Chattisgarh High Court
J. Venktesh @ J. Venkat @ Motu vs State Of Chhattisgarh on 2 November, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Cr.A.Nos.266/2016 & 525/2016
Page 1 of 25
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.266 of 2016
(Arising out of judgment dated 13-11-2015 passed by the 2nd Additional
Sessions Judge, Durg in Sessions Trial No.182/2014)
Judgment reserved on: 19-10-2022
Judgment delivered on: 2-11-2022
J. Venktesh @ J. Venkat @ Motu, S/o J. Ram Babu, aged about 22 years,
Occupation Carpenter, R/o Adarsh Nagar, Durg, Near General Store,
Camp No.1, Bhilai, P.S. Chhavani, Distt. Durg (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, through District Magistrate, Distt. Durg (C.G.)
---- Respondent
AND
Criminal Appeal No.525 of 2016
Rajkumar Pandey, S/o Late Rajeshwar Pandey, aged about 22 years,
Occupation Labour/Helper/Conductor, R/o Sharda Para, In front of
Shrawan Kirana Store, Camp-2, Bhilai, Police Station Chhawni, District
Durg (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through Station House Officer, Police Station
Chhawni, Bhilai, District Durg (C.G.)
---- Respondent
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For Appellant in Cr.A.No.266/2016: -
Mr. Awadh Tripathi, Advocate.
For Appellant in Cr.A.No.525/2016: -
Mr. Manoj Kumar Jaiswal, Advocate.
For Respondent / State: -
Mr. Ishan Verma, Panel Lawyer.
--------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Cr.A.Nos.266/2016 & 525/2016 Page 2 of 25 C.A.V. Judgment Sanjay K. Agrawal, J.
1. Since both the above criminal appeals have arisen out of one and same judgment dated 13-11-2015 passed by the learned 2nd Additional Sessions Judge, Durg in Sessions Trial No.182/2014 and since common question of fact and law is involved in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.
2. Sole appellant in Cr.A.No.266/2016 J. Venkatesh and sole appellant in Cr.A.No.525/2016 Rajkumar Pandey have preferred by these two appeals under Section 374(2) of the CrPC against the impugned judgment convicting them for the offences punishable under Section 302 read with Section 34 of the IPC and sentencing them to undergo imprisonment for life with fine of ₹ 250/- each, in default, to further undergo rigorous imprisonment for six months.
3. Case of the prosecution, in brief, is that on 15-8-2014 at night 8 p.m. at J.P. Chowk, Near Jhola Kunwa, Camp-2, Bhilai, Police Station Chhawni, in furtherance of their common intention, the appellants herein and one juvenile accused Shiva assaulted deceased Laxman Thakur by wooden stick by which he suffered injury on his head and succumbed to death and thereby committed the offence punishable under Section 302 read with Section 34 of the IPC. Further case of the prosecution, in brief, is that on 15-8- 2014, the appellants herein and the juvenile accused assaulted the deceased by wooden stick by which he suffered death and thereafter, one boy - unknown to him, resident of same locality, Cr.A.Nos.266/2016 & 525/2016 Page 3 of 25 informed to the brother of the deceased - Mahesh Thakur (PW-2) about the incident, then Mahesh Thakur (PW-2) firstly lodged first information report against the appellants herein and the juvenile accused vide Ex.P-8 and thereafter, lodged morgue intimation vide Ex.P-7 stating that on the fateful day, three accused persons assaulted the deceased by which he suffered injury and died on the spot. Thereafter, Alexander Kiro (PW-12) - investigating officer, reached to the spot and collected bloodstained soil and plain soil vide Ex.P-15 and thereafter, panchnama was prepared vide Ex.P-
20. Dead body of the deceased was sent for postmortem which was conducted by Dr. Vipin Jain (PW-3) and his postmortem report is Ex.P-3. Cause of death was head injury. Thereafter, the appellants were arrested and pursuant to the memorandum statement of appellant J. Venkatesh vide Ex.P-13, wooden stick ad- measuring 29½" width 5¼" circumference was recovered with blood stains vide Ex.P-16. Similarly, on the basis of memorandum statement of appellant Rajkumar Pandey vide Ex.P-14, one broken piece of wooden stick 27¼" x 6¼" was seized vide Ex.P-17. Articles seized were sent for forensic examination to the Forensic Science Laboratory and the FSL report is Ex.P-25 according to which blood as well as human blood was found on wooden stick Articles C & D and blood was found on shirt & pant of the deceased also, but blood group could not be ascertained. Statement of eyewitness G. Ashok Kumar (PW-9) under Section 161 of the CrPC was recorded on 16-8-2014 and statements of other two eyewitnesses - Soni Bai (PW-10) & Tulsi Beni (PW-11) under Section 161 of the CrPC were recorded on 29-8-2014.
