Madhya Pradesh High Court
Bharat Singh vs State Of M.P. on 17 May, 2002
Equivalent citations: 2002(4)MPHT441
JUDGMENT P.C. Agarwal, J.
1. Fifth Additional Sessions Judge, Gwalior in S.T. No. 15/84, State of M.P. v. Ramu and 5 Ors., on 18-3-1986 found the appellant guilty under Section 302 of the Indian Penal Code ('Code' for short) and sentenced him to undergo imprisonment for life. Aggrieved thereby this appeal was filed.
2. As per prosecution, deceased Ramcharan son of Nandu Kushtha was an employee of Padamchand in his ration shop. Four or five days before the date of incident, i.e., 4-6-1983, the appellant with two or three other companions had called deceased Ramcharan out of ration shop and had accused him for naming him for robbery of Rs. 15,000/- at Payal Bidi. On the date of incident, at about 10.00 P.M. deceased Ramcharan, Heeralal (P.W. 3) and Padamchand were inside the ration shop. The appellant suddenly appeared with an open knife and caught collar of deceased Ramcharan and tried to pull him out of the shop. Naturally deceased Ramcharan resisted. Appellant stabbed deceased Ramcharan. Other companions of the appellant also entered the shop with open knives. All of them hacked deceased Ramcharan with knives and fled away when deceased Ramcharan fell down. Frightened Heeralal (P.W. 3) ran out of shop to save himself. Padamchand remained in his shop stunned. One of companions of these assailants threw a hand grenade to scare the witnesses. Padamchand immediately rushed to Police Station, Gwalior and lodged FIR (Ex. P 20) within 10 minutes of the event. Shri H.P. Singh (P.W. 15), S.O., Gwalior, had scribed the report. He had noted down marg intimation (Ex. P-21) also.
3. As per prosecution, H.P. Singh (P.W. 15), I.O., rushed to the spot and prepared an Inquest Memo (Ex. P-1) after giving notices to the Panch witnesses vide Ex. P-22. He seized plain and blood-stained earth from the spot vide Ex. P-9, and parts of a half spent hand-grenade vide Ex. P-10. A spot map (Ex. P-3) was also drawn. Dead body was sent to Hospital for post-mortem. Dr. V.K. Deewan (P.W. 14) conducted autopsy on dead-body of deceased and noted down following injuries vide Ex. P-14:--
(1) Stab wound 3 cm x 3/4 cm x 9-1/2 cm on medial to right side of the chest right side providing longitudinal placed and on direction downwards backward and medially placed margin clean cut.
(2) Stab wound on left side of epigastric region 3.5 cm x 1 cm.
(3) Stab wound in hypogastrium 2 cm x 1/2 cm x 5 cm obliquely down and laterally towards left side 3 cm below mid line on left side, medial margins clean cut.
(4) Incised wound 4 cm x 1 cm x 3 cm over the right thigh laterally at the junction of upper 1/3rd and middle 1/3rd obliquely downward.
(5) Abrasion just below the left lower eyelid laterally 1 cm x 1/2 cm.
(6) Stab wound right scapular region 2 cm x 1/2 cm x 4 cm obliquely downward and medial marginal more clean cut.
(7) Stab wound 5 cm medial to interior angle right scapular obliquely downward and medially. Medial over right side back medial margins clean cut.
(8) Stab wound over right side 8" below the neck posteriorly and 2 cm left to spine obliquely downward and anteriorly 3 cm x 1 cm x 9 cm deep going into pleural cavity region all medial margins clean cut.
(9) Stab wound 11" below the neck over the right side back 4 cm left to spine 2.5 cm x 1 cm x 6 cm.
(10) Abrasion over right side of the back just below 12th rib.
(11) Stab wound over left gluteal region lower part 2 cm x 1 cm x 6 cm margins on medial side clean cut.
All these injuries were ante-mortem and were caused by sharp and pointed weapons like knives. Such injuries were sufficient in the ordinary course of nature to cause death. Internal organs, lungs, kidney, heart were badly damaged. Cause of death was syncope due to injuries to the internal organs and haemorrhage. Death was homicidal. Duration was within 24 hours.
4. The appellant was arrested on 16-6-1983 vide Ex. P-14 in front of old High Court building, Gwalior. On his information, vide Ex. P-6, a knife was seized from him vide Ex. P-8. Knives were also seized from acquitted co-accused Man Singh on 16-6-1983. After due investigation, the appellant and 5 other co-accused (since acquitted) were charge-sheeted under Sections 302/34 of the Code.
