Himachal Pradesh High Court
Reserved On: 09.07.2024 vs State Of Himachal Pradesh on 23 July, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 Neutral Citation No. ( 2024:HHC:5670 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 5 of 2019 Reserved on: 09.07.2024 Decided on: 23.07.2024 ____________________________________________________ Krishan Chand .....Appellant.
.
Versus State of Himachal Pradesh ......Respondent. _____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? Yes.
_____________________________________________________ For the appellant: Mr. Ram Murti Bisht, Advocate.
For the respondent: Mr. I.N. Mehta, Senior Additional
Advocate General, with Mr. Navlesh
Verma, Ms. Sharmila Patial,
Additional Advocates General, and
Mr. Raj Negi, Deputy Advocate
General.
Sushil Kukreja, Judge.
The instant appeal has been preferred by the appellant/accused/convict under Section 374(2) of the Code of Criminal Procedure against the impugned judgment dated 12.12.2018 and order of sentence dated 15.12.2018, passed by learned Additional Sessions Judge-I, Shimla, Camp at Rohru, H.P., in Sessions Trial No. 6-R/7 of 2017, whereby the accused (appellant herein) was convicted for the commission of the offence punishable under Section 302 of the Indian Penal Code (for short 1 Whether reporters of Local Papers may be allowed to see the judgment? ::: Downloaded on - 23/07/2024 20:32:14 :::CIS
2 Neutral Citation No. ( 2024:HHC:5670 ) "IPC").
2. The facts giving rise to the present appeal, as per the prosecution story, can be summarized as under:
On 19.02.2017, around 02:15 p.m., police of Police .
Station Rohru was telephonically informed by Shri Pritam Singh that accused Krishan Chand committed murder of his mother, Smt. Kagal Devi (the deceased). In sequel to the above telephonic information, police personnel reached village Khashkandi, where they found the dead body of the deceased lying in her courtyard in pool of blood. On the spot police effected relevant recoveries, i.e., broken tooth, bangles, weapon of offence kutru/digging instrument, cap of the accused etc. The accused was caught by the local residents on the spot. Police recorded the statement of Shri Aman Chauhan (the complainant) under Section 154 Cr.P.C., who stated that the accused caused hurt to his mother and he alongwith Pritam Singh, Kapil Chauhan and other residents of the village apprehended him. During the course of the investigation, police videographed and photographed the spot of occurrence, spot map was prepared and the statements of the witnesses were recorded.
The scientific samples collected from the spot of occurrence were taken into possession after sealing the same. The blood samples of the deceased and the weapon of the offence, i.e., kutru were ::: Downloaded on - 23/07/2024 20:32:14 :::CIS
3 Neutral Citation No. ( 2024:HHC:5670 ) lifted from the place of occurrence and taken into possession. The accused was arrested on the spot. Post mortem examination on the corpse of the deceased was got conducted and it was opined that the deceased had died as a result of antemortem head injuries .
leading to cardiorespiratory arrest and death instantaneous. FIR under the apt Sections of IPC was registered against the accused and after completion of the investigation, police presented the charge-sheet before the learned Trial Court.
3. The prosecution, in order to prove its case, examined fifteen witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded, wherein he pleaded his innocence.. The accused examined one witness in his defense.
4. The learned Trial Court, vide impugned judgment dated 12.12.2018 convicted the accused for the offence punishable under Sections 302 IPC and vide order of sentence dated 15.12.2018 the accused/convict was ordered to undergo rigorous imprisonment for life and to pay fine of Rs.50,000/- and in default of payment of fine, the convict was further ordered to undergo simple imprisonment for one year under Section 302 IPC, hence the instant appeal preferred by the accused/convict.
5. The learned Counsel for the appellant contended that none of the prosecution witnesses have supported the prosecution ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 4 Neutral Citation No. ( 2024:HHC:5670 ) case and the Trial Court has failed to appreciate the evidence. As per the learned counsel for the appellant, there is no direct evidence connecting the accused with the alleged offence and the motive to kill the deceased has also not been proved. He further .
contended that the accused was Class-IV employee, getting monthly salary of more than Rs.25,000/-, his wife was serving as teacher in a private school and his mother (deceased) was getting pension, therefore, there was no need for the accused to demand money from the deceased. He also contended that no-one has seen the accused causing hurt to the deceased, the so called eye- witnesses have resiled from their previous statements and the chain of circumstances against the accused is not complete, therefore, the impugned judgment of conviction and order of sentence passed by the learned Trial Court be quashed and set- aside by allowing the instant appeal and the accused be acquitted.
