Madhya Pradesh High Court
Mathura Prasad vs State Of M.P. on 28 November, 2017
Author: S.K.Awasthi
Bench: Sanjay Yadav, S.K.Awasthi
1 Criminal appeal No.140/1999
Prakash Singh & Ors. Vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
PRESENT :
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K.AWASTHI
CRIMINAL APPEAL NO. 114 of 1999
Mathura Prasad and others
-Vs-
State of Madhya Pradesh
For the appellants : Shri Atul Gupta, Advocate.
For respondents : Shri J.M.Sahni, Public
Prosecutor.
AND
CRIMINAL APPEAL NO. 140 of 1999
Prakash Singh and others
-Vs-
State of Madhya Pradesh
For the appellants : Shri S.K.Shrivastava,
Advocate.
For respondents : Shri J.M.Sahni, Public
Prosecutor.
AND
CRIMINAL APPEAL NO. 159 of 1999
Sajjan Singh
-Vs-
State of Madhya Pradesh
2 Criminal appeal No.140/1999
Prakash Singh & Ors. Vs. State of MP
For the appellant : Shri S.K.Shrivastava,
Advocate.
For respondents : Shri J.M.Sahni, Public
Prosecutor.
JUDGMENT
(28/11/2017) Per S.K.Awasthi, J.
This Judgment shall govern the outcome of Criminal Appeal No. 140/1999, Criminal Appeal No. 159/1999 and Criminal Appeal No. 114/1999 which have been preferred against the Judgment dated 25.02.1999 passed in Sessions Trial No. 205/1990 whereby the Trial Court has convicted the appellants of each appeal indicated hereinabove for commission of offences punishable under Section 302 read with Section 149 of Indian Penal Code, 1860 (in short, 'IPC') with respect to death of Lekhan Singh. Similarly, the appellants have been convicted under the same provisions of IPC with respect to death of Govind Singh. The appellants have also been convicted under Section 325 read with Section 149 of IPC for inflicting grievous injuries upon Chain Singh and Ram Singh. Lastly, the appellants have been convicted for commission of offences punishable under Section 323 read with Section 149 of IPC with respect to the injuries suffered by Dhondu in addition to conviction under Section 148 of IPC. Therefore, the situation which emerges with respect to the punishment is that the appellants have been sentenced to undergo life imprisonment with fine of Rs.5000/- each for causing death of Lekhan Singh and Govind Singh and the appellants have also been directed to undergo two years rigorous imprisonment with fine of Rs.2000/- each for causing grievous hurt to Chain Singh and Ram Singh. Additionally, the appellants have been directed to serve three months rigorous imprisonment with fine of Rs.500/- for causing hurt to Dhondu, 3 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP with default stipulation. The appellants have also been sentenced to one year rigorous imprisonment for their conviction under Section 148 of IPC.
2. The facts which emerge for adjudication are that on 07.08.1990, Sher Singh (PW-12), the father of deceased Lekhan Singh and Govind Singh, narrated the incident before the Police that occurred on same day in evening, that the accused persons, who were equipped with weapons such as Lohangi, Lathi, Farsa etc., had constituted an unlawful assembly and cornered the deceased persons by inflicting several injuries on them which were fatal in nature and eventually led to their death. During the occurrence of the said incident, the other victims namely, Chain Singh, Ram Singh and Dhondu, also suffered injuries inflicted by the unlawful assembly of persons which included the present appellants.
3. The respondent proceeded to record an FIR bearing Crime No. 108/1990 (Ex. P-27) and named all the accused persons for commission of offences punishable under Sections 302, 307, 147, 148 read with Section 149 of IPC. Subsequently, the deceased persons and other injured victims were taken to the Hospital where their medical examinations were carried out; however, on the next date i.e. 08.08.1990, Lekhan Singh and Govind Singh succumbed to the injuries sustained by them and the post-mortem was conducted by Dr. A.D. Bhatnagar (PW-4). In the Post Mortem Report (Ex. P-7) in relation to Govind Singh, it was observed that the deceased Govind Singh sustained thirteen injuries which were caused by hard and blunt object, out of which the injuries enlisted at Serial No. 1 and 2 of the Post-Mortem Report were concluded as being fatal in nature and the cause of death was recorded as Cerebral Hemorrhage and the person died while in the state of Coma. Thereafter, another Post-Mortem Report (Ex. P-11) was prepared with respect to the deceased, Lekhan Singh, according to which the deceased Lekhan Singh received as 4 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP many as fourteen injuries, out of which Injuries No. 5 and 12 were caused by a sharp-edged weapon whereas the remaining injuries were by a hard and blunt object. Lastly, it was concluded that Injury No. 12 which was caused on occipital region resulted into clotting of blood and was fatal in nature. Consequently, Dr. A.D. Bhatnagar (PW-4) observed that the cause of death was Cerebral Hemorrhage and the death occurred while the person was in the state of Coma. The Medical Reports with respect to the remaining victims indicated that they had suffered injuries caused by hard and blunt object.
