HIGH COURT OF MADHYA PRADESH : JABALPUR Criminal Appeal No.1089/1993 ----------------------------------------------------------------------------------------------------------------------------------------------------------------- Present : Hon’ble Smt. Justice Sushma Shrivastava Hon’ble Shri Justice R.C. Mishra ----------------------------------------------------------------------------------------------------------------------------------------------------------------- Ramdas, son of Shri Hiralal Kachhi, Occupation agriculturist, resident of Village Bilgay, P.S. Digoda, Distt. Tikamgarh (M.P.) … Appellant versus State of M.P. through SHO, PS Digoda, Distt. Tikamgarh …Respondent ----------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri Amit Jain, Advocate, for the appellant. Shri R.K. Kesharwani, P.L. for the respondent/State. ----------------------------------------------------------------------------------------------------------------------------------------------------------------- and Criminal Appeal No.389/1994 State of M.P. through SHO, P.S. Digoda, Distt. Tikamgarh …Appellant versus (1) Gorelal, son of Nathuwa Kachhi, Aged about 38 years. (2) Mulua, son of Nathuwa, aged about 35 years. (4) Kailash, son of Shryashans, aged about 25 years. (5) Parmanand, son of Hirra Kachhi, aged about 24 years. (6) Munnu, son of Gorelal Kachhi, aged about 22 years. (7) Kalloo, son of Gorelal Kachhi, aged about 20 years. All residents of Village Bilgaon, P.S Digoda, Tahsil Jatara, Distt. Tikamgarh …Respondents ----------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri R.K. Kesharwani, P.L. for the appellant/State. Shri R.K. Jain, Advocate for the respondent no.4. Shri Bhupendra Mishra, Advocate, for the other respondents. ----------------------------------------------------------------------------------------------------------------------------------------------------------------- Date of Hearing : 18-08-2011 Date of Judgment : 11-11-2011 J U D G M E N T Per R.C. Mishra, J. These appeals, though arising out of two different trials before the same Judge, relate to the same incident of murder and, therefore, are interlinked. However, each appeal has to be decided on the evidence led in the corresponding trial. 2. The appeal, registered as Cri. Appeal No.389/1994, is State’s appeal against acquittal of seven accused/respondents in respect of the offences punishable under Sections 148 and 302 read with 149 of the IPC and Brij Bhushan (since dead), who was impleaded as respondent no.3. The corresponding judgment was passed by Second ASJ, Tikamgarh on 28.10.1993 in S.T. No.29/88. In that case, cognizance of the offences was taken upon the complaint made by Khunni, the brother of Gantha (since deceased). It was upon the FIR lodged by Khunni only that police registered a case against as many as eight persons viz. all the seven respondents and one Ramdas for the above-mentioned offences yet, after investigation, charge sheet was filed against Ramdas only. After conclusion of the trial, registered as S.T. No.10/87, the same Additional Sessions Judge delivered simultaneously the judgment convicting Ramdas under Section 302 of the IPC and sentencing him to undergo life imprisonment. Against this judgment only, the appeal, numbered as Cri. Appeal no.1089/1993, has been preferred by Ramdas. 3. For the sake of convenience, Session Trial Nos.10/87 and 29/88 shall be referred to as the police case and the complaint case respectively and the witnesses as well as the exhibited documents shall be referred to by placing ‘/P’ or ‘/C’ (as the case may be) after their respective numbers in each case. Further, the accused persons shall be referred to by their respective names. :: 2 :: Criminal Appeal Nos.1089/1993 and 389/1994 4. Needless to point out that the State’s appeal, so far as it concerns Brij Bhushan, has abated consequent to his death on 03.03.1999. 