6. Conversely, the learned Senior Additional Advocate General contended that the judgment passed by the learned Trial Court is the result of proper appreciation of the material on record and the same was passed after appreciating the evidence and law in its right and true perspective. He has further contended that there is more than sufficient material against the accused for his conviction and the learned Trial Court has passed a well reasoned ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 5 Neutral Citation No. ( 2024:HHC:5670 ) judgment, which does not require any interference, thus the instant appeal, which sans merits, be dismissed.
7. We have heard the learned counsel for the accused, learned Senior Additional Advocate General for the .
respondent/State, and carefully examined the entire records.
8. The case is based upon direct evidence as well as the circumstantial evidence. The learned Trial Court while convicting the accused has relied upon the following circumstances:
(1). There is nothing on record to show that there was any other person at 02:00 p.m. in the courtyard of deceased while she sustained injuries with kutru Ext. P-2 except the accused and she died within the span of 4-5 minutes. PW-1 has categorically stated that there was no other person and blood stains were present on the clothes, cap of accused and weapon of offence kutru.
(2). The accused is habitual drunkard. He was demanding money from his mother, who was pensioner and when she refused to do so, then he caused hurt to her with kutru as a result of which, she succumbed to her injuries on the spot.
(3). The Medical Officer PW-9, who conducted the autopsy, while issuing the postmortem report categorically stated that the cause of death of deceased was antemortem head injury leading to cardio respiratory arrest and death had taken place instantaneous and this fact has also been deposed by PW-1, PW-2, PW-3, PW-4 and PW-5 and these injuries could be caused by weapon of offence Ext. P-2 (kutru).
(4). The weapon of offence Ex. P-2 was thrown by the accused on the spot and it was immediately recovered by the IO, when he reached on the ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 6 Neutral Citation No. ( 2024:HHC:5670 ) spot and there is no dispute to this effect.
(5). The marks of blood stain found in the Kutru Ext.
P-2, cap of accused Ext. P-4 and his clothes. (6). The Investigating Officer also noticed fresh blood stains on the spot and he collected the same with .
the help of cotton.
(7). The failure of the accused person to offer any explanation in respect of incriminating circumstances including abrasion injury over his right cheek, his apprehension by PW-1 immediately on the spot with the help of PW-2. According to prosecution, it can be considered as link to complete the chain of circumstances.
9. As per the prosecution story, the accused was employed as Class-IV in the Health Department on compassionate ground after the death of his father and was habitual drunkard and used to demand money from his deceased mother to consume liquor. On 19.02.2017 he had a quarrel with his wife and she left her house and went to the adjoining house of her mother in law(Tai) and the accused was demanding money from his mother and when she refused he assaulted her with the help of kutru (weapon of offence) in the common courtyard at about 02:00 p.m.. After hearing the noise, Aman Chuhan, Pritam Singh, Baldev Singh, Kapil Chauhan, wife of the accused, Sunila Chauhan and his mother came to the spot. Due to the injuries inflicted by the accused, the deceased died within a span of 4-5 minutes in the presence of the aforesaid witnesses and the accused was ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 7 Neutral Citation No. ( 2024:HHC:5670 ) apprehended by Aman Chauhan. Pritam Singh made a telephonic call to the police at 02:15 p.m. and the police came to the spot of occurrence.