5. The appellant pleaded not guilty. He has claimed complete innocence. According to him Heeralal (P.W. 3) is also a labour. He (P.W. 3) used to dissuade the appellant from working in the same area. Heeralal (P.W. 3) has also been a Police informer. The appellant was falsely named in 'Payal Bidi' robbery by him. He examined Narayan Singh (D.W. 1) and J.C. Katiyar (D.W.
2) in his defence to prove that Heeralal (P.W. 3) had sworn in an affidavit (Ex. D-2) on 28-7-1984, i.e., after record of his statements as a witness on 8-5-1984, wherein he had claimed that he had deposed falsely before the Court under threats of Pooran (P.W. 2), the brother of deceased Ramcharan.
6. Other co-accused Ramu, Suresh, Man Singh, Naresh and Brij Mohan had also pleaded not guilty and denied the prosecution case. As already seen, the learned Trial Court has acquitted them. The State has not appealed.
7. The Trial Court held the appellant guilty under Section 302 of the Code and sentenced him as aforesaid.
8. Learned Senior Advocate for appellant has challenged the conviction and the sentence. According to him Pooran (P.W. 2) and Heeralal (P.W. 3) are unreliable and infirm witnesses. Eye-witness Padamchand has not been examined. FIR (Ex. P-20) lodged by him cannot be used either as substantive evidence of for corroboration of statements of either Pooran (P.W. 2) or Heeralal (P.W. 3). Appellant was charged under Sections 302/34 of the Code and he could not be convicted for the substantive offence of murder under Section 302 of the Code.
9. Learned Govt. Advocate has supported the judgment of the Trial Court in toto and has claimed that offence has been proved beyond reasonable doubt.
10. Both the Advocates are heard. We have gone through the evidence on record and judgment of the Trial Court.
11. Homicidal death of deceased Ramcharan as a result of several stabbed wounds on his body is well proved by Pooran (P.W. 2), his real brother and Heeralai (P.W. 3) his colleague. They are supported by H.P. Singh (P.W. 15), S.O., Gwalior, who had scribed the FIR (Ex. P-20) and recorded Marg intimation (Ex. P-21). He has seen the dead-body and prepared inquest memo (Ex. P-1) after giving notice (Ex. P-22) to Panch witnesses. Naresh Kumar (P.W. 1) also supports him. H.P. Singh (P.W. 15) has seized blood stained earth from the spot vide Ex. P-9. He sent the dead-body for post-mortem examination to the hospital. Dr. D.K. Tiwari (P.W. 14) has noted in all 11 stabbed wounds on the dead-body recorded earlier in the judgment. According to him, cause of death was syncope due to excessive injuries and haemorrhage. According to him death was homicidal. Appellant has merely shown his ignorance in reply. Such ignorance is of no avail as it is overshadowed by indefeasible prosecution evidence. Thus the finding of the learned Trial Court that death was not natural and homicidal is unassailable and is hereby confirmed.
12. The finding of the Trial Court that the appellant had caused the death of deceased Ramcharan, is based on statements of Heeralai (P.W. 3) and Pooran (P.W. 2) supported by FIR (Ex. P-20) lodged within ten minutes of the occurrence by Padamchand, who could not be examined and was not available for evidence despite efforts of both the parties.
13. Heeralai (P.W. 3) claims to be present on the spot with deceased Ramcharan when appellant came inside the shop and caught the collar of the deceased and stabbed him. According to him, he was frightened and left the place. He claims that he was pursued yet he could not see who had pursued him. He claims that he could not see what happened thereafter. Pooran (P.W. 2), the real brother of the deceased, on the other hand, has claimed that he had seen the appellant and his four companions with the deceased just before the event. He had seen the appellant and his companions abusing the deceased Ramcharan. This witness had left for a while and had returned only after about 15 minutes and saw the dead-body of deceased inside the ration shop of Padamchand, who himself was also present there and had informed him that the appellant had stabbed his brother the deceased. According to him, Padamchand had named Mansingh-- the acquitted co-accused also.
14. Of course, Padamchand, in whose shop deceased was stabbed and was put to death and who lodged FIR (Ex. P-20) within 10 minutes of the occurrence, was the best witness. However, he was not available at trial. He had left Gwalior for Agra, where his address could not be known despite efforts. Obviously, he was not withheld by the prosecution with any sinister object. The learned Trial Court has not erred, in such facts and circumstances, in not drawing any adverse inference from his non-examination and in basing conviction on other evidence available on record.