5. Contents of the FIR (Ex.P-7/P), said to have been lodged by Khunni (PW9/P), at 3.15 p.m. on 8.11.1985 and scribed by Sub- Inspector S.K. Goswami (PW13/P) at Digoda Outpost, may be summarized as under – (a) On 08.11.1985 at about 9 a.m. in village Bilgaon, Ramdas along with Gorelal, Mulua and Parmanand @ Sukka came to the Well belonging to Gantha and Khunni and persuaded Gantha to move towards their Well which was situated at a short distance. Immediately thereafter, Parwatia and Beti Bai (PW10/P), respectively the mother and wife of Gantha, arrived at his Well to give breakfast. On being informed that Gorelal and his companions had taken Gantha to their Well, Parwatia directed Khunni to bring him back. (b) As Khunni reached near Gorelal’s Well, Munnu and Kalloo, who were standing there, asked him to return, saying that Gantha was not there. At this point of time only, Khunni looked around and noticed that (i) Gantha, being overpowered by Gorelal, Parmanand, Mulua, Brij Bhushan, Kailash and Ramdas, was lying on the ground near a Mahua tree (ii) Kailash, while saying that inspite of an axe blow given by him, Gantha had not died, had exhorted Ramdas to deal yet another blow and (iii) Ramdas had then struck a blow with axe on Gantha’s neck. (c) Shouting for help, Khunni started running away towards the village and in the meanwhile, Parwatia and Beti Bai :: 3 :: Criminal Appeal Nos.1089/1993 and 389/1994 also rushed to the spot but Ramdas and his companions fled away. (d) On reaching the village, Khunni (PW9/P) informed Swami Prasad (PW6/P), the Chowkidar and co-villagers namely Kuttu Lalla, Sobran Singh, Vishal Singh and Brijbhan Ghosi about the incident. All of them accompanied Khunni upto the spot located in Gorelal’s field wherein Gantha was lying dead. 6. As indicated already, upon the FIR, a case under Sections 147, 148 and 302 read with 149 of the IPC was registered against as many as 8 accused persons including Ramdas. After inquest proceedings, dead body of Gantha was sent for post-mortem examination. Autopsy Surgeon Dr. J.K. Jain (PW2) opined that cause of Gantha’s death was syncope due to haemorrhage. He also preserved a half shirt and a dhoti worn by the deceased for chemical examination. 7. During investigation, S.K. Goswami (PW13) inspected the place of occurrence and seized control and bloodstained soil, axe and bloodstained Safi therefrom. Ramdas surrendered at the police station on 10/11/1985 and from his possession; bloodstained white terry-cot shirt and towel were seized. The investigating officer also seized Mulua‘s bloodstained shirt, said to have been worn by him at the time of incident. All these articles were forwarded to FSL, Sagar for chemical examination. Corresponding report (Ex.P-23) indicated that except the ordinary soil, all the seized articles contained blood. The Chemical Examiner transmitted the exhibits to Serologist for further examination. However, the Serologist could only determine presence of human blood on the shirts, axe, safi & dhoti and was not able to determine the origin of bloodstains found on the earth and towel. :: 4 :: Criminal Appeal Nos.1089/1993 and 389/1994 8. Upon completion of the investigation, charge sheet was submitted on 24.12.1985 against Ramdas only in the Court of JMFC, Jatara, who committed the case to the Court of Session for trial. In that Court only, on 13.12.1985, Khunni filed a complaint arraigning all the eight persons named in the FIR as accused. Complaint contained almost the same allegations as were recorded in the FIR. It was further alleged that in order to save themselves from prosecution, all the co-accused had not only produced Ramdas before the SHO but also persuaded him not to disclose identity of his associates in the murder. 9. After making an inquiry into the complaint, the Magistrate, for the reasons recorded in the order-dated 21.03.1987, proceeded to issue process against all the seven persons impleaded as co-accused and vide order-dated 21.04.1988, committed the case to the Court of Session for trial. 10. Let us first deal with merits of the appeal against conviction in question. 11. On being charged with the murder, appellant Ramdas abjured the guilt and pleaded false implication due to enmity in view of the fact that the complainant party belonged to rival political group in the village. However, no evidence was led in defence. Prosecution sought to prove the charge by examining as many as 13 witnesses including Gorelal (PW1/P) and Mulua (PW7/P), who were named as members of an unlawful assembly having a common object to kill Gantha. 