10. Aman Chauhan, cousin of the accused, appeared in .
the witness-box as PW-1 and deposed that his house was adjoining to the house of the accused and on 19.02.2017, at 02:00 p.m. when he heard the noise of crying, he came out of his room and saw the accused in the common courtyard and his aunt, Smt. Kagal Devi (the deceased) was lying on the ground. As per this witness, the accused was sitting with the deceased and she had sustained injuries on her mouth and head with kutru, Ext. P-2, which was lying near her corpse. This witness has further stated that the noise was also heard by Kapil, who also came on the spot alongwith other villagers, namely, Pritam Singh (PW-2) and Baldev Singh (PW-3). PW-1 deposed that his Tai (deceased) was alive when he came out from his room and she died after 3-4 minutes. He apprehended the accused alongwith other villagers and as per this witness the accused was habitual drunkard. He further deposed that when he reached the spot, only the deceased and the accused were present there. He stated that the accused was employed as a class-IV in Kutara Hospital and the deceased was getting pension of her late husband, Shri Sunder Singh. He further ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 8 Neutral Citation No. ( 2024:HHC:5670 ) stated that PW-2, Pritam Singh, made a telephonic call to the police and the police came to the spot after half an hour and his statement under Section 154 Cr.P.C. was recorded. Kutru, Ext. P- 2, was taken in possession, spot map was prepared, recoveries of .
broken tooth, bangles and red and white cap of the accused were taken into possession by the police. Recovered articles were sealed with seal having impression 'H' in presence of PW-2 and PW-3. As per this witness, blood was oozing from the deceased and kutru was the weapon of offence. This witness could not remember that specimen seal impression, which was separately taken on a piece of cloth, Ex. PW-1/C, was handed over to whom. He was declared hostile, as he had resiled from some part of his previous statement. Thereafter he was cross-examined by the learned Public Prosecutor and learned defence counsel.
11. Pritam Singh (PW-2) deposed that on 19.02.2017 it was Sunday and he was in his house. At 02:00 p.m., he heard the noise from the house of the accused and all the villagers rushed there. He too rushed to the house of the accused. Up Pradhan Baldev Singh (PW-3) and Kapil (PW-4) rushed to the same side and when he reached the courtyard of the accused, he saw the deceased alive and breathing. He made a telephonic call to ambulance and by the time he received reply from the authorities, ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 9 Neutral Citation No. ( 2024:HHC:5670 ) the deceased had died, therefore, he again informed the authorities that there was no need to come. As per this witness, blood stains were on the spot and the blood was oozing from the mouth of the deceased. Aman Chauhan (PW-1), who was the .
cousin of the accused and whose house was adjoining to the house of the accused, and the accused were also present on the spot. The accused was made to sit there by the villagers and after half an hour police came to the spot. Police clicked photographs of the spot and that of the deceased. Broken bangles, kutru and cap of the accused were taken in possession and sealed in the parcels having seal impression 'H'. As per this witness, seizure memos, Ex. PW-2/A and Ex. PW-2/B, Khaka of kutru, Ex. PW-1/B, and seizure memo Ex. PW-1/D, bear his signatures and the signatures of Baldev Singh (PW-3. He further deposed that police filled forms, Ex. PW-2/C and Ex. PW-2/D. This witness stated that the accused had not caused hurt to the deceased and voluntarily stated that he heard from the villagers that the accused had killed his mother with kutru. He was declared hostile on the request of the learned Public Prosecutor and thereafter he was cross- examined by the learned Public Prosecutor and learned defence counsel.
12. PW-3, Baldev Singh, the then Vice President of Gram ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 10 Neutral Citation No. ( 2024:HHC:5670 ) Panchayat, Kutara, deposed that on 19.02.2017, around 03:00 p.m., he went to the house of the accused and noticed villagers going there. The villagers were saying that an accident took place. As per this witness, the police came on the spot and the dead .
body of the deceased was covered with a cloth in the courtyard. The police clicked photographs of the place of occurrence and at that time he alongwith PWs 1 and 2 was present there. He stated that he was not having conversation with PW-1 and he divulged the entire scene of occurrence by saying that there were blood stains, broken tooth and broken bangles on the spot. The wife of the accused was also present on the spot and seizure memos Ex. PW-1/B, Ex. PW-2/A and Ex. PW-2/B bear his signatures. This witness identified Ex. P-6, broken tooth, Ex. P-8 broken bangles, cotton swabs Ex. P-10 and P-11, kutru Ex. P-2 and cap Ex. P-4, which were recovered from the spot of occurrence. He was also declared hostile, as he had resiled from some part of his previous statement. Thereafter he was cross-examined by the learned Public Prosecutor and learned defence counsel.
