Prakash vs State of Madhya Pradesh

This criminal appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 08.02.2007 passed by VIth Additional

Sessions Judge, District Sagar in Sessions Trial No.358/2005, whereby the learned ASJ found appellant guilty for the offences punishable under

Sections 302/34 & 324 of IPC and sentenced him to life imprisonment with fine of Rs.500/- and one year rigorous imprisonment with fine of

Rs.500/- with default stipulation respectively.

Brief facts of the prosecution case are that on 05.12.2004 at 10:30 PM, when complainant Kishan Kori (PW/6) and deceased Rajjan were

returning from Bina Bare''s house, on the way, near Uttam Kori''s house, co2 accused Annu Kori, Badshah Kori and appellant Prakash Patel were

sitting in an auto and appellant Prakash was armed with sword, Rajjan asked appellant that why he was carrying sword in his hand on which

appellant Prakash assaulted Rajjan with the sword which struck on the head of the complainant Kishan, thereafter, appellant Prakash again

assaulted Rajjan due to which he sustained injury in his left hand and the appellant again assaulted Rajjan by sword, due to which, he sustained

injury on his head and fell down in a drain. Then co-accused Uttam and Rakesh, who were sitting on the roof of their house threw big stones on

Rajjan''s head from the roof and thereafter Annu and Badshah crushed Rajjan''s head with stones. At the time of the incident, Mahesh and other

persons residing nearby also came on the spot. Rajjan died on the spot. After the incident, complainant Kishan Kori (PW/6) lodged the report

(Ex.P/11) at PS Moti Nagar which was written by K.K. Sharma (PW/7) who registered Crime No.630/2004 against the appellant and co-

accused namely Uttam Kori, Rakesh Kori, Annu Kori, Badshah Kori for the offences punishable under Sections 302, 324/34 of IPC and

investigated the matter. During the investigation, he went to the spot and prepared spot map (Ex.P/13). He also seized 5 pieces of shoes,

bloodstained soil and simple soil and sleepers of deceased from the spot and prepared seizure memo (Ex.P/10) and also prepared inquest memo

(Ex.P/9) of the dead body of deceased Rajjan and sent it for postmortem and also sent Kishan Kori for medical examination along with application

(Ex.P/4). In the hospital, Dr Subhash Jain (PW/1) examined Kishan Kori and gave MLC report (Ex.P/4) and Dr R.K.Khare (PW/2) conducted

the autopsy of the dead body of deceased Rajjan and gave postmortem report (Ex.P/5). He also seized bloodstained clothes from the dead body

of Rajjan and sent it to Police Station Moti Nagar in a sealed packet through constable Leela Dhar. During investigation K.K. Sharma (PW/7) also

recorded the statement of Kishan Kori (PW/6) and Mahesh Kori (PW/3) and arrested the appellant and co-accused Rakesh and prepared the

arrest memo (Ex.P/2 & P/3) and after investigation police filed charge-sheet against appellant and other coaccused Rakesh before Judicial

Magistrate First Class, Sagar who committed the case to the Court of Sessions. On that charge-sheet, S.T.No.358/2005 was registered. Learned

Additional Sessions Judge framed the charge against the appellant and co-accused Rakesh for the offences punishable under Section 302/34 &

324 of IPC. By that time co-accused, Badhshah Kori and Annu were absconding. After some time, the police arrested them too and also filed

charge-sheet against them before Judicial Magistrate First Class, Sagar who committed the case to the Court of Sessions. On that chargesheet,

S.T.No.183/2006 was registered. Learned Additional Sessions Judge framed the charge against them also for the offence punishable under

Section 302/34 and & 324/34 of IPC and tried both the case together. The appellant/accused and other co-accused Rakesh, Badhshah Kori and

Annu abjured their guilt and took the defence that they have falsely been implicated in the case. However, after trial learned Additional Sessions

Judge acquitted the co-accused Badhshah Kori, Annu and Rakesh from all the charges but found the appellant guilty for the offences punishable

under Section 302/34 & 324 of IPC and sentenced him as aforesaid. Being aggrieved from that judgment, appellant filed this Criminal Appeal.