Cr.A.Nos.266/2016 & 525/2016 Page 4 of 25
4. Thereafter, after usual investigation, the appellants were charge- sheeted for offence under Section 302 read with Section 34 of the IPC and their case was committed to the Court of Sessions for hearing and disposal in accordance with law.
5. The prosecution, in order to prove the offence against the appellants, examined as many as 12 witnesses and brought on record 26 documents Exs.P-1 to P-26. The defence has examined the appellants herein as DW-1 Rajkumar & DW-2 J. Venkatesh and witnesses Smt. S. Sarita (DW-3) & J. Rambabu (DW-4), and brought into record six documents Ex.D-1 to D-6.
6. The trial Court after appreciating oral and documentary evidence on record, finding the testimony of eyewitnesses G. Ashok Kumar (PW-
9), Smt. Soni Bai (PW-10) & Tulsi Beni (PW-11) reliable and further holding that recovery of weapon of offence stick with bloodstains has been found proved by G. Ashok Kumar (PW-9) on which human blood has been found vide FSL report Ex.P-25, proceeded to convict the appellants herein for offence under Section 302 read with Section 34 of the IPC against which the appellants herein have preferred these two appeals (juvenile accused Shiva being tried separately before the Juvenile Justice Board).
7. Mr. Awadh Tripathi, learned counsel appearing for appellant J. Venkatesh in Cr.A.No.266/2016, would submit as under: -
1. FIR Ex.P-8 and morgue intimation Ex.P-7 have been lodged by Mahesh Thakur (PW-2) - brother of the deceased in which he has stated that one boy of the locality had came and informed him about the assault by the appellants to his Cr.A.Nos.266/2016 & 525/2016 Page 5 of 25 brother Laxman Thakur (deceased), but in the statement before the Court, taking U-turn to his statement under Section 161 of the CrPC, he has stated on oath that it is G. Ashok Kumar (PW-9) who has informed him about the incident which is material omission and which amounts to contradiction within the meaning of proviso to Section 162 of the CrPC, as Mahesh Thakur (PW-2) has improved his version projecting G. Ashok Kumar (PW-9) as eyewitness, whereas he has not witnessed the incident.
2. Admittedly and undisputedly, G. Ashok Kumar (PW-9) had assaulted J. Durga - sister of appellant J. Venkatesh and also appellant J. Venkatesh and against that, a case under Section 307 of the IPC is pending consideration before the criminal court which is clear from the statement of J.
Rambabu (DW-4) - father of appellant J. Venkatesh and therefore G. Ashok Kumar (PW-9) is interested witness and his testimony cannot be relied upon unless it is corroborated by some material particulars. Similar is the testimony of G. Tulsi Beni (PW-11), who is sister of G. Ashok Kumar (PW-9), and they are only projected witnesses as they have never seen the incident, therefore, their testimonies are liable to discarded.
3. Smt. Soni Bai (PW-10) has been cited as eyewitness by the prosecution and relied upon by the trial Court, but her statement under Section 161 of the CrPC was recorded on 29-8-2014, whereas in paragraph 15 of her statement before Cr.A.Nos.266/2016 & 525/2016 Page 6 of 25 the Court, she has clearly stated that on the next day, the police has interrogated her, but she has not stated anything to the police and thereafter, on 29-8-2014, after 14 days from the date of incident, she had become eyewitness and informed the police and gave statement to the police implicating the appellant herein, she is totally unreliable and her testimony is liable to be discarded.
4. Furthermore, memorandum and seizure have not been proved as S. Raja (PW-5), who is one of the independent eyewitnesses, has not supported the case of the prosecution at all except his signature and has clearly stated in cross- examination that he has signed Ex.P-14 as per the direction of G. Ashok Kumar (PW-9) and all the proceedings are being done at the instance of G. Ashok Kumar (PW-9).
