Ram Singh and Others vs State of M.P.

R.C. Lahoti, J.

The accused-appellants have been held guilty of the offences punishable u/s 302/149 and Section 148 I.P.C. and sentenced to life imprisonment and rigorous imprisonment for two years each respectively; both the sentences having been made to run concurrently.

The culprits in the incident were six in all. Apart from the accused-appellants there was one Harprasad, who died during the course of the trial. Yet another was one Shriram who was and is still absconding.

The accused appellants were charged with forming of unlawful assembly on 27-4-1986 at about 7.00 p. m., at village Durgapur, with the common object of intentionally causing the death of Suresh. They were all also charged with having been armed with deadly weapons while being the members of such unlawful assembly. Death of Suresh was caused in furtherance of the common object of such assembly.

The background of animosity between the parties of the accused persons and the complainants is not disputed At one time the accused persons had indecently insulted the mother of the deceased. The deceased Suresh had caused grievous hurt to one Pragi son of Ramsingh, the accused-appellant. Both these incidents are subject matter of two independent prosecutions subjudice.

The prosecution case is that on 27-4-1986 at about 7.00 p. m. the four accused-appellants and two others, namely, Harprasad and Shriram, in all six, armed with deadly weapons committed an assault on the deceased Suresh at his residence. Ramsingh was armed with a sword, Mulayamsingh with an axe, Karansingh with a pharsa, Shriram (absconding) with a Sang (a sharp edged weapon) and Harprasad (dead) and Vijayram with lathis. All the six dealt several blows on the body of deceased Suresh with the weapons with which they were armed, resulting into instantaneous death of the deceased. Hukumsingh (PW 1), cousin brother of the deceased, saw the incident and raised a hue and cry, attracting Bansingh (PW 4), Siromansingh (PW 5), Sukhnsndan Singh (PW 7) and Chatursingh (PW 8) to the place of occurrence. Having fatally injured the deceased, the accused persons dragged the deceased for a few paces, threw him away on a heap of debris and took to their heels. Hukumsingh rushed to Police-station Civil Lines, Datia, to lodge F.I.R., Ex. P-1, of the incident, at 9.30 p. m., the same day i.e. within about two and a half hours of the incident. The dead body of the deceased Suresh was referred for postmartem and the offence having been registered, the usual investigation ensued.

Postmartem on the dead body of Suresh was conducted by Dr. R.N. Gupta (PW 2), Assistant Surgeon, District Hospital, Datia at 12 20 p. m., the following day. Following injuries were found on the body of the deceased.--

(i) Three incised wounds over occipital region of head 2"x1/2" obliquely placed, bone deep;

(ii) Incised wound over neck on left side obliquely placed below angel of mandible 3"X 1", bone deep;

(iii) Incised wound over left mastoid region 3"x 1", bone deep;

(iv) Incised wound over neck posteriorly on left side 3"x 1", oblique;

(v) Incised wound over neck posteriorly transversely placed 3"X 1", bone-deep;

(vi) Incised wound over right mastoid region 2"x 1";

(vii) Incised would over neck on right side oblique 1"x1/2", bone-deep;

(viii) Incised wound over left iliac crest 11/2"x1/2", bone deep.

In the opinion of Doctor Gupta all the injuries were caused by sharp cutting object, within 24 hours to 36 hours of the time of examination. The cause of death was opined to be shock and haemorrhage following injuries on neck. The injuries could have been caused by weapons like Pharsa, axe or any other sharp edged weapons.

Karansingh accused-appellant was apprehended on 28-4-1986. Others were apprehended on 9-5-1986

Out of the several recoveries and seizures the only one worth mentioning is recovery of an axe made at the instance of accused Mulayam Singh on an information given to Suresh Sharma (PW 11) in the presence of punch witnesses This axe has been found to be stained with blood, by the Chemical Examiner, Forensic Science Laboratory, Sagar.

The trial Court has placed reliance on the occular evidence of the four eye-witnesses, finding corroboration from the medical evidence and the promptly recorded F.I.R. The learned counsel for the appellants has vehemently attacked the correctness of the findings so recorded. Such of the contentions raised by the learned counsel for the appellants shall be examined seriatem hereinafter.

