Munna And Another vs State Of Madhya Pradesh

S.K. Gangele, J.

Appellants have filed this appeal against the judgment dated 20th October, 1994 passed by Sessions Judge, Sagar in Session Trial No. 42/1994, Sagar.

Appellants were prosecuted for commission of offence punishable under Section 302/34 of the I.P.C. The Trial Court held the appellants guilty for the

aforesaid offence and awarded sentence of life.

The prosecution story in brief is that on 14.12.1993 deceased Annu Shukla had beaten appellant Munna and since then appellants had ill-will against

him. On 18. 12.1993 at about 8 o'clock in the morning when deceased was coming from river both the appellants had been

chasing him. Appellant Ralli had a Lathi and Munna had an axe. PW 2 was sitting outside of his House. Deceased entered in the house of P.W. 2.

Accused persons chased him and they had also entered into the house. They had beaten the deceased. P.W 2 witnessed the incident. He had

informed father and brother of the deceased. Thereafter father and mother and other persons reached at the house of the P.W. 2. On the way

appellants also met them they were armed with Lathi and Axe. F.I.R was lodged at the police station. Police conducted investigation and filed charge

sheet.

Appellants abjured their guilt during trial and pleaded innocence. Trial Court held the appellants guilty for commission of offence and awarded

sentence.

Learned counsel for the appellants have submitted that conviction of the appellants is based on evidence of P. W. 2, who is not reliable. P. W. 2 in

his cross-examination admitted the fact that he had read his statement under Section 161 of Cr. P. C. recorded by the police hence, his evidence has

to be discarded. It is further submitted that evidence of other witnesses are also unreliable. There are major contradictions and omissions in the

evidence of witnesses. Hence, the appellants are liable to be acquitted. In support of the contentions, learned counsel for the appellants relied on the

following judgments of Supreme Court as well as of this Court:

(1)Ramvilas Ramdin v. State of M.P.1984 [Cri. L.R. (M.P) 12].

(2) , Krishnegowda and others v. State of Karnataka [(2017) 13 SCC 98],

(3) Anjan Kumar Sarma and others v. State of Assam [(2017) 14 SCC 359].

Contrary to this learned counsel for the State has submitted that P.W. 2 is independent eye-witness. He had witnessed the incident. His evidence is

natural. There is other corroborative evidence and extra judicial confession of the appellants. The ocular evidence finds corroboration with medical

evidence. F.I.R was lodged promptly. Trial court rightly held the appellants guilty and awarded proper sentence.

P.W 2 is star witness of prosecution. He deposed that on the day of Saturday I was sitting outside my house. At around 8 o'clock in the morning,

deceased Annu Shukla was coming from River side. He was running. He entered into my house. Accused Ralli and Munna were chasing the

deceased. Ralli armed with Lathi and Munna was armed with Axe. They also entered my house. They had beaten the deceased. At that time I was

alone. My son had gone to River to take bath. I had witnessed the Marpit. Thereafter, I went to the house of father of deceased Tulsiram to inform

him. At the house I met with Tulsiram and Ved Prakash and informed the incident to them. They came to my house. However, when I returned back

to my house the deceased was dead. At that time Shankarlal Patel, Ganesh Up-Sarpanch, Ganpat Kotwar and Bhagwan Singh Thakur also present at

my house. I signed Ex-P/3, P/4 and P/5. Police prepared the spot map and seized blood from the spot. In his cross-examination he admitted that he

was with Ved Prakash day before yesterday and he had read over to him the paper which was my statement given to him before to the Police under

Section 161 Cr.P.C.

P.W. 6 is the brother of the deceased. P.W. 11 is father of the deceased. Both deposed that Mitthu told them that appellants had beaten your

brother. They had Axe and Lathi with them and, therefore, we went to the house of P.W 2. On the way accused persons were coming from the

house of Hari Singh. Munna had an Axe and Ralli had a Danda. I inquired from them what had happened. Thereafter they abused us. At the

residence of P.W. 2 deceased was lying dead. P.W. 6 further deposed that I went to Police Station and lodged report which is Ex.P. 8. I affixed my

thumb impression. Police prepared spot map. P.W. 11 is father of deceased, he also deposed the same facts.