Memorandum and seizure have been proved only by G. Ashok Kumar (PW-9), who is interested witnesses, therefore, it would be unsafe to rely upon him and convict the appellant for offence under Section 302 read with Section 34 of the IPC. Conviction and sentences imposed upon the appellant herein are liable to be set aside.
8. Mr. Manoj Kumar Jaiswal, learned counsel appearing for appellant Rajkumar Pandey in Cr.A.No.525/2016, would principally adopt the submissions of Mr. Tripathi and additionally submit that there is no motive alleged against Rajkumar Pandey and only on the basis of alleged eyewitnesses G. Ashok Kumar (PW-9), Soni Bai (PW-10) & Cr.A.Nos.266/2016 & 525/2016 Page 7 of 25 G. Tulsi Beni (PW-11), appellant Rajkumar Pandey has been convicted which is liable to be set aside.
9. Mr. Ishan Verma, learned Panel Lawyer appearing for the State / respondents, would support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellants as G. Ashok Kumar (PW-9), Soni Bai (PW-
10) & Tulsi Beni (PW-11) are undoubtedly eyewitnesses. Statement of G. Ashok Kumar has been recorded promptly on the next date of incident on 16-8-2014 and statements of Soni Bai & Tulsi Beni have been though recorded with some delay on 29-8-2014, but their testimonies inspire confidence and are trustworthy and therefore they have been rightly relied upon by the trial Court to base conviction of the appellants. Mr. Verma, learned State counsel, would further submit that pursuant to the memorandum statements of the appellants Exs.P-13 & P-14, wooden sticks have been seized vide Exs.P-16 & P-17 in which human blood has been found vide FSL report Ex.P-25, even on Articles E-1 & E2 - shirt & pant of the deceased, blood has been found which is also human blood. Therefore, the appeals deserve to be dismissed.
10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
11. The first question for consideration would be, whether the death of the deceased was homicidal in nature to which the trial Court after appreciating the medical evidence on record, particularly the statement of Dr. Vipin Jain (PW-3) and taking into account the Cr.A.Nos.266/2016 & 525/2016 Page 8 of 25 postmortem report Ex.P-3 has rightly come to the conclusion that the death of the deceased was homicidal in nature which is a pure and correct finding of fact based on the evidence available on record and which is neither perverse nor contrary to the record. Even otherwise, it has not been seriously disputed by learned counsel for the appellants that death of deceased Laxman Thakur was homicidal in nature. In view of the aforesaid analysis, we hereby accept and hold that death of the deceased was homicidal in nature and we also hereby affirm the finding recorded by the trial Court that death of the deceased was homicidal in nature.
12. Now, the main question is, whether the appellants herein were the authors of the crime in question?
13. Conviction of the appellants is principally based on the testimony of eyewitness G. Ashok Kumar (PW-9) and his sister Smt. G. Tulsi Beni (PW-11) and furthermore, on the testimony of Soni Bai (PW-
10), all three have been cited as eyewitnesses. Furthermore, the trial Court has found that pursuant to the memorandum statement of the appellants Exs.P-13 & P-14, seizure of bloodstained wooden sticks have been made vide Exs.P-16 & P-17 which has been proved by G. Ashok Kumar (PW-9), though S. Raja (PW-5) - other witness, has turned hostile and on the wooden stick, human blood has been found vide FSL report Ex.P-25 which completes the chain of circumstances to convict the appellants for the offence in question.
14. In order to consider the correctness of the finding so recorded by the trial Court, it would be appropriate to consider the questions:-
Cr.A.Nos.266/2016 & 525/2016 Page 9 of 25
1. Whether G. Ashok Kumar (PW-9), his sister Smt. G. Tulsi Beni (PW-11) & Soni Bai (PW-10) are eyewitnesses and the trial Court is justified in relying upon them as eyewitnesses?
2. (A) Whether G. Ashok Kumar (PW-9) & Smt. G. Tulsi Beni (PW-11) are interested witnesses?
(B) Whether the testimony of interested / inimical witnesses G. Ashok Kumar (PW-9) & Smt. G. Tulsi Beni (PW-11) can be relied upon to base conviction of the apellants for the aforesaid offence?
3. Whether the memorandum statement of the appellants and the subsequent recovery pursuant to their disclosure statements have been proved in accordance with law?