12. Legality and propriety of the impugned conviction have been challenged on the following grounds – (i) The trial was vitiated due to violation of mandate of Section 210 of the Code of Criminal Procedure (for short ‘the :: 5 :: Criminal Appeal Nos.1089/1993 and 389/1994 Code’), requiring the Judge to club both the cases, though arising out of the police report and the private complaint and hold a common trial. (ii) Evidence of Gorelal and Mulua, who were prosecuted by Khunni as the persons involved in the murder of his brother Gantha, could not be taken into account for recording the finding of guilty particularly when they had contradicted each other on material points. (iii) Testimony of Khunni (PW9/P) was not worthy of credence particularly when his presence at the spot, was not accepted by Mulua (PW7/P) and Gorelal (PW1/P) and his version was not corroborated by Swami Prasad (PW6/P), the Chowkidar. (iv) Existence of as many as eight incised wounds on Gantha’s body supported recitals of the FIR, suggesting involvement of at- least six persons in the murder. In response, while making reference to the incriminating pieces of evidence on record, learned Panel Lawyer has submitted that the conviction is well founded on merits. 13. At the outset, it may be observed that the objection as to validity of trial is apparently misconceived in view of decision of the Supreme Court in Harjinder Singh v. State of Punjab (1985) 1 SCC 422, that has been reaffirmed in Pal @ Palia v. State of U.P. (2010) 10 SCC 123. Accordingly, in the peculiar facts and circumstances of the case, indicating that Gorelal and Mulua, though cited as eyewitnesses in the charge sheet, were arraigned as accused in the complaint, the learned Judge was required to hear the cases and take evidence separately. :: 6 :: Criminal Appeal Nos.1089/1993 and 389/1994 14. Before entering into merits of the other contentions, it would be necessary to first advert to the medical evidence on record. Dr. J.K. Jain (PW2/P), the Autopsy Surgeon proved existence of the following injuries on the dead body of Gantha – (i) Incised wound 12 cm x 3 cm x 3.5 cm over left side face over mandible, cutting the lobule of ear. Underlying BVS, MS, nerves and bone (mandible) is cut, exposed, direction towards downwards and posterior. (ii) Incised wound 10 cm x 2.5 cm x 3 cm below the injury (i) direction towards downwards and backwards underlying BVS, MS, bone exposed. (iii) Incised wound 4.5 cm x 2 cm x 3.5 cm cutting MS, BVS, nerves, vertebral and spinal cord at level of C3/C4 direction downward and backward. (iv) Incised wound 4 cm x 2 cm x 2 cm, 3 cm below injury (iii); MS, BVS cut seen in the floor forward direction toward downwards posterior. (v) Incised wound 3cm x 1.5 cm x 2 cm over posterior aspect right side of the neck 2” above supra scapular region transversally forward downwards. (vi) Incised wound 3 cm x 1.5 cm x 1.5 cm over left scapular region medial border middle direction longitudinal downwards laterally. (vii) Incised wound 3 cm x 0.5 cm x 0.5 cm over left supra scapular region downward laterally. (viii) Incised wound 3 cm x 0.5 cm x 0.4 cm over posterior aspect at left side base of the neck downwards laterally. In the opinion of Dr. J.K. Jain, the death was caused as a result of syncope due to haemorrhage. According to him, injury no.(iii) [above] was sufficient in the ordinary course of nature to cause death :: 7 :: Criminal Appeal Nos.1089/1993 and 389/1994 whereas other injuries were also of the same magnitude as they had resulted into extensive haemorrhage. He further admitted that all the aforesaid injuries could be caused by means of a single weapon/ multiple weapons having sharp edge. 15. Thus, in the light of the medical evidence, learned trial Judge rightly held that death of Gantha was homicidal in nature. 16. Coming to the other evidence on record, it may be seen that Gorelal, Mulua, Khunni and Beti Bai were examined as eyewitnesses to the murder. Out of them, Gorelal and Mulua, admittedly, were tried in the complaint case upon charges of the offences punishable under Sections 148 & 302 read with 149 of the IPC. In this background, before re-analyzing the evidence of Gorelal and Mulua, we would prefer to first re-appreciate the testimony of Khunni and Beti Bai. 17. Khunni (PW9/P) substantially reiterated the version recorded by Sub-Inspector S.K. Goswami (PW13/P) in the FIR (Ex.P-7/P) at his instance only. As per his statement, - (a) While searching his brother Gantha, as he reached near the Well belonging to Gorelal, Kalloo and Munnu misinformed him that Gantha had not come there but he was able to witness that inside the Badi, Ramdas, Mulua, Gorelal, Kailash, Brajbhushan and Parmanand were not allowing his brother Gantha to rise from the ground and were assaulting