4. The respondent on the basis of evidence collected during the course of investigation and the medical evidence which had come on record, proceeded to present the chargesheet against the accused persons including the present appellants. Consequently, the charges were framed on 12.01.1995 against all the accused persons for commission of offences punishable under Section 302 of IPC read with Section 149 of IPC as also for commission of offences punishable under Section 307 read with Section 149 of IPC and Section 148 of IPC. However, later on, additional charges were framed by the Trial Court against all the accused persons with respect to death of Lekhan Singh on 04.10.1997 for commission of offences punishable under Section 302 read with Section 149 of IPC.
5. The prosecution was given an opportunity to lead evidence and as many as sixteen witnesses were examined by the prosecution which included the statement of Chain Singh (PW-13) and Ram Singh (PW-14) who also sustained injuries during the occurrence of the incident whereas one of the accused persons, namely, Anant Singh, took the plea of alibi by submitting that he was admitted in a Hospital in District Vidisha at the time of the incident. In order to substantiate the plea of alibi, the statement of Dr. SGS Khare (DW-1) was recorded.
5 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP
6. Upon cumulative consideration of the material on record and statements of the witnesses produced by the prosecution, the Trial Court proceeded to pronounce impugned Judgment dated 25.02.1999 and convicted the present appellants for commission of offences stated hereinabove. This Judgment is the subject-matter of the instant appeals before this Court.
7. During pendency of the appeals, appellant No.1-Prakash Singh of Criminal Appeal No.140/1999 died, therefore, his appeal stands dismissed.
8. The learned counsel for the appellants submitted that the prosecution witnesses who have been presented as ocular witnesses, namely, Geeta Bai (PW-5), Sharda Bai (PW-6), Chain Singh (PW-13), Ram Singh (PW-14), are the family members of the deceased persons and are interested witnesses. Therefore, their testimonies cannot be relied upon to convict the present appellants. It was further contended that the Doctor, who had performed the Post-Mortem of the deceased persons, namely, Dr. AD Bhatnagar (PW-4), had categorically stated in Para 14 of the statement recorded before the Trial Court that the injuries suffered by Lekhan Singh can be caused if a person falls down on the floor. Therefore, on the basis of statements of the interested witnesses, it cannot be assumed that the appellants had inflicted the injuries which find mention in the Post-Mortem Reports (Ex. P-7 and Ex. P-11). The learned counsel for the appellants laid much emphasis on the fact that according to the Medical Reports as well as the Post Mortem Reports, the injuries caused were simple and therefore, no intention to cause injuries which are sufficient for death in the ordinary course of nature can be gathered in the facts of the present case. Thus, the conviction of the present appellants under Section 302 of IPC is ill-founded. It was also contended by the learned counsel for the appellants that the statements of the prosecution witnesses are not clearly indicating the overt act of each accused person and therefore, in absence of the same, all the appellants cannot be convicted for the 6 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP offences charged against them. It was vehemently argued that in the statement of Geeta Bai (PW-5), there are material inconsistencies and exaggerations as the witness named several persons in her Examination-in-Chief whereas in her statement recorded under Section 161 of Cr.P.C. (Ex. D-2), there is a mention of only few persons and these exaggerations are sufficient to create reasonable doubt on the veracity of the prosecution story. In light of the above, it was contended that the impugned judgment deserves to be set aside.
9. Per contra it has been vehemently argued by the learned counsel for the respondent that the statements which have been recorded by the Trial Court to convict the appellants are given by injured witnesses whose testimonies deserve an extra weightage. Further, the submission that only one or two injuries sustained by the deceased persons were fatal in nature and the remaining were simple in nature, does not deserve any consideration because it is well-established that even a single injury which has been forcefully caused by a dangerous weapon is sufficient enough to convict the accused persons. Therefore, there is no scope for any indulgence by this Court.