13. PW-4, Kapil Chauhan, another eye-witness of the occurrence and cousin of the accused, deposed that on 19.02.2017, around 02:00 p.m., he heard the noise of crying and he reached the house of the accused. As per this witness, ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 11 Neutral Citation No. ( 2024:HHC:5670 ) photographs Ext. PW-14/A-1 to Ext. PW-14/A-25 were of the courtyard. The accused was sitting there and PW-1, Aman Chauhan, was also present there. He expressed his inability to disclose as to how the deceased sustained injuries. He further .
stated that when he reached the spot, the deceased was no more and she had sustained injuries on her mouth and head. The accused used to take liquor. The police came on the spot. This witness was also declared hostile. Thereafter he was cross- examined by the learned Public Prosecutor and learned defence counsel.
14. PW-5, Sunila Chauhan, wife of the accused, deposed that the accused was employed as Peon in PHC Kutara. At 01:00 p.m. she went to the house of her mother-in-law/Tai Sass. Around 02:30 p.m. she heard noise and she rushed to her house and saw her mother-in-law (deceased) lying dead in the courtyard. As per this witness, photographs, Mark P-1 to Mark P-25 were of the spot. Blood was oozing from the body of the deceased lying on the spot. The deceased had sustained injuries on her face and the persons present on the spot did not disclose to her (PW-5) about the cause of death of the deceased. She stated that after seeing the deceased, she fell down unconscious. She also stated that the accused used to take liquor and after that he used to quarrel with ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 12 Neutral Citation No. ( 2024:HHC:5670 ) her, but on that day he had not consumed liquor. She did not see the weapon of offence, i.e., kutru, Ex. P-2, on the spot. This witness was also declared hostile, as she has resiled from her previous statement. Thereafter she was cross-examined by the .
learned Public Prosecutor and learned defence counsel.
15. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt as none of the so called eye-witnesses have supported the case of the prosecution, as all of them have turned hostile.
16. The Hon'ble Supreme Court while considering the evidentiary value of the statement of a hostile witness has repeatedly held that the evidence of a hostile witness cannot be rejected merely because he has been declared hostile. The evidence of such a person does not become effaced from the record and the relevant portion of the evidence of a hostile witness, which is consistent with the case of the prosecution or defence, may be accepted.
17. In State of U.P. V. Ramesh Prasad Misra, (1996) 10 SCC 360 the Hon'ble Supreme Court has held as under:
"7.........It is equally settled law 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 close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. ........."::: Downloaded on - 23/07/2024 20:32:14 :::CIS
13 Neutral Citation No. ( 2024:HHC:5670 )
18. In C. Muniappan V. State of T.N., (2010) 9 SCC 567 the Hon'ble Supreme Court held that the evidence of a hostile witness cannot be discarded as a whole. The relevant portion of .
the aforesaid judgment reads as under:
"81. It is settled legal proposition that:
"6. .... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine 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 that their version is found to be dependable on a careful scrutiny thereof."
19. In Mrinal Das V. State of Tripura, (2011) 9 SCC 479, the Hon'ble Supreme Court held that the evidence of a person does not become effaced from the record merely because he has turned hostile, it can be relied upon at least up to the extent, he supported the case of the prosecution. The relevant portion of the aforesaid judgment reads as under:
"67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact of that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross- examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 14 Neutral Citation No. ( 2024:HHC:5670 ) view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that .
evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
20. In Raja and others V. State of Karnataka, (2016) 10 SCC 506, the Hon'ble Supreme Court has held that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record. The relevant portion of the aforesaid judgment reads as under:
"32. The evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful rt scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii vs. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record"
21. Thus, in view of the aforesaid authoritative ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 15 Neutral Citation No. ( 2024:HHC:5670 ) pronouncements of Hon'ble Supreme Court, the depositions of PW-1 to PW-5 cannot be brushed aside as a whole merely on the ground that they had turned hostile.