It is submitted that the four eye-witnesses namely, Bansingh (PW 4), Siromansingh (PW 5), Sukhnandansingh (PW 7) and Chatursingh (PW 8) were all closely related to the deceased and in view of the background of the enmity prevailing between the two fractions, the testimony of the eye-witnesses should have been held partisan and interested and hence liable to be discarded

It is true that all the eye-witnesses are related to the deceased. Hukumsingh (PW 1) has admitted vide paras 1 and 7 of his statement that he himself was a causin brother of the deceased. Bansingh (PW 4) is his uncle. Chatursingh (PW 8) is his grand-uncle. Sukhnandan (PW 7) and Chatursingh (PW 8) are his causins.

No doubt, the witnesses are related to the deceased but the relationship alone cannot be a ground for discarding testimony of the eyewitnesses if found to be worthy of credence otherwise. Related witness is not necessarily an interested witness The only precaution to be taken is that the Court has to approach the testimony of such witnesses with caution so as to exclude the possibility of any false implication.

Recently in Anvaruddin and others Vs. Shakoor and others, their Lordships observed:

The direct testimony of witnesses, whose evidence is otherwise consistent, should not ordinarily be rejected on the ground that they are partisan witnesses unless the surrounding circumstances discredit their version. Ordinarily, close relatives of the deceased would not allow the real culprits to escape. The possibility of their implicating others with the real offenders must., however, be kept in mind. The acquittal recorded by the High Court by brushing aside direct testimony without marshalling the evidence was improper.

(Underlining by us)

In Vinod Kumar Vs. The State of Uttar Pradesh, the eye-witnesses were brother and wife of the deceased. In Brathi alias Sukhdev Singh v. State of Punjab AIC 1991 SC 318 the witnesses were closely related to the deceased. In Mohinder Singh Vs. State (Delhi Admn.), the eye-witness to the murder was brother of the deceased. In all these cases their Lordships have held that care is needed in evaluating such evidence (of the relation witnesses) but the machanical rejection of the evidence on the sole ground that it is interested would invariably lead to failure of justice.

The trial Court too has consciously evaluated the evidence of these eye-witnesses remaining alive to the fact that they were relations of the deceased and having animosity against the accused persons. We too have closely scrutinised the testimony of these witnesses and having made our own independent evaluation of the evidence we find nothing in their statements to disbelieve them in so far as participation of the accused-appellants Ram-singh, Mulayamsingh and Karansingh having been armed with sharp edged weapons and simultaneously attacking the deceased with the respective weapons wielded by them The multiple number of injuries, all incised in nature and about 10 in number, lend support to the prosecution case that the deceased was being belaboured by more than one culprit, armed with sharp edged weapons. Nothing has been brought out in the cross-examination of the eyewitnesses to infer that there could have been any reasonable doubt about the participation of any of such assaillants. Agreeing with the trial Court we hold that the accused-appellants Ramsingh, Karansingh, Mulayamsingh and Shriram (absconding) assaulted the deceased Suresh and while doing so, they respectively used deadly weapons like sword, axe, Pharsa and Sang.

We have a doubt whether the accused-appellant Vijayram and late Harprasad were also members of the unlawful assembly armed with lathis and whether they used such weapons for assaulting the deceased Suresh. The medical evidence does not disclose any injury by a hard and blunt object, like Lathi, having been suffered by the deceased. It is not the prosecution case that these two accused persons were the members of the unlawful assembly acting overtly in any manner other than by assaulting the deceased. Complete absence of injuries other than incised wounds rules out the possibility of the deceased having been assaulted by Vijayram and Harprasad. These two persons in our opinion, cannot be denied the benefit of doubt arising from these circumstances. In our opinion, it will not be safe to hold that these two persons, were the members of the unlawful assembly, sharing the common object thereof and assaulting the deceased.

The learned counsel for the appellants submitted that in case this Court may agree with his submission that Vijayram and Harprasad did not participate in the incident and if they be acquitted, it would not be safe to act on the same set of prosecution witnesses to find the guilt proved against the remaining four inasmuch as the testimony of the witnesses is indivisible against all the six. We have found ourselves unable to agree with the contention so advanced. The prosecution case against the accused Vijayram and Harprasad is clearly separable from the one against the other four because the two sets of the assaillants are alleged to be armed with different nature of weapons and the prosecution case does not find support from medical evidence as regards the role assigned to the other four. We are not discarding the prosecution case in its entirety we are also not discarding the four eye-witnesses. We are only giving benefit of doubt to accused Vijayram and late Harprasad to the extent to which the prosecution case relates to the role assigned to these two. Reference may be made to recent pronouncement of the Apex Court in Hoshiar Singh and others Vs. State of Punjab, wherein Their Lordships have held that acquittal of some of the accused by giving benefit of doubt on possible view taken on cautious approach does not attract the applicability of the maxim falsus in uno falsus in omnibus and merely for this reason the acquittel of other accused was not warranted.