It is worth mentioning here that Police also filed Charge-sheet against co-accused Uttam. On that S.T. No.21/06 was registered but he died

during the trial of the case so proceedings of the case were dropped against him.

Learned counsel for the appellant submitted that learned trial court found the appellant guilty for the murder of deceased Rajjan only on the basis

of the statement of Kishan Kori (PW/6) while in the statement of Kishan Kori (PW/6) the so-called eyewitness of the incident there are so many

omissions and contradictions. This witness has adopted the theory of pick and choose. He lodged the report averring that apart from the appellant

Prakash and co-accused Uttam, Badhshah Kori, Annu and Rakesh also assaulted Rajjan and crushed his head by stones but in the court statement

Kishan Kori (PW/6) turned hostile and denied from the fact that apart from the appellant and co-accused Uttam other co-accused Badhshah Kori,

Annu and Rakesh also assaulted the deceased in the incident which shows that either Kishan Kori (PW/6) had earlier wrongly informed the police

that Badhshah Kori, Annu and Rakesh were also involved in the incident or he was trying to save them before the court. In either case his

statement cannot be believed against present appellant too. His statement is not even supported by the medical evidence. In his court statement

Kishan Kori deposed that in the incident appellant assaulted Rajjan by sword on his head only once and inflicted one injury on his left hand while

as per the autopsy report of the deceased (Ex.P/2) which was proved by Dr. R.K.Khare (PW/2) in the incident deceased Rajjan sustained 7

injuries and he also deposed that deceased Rajjan died due to damage to his brain matter while it does not appear from the statement of Kishan

Kori (PW/6) that Rajjan sustained any injury in his brain matter due to appellant''s assault. Police did not seize any sword from the possession of

the appellant. Learned Trial Court without appreciating all these facts and wrongly relying on the statement of Kishan Kori (PW/6) found the

appellant guilty of the aforesaid offences. Hence, counsel prayed that the impugned judgment be set aside and the appellant be acquitted of the said

offences.

On the other hand, learned counsel for the respondent/State has vehemently opposed the submissions of the counsel for the appellant and fully

supported the judgment of the Trial Court and submitted that from the prosecution evidence the guilt of the appellant is clearly proved. Learned

trial Court did not commit any mistake in holding the appellant guilty for the offences punishable under Sections 302/34 & 324 of IPC and prayed

for rejection of the appeal.

On the point that on 05.12.2004 at around 10:30 PM, deceased Rajjan died near Mata Madiya temple, Govind Grocery store and his death

was homicide amounting to murder and Kishan Kori (PW/6) also sustained injury on his head by sharp cutting object like sword, K.K.Sharma

(PW/7) deposed that on 05.12.2004 he was posted as Station House Officer, Police Station Moti Nagar, on that date, Kishan Kori (PW/6)

lodged the report (Ex.P/11) on which he registered Crime No.630/2004 for the offence punishable under Sections 302, 324, 34 of IPC and went

to spot where he found dead body of deceased Rajjan and prepared inquest memo (Ex.P/9) of dead body of Rajjan in which it is also mentioned

that Rajjan died due to injuries sustained by him. He also deposed that he seized seven bloodstained stones, bloodstained soil and simple soil and

sleepers of deceased from the spot and prepared seizure memo (Ex.P/10) and prepared spot map (Ex.P/13) and also sent the dead body of

Rajjan for postmortem at District Hospital, Sagar and also sent injured Kishan Kori (PW/6) for medical examination.

Dr Subhash Jain (PW/1) deposed that on 06.12.2004, he was posted as a Medical Officer at District Hospital, Sagar. On that date, Constable

No.590 Sushil Kumar brought Kishan Kori (PW/6) for medical examination, on that, he examined Kishan Kori and found following injury on his

body:-

(i) Incised wound 5 cm x 3/4 cm x 3/4 cm over left parietal bone near the midline.

