessed the incident of brutal murder of her son. Her evidence stood substantially corroborated from the evidence of Naval Kishore (PW2). Learned counsel for the appellants took us through the entire evidence of Sakun Bai (PW3) and pointed out some discrepancies. She, at one place was confronted with her police statement that she and her son Kamlesh, out of fear, had closed the doors of their house and subsequently Halke Bahiya told to her that Mukesh had died. This statement of PW3 does not appear to us unnatural. It is possible that after seeing assault on her son by the accused persons she or Kamlesh might have shut the doors for some time. The place of incident was infront of the house of PW3, therefore, her presence at the spot was natural. If, in bonafide manner this witness stated that she came out of the house after hearing the noise, it cannot be held that she did not witness the incident or did not call Naval Kishore (PW2) and others for help. The improvements or the omissions as pointed out by learned counsel for the appellants, in the evidence of this witness, in our opinion, do not amount to such contradictions so as to create any serious doubt about the truthfulness of the witness.

Exaggerations or improvements 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, therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited ( State rep. by Inspector of Police Vs. Saravanan and Another, [Vide: Arumugam Vs. State rep. by Inspector of Police, Tamil Nadu, , Mahendra Pratap Singh Vs. State of Uttar Pradesh, , Dr. Sunil Kumar Sambhudayal Gupta and Others Vs. State of Maharashtra, , Vijay @ Chinee Vs. State of Madhya Pradesh, State of U.P. Vs. Naresh and Others, Brahm Swaroop and Another Vs. State of U.P., referred in A. Shankar Vs. State of Karnataka,

Kamlesh (PW4) though did not support the prosecution version as a eye witness, but stated that immediately after the incident when his mother, Halke Bhaiya, Naval Kishore and Virendra were taking Mukesh to hospital they told to him that accused persons assaulted Mukesh with swords etc. According to him, out of fear he did not go to hospital or to police station to lodge the report. Halke Bhaiya (PW6), who lodged the first information report Ex. P/12 resiled from his earlier version and stated that the mother of Mukesh came to him and told that there had been a quarrel of Mukesh. He, Virendra Singh and Naval Kishore went to the place of occurrence and saw Mukesh lying there. There were injuries on his body. He did not know who caused injuries to him. This witness also disowned the first information report though admitted his signatures on the same. PW-6 not only turned hostile, but, for reasons best known to him, also made deliberate attempt even to make the evidence of Sakun Bai (PW3) discredited by saying that she told to him that wife of Mitthu Chamar informed her about the quarrel of Mukesh. In our opinion, evidence of PW-6 cannot be given any weight.

Virendra Singh (PW7), who is said to have reached the spot on being called by PW-3 and witnessed the incident, also did not support the prosecution version. He, however stated that the mother of Mukesh came at the room of Halke Bhaiya and shouted that there had been a quarrel with Mukesh without disclosing the name of persons with whom quarrel occurred. When he along with Halke Bhaiya and Naval Kishore reached the house of Mukesh they found him lying in the back of the house. This witness was declared hostile and subjected to a lengthy cross examination, but nothing material could be elicited out in favour of prosecution. He, however reassured the presence of Naval Kishore (PW2) and Sakun Bai (PW3) at the spot.

After examining the testimony of Naval Kishore (PW2) and Sakun Bai (PW3) critically in the light of proposition of law aforestated, we find that their depositions inspire confidence and are reliable and acceptable. Their evidence also finds support from the evidence of Investigating Officer R.K. Kusmakar (PW8), who recovered "Bakka'' on the information u/s 27 of the Evidence Act from Ganesh, Phullu, Hakam, Gunchi and swords from the possession of Chatru and Major. Except the sword of Chatru, other weapons were found stained with human blood vide F.S.L. report Ex. P/31. Evidence of these witnesses finds further corroboration from the evidence of Dr. A.K. Agrawal (PW1), who found 10 incised wounds on the body of deceased. Injury found on the skull of deceased had resulted into the laceration of brain. Since, the injuries apart from caused on various parts of the body, fatal injuries were also caused on the vital part of the body of deceased like head by the accused persons, in our opinion, it can be held certainly established that the accused persons intended to commit murder of deceased in a premeditated manner after forming unlawful assembly armed with deadly weapons. For the aforesaid reasons, we find no error in the impugned judgment of the trial Court recording the finding of conviction of appellants under Sections 148 and 302/ 149 of the Indian Penal Code. Conviction and sentence awarded to accused/appellants are, therefore affirmed. Appeals being devoid of merits are dismissed.

A copy of this judgment be kept in the record of Criminal Appeal No. 2162/2005.