15. As per the FIR, date of incident is 15-8-2014 (Friday) at 8 p.m. which has been informed to the police on the same day at 9.15 p.m. by brother of the deceased - Mahesh Thakur (PW-2). He has clearly stated in the FIR Ex.P-8 that one boy from his locality (whom he was not acquainted with), in which he resides, came to him at 8 p.m. and informed him that the two appellants herein and one juvenile accused assaulted his brother Laxman Thakur on head and murdered him, then he immediately rushed to the spot and lodged first information report (FIR) Ex.P-8. FIR is followed by morgue intimation Ex.P-7 lodged at 9.20 p.m. in which similar statement has been made by Mahesh Thakur (PW-2) that a boy of the locality came and informed him about the incident. FIR Ex.P-8 and morgue intimation Ex.P-7 have been proved by Mahesh Thakur (PW-2).
Cr.A.Nos.266/2016 & 525/2016 Page 10 of 25
16. Mahesh Thakur (PW-2) - brother of the deceased, who lodged FIR and morgue, has been examined before the Court. In paragraph 19, he has explained that he does not know the name, father's name, surname, etc. of the boy, who has informed him about the incident on the basis of which he lodged Exs.P-7 & P-8, whereas, so far as G. Ashok Kumar (PW-9) is concerned, in paragraph 29 of his statement, he has clearly stated that he has visiting and dining terms with G. Ashok Kumar. As such, before the date of incident, he knew G. Ashok Kumar (PW-9), as he has good terms with G. Ashok Kumar and he did not know the boy, who has informed him about the incident. Therefore, there was no reason for Mahesh Thakur (PW-2) not to name G. Ashok Kumar if he had informed him about the incident, to the police while lodging FIR Ex.P-8 and morgue intimation Ex.P-7, but for the first time, he has introduced G. Ashok Kumar in his statement before the Court as he has informed him about the incident, then he reached to the spot and then G. Ashok Kumar became eyewitness cited by the prosecution and relied upon by the trial Court.
17. Explanation to Section 162 of the CrPC states as under: -
"Explanation.-An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
18. The Explanation to Section 162 of the CrPC provides that an omission to state a fact or circumstance in the statement recorded by a police officer under Section 161 of the CrPC, may amount to Cr.A.Nos.266/2016 & 525/2016 Page 11 of 25 contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Thus, while it is true that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same. (See Harbeer Singh v. Sheeshpal and others1.)
19. In the instant case, admittedly, Mahesh Thakur (PW-2) knew G. Ashok Kumar (PW-9) as he had visiting and dining terms with G. Ashok Kumar and he did not know the person of the locality who had informed him about the incident, but while making statement before the Court he has introduced G. Ashok Kumar as informer and later-on, G. Ashok Kumar (PW-9) has been introduced as eyewitness and his statement has been recorded under Section 161 of the CrPC on 16-8-2014, whereas his statement before the Court has been recorded on 18-8-2015. In our considered view, omission on the part of Mahesh Thakur (PW-2) is material omission amounting to contradiction covered by the Explanation to Section 162 of the CrPC. In view of the contradiction, we are of the considered opinion that it is doubtful as to whether G. Ashok Kumar (PW-9) is eyewitness to the incident.
20. Similarly, Smt. Soni Bai (PW-10) is the next eyewitness cited by the prosecution and relied upon by the trial Court who is said to be the independent eyewitness. In her statement before the Court 1 (2016) 16 SCC 418 Cr.A.Nos.266/2016 & 525/2016 Page 12 of 25 (paragraph 15), she has clearly stated that on the next day of incident, the police enquired her and questioned her as to how she has not witnessed the incident and has not informed anything to the police and thereafter, it appears from the record that her statement under Section 161 of the CrPC (Ex.D-5) was recorded on 29-8- 2014 (after delay of 14 days) in which she has stated that she has seen the incident and stated the same in his testimony before the Court. As such, on 16-8-2014, she did not inform anything to the police and it appears that she succumbed to the pressure of the police and on 29-8-2014, she made statement under Section 161 of the CrPC to the police that she has witnessed the incident and the appellants herein are assailants of deceased Laxman Thakur. The testimony of Smt. Soni Bai (PW-10), we also entertain doubt as to whether she has actually seen the incident by which the appellants have assaulted the deceased, particularly in view of the fact that on the next date of incident, she did not inform anything to the police about the incident, but after fifteen days of incident, she became eyewitness to the incident.