10. We have given our anxious consideration on the contentions raised by the rival parties and the material available on record.
11. First of all, it is to be considered whether the death of deceased Govind and Lekhan was homicidal in nature or not ? In this connection, the evidence given by Dr. A.D.Bhatnagar (PW-4) may be considered, who performed the postmortem on the body of the deceased Govind and found following injuries vide his report Ex.P/7:-
(i) One lacerated wound on occipital region towards left side, size 2"x1/2"x bone deep compound fracture;
(ii) One lacerated wound on left temporal region size 1"x1/2"x bone deep compound fracture;
(iii) One lacerated wound on right side over parietal region 1/2"x1"x1/4";
7 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP
--- all wounds described above were stitched, stitches removed before examination.
(iv) One abrasion on left clavicle bone near sternum size 2"x1/2";
(vi) One abrasion on left shoulder joint posteriorly size 2"x1" swelling;
(vii) One contusion on left clavicle bone near shoulder joint size 1"x1" brownish in colour;
(viii) One abrasion on left elbow joint size 1"x1/2";
(ix) One contusion on right leg 2" above ankle joint laterally size 3"x2" brownish in colour;
(x) Four contusions on left leg, thigh behind knee joint (posteriorly) size 2"x2", 3"x2", 2"x2", 2- 1/2"x2" swelling brownish in colour;
(xi) One contusion on left knee joint laterally 2"x2"
brownish in colour;
(xii) One contusion on left popliteal fossa size 2"x2", reddish brown in colour swelling positive;
(xiii) One contusion on right shoulder in joint posteriorly size 2"x2" reddish brown in colour. Dr. A.D.Bhatnagar further submitted that he has performed the postmortem of deceased Lekhan Singh and found following injuries vide his report Ex.P/11 :-
(i) One contusion on right forearm from hands up to elbow x 3" reddish brown in colour, swelling positive;
(ii) One contusion on left side of abdomen size 3"x2"
reddish brown in colour;
(iii) One contusion on left forearm from hands upto elbow joint laterally size 10"x3", reddish brown in colour, deformity positive;
(iv) One contusion on left forearm medially 2"x2"
reddish brown in colour swelling positive;
(v) Multiple contusions on left side of back from scapular region up to left renal area bluish in colour, swelling positive;
(vi) One contusion on lumber region size 6"x2" bluish in colour;
(vii) Swelling 4"x3 & deformity positive left elbow joint;
(viii) One incised wound on vertebral column at lumber region 2"x1", blood clot positive;
(ix) One contusion on right arm posteriorly size 4"x3"
reddish brown colour, swelling positive;
(x) One incised wound on right leg 3" above ankle joint anteriorly size 2"x1", blood clot positive swelling;
(xi) One contusion on right popliteal fossa, reddish brown in colour swelling;
8 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP
(xii) One incised wound on occipital region size 2"x1/2"x bone deep, blood clot;
(xiii) One contusion on right hand, reddish brown in colour swelling, deformity positive;
(xiv) One contusion on left popliteal fossa;
12. According to Dr. Bhatnagar, the deceased Govind Dangi and Lekhan Dangi died due to cerebral hemorrhage and the injuries found to the deceased were sufficient to cause their death. The opinion given by Dr. Bhatnagar (PW-4) cannot be discarded. Such injuries could not be caused in an accident and they could not be self-inflicted and, therefore, death of deceased Govind Dangi and Lekhan Dangi was neither accidental nor suicidal, hence it was homicidal in nature.
13. Witnesses Geetabai (PW-5) and Sharda Bai (PW-6) deposed that accused Jagat Singh having farsa, Jalam Singh armed with sword, Maharaj Singh with Lohangi, Harnam Singh, Ajab Singh, Prakash, Sher Singh, Ghanshyam, Vijay, Sajjan, Santosh, Anant Singh, Babbu and Dhanraj carrying lathis came and caused injuries to Govind Singh and Lekhan Singh. Accused Jalam Singh inflicted blow of sword on the chest and right hand of Lekhan Singh whereas accused Jagat Singh gave a blow of farsa on the head of Govind Singh. Other accused persons caused injuries by lathi. However, in the cross- examination both the witnesses admitted that at the time of incident they were in their house and after receiving the information about the incident from Dhandu and Chain Singh they reached on the spot. Thus, it is clear that these witnesses were not present at the time of crime and they have not seen the incident.