He further deposed that the injury was caused by a hard and sharp weapon and was within 12 hours from the time of the examination. He

examined Kishan Kori at 11:10AM and according to prosecution story incident occurred on 05/12/04 at 10:30 PM which shows that Kishan Kori

sustained that injury at the time of incident by a hard and sharp object like a sword.

Dr R.K. Khare (PW/2) deposed that on 06.12.2004 he was posted at District Hospital, Sagar. On that day, Constable No.332 Leela Dhar

brought dead body of Rajjan for postmortem. On that, he conducted postmortem of dead body of Rajjan and found following injury:-

Incised wound size 6""x2""x bone deep over the right frontoparietal region of the scalp.

Lacerated wound size 6"" x 4"" x bone deep over occipital region of scalp from the middle of neck to just behind the left ear.

Lacerated wound size 1 cm x 1/2 cm x bone deep over the left shoulder.

Two incised wounds, each measuring 4 cm x 1 cm x bone deep over left elbow on outer aspect.

Three contusions, each measuring 3 cm x 1 1/2 cm over left side of chest

Three abrasions each measuring 5 cm x 1/8 cm over left scapula.

Two abrasions measuring 8 cm x 1/8 cm and second 2 cm x 1/8 cm over left arm.

He further deposed that on internal examination on dissection of skull he found that:-

The right fronto parietal bone was fractured corresponding to external injury No.1 Huge haematoma was present meninges and brain matter

was found incised. Occipital bone was also fractured corresponding to injury no.2 haematoma present meninges and brain matter was found

lacerated.

On dissection of left elbow condyles of the humerus and the upper end of radius-ulna found fractured.

He further deposed that injury No.2,3,5,6 & 7 were caused by the hard and blunt object and injury No.1 & 4 were caused by sharp cutting

object. In his opinion Rajjan died due to ''coma'' which was caused by the injury sustained by him in his brain matter and duration of death was

within 24 hours since the postmortem. On that point appellant did not challenge the testimony of these witnesses in their cross-examination. So

there is no reason to disbelieve their statements. From their statements, it is clearly proved that on 05.12.2004 at around 10:30 PM, deceased

Rajjan died near Mata Madiya temple, Govind Grocery store and his death was homicidal amounting to murder and Kishan Kori (PW/6) also

sustained an injury on his head by a sharp cutting object like a sword.

On the point that appellant murdered Rajjan and voluntarily caused injury to Kishan by sword, Kishan Kori (PW/6) clearly deposed that on

the date of the incident when he and deceased Rajjan were returning from Bina Bare''s house, appellant Prakash, Annu and Badshah met them on

the way near Uttam Kori''s house. They were sitting in an auto. Appellant Prakash was also present there armed with sword. When Rajjan asked

him why he was carrying the sword, appellant Prakash assaulted him by sword due to which he sustained an injury on his head. Thereafter

appellant Prakash again assaulted Rajjan by sword so Rajjan sustained injury on his head and hands and fell down. Then, Uttam knocked a stone

over Rajjan''s head due to which he sustained injury on his head. His statement is also corroborated by the FIR (Ex.P/11) which is also proved by

K.K. Sharma (PW/7) who wrote that report.

Although apart from Kishan Kori (PW/6) prosecution did not produce any other eye witness of the incident and regarding the incident there

are contradictions in the statement of Kishan Kori (PW/6). In the report, logged by him, it is mentioned that apart from appellant and Uttam other

co-accused Rakesh, Annu and Badshah also assaulted Rajjan in the incident while in his court statement he clearly denied from the fact that Annu

and Badshah also assaulted Rajjan by stone and that they crushed the head of Rajjan and also denied from having mentioned that fact in his report

(Ex.P/11) and inquest report (Ex.P/12). But only on the ground that Kishan Kori (PW/6) did not depose against the co-accused Annu and

Badshah in his court statement and saved them in his court statement, his court statement cannot be discarded regarding the appellant.

The Hon''ble Apex Court in the case of Dalveer V. State of Haryana reported in AIR 2008 SC 2389, held that even if major portion of

evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused

persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the

evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an

accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material

witness or material particular would not ruin it from the beginning to end. The maxim ""falsus in uno falsus in omnibus"" has no application in India

and the witnesses cannot be branded as liar.