21. Tulsi Beni (PW-11) is the next witness. Her statement under Section 161 of the CrPC has also been recorded on 29-8-2014 and in her statement before the Court in paragraph 3, she has stated that she has seen that the two appellants herein and one juvenile accused had assaulted the deceased by which his parts of brain came out and he cried "bachao bachao". The tenor and texture of her statement would show that she came to the spot after the incident and seen the body of the deceased lying on the spot.
Cr.A.Nos.266/2016 & 525/2016 Page 13 of 25 There is no explanation by the investigating officer for recording the statement of this witness after 14 days, particularly it is not the case of the prosecution that this witness was not available for recording her statement.
22. The Supreme Court in the matter of Ganesh Bhavan Patel and another v. State of Maharashtra2 has held that inordinate delay in interrogation of witness during investigation is itself a sufficient ground for excluding his testimony in considering involvements of the appellants and observed as under: -
"15. ... Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case.
18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. ...
29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F.I.R.' and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story."
2 AIR 1979 SC 135 Cr.A.Nos.266/2016 & 525/2016 Page 14 of 25
23. Similarly, in the matter of State of Orissa v. Mr. Brahmananda Nanda3, the Supreme Court has held that in a case where the sole eyewitness did not disclose the name of the murderer for a day and a half after the occurrence, the fact seriously affects his credibility, and observed as under: -
"2. ... It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the morning of June 15, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case."
24. In the matter of Jagjit Singh alias Jagga v. State of Punjab 4, their Lordships of the Supreme Court while dealing with the effect of delay in recording statement of the witness held as under: -
"30. ... The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eyewitness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ext. PW-6/A was being recorded."
25. In the matter of Ramanand Yadav v. Prabhu Nath Jha and others5, the Supreme Court while dealing with the effect of delayed examination of witnesses has held that the investigating officer 3 (1976) 4 SCC 288 4 (2005) 3 SCC 689 5 (2003) 12 SCC 606 Cr.A.Nos.266/2016 & 525/2016 Page 15 of 25 would have to be asked specifically the reason for their delayed examination and unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses, the defence cannot gain any advantage therefrom.
26. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that the incident is of 15-8-2014 and the statement of G. Ashok Kumar was recorded on 16-8-2014 by the police, whereas according to Mahesh Thakur (PW-2), if the statement of Mahesh Thakur is accepted that G. Ashok Kumar had informed him about the incident and he was the eyewitness, there was no reason for the police not to record the statement of G. Ashok Kumar on 15-8-2014 and there is no explanation for not recording his statement on 15-8-2014. Similarly, Smt. Soni Bai (PW-10) was examined under Section 161 of the CrPC on 16-8- 2014, but she did not tell anything to the police on 16-8-2014 and it appears that under the pressure of police, her statement under Section 161 of the CrPC implicating the accused persons was recorded on 29-8-2014. Similar is the statement of G. Tulsi Beni (PW-11), who is sister of G. Ashok Kumar (PW-9), whose statement under Section 161 of the CrPC was also recorded on 29-8-2014 and there is no reason for not recording her statement at appropriate time, as it has not been explained by investigating officer Alexander Kiro (PW-12) of not recording the statements right in time. This creates a doubt in the mind of the Court that these eyewitnesses though all are said to have seen the incident on 15-8- Cr.A.Nos.266/2016 & 525/2016 Page 16 of 25 2014, but the statement of one eyewitness G. Ashok Kumar (PW-9) under Section 161 of the CrPC was recorded on 16-8-2014, whereas the statements of other two eyewitnesses Smt. Soni Bai (PW-10) & Tulsi Beni (PW-11) under Section 161 of the CrPC were recorded on 29-8-2014. Apart from the above fact, there is a serious contradiction in the prosecution case in terms of the statement of Mahesh Thakur (PW-2) who did not name G. Ashok Kumar (PW-9) as the first informant to him or to the police at the first available opportunity while lodging FIR Ex.P-8 and morgue intimation Ex.P-7 and later-on the prosecution has introduced him as eyewitness. As such, the substantial delay in recording the statements of material witnesses G. Ashok Kumar (PW-9), Smt. Soni Bai (PW-10) & Tulsi Beni (PW-11) and of Mahesh Kumar (PW-
2) not naming G. Ashok Kumar in the FIR (Ex.P-8) / morgue (Ex.P-
7) casts a cloud of suspicion on the credibility of these witnesses and the prosecution story. The question is answered accordingly.