14. Witnesses Sher Singh (PW-12) and Ram Singh (PW-14) deposed that six years ago at about 5 pm, after receiving the information from Chain Singh that accused persons have inflicted injuries to Govind Singh and Lekhan Singh, they reached on the spot where they saw that the accused persons having in their hands sword, farsa, lohangi and lathis were returning from the spot. Govind Singh and Lekhan Singh were 9 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP found on the spot in injured condition, therefore the trial Court has rightly concluded that Sher Singh and Ram Singh were also not present on the spot when accused persons were assaulting.
15. Witness Chain Singh (PW-13) deposed that Six and half years ago at about 5 - 5.30 pm, there was a crowd of 40-50 people near the culvert on the eve of immersion of Bhujuriyon, where he was present along with Govind Singh, Lekhan Singh and Dhandu. Accused Jagat Singh, Prakash, Maharaj Singh, Dhanraj, Mathura, Jalam were assembled there. Mathura caught the legs of Lekhan Singh, then Prakash, Jagat Singh, Jalam, Maharaj Singh, Dhanraj and Mathura caused injuries to Lekhan Singh by their respective weapons like Lathi, Farsa, Sword, Lohangi. Lekhan Singh was standing near the platform of Dulha Dev where he was beaten and Govind Singh was standing near the platform. Govind Singh was beaten by Harnam Singh, Bablu @ Babulal, Anant Singh, Vijay, Sajjan Singh, Ghanshyam, Ajab Singh, Preetam, Sher Singh, Maharaj Singh by lathis and Man Singh by Lohangi, due to which Govind Singh fell down. When he went to Lekhan Singh, then Dhanraj gave lathi blow on his shoulder and after beating of Lekhan Singh, all the accused had beaten him and Dhandu and Ramsingh were also beaten by the accused persons.
16. Learned counsel for the appellants submitted that the prosecution witness who has been presented as ocular witness, namely, Chain Singh (PW-13), is the family member of the deceased persons and is an interested witness. This contention is to be considered in light of the judicial pronouncement by the Hon'ble Supreme Court in the case of Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, in the following manner:
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of 10 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
17. In another Judgment by Hon'ble Supreme Court in the case of Seeman v. State, (2005) 11 SCC 142, following has been observed:
"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested sole witness. The prosecution's non- production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
18. In the context of these reproduced portions of the judgments, if the contention of the learned counsel for the appellant is examined, then we have no hesitation in concluding that the statement of Chain Singh (PW-13) is consistent with respect to the manner in which the deceased sustained injuries and the manner in which the appellants inflicted the same thereby establishing the prosecution version of the story. The learned Trial Court has not committed any error in considering the statements of Chain Singh (PW-13) and Ram Singh (PW-14), and the findings recorded by the Trial Court with respect to the statement of Chain Singh in Para 50, 11 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP 63, 64 and 66 of the judgment is as per the material available on record and the Court below has rightly observed that Chain Singh was present at the place of incident and had witnessed the occurrence of the incident. Further, this Court cannot lose sight of the fact that Chain Singh (PW-13) is also injured witness. Therefore, greater weightage is to be ascribed to his testimony.
19. The Hon'ble Supreme Court in Pargan Singh v. State of Punjab, (2014) 14 SCC 619 has held as under:
"22. In the present case, the circumstances in which PW 2 had seen the accused persons even for 90 seconds, that was sufficient to absorb their faces. In contrast, things would be different if it is a case of some large get together where two unknown persons have a chance meeting for 90 seconds. Therefore, we reject the argument of the learned counsel for the appellants that PW 2 could not recollect the face of the appellants after 7½ years and thus, he was not telling the truth. We have to keep in mind that PW 2 suffered serious injury because of the shot fired at him by the assailants and seriousness of the injury has resulted into conviction under Section 307 IPC as well. The testimony of an injured witness requires a higher degree of credibility and there have to be strong reasons to discard the same. The appellants have not been able to demonstrate that the courts below unreasonably reached the conclusion as to the admissibility of the testimony of PW 2. Apart from a very feeble submission that this witness identified the appellants 7½ years after the incident, their arguments do not address the issue of whether testimony of PW 2 was false. We are, thus, not at all impressed by this argument of the learned counsel for the appellants. Except that PW 3 is not an injured eyewitness, he has also seen the occurrence and the reasons given in support of attaching credibility to the statement of PW 2 would apply in his case as well."
