Malkhan & Ors vs State Of Madhya Pradesh

S.K.Gangele, J :-

Appellants have filed this appeal against the judgment dated 23.03.1995 passed by the First Additional Sessions Judge, Satna in Sessions Trial No.

190/90 whereby the appellants have been convicted under Section 302 read with Section 34 of Indian Penal Code and sentenced to undergo life

imprisonment & fine of Rs. 2000/- each with default stipulation.

During the pendency of this appeal, appellant No. 2 Bakoli and appellant No. 3 Mathura have been died. Hence, the appeal filed by the aforesaid

appellants is abated. The present appeal is being prosecuted by appellant No. 1 Malkhan and appellant No. 4 Sharda.Â

Prosecution story in brief is that deceased Lalji was the younger brother of Ramkhilawan (PW-1). On the date of incident, Ramkhilawan (PW-1)

had gone to Majhgawan. His father Baijnath (PW-11) and mother Parwati (PW-12) were at home. At around 8 o’clock in the morning, after

hearing hue and cry, they went to the spot and noticed that appellant No. 1 Malkhan had been beating the deceased with an axe and other accused

persons had catch hold of the deceased. After hearing hue and cry, accused persons ran away from the spot. Report of the incident was lodged

at police station at 10:30 am in the morning by Ramkhilawan (PW-1). Thereafter, FIR was registered. Police conducted investigation and filed

charge-sheet.

During trial appellants abjured guilt and pleaded innocence. However, the trial Court held the appellants guilty for commission of offence

punishable under Section 302 r/w Section 34 of the Indian Penal Code and awarded sentence as mentioned above.

Learned counsel for the appellants has contended that there are major contradictions and omissions in the evidence of the eye-witnesses Sanad

Kumar (PW-5), Baijnath (PW-11) and Parwati (PW-12).  Baijnath (PW-11) and Parwati (PW-12) are the father and mother of deceased Lalji,

hence, their evidence is not reliable.Â

Contrary to the aforesaid contention, learned counsel for the State submitted that there is ample evidence to hold the appellants guilty for

commission of offence of murder. The trial Court has appreciated the evidence properly and held the appellants guilty. Hence, the appeal is liable

to be dismissed.

Sanad Kumar (PW-5) is the eye-witness. He deposed that, I am a timber merchant. Timber was lying in nala. I had gone to hire labor.Â

On the way, I witnessed that dead body of Lali was lying on the earth. Malkhan was also present there. He had an axe with him. I had seen

that Malkhan had inflicted blow of axe on the head and neck of the deceased. No other person was present on the spot at that time.Â

Subsequently, father and mother of the deceased had also reached on the spot. I told about the incident to Ramkhilawan (PW-1). In his cross-

examination, he further deposed that, I had seen Malkhan going towards Majhgawan. He further deposed that, I had not seen anybody beating the

deceased.Â

Baijnath (PW-11) is another eye-witness. He is the father of the deceased. He deposed that at around 8 o'clock in the morning, after taking

breakfast, I was about to leave home.

When my son Lalji did not return to the house, I went to the village to find my son. When I reached near the house of Sharda and Mathura, I saw

appellants Bakoli, Mathura and Sharda had caught hold of my son and appellant Malkhan had been inflicting injury by tangi at my son. In his

cross-examination he deposed that, I became unconscious and I had seen Malkhan running from the spot.

Parwati (PW-12) is the mother of the deceased. She deposed that when my son did not return to the house, I along with my husband Baijnath

(PW-11) went to the village to find Lalji (since deceased). When I reached at the house of Sharda, accused Mathura, Bakoli and Sharda had

caught hold of my son and accused Malkhan had inflicted blows on the head and neck of my son. After hearing hue and cry, accused persons ran

away from the spot. In paragraph 5 of her cross-examination, she deposed that when I reached at the spot, at that time my son was lying on the

earth and other accused persons were running away from the spot.Â

Virjeewan (PW-3) and Sitaram Vishwakarma (PW-4) turned hostile.Â

Awdesh Kumar @ Babbu (PW-2) is the witness of seizure of axe. He did not support the seizure and was declared hostile.Â

Ramkhilawan (PW-1) deposed that Babbu Garg told him that accused persons had killed the deceased.Â

Dr. P.D.Agrawal (PW-10) performed postmortem of the deceased. He deposed that he noticed the following injuries on the person of the

deceased :

(i) Two lacerated wound on the anterior aspect of neck each one of 9 cm x ½ cm x bone deep in size. Trachea and esophagus was cut

(ii) Lacerated wound on right occipital region of scalp of 9 cm x 1 ½ cm x bone deep. Brain matter was coming out.Â

Dr. Agrawal further opined that the deceased died due to injuries suffered by him.Â