27. Admittedly, on the report of appellant J. Venkatesh (A-1)'s father for attempting to cause murder of his sister J. Durga, an offence under Section 307 of the IPC has been registered against G. Ashok Kumar (PW-9) which is pending consideration before the Additional Sessions Judge in which statement of the sister of appellant J. Venkatesh (A-1) namely J. Durga has been recorded on 27-3-2014 and documents have been filed vide Exs.D-2 & D-3 in which G. Ashok Kumar was making his endeavour to get the matter settled by compromise, but could not be settled till the date of offence which is also apparent from the statement of J. Rambabu, father of Cr.A.Nos.266/2016 & 525/2016 Page 17 of 25 appellant J. Venkatesh vide Ex.D-3 and the prosecution itself is clear that on the report of father of appellant J. Venkatesh (A-1) and sister of appellant (A-1) namely J. Durga, offence under Section 307 of the IPC is registered and pending consideration. Even it is stated at the Bar that G. Ashok Kumar has been convicted by the jurisdictional criminal court.
28. In that view of the matter, Mr. Tripathi, learned counsel for appellant J. Venkatesh, would submit that G. Ashok Kumar (PW-9) and her sister G. Tulsi Beni (PW-11) are inimical / interested witnesses, therefore, their testimony cannot be relied upon because they have been projected as eyewitnesses and the other witness of memorandum and seizure S. Raja (PW-5) has turned hostile and he has not supported the case of the prosecution.
29. Bentham stated that "Witnesses are eyes and ears of justice." Undoubtedly, witnesses are important players in the judicial system and help the Judges in arriving at correct factual findings. In the matter of Dalip Singh and others v. The State of Punjab 6, their Lordships of the Supreme Court have held that "A witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. But it is also true when feelings run high and there is a personal cause for enmity."
6 AIR 1953 SC 364 Cr.A.Nos.266/2016 & 525/2016 Page 18 of 25
30. Furthermore, in the matter of State of Karnataka v. Amajappa and others7, their Lordships of the Supreme Court have held that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty. These witnesses who have some kind of animosity with the accused are called inimical witnesses.
31. In the matter of Lakshmi Singh v. The State of Bihar 8, the Supreme Court has held that when the witness was involved in some other murder case and the accused had testified against him in that case or when the accused had deposed against the witness in a title deed case. Further, in the matter of State of Jammu and Kashmir v. Hazara Singh and others9, the Supreme Court has held that the testimony of inimical witness has to be examined with due caution and diligence and the testimony of witnesses cannot be rejected merely on the point of inimical background.
32. In the matter of Shivaji Sahabrao Bobade and another v. State of Maharashtra10, it has been held by the Supreme Court that in case of inimical witness, since the reliability of inimical witness is tainted by bias and interestedness, their testimony is warily evaluated. Further, in the matter of Dharam Singh and others v. State of Punjab11, their Lordships of the Supreme Court have held that the testimony of inimical witness has to be corroborated with evidence, judged with great caution and diligence. In the matter of 7 (2003) 9 SCC 468 8 (1976) SCC (Cri) 671 9 (1981) SCC (Cri) 537 10 (1973) 2 SCC 793 11 1993 Supp (3) SCC 532 Cr.A.Nos.266/2016 & 525/2016 Page 19 of 25 Ramashish Rai v. Jagdish Singh12, the Supreme Court has held that the requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. A duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In the matter of State of Maharashtra v. Tulshiram Bhanudas Kamble and others13, their Lordships of the Surpeme Court have held that enmity is a double-edged weapon, it can be a ground for false implication, but it can also be a ground for correct implication and therefore the testimony of the inimical witnesses cannot be discarded merely because of the enmity. Further, in the matter of Balraje alias Trimbak v. State of Maharashtra14, it has been held that the evidence has to be weighed pragmatically with myopic scrutiny, caution and circumspection.
33. In the matter of Mohd. Rojali Ali and others v. State of Assam, Ministry of Home Affairs Through Secretary 15, defining the meaning of interested witness, relying on its earlier judgments, their Lordships have held that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due 12 (2005) 10 SCC 498 13 (2007) 14 SCC 627 14 (2010) 6 SCC 673 15 (2019) 19 SCC 567 Cr.A.Nos.266/2016 & 525/2016 Page 20 of 25 to prior enmity or other reasons, and thus has a motive to falsely implicate the accused.