Shankar Lal PW 3, whose house is at the distance of half kilometer from the house of P.W. 2 deposed that Ved Prakash told him that Munna and

Ralli had beaten the deceased. Thereafter, I went at the house of PW 2. Shankarlal Shrivastava-Sarpanch 10 to 20 persons and Village Kotwar were

also present. Mitthu told us that appellants killed the deceased. Thereafter I requested Kotwar to lodge the report

P.W. 8 deposed that I along with Ved Prakash and Tulsi Ram went to the house of Mitthu and at the residence of Shankarlal Patwari I met with

Munna and Ralli who were armed with Axe and Danda. They told us that they had killed the deceased at the residence of P.W.2. Thereafter I went

to the house of PW 2 and noticed that deceased had died.

P.W -10 is the witness of seizure. He deposed that accused Munna told the Police about the incident and on his memorandum Ex. P-11 Axe was

seized. Ralli informed the police about the Danda and on his memorandum Danda was seized. Ex. P-13and 14 are seizure memo, I signed both the

documents.

P.W. 12 deposed that on the instruction of Ved Prakash I recorded F.I.R. Ex.P.8 and signed the same.

Thereafter, Offence was registered and I reached on the spot. I prepared Panchnama of dead body and also seized plain and red earth vide seizure

memo Ex. P-15. I recorded statement of witnesses. On the memorandum of both the appellants Ex. P-11 and P-12 axe and danda was seized.

Seizure of axe is Ex. P-14 and seizure of wooden stick (Danda) is P-13. Thereafter, accused persons were arrested. Articles were sent to Forensic

Laboratory. Patwari prepared the spot map. He also verified the fact.

P.W. 1 is the doctor who performed postmortem of the deceased. He noticed following injuries on the person of the deceased:

1- ,d QVk gqvk ?kko 1 bap xqf.kr 1@2 bap xqf.kr 1@6 bap cka;h iyd ds Ã…ij feyk Fkk]

2- ,d fNyk gqvk fu'kku 1@8 bap xqf.kr 1@8 bap] cka;s gkFk dh dksguh ds vanj ds Hkkx esa feyk Fkk]

3- ,d fNyk gqvk uhy dk fu'kku 2 bap xqf.kr 1 bap] nka;h Hkqtk ds ckgj dh vksj] uhps okys fgLls ij feyk Fkk] ;g ?kko frjNk Fkk]

4- ,d uhy dk fu'kku] tks fNyk gqvk Fkk] 1@2 bap xqf.kr 1@2 bap] cka;h Hkqtk ds Ã…ij pksV ua0 3 ds ikl Fkk]

5- ,d fNyk gqvk uhy dk fu'kku] 211 bap xqf.kr 1@2 bap] nka;s gkFk ij] chp okys fgLls esa ckgj dh vksj Fkk]

6- ,d fNyk gqvk uhy dk fu'kku 1 bap xqf.kr 1@2 bap] cka;s gkFk ij pksV ua0 5 ds ikl Fkk]

7- ,d fNyk gqvk uhy dk fu'kku] 1@2 bap xqf.kr 1@2 bap] nka;s gkFk ij pksV ua0 6 ds ikl Fkk]

8- ,d fNyk gqvk uhy dk fu'kku] 1@2 bap xqf.kr 1@2 bap] cka;s ?kqVus ds Ã…ij ckgj dh vksj Fkk]

9- cka;s iSj ds uhps frgkbZ fgLls esa ckgj dh vksj rhu [kjksp ds fu'kku feys Fks]

10- cka;s iSj ds fupys frgkbZ fgLls esa gh ikap fNys gq;s fu'kku ¼dUV;wtu½ feys Fks] ftudk vkdkj 2 bap xqf.kr 1 bap ls ysdj 1@2 bap xqf.kr 111

bap xqf.kr 2 bap] nka;s ? kqVus esa ihNs dh vksj Fkk]

12-- cgqr ls uhy ds fu'kku ¼eYVhiy cwt½ 6 bap xqf.kr 1@ bap ls 8 bap xqf.kr 1111 bap ds vkdkj ds Fks] tks fd ,d nwljs ds Åij Hkh Fks] tks fd

ihB ij Fks]