falsus in uno falsus in omnibus is not a rule of law but a rule of prudence, for, it is human nature to mix falsity with truth and a Court of facts should not mechanically discard the entire testimony of the eye-witnesses so long as it may be possible to sift the grain from the chaff, separating the falsehood from the truth. There may be cases where one part of the testimony of the witnesses is refused to be accepted not necessarily because it has been found to be false but because a Court of facts does not feel it safe to accept that part of the testimony and chooses to play safe by giving benefit of doubt to the defence as regards part of the story deposed to by the same set of witnesses

We may recall what their Lordships said in the leading authority of Laxman and others v. State of Maharashtra AIR 1974 S.C. 309.

Witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. It is sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim ''''Falsus in uno falsus in omnibus,

Again in Bhe Ram Vs. State of Haryana, their Lordships have said:

The principle of falsus in uno falsus in omnibus does not apply to criminal trials and it is the duty of the Court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds.

At the risk of repetition we would like to state that our finding that it would not be safe to sustain the conviction of accused-appellant Vijayram as also the finding as to the participation of late Harprasad, does not in any manner dent our finding that participation of the other three accused - appellant as also the absconding accused Shriram is proved beyond reasonable doubt.

Inasmuch as the prosecution case is positive against six named persons that they were the culprits while we have held that two of them were not such participants, the number of the culprits is reduced to less than five and hence the four culprits whose participation in the incident has been found by us to be proved cannot be held to have been member of an unlawful assembly. None of them can be held guilty of an offence punishable u/s 148 IPC. None of them can also be held guilty of an offence punishable u/s 302 IPC with the aid of Section 149 IPC. Still, they tan be held liable with the aid of Section 34 IPC. In Nethala Pothuraju and others Vs. State of Andhra Pradesh, their Lordships have hold :--

Both Sections 149 and 34, I.P.C. deal with a combination of persons who become liable to be punished as sharers in the commission of offences. The non-applicability of Section 149 is, therefore, no bar in convicting the accused under substantive Section read with Section 34 if the evidence discloses commission of an offence in furtherance of the common intention of them all

Inasmuch as all the four culprits including the three appellants before us and Shriram absconding were armed with deadly sharp weapons, simultaneously attacking the deceased, the circumstance appreciated in the background of the previous inimical relationship between the deceased and the assaillants does not leave any manner of doubt in holding that they had combined together to cause the death of the deceased and they were sharing the common intention in furtherance of which the death of the deceased resulted. As most of the injuries were on vital parts of the body, the accused persons must be attributed with the intention as would necessarily follow that they had intended to cause the death of the deceased Suresh.

Before parting from this aspect of the case we may mention that the prosecution story does find corroboration from the promptly recorded F.I.R., Ex. P-1, wherein all the accused persons are named and the eyewitnesses are also mentioned It is true that Hukumsingh (PW. 1) the maker of the F.I.R. was declared hostile by the prosecution and was permitted to be cross examined by the Public Prosecutor. This is because having narrated the prosecution case in its entirety and having also stated to have lodged the F.I.R., Ex P-1, and signed the same, this witness partially crossed the floor intending to oblige the accused Mulayamsingh. He stated that he had not seen the accused Mulayamsingh at the place of incident. He could not assign any reason why the F.I.R. under his signature records the presence of Mulayamsingh armed with an axe assaulting the deceased. He was confronted with his case diary statement, Ex. P-2, wherein also he had implicated the accused Mulayamsingh but he disowned having made such statements to the police His diary statement has been proved by Suresh Sharma (PW 11). In Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, a case arising out of Madhya Pradesh Their Lordships of the Supreme Court following several earlier decisions from the Apex Court have stated the law as well settled, in the following terms :--

the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny there of.

We find that the statement of Hukumsingh (PW 1) is admissible in evidence and is reliable and acceptable for the purpose of proving the F.I.R., Ex. P-1., which needless to say, is not being used as a substantive piece ot evidence but can very well be used to lend support to the prosecution case in view of its having been lodged promptly before there could be any opportunity of embelishment.