15. The learned Trial Court has held both Heeralal (P.W. 3) and Pooran (P.W. 2) as partly reliable witnesses and has sought corroboration of FIR (Ex. P-20) to lend assurance to their statements. Of course, in absence of Padamchand, Heeralal (P.W. 3) remains a solitary eye-witness. Had he been a wholly reliable as held in V. Thevar v. State of Madras (AIR 1957 SC 614). Later consistently followed in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251), Kartik Malhar v. State of Bihar (1996 Cr.LJ 889), conviction could safely be based on his sole testimony without need of any independent corroboration. However, the learned Trial Court was alive to the factors that this witness had named only the appellant out of six persons put to trial. On confrontation with his previous statement (Ex. D-1), recorded by I.O., he had denied A to A, B to B, C to C and D to D portions, wherein he had claimed knowledge about complicity of the appellant in Payal Bidi robbery and naming of the appellant therein, expression of anger by the appellant and his henchman and that the deceased and this witness was called by Padamchand, from Hotel of Bhagwandas. He had not admitted these facts in Trial Court. However, the learned Trial Court has not erred in holding such contradictions as minor and not affecting the core of his evidence. Of course, minor variations in evidence are always immaterial. See Sukhdev Yadav v. State of Bihar [(2001) 8 SCC 86 = AIR 2001 SC 3678], Munshi Prasad v. State of Bihar [(2002) 1 SCC 351 = AIR 2001 SC 3031] and Joseph v. State of Kerala [(2000) 5 SCC 197].
16. Statement of Heeralal (P.W. 3) was recorded on 8-5-1984. On 28-7-1984, an affidavit with application was received in Court. On 25-11-1985, the appellant applied for recall of Heeralal (P.W. 3). The Trial Court held that the application was not bona fide and dismissed the same. Later on 27-1-1986, another application for further cross-examination of Heeralal was filed by the appellant under Section 311 of the Code of Criminal Procedure. This application was also dismissed by the Trial Court on 10-2-1986. Such affidavit (Ex. D-2) is later proved by Narayansingh (P.W. 1), a registered Clerk of the defence Advocate who had identified Heeralal (P.W. 3) and J.C. Katiyar (D.W. 2), a Notary, who had represented one of the co-accused for bail. The learned Senior Advocate has taken serious exception to the procedure adopted by the Trial Court and has claimed that the Trial Court should have taken care to verify whether the affidavit (Ex. D-2) was sworn in by Heeralal (P.W. 3). He has relied on Sukkham v. State of U.P. [1988(1) Crimes 245] and Mansingh s/o Hazarilal Khati v. State of M.P. [2000(1) MPLJ SN 8] to show that procedure adopted by the Trial Court was erroneous. In this latter case a Single Judge of this Court has held that it was necessary to recall such a witness and to examine and cross-examine him. However, the appellant did not approach this Court in revision.
17. Now, at this stage the only course remained open to this Court is to decide the effect of adoption of such procedure on prosecution case. Obviously, Heeralal (P.W. 3) himself had not appeared before the Trial Court with either the application or affidavit (Ex. D-2). Obviously such affidavit was got prepared with the help of Clerk of the defence Advocate. It was verified before the Notary who had been Advocate for defence at some stage. As per affidavit (Ex. D-2) Heeralal (P.W. 3) had given his statement under pressure of Pooran (P.W. 2), the brother of deceased, however, Pooran (P.W. 2) himself had not been vehement or over-enthusiastic in his statement while he could well afford to do so. Pooran (P.W. 2) himself was declared hostile by the prosecution. In our considered opinion, the view taken by the learned Trial Court that such affidavit was not of any worth is not incorrect. Even otherwise nothing had dissuaded Heeralal (P.W. 3) from stating before the Trial Court that he had been under the pressure of Pooran (P.W. 2), when he was cross-examined by the Public Prosecutor and the defence Advocate. It is noteworthy that the Trial Court had held Heeralal (P.W. 3) only a partly reliable witness and had not taken him to be a wholly reliable witness.