22. Keeping in view the aforesaid legal position in mind, we .
have closely scrutinized the entire evidence on record and after close scrutiny thereof it has become clear that PW-1 has resiled from his previous statement to the extent that he had not seen the accused giving beatings to the deceased by holding her with one hand and causing hurt upon her mouth and head with kutru. In the rest of his statement, Ex. PW-1/A, he has supported the case of the prosecution. PW-2 has also resiled from some part of his statement with regard to making telephonic call to the police, on the basis of which rapat, Ex. PW-10/A, was entered, but in cross- examination by the learned Public Prosecutor, he admitted that he disclosed to the police about the occurrence, which fact has also been endorsed by PW-14 SI Mohan Singh Saini, who was the Investigating Officer as he deposed in the cross-examination that he attended the phone call of Pritam Singh (PW-2). PW-2 has also denied the fact that seal 'H' was handed over to Shri Baldev Singh, whereas in the rest of his statement, he has supported the case of the prosecution.
23. Similarly, PW-3, had also not supported the version of ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 16 Neutral Citation No. ( 2024:HHC:5670 ) the prosecution that it was disclosed to him by PW-1 Aman Chauhan about the murder of the deceased Kagal Devi by the accused. However, this part of his statement does not assume any significance being hearsay. He has resiled with respect to the .
length and width of kutru, Ex. P-2, and also denied that seal 'H' after its use was handed over to him. However, in the remaining part of his statement, he has supported the case of the prosecution. He also admitted that police had read-over and explained the contents of all the documents to him before he had signed the documents. PW-4 has also resiled from some part of his statement, in which he had disclosed that he alongwith PW-1 had rescued the deceased from the clutches of the accused. He had also denied that the accused was causing hurt to the deceased with kutru, Ex. P-2, in his presence and also denied that accused used to quarrel with his mother and wife. He also denied that he along with Aman Chauhan tied the accused with the help of rope.
24. PW-5, wife of the accused had also resiled from some part of her statement, wherein she mentioned that on 19.02.2017 the accused had an altercation with her at 01:00 p.m. and she went to the house of Smt. Kalar Mani. However, this witness, in her cross-examination stated that at 01:00 p.m. she went to the ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 17 Neutral Citation No. ( 2024:HHC:5670 ) house of her mother-in-law (Tai Saas) Smt. Kalar Mani. She denied the suggestion that at 02:00 p.m., she heard noise from her house side and came back to her house and found her mother-in- law lying dead in the courtyard. In cross-examination by the .
learned Public Prosecutor PW-5 has categorically admitted the entire seen of crime in photographs Ext. PW-14/A-1 to Ext. PW- 14/A-25.
25. From the part of the statements of PWs 1 to 5 which is consistent with the case of the prosecution, it has become clear that on 19.02.2017, at 02:00 p.m., after hearing noise PW-1 came out of his room and noticed that the accused Krishan Chand was present in the common courtyard and his mother (deceased), i.e., Smt. Kagal Devi, was lying on the ground. She had sustained injuries on her mouth and head with Kutru, Ex. P-2, which was also lying near the corpse of the deceased. Blood was oozing out from her mouth and head. The noise was also heard by PW-4, Kapil Chauhan, who also came to the spot alongwith other villagers, PW-2, Pritam Singh, and PW-3, Baldev Singh. It has also come in the statement of PW-1 that the deceased was alive when he came out of his room and she died within a span of 3-4 minutes. He categorically deposed that he apprehended the accused alongwith the other villagers. PW-2, Pritam Singh, had corroborated the ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 18 Neutral Citation No. ( 2024:HHC:5670 ) statement of PW-1 to the effect that when he heard the noise at 02:00 p.m. from the house of the accused, he rushed towards the place of occurrence. Though, PW-2 has resiled from some part of his statement, but during the cross-examination by the learned .
Public Prosecutor, he admitted that he made a telephonic call to ambulance. He also resiled from some part of his statement with regard to making telephonic call to the police, but in his cross- examination he had admitted that he had disclosed occurrence to the police and this fact has been endorsed by PW-14, SI Mohan Singh, Investigating Officer as he deposed in the cross- examination that he attended the phone call of Pritam Singh (PW-
2).
26. Hence, in view of the law laid down by the Hon'ble Supreme Court in the judgements cited supra, the above referred parts of the statements of PWs 1 to 5 being consistent with the case of the prosecution can be accepted as the court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto. Although, PW-1 to PW-5 had turned hostile, but it appears that they being relatives/immediate neighbors of the accused, had tried to save him from punishment at the instance of the family members of the accused.