20. In another Judgment by Hon'ble Supreme Court in the case of Jodhan v. State of M.P., (2015) 11 SCC 52, it has been observed that: -
"28. Tested on the backdrop of the aforesaid enunciation of law, we are unable to accept the 12 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP submission of the learned counsel for the appellant that the High Court has fallen into error by placing reliance on the evidence of the said prosecution witnesses. The submission that when other witnesses have turned hostile, the version of these witnesses also should have been discredited does not commend acceptance, for there is no rule of evidence that the testimony of the interested witnesses is to be rejected solely because other independent witnesses who have been cited by the prosecution have turned hostile. Additionally, we may note with profit that these witnesses had sustained injuries and their evidence as we find is cogent and reliable. A testimony of an injured witness stands on a higher pedestal than other witnesses. In Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] , it has been observed that: (SCC p. 271, para 28) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built- in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone."
It has been also reiterated that convincing evidence is required to discredit an injured witness. Be it stated, the opinion was expressed by placing reliance upon Ramlagan Singh v. State of Bihar [Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 : 1973 SCC (Cri) 563] , Malkhan Singh v. State of U.P. [Malkhan Singh v. State of U.P., (1975) 3 SCC 311 : 1974 SCC (Cri) 919] , Vishnu v. State of Rajasthan [Vishnu v. State of Rajasthan, (2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] , Balraje v. State of Maharashtra [Balraje v. State of Maharashtra, (2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] and Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] .
29. From the aforesaid summarisation of the legal principles, it is beyond doubt that the testimony of the injured witness has its own 13 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt guarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned counsel for the appellant that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge."
21. In the context of the above, this Court cannot ignore the fact that the statement of Chain Singh who is injured witnesses has sufficiently brought out the conduct of the appellants which resulted in the injuries sustained by the deceased persons and these witnesses. Therefore, the contention of the learned counsel for the appellants is repelled being without any substance. Further, it is pertinent to observe that the prosecution has been successful in bringing forth the background/motive in which the incident dated 07.08.1990 had occurred. In this regard, the statement of Komal Singh (PW-11) is clear that around fifteen days prior to the date of incident, the accused persons had a quarrel in relation to money with the deceased persons. This statement has been supported by Chain Singh (PW-13) and Ram Singh (PW-14).
22. The learned counsel for the appellants has pointed out that in the statement of Dr. AD Bhatnagar, it has been categorically stated that the injuries which have been suffered can be caused by falling on the floor. Further, except few injuries, the remaining injuries have been concluded as being simple in nature. In this regard, it is pertinent to refer to the legal position settled by the Hon'ble Supreme Court in the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465, which provides as under: -
"23. The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan [(1917) ILR 41 Bom 27, 29] where Beaman, J., 14 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP says that--
"where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended".
With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
24. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one 15 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guesswork and fanciful conjecture."
23. The perusal of the reproduced portion mentioned hereinabove clearly shows that even a single injury is sufficient enough to record a conviction under Section 302 of IPC or Section 304 Part II of IPC. The only distinguishable features are 'intention' and 'knowledge'. If it is established from the record that the appellants had intention to cause death and the nature of injury was sufficient in ordinary course to cause death, then the conviction would be recorded under Section 302 of IPC. In the instant case, the perusal of Post- Mortem Reports (Ex. P-7 and P-11) goes to show that fatal injuries were caused on delicate part of the head of the deceased which resulted in Cerebral Hemorrhage. In fact, the deepness of the injury which finds mention in the Post-Mortem Report indicates the resolve of the accused persons to apply sufficient and brute force, which shall be enough to cause death in ordinary course of nature. Further, the injury caused on Occipital Region of the Head of Lekhan Singh by a sharp- edged weapon leaves no iota of doubt in the mind of this Court that the conduct of the appellants reflect their intention to commit culpable homicide amounting to murder, due to which the deceased persons could not even survive even for a day rather they went in the state of Coma immediately after occurrence of the incident and died in that state of Coma. Therefore, the contention of the learned counsel for the appellants to the extent it relates to the intention to commit culpable homicide not amounting to murder is repelled and the findings recorded by the Trial Court are upheld.
24. Learned counsel for the appellants submitted that the trial Court has failed to appreciate the evidence properly. There are discrepancies/contradictions/exaggerations in the 16 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP statements of the witnesses. The contention raised by the counsel, in our opinion, has no substance as the discrepancies or contradictions pointed out by the learned counsel are not so material which affect the credibility of the evidence of the witnesses and on the basis of which the judgment of conviction can be reversed.
