HIGH COURT OF MADHYA PRADESH,PRINCIPAL SEAT AT JABALPUR Criminal Appeal No.1160 of 1995 [ENTITY] Versus State of Madhya Pradesh Present : Hon. Shri Justice [ENTITY] & Hon. Smt. Justice [ENTITY],J.J. Shri [ENTITY], Counsel for appellant. Shri [ENTITY], Panel Lawyer, for the respondent/State. Whether approved for reporting: Yes/No. JUDGEMENT
(Passed on 25.01.2018) As per [ENTITY], J:
1. Appellant has filed this appeal against the judgment dated 20th July, 1995, passed in [CASE NUMBER].
Trial Court held the appellant guilty for commission of offence punishable under [SECTION] of [ACT] with fine of Rs.500/-and awarded sentence of life.
2. Prosecution story, in brief, is that on the date of incident i.e. on 30.10.1991 at 10:00 O'clock in the morning, [ENTITY] [since deceased] had been fetching water from his well, at that time on account of old rivalry, accused persons [ENTITY], [ENTITY], [ENTITY] and [ENTITY] armed with lathis and the appellant armed with farsa came there. They had chased the appellant at some distance and inflicted injuries on the person of deceased. Allegation against the present appellant-[ENTITY] is that, he had inflicted injuries by farsa on the person of deceased. The report of the incident was lodged on the same date at 1:15 pm in the after noon. The deceased was sent to Nowgaon hospital. He was referred to District Hospital Chhatarpur where he was died. Police conducted investigation and filed charge-sheet against nine accused persons. The appellant and other accused persons abjured their guilt. The trial Court held the appellant guilty for commission of offence punishable under [SECTION] of [ACT] and other accused persons have been acquitted from the charges.
3. Learned counsel for the appellant has contended that there are major contradictions and omissions in the evidence of prosecution witnesses. The witnesses are related witnesses, hence, trial Court has committed an error in holding the appellant guilty for commission of offence of murder. In alternate, learned counsel has submitted that the offence committed by the appellant would fall under [SECTION] of [ACT].
4. Learned counsel for the State has submitted that there are eye-witnesses in the case they have deposed against the appellant that he was armed with deadly weapon 'farsa' and he had inflicted number of injuries on the person of deceased, hence, the trial Court has rightly held the appellant guilty and awarded proper punishment.
5. There are three eye-witnesses in the case (PW-1), (PW-3) and PW-5. (PW-1) [ENTITY] is son of the deceased. He deposed that at the time of incident my father ( since deceased) had been fetching water from a well for irrigation purposes. I heard the voice "killed me", "killed me", I ran away from my residence. My mother and sister were also present on the spot. I witnessed that [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were chasing my father. They had chased him up to the field of [ENTITY]. Thereafter, present appellant, who was armed with farsa and other accused persons who were armed with lathis, had beaten my father. When I tried to prevent them, they told me that if you would come near to us, we would also kill you. My father received serious injuries. We had taken him to Nogaon Hospital. My uncle, my mother and sister reached there. A report was lodged at the police station by my mother. My father was sent to the hospital where he was unconscious. Due to enmity on the ground of land, the accused persons had beaten my father. In his cross-examination, he admitted the fact that near the well I did not see that anybody had beaten my father, however, I had seen the accused persons chasing my father. There are some minor omissions in the statement.
6. (PW-3) [ENTITY] is the niece of the deceased. She deposed the same facts that my uncle had been fetching water for irrigation from a well. At that time, accused persons came there. Present appellant was armed with farsa. He chased the deceased up to two fields at the field of [ENTITY]. Thereafter my brother [ENTITY] and aunty [ENTITY] came there. The accused persons threatened to kill thereafter, they ran away. Deceased received several injuries. He was not able to speak. We had taken the deceased to Nawgaon Police Station where the report was lodged. Thereafter, deceased was referred to Nawgaon Hospital and from there to District Hospital. On the way of Chhatarpur, he was died. (PW-5) [ENTITY] is the wife of deceased. She deposed that my husband was living at the residence of my father. My father has agricultural land at Mudwara. There was a quarrel between appellant and [ENTITY] on irrigation of land. On the date of incident my husband [ENTITY] (since deceased) was fetching water for irrigation. At that time, accused persons came there. Appellant was armed with farsa. They had beaten the deceased. Incident had taken place in the field of [ENTITY]. We tried to reach near the place of incident, however, the accused persons threatened us that if we would resist them, they would kill us. When the accused persons had left the spot, I went near my husband and found that he had received many injuries. We had taken the deceased in a bullock cart at Nawgaon Police Station where I lodged a report [Ex.P-2] and signed the same. Thereafter, the deceased was taken to Civil Hospital, Nawgoan, where he was referred to District Hospital Chhatarpur, he was dead there. The report is [Ex.P-3] lodged by wife of the deceased (PW-5). It is mentioned in the report that due to some enmity, accused persons had beaten the deceased. It is also mentioned in the report that appellant came later, he was armed with farsa and he had inflicted blow on the head of deceased by farsa and other accused persons had beaten the deceased by lathis. On the memorandum (Ex.P-10) a farsa was seized from the possession from the appellant vide seizure memo (Ex.P-19).