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27. Thus, from the entire evidence on record, it has become clear on record that when PW-1, Aman Chauhan, reached the spot, at that time the deceased was lying on the ground in an injured condition and blood was oozing out from her mouth and .
head. Only accused was present alongwith the deceased in the courtyard and on hearing the noise PW-2, Pritam Singh, PW-3, Baldev Singh and PW-4, Kapil Chauhan,PW-5, Sunila Chauhan, also came to the spot alongwith other villagers and PW-1 apprehended the accused alongwith other villagers. It has also become clear that at that time the blood stained weapon of offence, i.e., kutru, Ex. P-2, broken tooth, Ex. P-8 and broken bangles were also lying near the corpse of the deceased.
28. Dr. Pawan Sharma, who had conducted the post- mortem on the dead body of the deceased, appeared in the witness-box as PW-9 and as per his opinion the cause of death of the deceased was "antemortem head injury leading to cardio respiratory arrest".
29. It has also been proved on record that the accused was in a habit of taking liquor. PW-1, Aman Chauhan, as well as the wife of the accused PW-5, Sunila Chauhan, had categorically deposed that the accused used to take liquor. PW-14 Investigating Officer also deposed that the accused had not taken liquor for the ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 20 Neutral Citation No. ( 2024:HHC:5670 ) last 3-4 days for want of money and he was demanding money from his mother and when she refused, he caused hurt to her. It has also come in the evidence on record that the deceased was pensioner and she was having money, as such the possibility .
cannot be ruled out that the accused used to demand money from her and when she refused to accede to the demand of the accused, he assaulted her with kutru, Ex. P-2.
30. So far as the ownership of the weapon of offence, i.e., kutru, is concerned, it has not been denied by the accused. There is nothing in the cross-examination of the eye-witnesses that kutru, Ex. P-2, did not belong to the accused. No suggestion was put to any of the witnesses by the learned defence counsel that kutru, Ex. P-2, did not belong to the accused. The recovery of kutru, Ex. P-2, cap of the accused, Ex. P-4, and broken bangles, Ex. P-8, from the place of occurrence, have also been duly established in view of the clinching evidence on record led by the prosecution.
31. It has also been established on record that there were blood stains over kutru, Ex. P-2, cap, Ex. P-4, pants and sweater of the accused, as per SFSL report, Ex. PW-9/E, issued by Assistant Director, SFSL, Junga. The perusal of the evidence on record reveals that when the accused was medically examined on 19.02.2017, at 08:40 p.m., the Medical Officer found one abrasion ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 21 Neutral Citation No. ( 2024:HHC:5670 ) over his right cheek, which was reddish in color, simple in nature and caused within probable duration of six hours. On suggestion put to the Medical Officer, i.e., PW-9, Dr. Pawan Sharma, by the learned defence counsel, that the accused sustained an abrasion .
by doing agriculture/horticulture work, he had categorically stated that there was less possibility to sustain abrasion, as mentioned in the MLC, through any other mode. The Medical Officer voluntarily stated that abrasion on the cheek of the accused might have been caused by the deceased during her self defence. No explanation has been offered by the accused as to how he had sustained an abrasion on his cheek, as such from the MLC, Ex. PW-9/G, also the case of the prosecution has been probablised.
32. The ld. Counsel for the appellant also pointed out certain contradictions in the statements of prosecution witnesses as in the rukka, Ex. P/W-1/A, the time of sending it to police station is mentioned as 04:15 p.m., whereas the I.O., i.e. PW-14, SI Mohan Singh, in his cross-examination stated that rukka, Ex.PW-1/A, was sent at 06:15 p.m.. However, this discrepancy does not in any way, affect the core of the prosecution case. Admittedly, as per the statement of PW-11, rukka, Ex. PW-1/A, was received at police station at 02:15 p.m.. There is a D.D. Entry, Ex. PW-10/A, with respect to the information of the occurrence to the ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 22 Neutral Citation No. ( 2024:HHC:5670 ) police by PW-2, Pritam Singh, at 02:15 p.m., therefore, this discrepancy in the statement of PW-14, I.O. is not of much importance. The minor contradictions as pointed out do not affect the core of the prosecution case. Moreover, this court cannot lose .
sight of the fact that the prosecution witnesses have appeared before the Court after a gap of two years and they might have forgotten some facts.