25. The Hon'ble Apex Court in State of Rajasthan v. Smt. Kalki and another [AIR 1981 SC 1390] has held :
"6. The second ground on which the High Court refused to place reliance on the evidence of P.W. 1 was that there were "material discrepancies". As indicated above we have perused the evidence of P.W. 1. We have not found any "material discrepancies" in her evidence. The discrepancies referred to by the High Court are, in our opinion, minor, insignificant, natural and not 'material'. The discrepancies are with regard to as to which accused "pressed the deceased and at which part of the body to the ground and sat on which part of the body; with regard to whether the respondent Kalki gave the axe blow to the deceased while the latter was standing or lying on the ground, and whether the blow was given from the side of the head or from the side of the legs. In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. As indicated above we have not found any material discrepancies in the evidence of the P. W.1."
26. In Babasaheb Apparao Patil v. State of Maharashtra [AIR 2009 SC 1461] the Hon'ble Apex Court held :
"12. It is to be borne in mind that some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Merely because there is inconsistency in evidence, it is not sufficient to 17 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP impair the credibility of the witness. It is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence.
13. In State of U.P. Vs. M.K. Anthony (AIR 1985 SC 48), this Court indicated the proper approach which needs to be adopted while appreciating the evidence of a witness. It was observed as under:
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
14. In Appabhai & Anr. Vs. State of Gujarat (AIR 1988 SC 696), this Court had again emphasized that while appreciating the evidence, the court should not attach undue importance to minor discrepancies. The discrepancies which do 18 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy.
27. In Baijnath and another vs. State of MP [ILR (2009) MP 3041], it has been held by the Hon'ble Apex Court :
"5. We have given very careful consideration to the matter, more particularly, as we are dealing with a judgment of reversal. It is true that the trial court has given certain findings with respect to the evidence which had led to the acquittal, but we are of the opinion that some of the findings recorded by the trial Court were unjustified and unrealistic. The broad principles dealing with appreciation of evidence in a criminal matter have been laid down in Bhoginbhai Hirjibhai vs. State of Gujarat [AIR 1983 SC 753], and we respectfully produce the same:-
"...........Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the 19 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-
sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
(8) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
28. Learned counsel for the appellants argued that the appellant Sajjan Singh is not named in the FIR. The sole eyewitness Chain Singh (PW-13) has deposed that at the time of incident Sajjan Singh caused injury to Govind Singh but he did not assign any role of Sajjan Singh assaulting the deceased Govind Singh in his statement Ex.D-5 under Section 161 of 20 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP CrPC. Thus, the trial Court has committed error in accepting the evidence of Chain Singh (PW-13) as credible.
29. From the perusal of FIR (Ex.P-27) it reveals that the FIR is lodged by Sher Singh, father of deceased Govind Singh and Lekhan Singh and the trial Court has found that at the time of incident, he was not present on the spot. In the case of Rotash vs. State of Rajasthan [(2006) 12 SCC 64], the Hon'ble Apex Court has held that "the first information report, as is well known, is not an encyclopaedia of the entire case. It need not contain all the details. We, however, although did not intend to ignore the importance of naming of an accused in the first information report, but herein we have seen that he had been named in the earliest possible opportunity."
30. In the light of the observation made by the Hon'ble Apex Court in the case of Rotash (supra), even assuming that Sher Singh (PW-12) did not name Sajjan Singh in the FIR, we did not find any reason to disbelieve the statement of Chain Singh (PW-13) because he is the injured person and he has named Sajjan Singh as assailant in his statement under Section 161 of CrPC (Ex.D-5). This statement has been recorded after two days of the incident, i.e., on 9.8.1990. The question is as to whether a person was implicated by way of an afterthought or not must be judged having regard to the entire factual scenario obtaining in the case. Chain Singh (PW-13) has received as many as 10 injuries. A lacerated wound was found on his skull and swelling was found on his left forearm and left shoulder. He had contusion on his right jaw, right ankle and left thigh. In these circumstances, it cannot be expected from him to record his statement immediately after the incident.