7. It is a fact that eye-witnesses (PW-1), (PW-3) and PW-5 are related witnesses. The law in regard to related witnesses is well- settled that the credibility of the related witnesses and their testimony should be closely scrutinized and accepted with caution.
8. The apex Court in the case of [PRECEDENT] has held as under:-
"26. The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered injuries in the occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the cross- examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable or untrustworthy.
27. In this context, it is requisite to quote the observations made by the Court in [PRECEDENT] "23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
28. Tested on the backdrop of the aforesaid enunciation of law, we are unable to accept the 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 injuries and their evidence as we find is cogent and reliable. A testimony of an injured witness stands on a higher pedestal that other witnesses. In [PRECEDENT], 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 and injured witness. Be it stated, the opinion was expressed by placing reliance upon [PRECEDENT], Malkhan Singh v. State of U.P. (1975) 3 SCC 311 :
1974 SCC (Cri) 919, [PRECEDENT], [PRECEDENT] and Jarnail Singh vs. 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 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."
9. In the present case, the FIR was lodged within a short period [13.15 pm] of the incident. The presence of witnesses is natural on the spot. The name of appellant has been mentioned in the FIR and it is mentioned that the appellant was armed with farsa. [ENTITY] was seized on the memorandum of appellant.
10. (PW-7) Dr. [ENTITY], performed autopsy of deceased he deposed that I noticed following injuries on the person of the deceased.
"1. Incised wound 4 cm x cm on vertex of head lying horizontally on right side one end towards ear and another end of the is at middle of head. The injury was muscle deep. There was a fracture and deformity due to injury.
2. There was a massive deformity of right hand and fracture of humerous bone.
3. Deformity in left hand and multiple fractures in humerous bone.
4. Lacerated wound 4 cm x cm on right hand.
5. Incised wound 3 cm x 1 cm on left leg 6 cm below the knee.
6. Incised wound 2 cm x cm, 5 cm below the injury no.5.
7. Incised wound 2 x cm near injury no.5 abrasion."
He further deposed that on internal examination I noticed multiple fractures of bones. Injuries were ante-mortem in nature and deceased was died due to injuries caused to him. In his cross- examination, he further deposed in para 9 that the injuries which he noticed on the body of deceased were sufficient to cause the death.
11. (PW-10) [ENTITY] is the Investigating Officer, he deposed that on 30.10.1991 [ENTITY] lodged a report at the Police Station which is (Ex.P-2), I registered the offence. [ENTITY] put her thumb impression on the report. Deceased was also with him. I send the deceased to Nawgoan Hospital. Thereafter, I reached at the place of occurrence and prepared the spot map [Ex.P-20] and collected plain earth and red earth from the spot vide seizure memo Ex.P-21. On the same day, I recorded statements of [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. Thereafter on 02.11.1991, I recorded the statements of [ENTITY] and [ENTITY]. On 03.11.1991 accused persons were arrested and on the memorandum of accused (Ex.P-10) a farsa was seized from his house vide seizure memo Ex.P-19. He identified the farsa Article 'A-4' in the Court also. The seized article was sent to FSL. The report of FSL is Ex.P-22. Blood was found on the seized article in the FSL which is a 'farsa'.
12. In our opinion, the evidence of eye witnesses (PW-1) and (PW-3) are reliable and after close scrutiny, the trial Court has rightly placed reliance on the aforesaid evidence. There is a further corroboration from the evidence of (PW-7) Dr. [ENTITY], who performed post-mortem of deceased to the fact that the appellant had caused injuries on the person of deceased by farsa because there were number of incised wounds on the person of deceased. Due to which, the deceased was died. From the perusal of the spot map (Ex.P-20), this fact has been established that the witnesses were in a position to see the incident. Hence, in our opinion, the trial Court has rightly held the appellant guilty for murder of deceased-[ENTITY].
13. Now, the next question as argued by learned counsel for the appellant whether the offence committed by the appellant would fall under [SECTION] of the [ACT] or not. In the present case, there is no evidence that the incident had occurred all of sudden. The accused persons came there. The appellant was armed with deadly weapon 'farsa'. Deceased was chased up to some distance. Thereafter, he was beaten. This fact has been mentioned by the wife of the deceased in the FIR that appellant came subsequently and he had inflicted blows of farsa on the head of deceased. As per the evidence of (PW-7) Dr. [ENTITY], there were three incised wounds on the person of deceased. It is not possible for the wife whose husband received serious injuries and he is on the verge of death to explain each and every injury sustained by the deceased. Witnesses have clearly deposed that appellant had given repeat blows. This fact has been corroborated from the medical evidence. Hence, it can not be said that there was no motive of the appellant to kill the deceased. The appellant-was armed with deadly weapon. He had inflicted number of blows on the head of the deceased. Thereafter, he caused other incised wounds it shows that he had given repeated blows in order to kill the deceased.
14. In such circumstances, in our opinion, the trial Court has rightly convicted the appellant for commission of offence punishable under [SECTION] of [ACT]. and awarded the proper sentence. Consequently, we do not found any merit in this appeal. It is hereby dismissed. Appellant [ENTITY], is on bail, his bail bonds are hereby cancelled. He is directed to surrender before the trial Court to undergo remaining jail sentence.
([ENTITY]) (Smt. [ENTITY]) Judge Judge pnm Date: 2018.02.02 14:38:59 +05'30'