34. As such, it is quite vivid that the testimony of inimical witness has to be examined with due care, caution and diligence and it has to be judged according to the facts and circumstances with the application of 'test of stricter scrutiny' and 'general rule of prudence'. Furthermore, in case of interested witness, corroboration by material evidence or independent witnesses should be made an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly inimical witnesses and it must be corroborated by material evidence or independent evidence. Only in exceptional cases where the testimony of an inimical witness is intrinsically reliable or inherently probable, it may, by itself, be sufficient, to base a conviction thereon.
35. Reverting to the facts of the case in light of the aforesaid parameters of law laid down by the Supreme Court, it is quite vivid that in the instant case, the eyewitnesses cited by the prosecution are firstly, G. Ashok Kumar (PW-9) and his sister G. Tulsi Beni (PW-
11). The police has also while filing charge-sheet has cited G. Ashok Kumar (PW-9) as eyewitness, as admittedly, on the report of the father of appellant J. Venkatesh for assaulting the sister of appellant J. Venkatesh (A-1) namely, J. Durga an offence under Section 307 of the IPC was registered and pending consideration before the jurisdictional criminal court against G. Ashok Kumar (PW-9), which is apparent from the statement of J. Rambabu (DW-
4) and even G. Ashok Kumar (PW-9) in his statement in paragraphs Cr.A.Nos.266/2016 & 525/2016 Page 21 of 25 36 & 38 has clearly admitted the fact of having registered criminal case under Section 307 of the IPC against him by the father of appellant J. Venkatesh and documents to that effect have been filed as Exs.D-2 & D-3.
36. As such, witnesses G. Ashok Kumar (PW-9) & G. Tulsi Beni (PW-
11) are admittedly interested / inimical witnesses and they are interested to see that appellant J. Venkatesh is convicted for the offence of which he is charged. Therefore, his testimony has to be tested with stricter scrutiny and with due care and caution.
37. G. Ashok Kumar (PW-9) has stated before the Court that at the place of incident there was large crowd, but no such independent witness except Smt. Soni Bai (PW-10) has been examined and furthermore, the weapon of offence wooden stick has been recovered pursuant to the disclosure statements of the appellants vide Exs.P-16 & P-17, but seizure witness S. Raja (PW-5) has turned hostile and has not supported the case of the prosecution, though he has stated that he has signed on Ex.P-14 at the instance of G. Ashok Kumar (PW-9) and he has also stated that he has seen the appellants for the first time before the Court. Another memorandum and seizure witness is G. Ashok Kumar (PW-9). He has proved the fact of seizure and memorandum and the seizure of the weapon of offence wooden stick. In paragraph 3 of his statement before the Court, he has clearly stated that half portion of wooden stick has been left on the spot and half portion was taken away by the appellants. Another eyewitness Smt. Soni Bai (PW-10) in her statement before the Court in paragraph 30 has clearly Cr.A.Nos.266/2016 & 525/2016 Page 22 of 25 stated that 3-4 broken wooden pieces ad-measuring 1½ ft. were lying on the spot. Similarly, next eyewitness G. Tulsi Beni (PW-11) has also stated in paragraph 15 of her evidence that danda was taken by the police from the spot, whereas the police have seized wooden sticks vide Exs.P-16 & P-17 from the two appellants herein. However, according to G. Ashok Kumar (PW-9), wooden stick has been seized from the possession of the two appellants pursuant to their memorandum statements Exs.P-13 & P-14, whereas the two witnesses Smt. Soni Bai (PW-10) & G. Tulsi Beni (PW-11) had clearly stated that it was lying on the spot and according to G. Tulsi Beni (PW-11), the police has seized it from the spot (paragraph 15).
38. As such, one of the memorandum witnesses - S. Raja (PW-5), who is an independent witness, has turned hostile and G. Ashok Kumar (PW-9), who happens to be interested witness, has stated that seizure of two dandas was made from the house of the two appellants pursuant to their disclosure statements, but from the statements of Smt. Soni Bai (PW-10) & G. Tulsi Beni (PW-11) it appears that wooden sticks (danda) were lying on the spot and it was seized from the spot by the police, however, it has been shown to be recovered at the instance of the two appellants herein. Therefore, recovery of two wooden sticks pursuant to the memorandum statements has not been established beyond doubt by G. Ashok Kumar (PW-9) and other witness S. Raja (PW-5) has already turned hostile and not supported the case of the prosecution at all. In view of the aforesaid contradiction in the Cr.A.Nos.266/2016 & 525/2016 Page 23 of 25 statement of G. Ashok Kumar (PW-9) with regard to recovery, it would be unsafe to rely upon his statement to prove the fact of recovery pursuant to the memorandum statements of the two appellants herein.