31. In the case of State of Haryana vs. Tek Singh (AIR 1999 SC 1742), the Hon'ble Apex Court held as under:-
"8. As stated by the witness Chet Singh, p.w.5 in his cross- examination that assault was over within two to three minutes, it would be difficult for any witness to state exactly which accused inflicted how many blows on the 21 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP deceased. In these set of circumstances, if there is some exaggeration in the evidence of the witnesses those exaggerations are to be separated by taking into consideration overall facts on record. Further, it is to be stated that with regard to the main part of the prosecution version that accused assaulted deceased Gurdev Singh, the prosecution evidence is fully corroborated by medical evidence. The medical evidence also corroborates the say of the witnesses that on both the deceased, apart from injury by firearm, accused assaulted by gandasa. Dr. R.K. Chaudhary, P.W. 1 and Dr. H.L. Gupta, P.W. 2, who carried on post-morterm examination of Gurdev Singh (deceased), found that he was having as many as 13 injuries out of which 6 injuries were incise wounds. There were multiple contusions and lacerated wounds on the body. Similarly, with regard to Tek Singh (deceased), there were in all 9 injuries, 3 were incise wounds and rest were multiple contusions and lacerated wounds. Therefore, it cannot be stated that the evidence of the prosecution witnesses is not corroborated by medical evidence. It is true that they have failed to locate exact seat of the injuries but that is natural, when the incident takes place all of a sudden within two to three minutes and successive blows are inflicted by the accused, 8 in numbers. They came all of a sudden armed with the deadly weapons and attacked the victims, who rushed to take the shelter in the house. In such a fact situation, some contradictions as to who assaulted whom, with what weapon and whether it was by sharp edge or blunt side of Gandasa are bound to be there and particularly when blows are given in quick succession, it would be against the ground reality to expect the witnesses to depose exactly on which part of the body blow landed. In these circumstances, even if there is some exaggeration with regard to the inflictions of blows, it would hardly be a ground for rejecting their testimony."
Further, in the case of Kallu alias Masth vs. State of Madhya Pradesh (AIR 2006 SC 831), the Hon'ble Apex Court held as under:-
"14. Though the trial court referred to the evidence of the eye- witnesses, it chose to disbelieve them merely on account of minor 22 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP inconsistencies in their evidence, relating to the exact site of occurrence and failure to name all who landed blows and the exact nature of injuries. The High Court, on the other hand, held that minor inconsistencies and discrepancies regarding the exact place or the point at which the incident took place or as to who landed the blows is not sufficient to disbelieve the evidence of injured eye- witnesses. It is not necessary that all eye- witnesses should specifically refer to the distinct acts of each member of an unlawful assembly. In fact, it is difficult, if not impossible. This Court in Masalti v. State of U.P. [1964 (8) SCR 133], observed :
"Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault."
Consequently, the contention of the appellants to this extent is not acceptable.
32. Having gone through the evidence of Chain Singh (PW-13), we are in complete agreement with the trial Court that the contradictions and discrepancies cannot be said to be material contradictions affecting the credibility of the evidence of Chain Singh. In his testimony Chain Singh has given graphic details of the occurrence and his evidence is also corroborated by the medical evidence which clearly shows that several blows were given to the deceased Lekhan Singh and Govind Singh by the appellants/accused persons by way of sharp cutting weapon as well as by hard and blunt object. The statement of Chain Singh was recorded after six and half years of the incident, therefore, these discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and 23 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP horror at the time of the occurrence. In these circumstances, we have not found any material discrepancies in the evidence of sole eyewitness of the incident, i.e., Chain Singh (PW-13).
33. Learned counsel for the appellant submitted that the prosecution has not produced the evidence of Rajendra Singh @ Dhondu, brother of the deceased, therefore, adverse inference can be drawn against the prosecution. From perusal of the record of the trial Court, it is found that on 1.4.1997 Rajendra Singh @ Dhandu was present before the Court and the Court found that he is deaf and dumb and therefore is unable to give the statement before the Court, hence he was discharged. In these circumstances, no weightage can be given to the argument put forth by learned counsel for the appellant.
