Madhya Pradesh High Court
Vicky @ Vikram Thakur vs The State Of Madhya Pradesh on 28 November, 2017
Author: Anjuli Palo
Bench: Anjuli Palo
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.A. No.911/2007
Vicky @ Vikram Thakur & Anr.
Vs.
State of M.P.
Present : Hon'ble Shri Justice S.K. Seth, Judge
Hon'ble Smt. Justice Anjuli Palo, Judge
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Shri Ghanshyam Pandey, learned counsel for the appellant.
Shri Akshay Namdeo, Government Advocate for the
respondent.
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Whether approved for reporting (Yes/No)
JUDGMENT
(28/11/2017) Per : Smt. Anjuli Palo, J.:-
This appeal has been filed by the accused-appellants being aggrieved by the judgment dated 11.04.2007 passed by Second A.S.J., Chhindwara in S.T. No.75/2006, whereby the appellants have been convicted under Sections 148 and 302/149 of Indian Penal Code and sentenced to undergo R.I. for two years with fine of Rs.500/- each and R.I. for life with fine of Rs.500/- each.
2. In brief, the prosecution case is that the appellants are father and sons, Rinky is daughter of appellant no.2 and sister of appellant no.1. Earlier Rinky ran away from her house. The appellants were in suspicion that Raja @ Ansar (since deceased) took her. On 29.12.2005 at about 8 p.m. Raja @ Ansar went for 2 walk in the colony when his mother Tahira Qureshi (PW1) had gone to milk shop, she saw that near Bhandariya School the appellants along with Hanuman Singh, Shariff, Ishwar Thakur, Sundar Thakur assaulted her son by using sword. As a result, Raja @ Ansar died on the spot. Shyamabai, Sakhiram and Mohd. Yasin witnessed the incident. On the report of Tahira Qureshi, Police Station Chandameta recorded merg intimation Ex.P/1, thereafter, FIR was lodged against the appellants under Sections 147, 148, 149 and 302 of IPC.
3. The case was committed to the learned trial court for trial. The trial Court framed the charges against the accused/appellants under Sections 148, 149 and 302 of IPC. Appellants abjured the guilt and stated that they have been falsely implicated in this case. Some defence witnesses have been adduced by them on this count.
4. After appreciating the entire evidence, the trial Court has held the appellants guilty under Sections 148 and 302 read with Section 149 of IPC on the basis of the testimony of eye witnesses Tahira Qureshi (PW1) and Mohd. Yasin (PW3), which were corroborated by the medical and other evidence. The appellants have been convicted and sentenced as mentioned above.
5. The appellants challenged the aforesaid findings on the grounds that learned trial Court committed grave error while convicting the appellants on the same set of evidence whereas the other two co- 3 accused persons namely Ishwar Singh and Sundar Singh have been acquitted from the charges. Learned trial Court discarded the whole evidence of defence witnesses and ignored the testimonies of independent witnesses. Further ignored the fact that no weapon has been seized from the possession of the appellant no.2. At the time of incident, since there was darkness, the appellants could not have been identified, therefore, benefit of doubt goes in favour of the accused persons. Hence, the prosecution failed to prove its case beyond reasonable doubt. Thus, learned trial Court has wrongly convicted the appellants on the testimony of interested witnesses. Therefore, the appellants pray to set aside the impugned judgment of conviction and acquit them from the charges.
6. Heard learned counsel for the parties and perused the record.
7. After due consideration of entire prosecution evidence, we find that the testimony of Tahira Qureshi (PW1) is corroborated by her brother Mohd. Yasin (PW3). In the FIR (Ex.P/2), name of Mohd. Yasin is also mentioned by Tahira Qureshi. FIR was lodged on the same day of the incident as established by Inspector, R.P. Ahirwar (PW7). As per FIR (Ex P2) the incident took place at 8:00 pm. Merg intimation (Ex.P/1) was lodged at about 8.30 p.m. at Police Station Chandameta, thereafter, FIR was registered at about 8.35 pm.
8. Tahira Qureshi (PW1) is the mother of the deceased and Mohd. Yasin (PW3) is her brother, though, they are interested 4 witnesses. We find their testimonies unrebutted and unshaken which supported the story set out in the FIR (Ex.P/2). We further find that the medical evidence is also supported these witnesses.
9. Dr. P.K. Soni (PW8) conducted autopsy of deceased Raja on 13.12.2005. He found following injuries:-
"(i) Incised wound bone deep 12 cm x 2cm extent from behind left ear forward occipital region with exposure of brain matter with sharp cutted of beneath bone oblique.
(ii) Incised wound 3 cm x ½ cm bone deep over left side of mandible left to midline.
(iii) Incised wound 6 cm x 3 cm upto bone deep oblique with cutting of trachea, esophagus and muscles and blood vessels over lower part of neck.
(iv) Incised wound 3 cm x ½ cm over left anterolateral side of neck cutting of muscles and laye blood vessels.
(v) Incised wound 4 cm ½ cm oblique due base of left side of neck.
(vi) Incised wound 2 cm x ½ cm muscle deep over left arm with left humerus oblique beneath the injury.
(vii) Incised wound on flexor aspect of left hand over middle phalanx of little finger middle finger ring, index finger oblique.
(viii) Abrasion 2 cm x 1 cm below left scapular region."