33. It is a settled law that the minor contradictions and discrepancies in the depositions of witnesses which do not go to the root of the matter and shake the core of the prosecution case, cannot be annexed with undue importance. Some contradictions are bound to occur because of the time gap between the date of occurrence and the date on which the witnesses give their depositions in Court.
34. In the case of Jai Shree Yadav vs. State of U.P., (2005) 9 SCC 788, Hon'ble Supreme Court observed as under:
"20...................When a witness is subjected to lengthy arduous cross-examination over a lengthy period of time there is always a possibility of the witnesses committing mistakes which can be termed as omissions, improvements and contradictions therefore those infirmities will have to be appreciated in the back- ground of ground realities which makes the witness confused because of the filibustering tactics of the cross-examining counsel."
35. In State of U.P. v. Naresh, (2011) 4 SCC 324, the ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 23 Neutral Citation No. ( 2024:HHC:5670 ) Hon'ble Supreme Court after considering a large number of its earlier judgments held that normal discrepancies are bound to occur due to normal errors of observation, errors of memory due to lapse of time and due to mental disposition. Trivial matters which .
do not affect core of prosecution case should not be made a ground on which evidence is rejected in its entirety. Their lordships have held as under:
30. "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, of inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations 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. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 24 Neutral Citation No. ( 2024:HHC:5670 ) prosecution's case, render the testimony of the witness liable to be discredited."
36. A similar view has been re-iterated by the Hon'ble Supreme Court in Lal Bahadur & others v. State (NCT of Delhi), .
(2013) 4 SCC 557, relevant portion of the aforesaid judgment is as under:
"21. So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses, as pointed out by the counsel for the appellants, are concerned, we have gone through the entire evidence and found that the evidence of the witnesses cannot be brushed aside merely because of some minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy.
Not only that, the witnesses have consistently deposed with regard to the offence committed by the appellants and their evidence remain unshaken during their cross-examination. Mere marginal variation and contradiction in the statements of the witnesses cannot be a ground to discard the testimony of the eyewitness who is none else but the widow of the one deceased."
... ... ... ...
37. Considering the entire facts and circumstances of the present case, we are of the considered opinion that minor infirmities in the nature of omissions and contradictions could not affect the prosecution case which has otherwise been proved through the statements of witnesses and the other corroborated evidence, like recovery of the weapon of offence, presence of the accused at the place of occurrence, instantaneous death of the deceased and other incriminating circumstances. All the aforesaid ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 25 Neutral Citation No. ( 2024:HHC:5670 ) circumstances put together form a complete chain of evidence, being consistent with the hypothesis of the guilt of the accused.
Therefore, the prosecution has proved beyond reasonable doubt that it was none else, but the accused alone, who had caused .
murder of his mother, Smt. Kagal Devi, with kutru, Ex. P-2.
38. The learned counsel for the appellant lastly contended that as per the prosecution case, the accused was habitual drunkard and he killed his mother when she refused to give him money, however, it could not have been possible keeping in view his financial condition as the appellant was class-IV employee and his monthly salary was more than Rs.25,000/- coupled with the fact that his wife was serving in a private school. However, in view of the evidence led by the prosecution, this contention of the learned counsel for the appellant cannot be accepted, as the financial condition of the accused has nothing to do with the murder of the deceased when it has been established on record that the accused used to demand money from his mother and when she refused to accede to the demand of the accused, he assaulted her.
39. In view of what has been discussed hereinabove, no interference in the impugned judgment of conviction, rendered by the learned Trial Court, is required, as the same is the result of ::: Downloaded on - 23/07/2024 20:32:14 :::CIS 26 Neutral Citation No. ( 2024:HHC:5670 ) proper appreciation of evidence and law. The appeal, which sans merits, deserves dismissal and is accordingly dismissed.
Pending application(s), if any, shall also stand(s) disposed of.
.
( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 23rd July, 2024 (virender) r ::: Downloaded on - 23/07/2024 20:32:14 :::CIS