13- ihB esa fupys fgLls esa nks fNyus ds fu'kku Fks] tks 1@4 bap xqf.kr 1@4 bap Fks]

14- ihB esa ,d fNyus dk fu'kku Fkk tks fd 1@4 bap xqf.kr 1@4 bap Fkk]

15- ejht dh nksuksa rjQ dh Nkfr;ksa esa dM+dM++kgV dh vkokt ¼dszfdx lkmaM½ vk jgh Fkh] ftlls vanj dh ilfy;ksa esa vfLFkHkax laHkkfor

izrhr gks jgh Fkh] tks fd 7] 8 oha ,od 9 oha ilfy;ksa dh vfLFkHkax dh laHkkouk Fkh]

Injury No. 11 was caused by hard and sharp edged weapon. All other injuries were caused by hard and blunt object. Named F.I.R was lodged

within three hours of the incident. P.W. 2 is the eye witness. Counsel for the appellants have submitted that evidence of aforesaid witnesses is not

admissible because he deposed that he had his police statement one day before. In support of aforesaid arguments learned counsel for the appellant

placed reliance on the judgment of this Court in the matter of Ramvilas Ramdin (supra). However, the facts of the aforesaid case is that the police

statement was read over to witness when he was giving his statement before the Court. Hence, the judgment is distinguishable on facts.

We have perused the examination in chief of the witnesses and the cross-examination. The witness is quite natural. P.W. 6, P.W. 8 and P.W. 10

further deposed that P.W. 2 informed them about the incident and he had specifically mentioned that the appellants had inflicted injuries to the

deceased.

The Hon'ble Apex Court in Deny Bora v. State of Assam [(2014) 14 SCC 42] has held that the conviction wholly rests on the sole testimony of

sole witness if the quality of witness makes the testimony acceptable. The Hon'ble Supreme Court has held as under:

“14. As we find, the conviction wholly rests on the sole testimony of PW-14. It is well settled in law that conviction can be based on the testimony

of a singular witness. It has been held in Sunil Kumar v. State (Govt. of NCT of Delhi) that

“9...........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, 1872. But, if there

are doubts about the testimony the courts will insist on corroboration.

The same principle has been reiterated in Namdeo v. State of Maharashtra[6] by stating that it is open to a competent court to fully and completely

rely on a solitary witness and record conviction, if the quality of the witness makes the testimony acceptableâ€​

Apart from testimony of P.W. 2 there is evidence of P.W. 6, PW 11 and PW 8. PW 6 is the brother of deceased and P.W. 11 is father of

deceased and P.W. 8 is independent witness. All the witnesses have deposed that after information received from P.W. 2 when they were going to

the house of P.W. 2 they had an encounter with the appellants and the appellants told them that they had killed the deceased. The appellants were

armed with Axe and Danda.

Hon'ble Supreme Court in [(2003) 8 SCC 180] has held as under in regard to extra judicial confession :

“The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the

veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives

the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the

nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a

confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of a witnesses who

appears to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he

may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably

convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the

evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a

conviction if it passes the test of credibility. The requirement of corroboration is a matter of prudence and not an invariable rule of law.â€​

There is a seizure of Danda and Axe from the appellants. Seizure has been proved by the witnesses. P.W. 1 is the doctor who performed Autopsy

of the deceased. He noticed number of injuries on the body of the person of the deceased. Injury no. 1 was incised wound which was caused by a

sharp edged weapon. Rest of the injuries were caused by hard and blunt object. There was fracture of ribs of the deceased. He died on the spot. The

appellants chased the deceased. They were armed with Danda and Axe. When the deceased entered the house of P.W. 2 the appellants also entered

into house and inflicted grievous injuries on the person of the deceased. Intention and motive of the appellants was to kill the deceased. Hence, in our

opinion the Trial Court has rightly convicted the appellants with the add of Section 34 I.P.C.

We do not find any merit in this appeal. It is hereby dismissed. Appellants are on bail. Their bail bonds are cancelled. They are directed to

surrender before the Trial court to undergo remaining part of jail sentence.

Copy of the judgment be sent to the Trial Court for necessary action.