39. The next circumstance that has been pointed out by the prosecution is that human blood has been found on the bloodstained wooden stick. True it is that vide FSL report Ex.P-25, human blood has been found on the wooden stick seized, but as discussed herein-above, the two wooden sticks on which human blood has been found was lying on the place of incident according to Smt. Soni Bai (PW-10) & G. Tulsi Beni (PW-11) and according to G. Tulsi Beni (PW-11), it has been taken by the police from the spot. Therefore, recovery of bloodstained stick has not been proved beyond doubt by the prosecution.
40. The Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another16 has clearly held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. Even otherwise, in the instant case, the prosecution has failed to establish the recovery of bloodstained wooden sticks beyond reasonable doubt as S. Raja (PW-5) has turned hostile and according to G. Ashok Kumar (PW-9), bloodstained wooden stick was lying on the spot, whereas according to G. Tulsi Beni (PW-11), 16 (2019) 7 SCC 781 Cr.A.Nos.266/2016 & 525/2016 Page 24 of 25 it was recovered by the police from the spot. Merely on the basis that human blood was found on the wooden sticks, it would be difficult for us to rely upon the aspect of recovery of the weapon of offence, particularly when the recovery of wooden sticks has not been proved beyond reasonable doubt, and such recovery does not help the case of the prosecution.
41. In view of the aforesaid analysis, we are of the considered opinion that firstly, G. Ashok Kumar (PW-9), Smt. Soni Bai (PW-10) & G. Tulsi Beni (PW-11) are not the real eyewitnesses and secondly, even if they are taken to be eyewitnesses for the sake of argument, G. Ashok Kumar (PW-9) & G. Tulsi Beni (PW-11) are interested / inimical witnesses and their testimonies have to be examined with due care and caution, as G. Ashok Kumar (PW-9) is the person against whom on the report of father of appellant J. Venkatesh (A-
1), offence under Section 307 of the IPC has been registered and pending consideration before the jurisdictional criminal court and G. Tulsi Beni (PW-11) is sister of G. Ashok Kumar (PW-9). Examining their statements with greater and stricter scrutiny, it appears that firstly their testimonies do not inspire confidence and their statements are not trustworthy, as Mahesh Thakur (PW-2) while lodging FIR Ex.P-8 and morgue intimation Ex.P-7 did not disclose the fact that it was informed by G. Ashok Kumar (PW-9) about the incident and while giving statement before the Court, he improved his version that G. Ashok Kumar (PW-9) has informed to him about the incident, which amounts to material contradiction in terms of the Explanation to Section 162 of the CrPC making it inadmissible in Cr.A.Nos.266/2016 & 525/2016 Page 25 of 25 evidence. Moreover, delay in recording the statements of eyewitnesses under Section 161 of the CrPC i.e. G. Ashok Kumar (PW-9) on 16-8-2014 and Smt. Soni Bai (PW-10) & G. Tulsi Beni (PW-11) on 29-8-2014, creates a doubt on the testimonies of these three alleged eyewitnesses. This Court is also of the considered opinion that disclosure statements Exs.P-13 & P-14 and subsequent seizure vide Exs.P-16 & P-17 pursuant to the said disclosure statements have not been proved beyond reasonable doubt. Even S. Raja (PW-5), one of the memorandum & seizure witnesses, has turned hostile and another memorandum & seizure witness G. Ashok Kumar (PW-9) has failed to prove disclosure and recovery beyond reasonable doubt. Thus, we are of the considered opinion that in absence of any other legal evidence, it would be unsafe to affirm the conviction recorded by the trial Court to the appellants herein and accordingly, we set aside the conviction and sentences imposed upon the appellants under Section 302 read with Section 34 of the IPC. The appellants are acquitted of the said charge. They are in jail. They be released at once if their detention is not required in any other offence.
42. Both the appeals succeed and they are allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Soma