We would now proceed to examine the last and most strong contention of the learned counsel for the appellants, indeed strongly advanced and canvassed that the accused Karansingh too had sustained injuries in the course of the same incident, which injuries having not been explained by the prosecution and the prosecution witnesses, the benefit arising from the circumstances should go to the accused-appellants, which would in the facts and circumstances of the case, earn an acquittal for them Reliance has been placed on State of Rajasthan Vs. Madho and another, ; Lakshmi Singh and Others Vs. State of Bihar, Mitter Sen & ors. v. State of U.P. 1975 CAR 372 SC . Mohar Rai and Bharath Rai Vs. The State of Bihar, and a Division Bench decision of this Court in Kanchhedi v. State of M. P. 1991 JLJ : 1988 SCC (Cri.) 279=AIR 1988 SC 363. In all these decisions law laid down is that non-explanation of injuries sustained by the accused in the course of the same incident is fatal to the prosecution

All the decisions relied upon by the learned Counsel for the appellants are to be read in the light of the law laid down by the Apex Court in Hare Krishna Singh & others v. State of Bihar6, a leading authority on the law relating to non-explanation of the injuries suffered by the accused persons, wherein all the available authorities of the Apex Court till then have been taken into consideration, the law having been considered, analysed and crystalised. Their Lordships were posed with the question : Whether it is an invariable rule that prosecution must explain the injuries sustained by an accused in the same occurrence, and on the failure of the prosecution to do so the prosecution case should be thrown overboard ? During the course of the judgment their Lordships referred to Lakshmi Singh''s case (supra) and Mohar Rai''s case (supra) and observed that the non-explanation ot the injuries by the prosecution will not affect the prosecution case (i) where the injuries sustained by the accused are minor and superficial or (ii) where the evidence is so clear and cogent, so independent and disinterested, so proper consistent and credit worthy, that it far out weighs the fact of the omission on the part of the prosecution to explain the injuries

In Hare Krishna Singh''s case (supra) Their Lordships made a reference to several other available decisions on the point to wit Bhaba Nanda Sharma v. State of Assam (1977) SCC Cri.) 602, Ramlagan Singh v. State of Bihar (1973) SCC (Cri.) 563, Onkarnath Singh v. State of U.P. 1974 SCC (Cri.) 884, Bankey Lal 1971 SCC (Cri. 253), Bhagwan Tana Patil 1974 SCC (Cri.) 11, and Jagdish 1979 SCC (Cri.) 486 The law laid down may be summed up by extracting the following principles:--

(i) The prosecution is not obliged to explain tbe injury on the Person of the accused in all cases and in all circumstances. It depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused;

(ii) It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons When that is not done, there is no occasion for the prosecution witnesses to explain tbe injuries on the person of the accused.

(iii) The entire prosecution case cannot be thrown over board simply because the prosecution witnesses do not explain the injuries on the person of the accused. Such non explanation is a factor which is to be taken in Court in testing the veracity of the prosecution witnesses and the Court will scrutinise their testimony with care. Mere non-explanation of the injuries though received in the same transaction, does not by itself establish a plea of private defence shifting burden on the prosecution.

(iv) Before an obligation is placed on the prosecution to explain serious injuries found on the person of tbe accused, two conditions must be satisfied : One, that the injuries on the person of the accused must be very serious and severe and not superficial, and two, that it must be shown that these injuries must have been caused at the time of the occurrence in question.

Their Lordship concluded by holding : --

Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every cause In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence.

The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.

Having read the law on the point let us now advert to the facts of the present case. Till the date of decision by the trial Court there was absolutely nothing on the record to suggest that any of the accused persons had sustained any injury, not to talk of any injury, having been sustained in the course of the same incident. Before this Court an application (I. A. 3/89) u/s 311 Cr. P. C. was tiled on 30-8-1989 at about six months after the date of filing of the appeal stating that the accused-appellant, Karan-singh, had sustained about four injuries, as to which material could not be brought in the Court and in the interest of justice the accused appellant be afforded an opportunity of bringing the material relating to the injuries sustained by Karansingh on record. By order dated 18-9-1991 this application was allowed and the record of the trial Court was remitted back with a direction to afford liberty to the accussed-appellant calling for injury memo and the doctor who had examined the accused Karansingh so as to enable proof of injuries sustained by him.