18. It is note-worthy that Heeralal (P.W. 3) had no emnity or grudge against the appellant. He had no motive to falsely implicate the applicant. As already seen, Padamchand was not withheld from Court. Obviously, the facts of Sohan v. State of Haryana (AIR 2001 SC 1380) were widely different, In these facts and circumstances the statement of Heeralal (P.W. 3) could well be relied upon in part. Falsus in uno, falsus In omnibus is not a sound rule of appreciation of evidence. See Ranveer v. State of Punjab (AIR 1973 SC 1409), Bhagwan Tana Patil v. State of Maharashtra (AIR 1974 SC 21). Such evidence has to be scrutinised with care and caution, and if the remaining evidence is trust-worthy and subtratum of the prosecution case remains intact, then the Court can act on it to the extent it is considered safe and trust-worthy. The Courts have a right nay a duty to separate the grain from the chaff to sift truth from falsehood to accept the truth and to reject the untruth.
19. Pooran (P.W. 2) is real brother of the deceased. He also has no animus or enmity against the appellant. A near relative is not likely to absolve the real culprit and drag in an innocent person. Hukumsingh v. State of Rajasthan [(2000) 7 SCC 490], The State of Rajasthan v. N.K. [(2000) 5 SCC 30], The State of Rajasthan v. Hanuman [(2001) 2 SCC 337 = AIR 2001 SC 282] and Shivraj v. State of U.P. [(1998) 1 SCC 149]. Though, of course he has been declared hostile by the prosecution and has been cross-examined as he denied emphatically that he did not see the actual incident, however, it is well settled that merely because a witness is declared hostile, his evidence cannot be either thrown or discarded. See, Koli Lakshman Bhai Chana Bai v. State of Gujarat, (1999) 8 SCC 624 = AIR 2000 SC 210, Bara Singh v. State of Rajasthan, (2001) 2 SCC 35, Anil Rai v. State of Bihar, (2001) 7 SCC 318 = AIR 2001 SC 3173, Bhagwan Singh v. State of Haryana, (1976) 1 SCC 379 and Satpaul v. Delhi Administration, (1976) 2 SCC 727. Thus, the learned Trial Court has not erred in relying on part of his statement against the appellant.
20. The learned Senior Advocate for the appellant has vehemently argued that FIR (Ex. P-20) was wholly inadmissible in evidence and could neither be used as substantive evidence nor to corroborate the statement of Heeralal (P.W. 3) and Pooran (P.W. 2).
21. It is well established that FIR is not a substantive evidence. It can be used either for corroboration under Section 157 or for contradiction under Section 145 of the Evidence Act of the Reporter, It can only be used as substantial evidence when the reporter is dead and it amounts to his dying declaration within the meaning of Section 32(1) of the Evidence Act. It can be used to look into the conduct of informant under Section 8 also. Shankar v. State of U.P. (AIR 1975 SC 757), Nisar Ali v. State of U.P. (AIR 1957 SC 366), Hasib v. State of Bihar (AIR 1972 SC 283), Indian v. Emperor (AIR 1943 Calcutta 647) prohibits its use as substantive evidence. George v. State of Kerala (AIR 1998 SC 1376) prohibits its use as substantive evidence to discredit testimony of other witness. State of Orissa v. Chakradhar (AIR 1964 Orissa 262) holds that in case informant dies long after the occurrence and FIR does not relate to the cause of informant's death, the same is not admissible either under Section 32(1) or Section 8 of the Evidence Act. Somappa v. State of Mysore (AIR 1979 SC 1831) relates to statements to the police which do not amount to first information and holds them inadmissible under Section 162 of the Code of Criminal Procedure which is beside the point here. However, it is note-worthy that learned Trial Court has not used the FIR (Ex. P-20) as substantive evidence. He has not used such FIR either under Section 32(1) of the Evidence Act or as a dying declaration of Padamchand. He has not used it to assess the conduct of Padamchand who could not be examined. He has used the FIR (Ex. P-20) lodged within 10 minutes of the occurrence by Padamchand who could not be examined merely to lend assurance to the statements of Heeralal (P.W. 3) and Pooran (P.W. 2). It goes without saying that name of appellant was there as the principal assailant in such FIR. In Maharajsingh v. State of U.P. [(1994) 5 SCC 188] Dr. A.S. Anand, J. (as he then was) has observed on pages 195-196 para 12 :
"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed including the names of the actual culprits and the parts played by them. The weapons if any used as also the names of eye-witnesses if any."