Sitaram (PW-13) deposed that, I was posted as Station House Officer Incharge at the relevant time at Police Station, Baloda. I inspected the

spot and prepared Panchnama of the dead body Ex. P/4 and spot map Ex. P/2. I also seized plain and red earth vide seizure memo Ex. P/6 and

gamcha vide seizure memo Ex. P/8. I signed the documents. On 16.08.1990, appellant No. 1 Malkhan was arrested and on his memorandum, an

axe was seized vide seizure memo Ex. P/10. The seized articles were sent to FSL for chemical examination. I recorded statement of Ramkhilawan,

Baijnath Prasad, Sitaram, Parvati, Badriprasad, Heeralal and Virjeewan.  FIR Ex. P/16 is the report of registration of offence. It was lodged at

10:30 in the morning on the same date. It is mentioned in the report that appellant had inflicted injuries by an axe on the person of the deceased.

Sanad Kumar (PW-5) who is a natural witness specifically deposed that he had seen appellant No. 1 Malkhan on the place of occurrence. He

was armed with axe. In his examination-in-chief, he deposed that Malkhan had inflicted a blow by an axe on the deceased. However, in his

crossexamination, he deposed that I did not see anybody beating the deceased.Â

Baijnath (PW-11) and Parwati (PW-12) are the father and mother of the deceased. They are related and interested witness.

The Apex Court in case Jodhan Vs. State of Madhya Pradesh [(2015) 11 SCC 52]Â has held as under in regard to appreciation of evidence of

related and interested witnesses :

“24. First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab [AIR 1953 SC 364], it has been observed thus:-

We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the

foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we

know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common

to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan [AIR 1952 SC 54].

In the said case, it has also been further observed:-

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless

the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close [relative] would be the last to screen the

real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency

to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere

fact of relationship far from being a foundation is often a sure guarantee of truth.

In Hari Obula Reddy v. State of A.P. [(1981) 3 SCC 675], the Court has ruled that evidence of interested witnesses per se cannot be said to be

unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduced a passage

from the said authority:- ""13……...An invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material

extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful

scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by

itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.

The principles that have been stated innumber of decisions are to the effect that evidence of an interested witness can be relied upon if it is found

to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be

rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in

regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered

injuries in the occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the

cross-examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence

warranting to treat the same as improbable or untrustworthy.â€​

Baijnath (PW-11) in his examination-in-chief deposed that accused Malkhan inflicted injuries on the person of the deceased by tangi and other

persons had caught hold the deceased. However, in paragraph 8 of his cross-examination, he deposed that when I reached on the spot, I became

unconscious.

I had seen accused Malkhan running from the spot. Parwati (PW12) deposed the same facts in her examination-in-chief that appellant Malkhan had

inflicted injury and other persons catch hold the deceased. However, in paragraph 7 of her crossexamination, she deposed that when she reached on

the spot, at that time, the deceased was dead and she had seen other accused persons running away from the spot.

Sanad Kumar (PW-5) specifically deposed that except Malkhan, he did not see any person at the place of occurrence. He has not been declared

hostile on this aspect. Hence, in our opinion, the evidence of Baijnath (PW-11) and Parwati (PW-12) against Malkhan is reliable. But with regard

to other accusedappellant No. 4-Sharda that he had catch hold the deceased, is not reliable. From the possession of accused Sharda/appellant No. 4

nothing was seized. There is no evidence that there was premeditation or meeting of minds. Hence, in our opinion, the trial Court has

committed error in convicting Sharda/appellant No. 4 with the aid of Section 34 of the Indian Penal Code.

Appellant No. 1-Malkhan was armed with deadly weapon. He had inflicted repeated blows by axe on the vital parts of the deceased.Â

Deceased died on the spot, hence, the intention of appellant No. 1 Malkhan was to commit murder of the deceased Lalji.

On the basis of above discussion, appeal filed by appellant No. 1-Malkhan is hereby dismissed. His conviction and sentence awarded by the trial

Court for commission of offence punishable under Section 302 of Indian Penal Code is upheld. However, he is acquitted from the offence

punishable under Section 34 of the Indian Penal Code. Appellant No. 1 Malkhan is on bail. His bail bonds are canceled. He is directed to

surrender immediately before the trial Court to undergo remaining part of the jail sentence, failing which the trial Court shall take appropriate action

under intimation to the Registry.

Appeal filed by appellant No. 4-Sharda is hereby allowed. His conviction and sentence under Section 302 read with Section 34 of the Indian

Penal Code awarded by the trial Court is hereby set aside. He is on bail. His bail bonds are hereby discharged.Â

Copy of this judgment be sent to the Court below for information and compliance along with its record.