Pursuant to the directions of this Court the accused-appellants examined Dr. M. S. Pansari (DW 2) who stated that on 28-4-1986 at the instance of police-station Civil Lines, Datia he had examined the accused Karansingh at 7 35 p. m. and found the following injuries on his person :--

(i) Incised wound on left temporal region, 5"x 1", edtes clean with clotted blood around the wound.

(ii) Incised wound over posterior lateral aspect of the left arm at upper 3rd, 4"x1/2".

(iii) Incised wound over the corsum of the left hand with swelling and tenderness, 21/2"x 1/2".

(iv) Abrassion over the left knee joint, 1"x 1/2".

Injuries no. 1 to 3 were caused by a sharp cutting object and injury No. 4 was caused by hard and rough surface. X-ray was advised of injury No. (i) and (iii). Injuries No. (i) and (iii) could be of 18 to 24 hours duration while injuries No. (ii) and (iv) could be of 7 to 10 days duration Injury No. (i) could have proved to be fatal. Though X-ray was not conducted by Dr. Pansari but he produced counter-foil of X-ray report marked as Ex. D-3 and X-ray plates Ex. D-4A and D-4B. The contents of the report, Ex. D-3, show that Karansingh had suffered a fracture of left parietal bone.

The stage feature of the case is that not a single witness for the prosecution was asked any question putting him on explanation of the injuries sustained by the accused. The Investigating Officer was not asked if he had investigated the case from the point of view of the injuries sustained by the accused Karansingh. None of the accused in their statement u/s 313 Cr. P. C. stated anything about such injuries. No argument was advanced before tae trial Court emphasising this aspect of the case It is writ large on the record of a case that the idea of gaining a defence and possibly an acquittal by raising the plea of non-explanation of the injuries sustained by the accused Karan Singh dawned upon the defence for the first time during the pendency of the appeal. None of the accused persons nor any one on their behalf reported the injuries sustained by the accused Karansingh to the police which would certainly have been done if only the complainant party have been aggressor.

In our opinion, for the above set of state of affairs, it is the defence which has to thank itself. There is no material available on record to infer positively that the injuries sustained by the accused, Karansingh were so sustained in the course of the same transaction or atleast at the time and place of the occurrence in question. In the facts and circumstances of the case we do not think that the accused appellants can be permitted to make any capital out of the so called non-explanation of the injuries sustained by the accused-appellant Karansingh.

It has been contended in the arguments by the learned counsel for the appellants that from the material available on record it can not be found out of which of the accused-appellants had inflicted the injuries which proved to be fatal and hence all the accused cannot be held liable to be punished u/s 302 I.P.C. with the aid of section 34 I.P.C According to him the appellants can at the worst be held liable to conviction u/s 304 Part II r/w section 34 IPC. This contention too has been stated only to be rejected. We have already held that all the accused-appellants excepting Vijayram, as also the absconding accused Shriram, had simultaneously assaulted the victim Suresh with lethal weapons. They were all sharing common intention to kill the deceased In such circumstances it is immaterial if the injury caused by any one of them proved to be fatal. Failure to find out of the author of the fatal injury would not also make any material difference. In M. A. Abdulla Kunhi & others v. State of Kerala 1991 SCC (Cri) 457, one of the accussed had caused fatal injury while the other had only rushed towards the deceased with the sword drawn. Both were held equally liable as they were sharing common intention to commit murder of the deceased In Saligram v. State of M. P. 1990 SCC (Cri.) 614., having found that the accused were acting in concert sharing the common intention to murder the deceased Their Lordships held that one of the accused though armed with deadly weapon had only slapped the deceased, would not be make any difference and detract from his being held liable u/s 302/34 IPC Once the prosecution case is held proved the criminal liability of the accused-appellants found participating in the incident would be nothing less than one u/s 302/34 I. P. C.

For the foregoing reasons the appeal is partly allowed. The conviction of all the accused appellants u/s 148 I.P.C. and Section 302/149 I.P.C. is set aside. The accused-appellants, Ramsingh and Mulayam-singh and Karansingh are held guilty of the offence punishable u/s 302/34 I.P.C. Each of them is sentenced to undergo imprisonment for life. Vijayram accused-appellant No. 3, is acquitted. He is on bail and he need not surrender to his bail bonds which stand discharged. The other accused-appellants shall serve the remaining term of imprisonment.