10. Doctor opined that Raja died due to excessive bleeding and fatal injury on the vital part of his body within 24 hours of the autopsy. Testimony of Dr. P.K. Soni (PW8) is found unchallenged. Only one suggestion was given to him by the learned counsel for the appellants that Dr. P.K. Soni (PW8) did not find any injury on the legs of the deceased, which has no importance.
11. Thus, we find the ocular evidence has been duly corroborated by medical evidence, therefore, the prosecution case is found believable. We do not find any material contradiction and 5 omission between the testimony of prosecution witnesses. The Hon'ble Supreme Court in the case of Shyamal Ghosh Vs. State of W.B. [(2012) 7 SCC 646] has held as under :-
"The discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety." [See S. Govindaraju vs. State of Karnataka (2013) 15 SCC 315 and Shashidhar Purandhar Hegde and another vs. State of Karnataka (2004) 12 SCC 492].
12. Counsel for the appellants has submitted that Tahira Qureshi (PW1) and Mohd. Yasin (PW3) both are close relatives of the deceased. Hence, they are interested witnesses. Their testimonies cannot be relied upon.
13. In such type of cases the testimony of interested and related witnesses cannot be discarded simply on the ground that they are close relatives of the deceased. On other hand their testimony is more believable because they will not spare the main culprit and falsely implicate an innocent person. The Hon'ble Supreme Court relying upon the principles laid down in the case of Dalbir Kaur and ors. vs. State of Punjab, (1976) 4 SCC 158, and Harbans Kaur and another vs. State of Haryana, (2005) 9 SCC 195, has held as under :-
6
"There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused."
In the case of Ram Chander and others vs. State of Haryana [(2017) 2 SCC 321] the Hon'ble Supreme Court has relied upon the case of Namdeo Vs. State of Maharashtra, (2007) 14 SCC150, wherein it was held that :-
"38. .......... it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
On the basis of above principle, the Hon'ble Supreme Court in the case of Ram Chander and others vs. State of Haryana [(2017) 2 SCC 321] has held as under:
"There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused."
14. It is important for the prosecution to establish the presence of eye witness on the spot. The testimony of Tahira Qureshi (PW1) is not reverted in her cross-examination with regard 7 to that she along with her son Raja and daughter Reshma came to Chandameta from Chhindwara. On the date of incident, they were present at Chandameta. In Para 1, she deposed that she was residing nearby Bhandariya School at Chandameta and the incident took place on the road in front of Bhandariya School as shown in Najari Naksa (Ex. P/5) and spot map (Ex. P/6). Tahira Qureshi (PW1) and Mohd. Yasin (PW3) both witnesses have deposed that they were present nearby the spot at the time of the incident. They saw that the deceased was assaulted by the appellants by using sword. Thus, we do not find any ground to discard their testimonies as they are eye witnesses.
15. R.P. Ahirwar (PW7), Inspector deposed that on 13.12.2005, he recorded memorandum of the appellant no.1-Vicky @ Vikram before Shekhar and Naveen as Exh.P/8. Thereafter, recovered a blood stained sword from Vicky. The sword was sent for chemical examination to FSL. According to FSL report, it was not confirmed that the blood stained found on the sword was of the deceased because of less quantity of blood stained, however, for this reason only, the testimony of trustworthy eye witnesses cannot be discarded.
16. Learned counsel for the appellants has wrongly contended that on the same set of evidence the other co-accused Ishwar Singh and Sundar Singh have been acquitted by the trial Court, hence, on the basis of such evidence conviction of other 8 accused persons can be made. This rule is not applicable in all the cases, because every case has different fact, such as , if the offence is proved against some of the accused person, they will be convicted for the same offence. The Hon'ble Supreme Court in the case of Bhagwan Jagannath Markad and others vs. State of Maharashtra [2017 (1) M.P.L.J. (Cri.) (S.C.) 100] has held as under :-
On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness."
Therefore, the contentions of the learned counsel for the appellants cannot be accepted.
17. Learned counsel for the appellants submitted that there is no corroboration of the prosecution story from the independent witnesses. Hence, conviction cannot be based solely on the basis of interested eye witnesses/close relatives of the deceased. Hence, such contention is not acceptable. Now-a-days it is a trend most of the people do not come forward to give statement before the Court only keep away them from long and complicated proceedings of the Court, which cannot be ignored by us. The Hon'ble Supreme Court 9 in the case of Sadhu Sharan Singh Vs. State of UP and Ors. [2016 (4) SCC 358] has held as under :-
"In present days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from court, as they find it distressing and stressful. Though such kind of human behaviour is indeed unfortunate, but it is a normal phenomena. Such handicap of investigating agency cannot be ignored in discharging their duty. Prosecution case cannot be doubted on such ground alone. Entire case cannot be derailed on mere ground of absence of independent witness as long as evidence of eyewitness, though interested, is trustworthy."
18. In view of the aforesaid discussions, we find that the trial Court after appreciating the entire prosecution evidence has rightly held the appellants guilty for committing murder of the deceased. We also find that there is no perversity or illegality in the findings recorded by the trial Court. The findings are based on the evidence on record. Hence, there is no need to interfere in the matter and this appeal is liable to be dismissed.
19. Accordingly, appeal is hereby dismissed.
20. A copy of this order along with record be sent to the trial Court for compliance and necessary action.
(S.K. SETH) (SMT. ANJULI PALO)
JUDGE JUDGE
RJ
RAJESH KUMAR
JYOTISHI
2017.11.30 15:06:10
+05'30'