him with axes, (b) Kailash, while saying that Gantha had survived even after sustaining his blow with axe, insisted upon Ramdas to strike further blow, (c) he could not save Ramdas from further assault because he was chased out by Munnu and Kalloo, (d) raising alarms, he rushed to the village and on the way, apprised Beti Bai of the assault on Gantha and on reaching the village, informed Chowkidar Swami, Kalloo and others about the incident, (e) Kuttu Lala, Bhujbal and Swami came, along with him, to the spot located near Gorelal’s Well where bloodstained dead body of :: 8 :: Criminal Appeal Nos.1089/1993 and 389/1994 Gantha was lying and (f) thereafter, he proceeded on foot to the Police Outpost at Digoda to lodge the FIR. 18. After deposing in Para 2 of the chief examination that it was Ramdas, who was having axe, Khunni further asserted in Para 16 of the cross-examination that he had seen only Ramdas dealing axe blows on the person of Gantha who, according to him, was overpowered by Kailash, Parmanand, Brijbhushan and their companions by pushing down. He was cross-examined at length but nothing could be elicited so as to suggest that he was, in any way, interested in securing conviction of Ramdas on false grounds. 19. Beti Bai (PW10/P) supported the facts, as stated by Khunni, that while running away from the spot, he had informed her about the incident. Although, she claimed to have witnessed the later part of the occurrence yet, as rightly concluded by learned trial Judge, her claim did not inspire confidence for the following reasons – (i) Khunni clearly admitted that the place where she had met him was situated at a distance of one furlong from the spot and at an equal distance from the village whereas, according to him, Gorelal’s well was located at a distance of one Kilometer from the Village. (ii) Her assertion that she had seen Ramdas and Kailash assaulting Gantha with respective axes and four persons namely Brijbhushan, Gorelal, Parmanand and Mulua, constraining him, did not find place in her case diary statement (EX.D-4/P) that only suggested that she had seen Ramdas and his companions fleeing away from the place where her husband was lying dead. Still, the information conveyed by Khunni to her was admissible as part of res gestae. :: 9 :: Criminal Appeal Nos.1089/1993 and 389/1994 20. Investigating Officer S.K. Goswami (PW13/P) could not recover any other axe than the one found lying near Gantha’s dead body at the spot. He was not cross-examined on the point of seizure of a terrycot shirt and towel from the possession of Ramdas. As indicated in the report of the Serologist (Ex.P-22), shirt belonging to Ramdas was found stained with human blood and non-explanation therefor, also lent assurance to the prosecution version. 21. Evidence of Khunni, so far as it related to the complicity of Ramdas in the murder, could not be disbelieved on the ground that in the FIR as well as in the complaint, he had alleged involvement of seven other persons in the crime. The maxim ‘falsus in uno, falsus in omnibus’ is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, the doctrine does not apply when grain is not separable from chaff because the truth and falsehood are inextricably mixed up. The Court cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest (Ugar Ahir v. State of Bihar AIR 1965 SC 277 relied on). 22. There is no legal impediment in convicting a person on the sole testimony of a single witness provided he is wholly reliable. Further, relationship is not a factor to affect credibility of a witness. Foundation has to be laid if plea of false implication is made. Being the younger brother of the deceased, Khunni was not likely to spare the real assailant and implicate an innocent person. As pointed out already, his testimony as against Ramdas drew ample support from res gestae evidence of Beti Bai, recitals of the FIR and a consistent medical as :: 10 :: Criminal Appeal Nos.1089/1993 and 389/1994 well as forensic evidence. The Autopsy Surgeon also did not rule out possibility of use of a single weapon in causing the injuries found on the dead body. In the light of the overwhelming evidence on record, non-corroborative evidence of Swami Prasad, the Chowkidar (PW6/P) did not assume any significance. 23. In such a situation, even if the testimony of Gorelal and Mulua is excluded from consideration, the remaining prosecution evidence, being cogent, consistent and creditworthy, would be sufficient to uphold the conviction of Ramdas as justified. 