In the instant case FIR is the first information to the police. It is the first version of the prosecution case. It was lodged within 10 minutes of the occurrence without loosing any time when the informant was still under shock and excitement of seeing the gruesome murder. Such an FIR could well be used to lend assurance to the statements of witnesses and could not be thrown out as waste paper by the Court below.
22. Obviously, this case is one of such cases in which prosecution witnesses did not dare to speak against the culprits for fear of reprisal. It is not a case in which prosecution witnesses have tried to improve upon the story in trial. Actually, they have hesitantly given scant information only to the Court. Of course, life of law is not mere logic. It is experience. Appreciation of evidence is not mere solving a theorem of Euclid. Of course, FIR (Ex. P-20) which was lodged within 10 minutes of the occurrence which was the basis of the prosecution case on which investigation had started could not be thrown out like a waste paper by the Trial Court below. Thus, if the Trial Court has relied upon such FIR, no error has been committed.
23. The appellant has merely denied the prosecution story. The Trial Court has not committed any error in disregarding such denial as evasive. Thus, conviction of the appellant is well founded.
24. The learned Sr. Advocate for appellant has argued that the Trial Court had acquitted four out of five accused charged under Sections 302/34 of the Code and has convicted the appellant for substantive offence under Section 302 of the Code. According to him as other co-accused had been acquitted, the appellant alone could not be convicted under Sections 302/34 of the Code. According to him there being no charge for substantive offence under Section 302 of the Code, no conviction could be recorded. He has drawn our attention to Krishna Govind Patil v. State of Maharashtra (AIR 1963 SC 1413). In that case four persons were charged under Sections 302/34 of the Code and three were acquitted. Fourth held could not be convicted for having committed the offence, along with one or more of the acquitted persons. However, in the present case, in all 5 persons were charged under Sections 302/34 of the Code. Four of whom have been acquitted as the main witness left Gwalior and absconded and witnesses examined did not support the case of prosecution and, thus, had to be given benefit of doubt. Further, the language of the charge framed against the appellant was such which gave notice to the appellant that he was charged for murder and not merely for any constructive liability. Prosecution evidence was led on that basis. The statement of appellant under Section 313 of the Criminal Procedure Code was recorded with that supposition. The appellant entered his defence with that knowledge and there has been no prejudice to the appellant in defence or no miscarriage of justice by any such error, omission or irregularity in the charge. Under Section 464 of the Code of Criminal Procedure, no finding or sentence is invalid merely on the ground that no charge was framed or charge framed was erroneous or irregular unless a failure of justice has occasioned thereby to the accused. Observations of Hon. Apex Court in Kammari Bhrahamaiah v. The Public Prosecutor, High Court of A.P., (1999) 2 SCC 522, are apposite.
"Non-framing of a charge would not vitiate the conviction if no prejudice is caused thereby to the accused. The trial should be fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and demonstrated. The Code of Criminal Procedure is a procedural law and is designated to further the ends of justice and not to frustrate them by the introduction of endless technicalities."
In this reference Ramkishan v. State of Rajasthan, (1997) 7 SCC 518 and Willie (William) Slaney v. State of M.P. (AIR 1956 SC 116) have also to be noted. Thus, there has been no prejudice on defence or no miscarriage of justice to the appellant by any error or omission or irregularity in the charge, the conviction of the appellant under Section 302 of the Code can well be upheld.
25. Thus, in our considered opinion, the Trial Court has not erred in holding the appellant guilty under Section 302 of the Code. The deceased had atleast 10 stab injuries on his person. Such injuries were caused by sharp and pointed object like knives. Such injuries were sufficient in the ordinary course of nature to cause death. Internal organs were damaged. Excessive bleeding and injury to internal organs had caused syncope and consequent death. The appellant had a motive also to do away with the deceased, thus, his act was intentional. In these facts, the findings of guilt recorded by Trial Court below is hereby confirmed.
26. The learned Trial Court has awarded the lesser penalty prescribed under the Code for an offence under Section 302 of the Code, thus, there has been no scope for interference in the sentence. The same is maintained. The appellant is on bail. He shall surrender himself before Chief Judicial Magistrate, Gwalior, within three weeks of this judgment to serve out the remaining sentence; in case of default, a non-bailable warrant shall be issued against him. His personal and surety bonds shall stand cancelled.
27. The appeal has no substance in it. The same is dismissed. Finding and sentence recorded by the Trial Court are confirmed.