Kishan Kori (PW/6) sustained injury in the incident which also shows that he was present at the time of the incident. The Hon''ble Apex Court

in the case of Bhajan Singh @ Harbhajan Singh & others V/s. State of Haryana reported in AIR 2011 SC 2552 also held that,

The testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene

of the crime and is unlikely to spare his actual assailant in order to falsely implicate someone. Convincing evidence is required to discredit an

injured witness. Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the

basis of major contradictions and discrepancies therein"".

So only on the ground that no other independent witness has been produced by the prosecution to prove its case and Kishan Kori (PW/6)

also saved some accused, his whole statements cannot be discarded but in these circumstances his statement should be examined minutely and

some corroboration should be sought for relying on his statement.

Regarding involvement of appellant in the crime, there is no contradiction in the statement of Kishan Kori (PW/6). In this regard his statement

is also supported from the FIR (Ex.P/11) lodged by him soon after the incident and medical evidence too. He clearly deposed that appellant

assaulted him by sword and he sustained injury in his head and also deposed that appellant also assaulted deceased Rajjan by sword and he

sustained injuries in his hand and head. Dr Subhash Jain (PW/1) who examined this witness also found one incised wound over his left parietal

bone. Likewise Dr.R.K.Khare (PW/2) who conducted the autopsy of dead body of deceased Rajjan also found one incised wound over his right

frontoparietal region and left hand. Although Kishan Kori (PW/6) deposed that in the incident appellant assaulted deceased Ranjan Kori only

twice but Dr Dr.R.K.Khare (PW/2) who conducted autopsy of dead body of deceased Rajjan deposed that he found total seven injuries on the

dead body of deceased Rajjan out of which three were incised wounds. But From the statement of Kishan Kori (PW/6), it also appears that in the

incident, first appellant assaulted this witness and he sustained injury on his head. So it is possible that this witness could not correctly see how

many injuries were inflicted by the appellant to deceased Rajjan in the incident, due to injury sustained by him on his head. From his statement, it is

clear that appellant inflicted injury on deceased Rajjan''s head and Dr R.K.Khare (PW/2) who conducted autopsy of dead body of deceased

Rajjan clearly deposed that he found one incised wound size 6""x2""x bone deep over the right frontoparietal region of the scalp and on internal

examination on dissection of skull he found that his right frontoparietal bone was fractured corresponding to external injury No.1 huge haematoma

was present meninges and brain matter was found incised and he also deposed that in his opinion the deceased Rajjan died due to ''coma'' which

was caused by the injury sustained by him in his brain matter. So it is clearly proved that the deceased Rajjan died due to injury caused by the

appellant on his head by sword and the other injury over occipital region which was also sustained by him in the incident.

Although, police did not seize any sword from the possession of appellant but seizure of weapon used in the incident is a corroborative piece

of evidence and when offence is proved from the direct evidence and from the statement of eyewitness no adverse inference can be drawn in the

absence of the seizure of weapon.

There is no reason to disbelieve the statement of Kishan Kori (PW/6) as regard to appellant Prakash and from his statement it clearly appears

that appellant assaulted deceased Rajjan by sword and Rajjan died due to the injuries sustained by him on his head in the incident and appellant

also assaulted Kishan Kori (PW/6) by sword who sustained injury in his head. So in the considered opinion of this court, learned trial court did not

commit any mistake in finding appellant guilty for the offences punishable under sections 302/34 & 324 of IPC. So conviction of the appellant

Prakash under Sections 302/34 & 324 of IPC is hereby upheld.

The sentence for life imprisonment and fine of Rs.500/- and one year rigorous imprisonment with fine of Rs.500/- with default stipulation is also

adequate and this Court does not find any reason to interfere with the judgment. Hence, appeal filed by the appellant/accused stands dismissed.

The appellant, who is in the custody, shall serve the remaining part of the sentence, in accordance with law. Both jail sentences shall run

concurrently. The period already undergone shall be set off from the period of substantive jail sentence.

Accordingly, the appeal stands dismissed.