34. The learned counsel for the appellants has also pointed out that the statements of the prosecution witnesses do not sufficiently indicate the overt act of each individual who have been named as accused, leave alone the role of the appellants. Suffice it to observe that in a case where ingredients of Section 141 of IPC which defines unlawful assembly are satisfied and from the material available on record, it is clear that the appellants had gone to the place of incident equipped with sharp-edged weapons and hard and blunt objects, the pre- meditation and common object of the members of the assembly can easily be ascertained. Once this contingency is available in the facts of a case, in this regard, the Hon'ble Supreme Court in the case of Ramachandran v. State of Kerala, (2011) 9 SCC 257,has held that: -
"20. However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in 24 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP prosecution of the common object. (See Daya Kishan v. State of Haryana [(2010) 5 SCC 81 :
(2010) 2 SCC (Cri) 1249] ; Sikandar Singh v. State of Bihar [(2010) 7 SCC 477 : (2010) 3 SCC (Cri) 417] and Debashis Daw v. State of W.B. [(2010) 9 SCC 111 : (2010) 3 SCC (Cri) 1158] )
21. The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. (Vide Masalti v. State of U.P. [AIR 1965 SC 202 : (1965) 1 Cri LJ 226] )"
In the case of Triloki Nath vs. State of UP (JT 2005 (9) SC 370), the Hon'ble Apex Court held as under:-
"In fact, section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."
35. In facts of the present case and material produced on record by the prosecution, there is no defence offered by the appellants that they were merely standing at the place of incident or were moot spectators. Consequently, the contention of the appellants to this extent is rejected.
36. Learned counsel for the appellants submits that the appellant Sajjan Singh has filed an application on 2.12.1993 before the trial Court, alleging that he was minor, hence his 25 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP case be separated and be sent to the Juvenile Court for hearing but the said application was rejected by the trial Court vide order dated 16.3.1994 without conducting any enquiry and without granting any opportunity for producing the evidence regarding juvenility to the appellant, which is mandatory according to the settled law. In support of his submission, learned counsel for the appellant relied on the judgments of this Court, reported in 1992 JLJ 375 (Guman vs. State); 2007 (5) MPHT 227 (Ummed Singh vs. State); and, 1997 (2) WN 232 (Imran Ali vs. State of MP).
37. From the perusal of the record it appears that on 19.11.1991 accused Man Singh, on 19.5.1992 accused Ghanshyam and on 2.12.1993 accused Maharaj Singh, Vijay Singh, Sher Singh, Ramesh, Dhan Singh @ Dhanraj and Sajjan Singh filed applications that on the date of incident they were below the age of 16 years but the police wrongly mentioned their age above 18 years in the charge sheet. After receiving the applications on behalf of accused Man Singh and Ghanshyam the trial Court fixed the case for enquiry as to the age of the said accused persons. After getting several opportunities on 23.9.1993 accused Man Singh and Ghanshyam submitted that they do not wish to produce any evidence in this regard and after that, all the applications including the application filed on behalf of accused Sajjan Singh, were decided by common order dated 16.3.1994 and the trial Court found that on the basis of the medical evidence, mark sheets and horoscopes, it appears that Ajab Singh and Ghanshyam were below 16 years of age at the time of incident, therefore, it was directed that the charge sheet regarding them shall be filed before the Juvenile Court but the other accused persons including Sajjan Singh have not filed any document regarding their age and they have also not prayed for time to adduce any evidence to prove their juvenility, hence, the trial Court dismissed their applications. After 26 Criminal appeal No.140/1999 Prakash Singh & Ors. Vs. State of MP rejection of their claim, the accused persons have not challenged the rejection order of the trial Court by filing revision petition before this Court. Therefore, the order of the trial Court has attained its finality. Before this Court also, accused Sajjan Singh has not filed any document to show that at the time of incident he was below 18 years. Hence, the contention of learned counsel for the appellant is not acceptable that the trial Court has not given any opportunity to the appellant Sajjan Singh to adduce oral as well as documentary evidence to prove his juvenility.
37. Taking this view of the matter and having found no error in appreciation of evidence by the trial Court, for the reasons assigned above, we are of the considered opinion that all the three criminal appeals filed by the appellants must fail and are accordingly dismissed. Since accused Prakash Singh (appellant No.1 in Criminal Appeal No.140/1999) has expired, therefore, his appeal stands dismissed, however the conviction and jail sentence of remaining appellants in these three appeals for the offences punishable under Sections 302/149, 325/149, 323/149 and 148 of IPC is maintained.
38. It appears that the appellants are on bail. Their bail bonds are now cancelled. They are directed to surrender before the trial Court without any delay so that they may be sent to jail for execution of remaining part of their jail sentence.
A copy of the judgment be also sent to the trial Court along with its record for information.
(Sanjay Yadav) (S.K.Awasthi)
Judge Judge
(yogesh)
YOGESH VERMA
2017.12.05 11:16:34
+05'30'
27 Criminal appeal No.140/1999
Prakash Singh & Ors. Vs. State of MP