24. Reverting to the evidence of Gorelal (PW1/P) and Mulua (PW7/P), it may be observed that both had deposed to have witnessed the murderous assault. They were unanimous in saying that Gantha was killed by Ramdas only. According to them, at the behest of Gantha, liquor was consumed near Mulua’s Well by them, Gantha and Ramdas together and immediately thereafter, they had seen Ramdas inflicting axe blows on Gantha and as Mulua tried to catch hold of Ramdas, he ran away but was chased by Mulua, who caught him at a short distance. Their statements suffered from inconsistency on the point as to why Ramdas was not taken to the village. Mulua asserted that he had let Ramdas off at the instance of Gorelal whereas Gorelal clearly stated that Ramdas was able to extricate himself from the clutches of Mulua. However, this minor discrepancy could not be a ground for rejection of their testimony. 25. Evidence of Gorelal and Mulua could not be discarded simply because their statements were recorded by the Magistrate under Section 164 of the Code (Ram Charan v. State of U.P. AIR 1968 SC 1270 referred to). :: 11 :: Criminal Appeal Nos.1089/1993 and 389/1994 26. Furthermore, Gorelal and Mulua did not, in any way, confess their involvement in the murder whereas in Laxmipat Choraria v. State of Maharashtra AIR 1968 SC 938 (relied on by learned trial Judge for taking into account their evidence), objection as to admissibility of testimony of even a self-confessed criminal, who admitted her role in conspiracy to smuggle gold, as a witness, was rejected and it was held that she was a competent witness but her evidence, if subjected to scrutiny and the usual checks for corroboration, could be received with due caution. 27. As admitted by Beti Bai, Brijbhushan and Gandharva Singh were rival contestants in the election for the office of Sarpanch and her husband (Gantha) and brother-in-law (Khunni) supported Gandharva Singh whereas Ramdas, Parmanand, Gorelal and Mulua were in the political group led by Brijbhushan. Against this backdrop, mere fact that Gorelal and Mulua were named by Khunni in the FIR and in the complaint as persons from amongst the assailants of Gantha was not sufficient to make their evidence unworthy of credit. The eyewitness account given by them could be acted upon as it was corroborated in material particulars by the other evidence on record. 28. To sum up, even without going into question as to whether Gorelal and Mulua were accomplices, it could safely be concluded that they had witnessed the assault leading to Gantha’s death. 29. Thus, viewed from any angle, the appeal preferred by Ramdas has no merit or substance. In the light of the overwhelming evidence on record, his conviction deserves to be affirmed as well merited. 30. This brings us to the State’s appeal against acquittal of Gorelal, Mulua, Kailash, Parmanand, Munnu and Kalloo. It is relevant to note that complainant Khunni (PW1/C) has not preferred any revision :: 12 :: Criminal Appeal Nos.1089/1993 and 389/1994 against the order of acquittal. As such, the appeal against the acquittal of seven persons who, though named in the FIR lodged by Khunni as members of the unlawful assembly involved in the murder of Gantha, were not prosecuted for the offences on its behalf, discloses a self- contradictory approach on the part of the State. 31. At the trial, all the seven accused persons were charged with the offences punishable under Sections 148 and 302 read with 149 of the IPC as per the allegations contained in the complaint and the supportive evidence brought on record. They denied the charges and pleaded that group rivalry had led to their prosecution on totally false grounds. In the examination, under Section 313 of the Code, they further pleaded that the natives of the village were divided into two factions; one led by Brijbhushan and the other by Sobran Singh/Gandharva Singh (PW10/C) who also enjoyed support of complainant Khunni, his brother Gantha, Indal (PW3/C), and Jahari (PW4/C). Two co-villagers namely Hardas (DW1/C) and Jasrath (DW2/C) were examined to support the plea of false implication due to internal rivalry. Both of them clearly deposed that their false implication was an off-shoot of the election for the office of Sarpanch in which Brijbhushan had defeated Sobran Singh. 32. To bring home the charges, the prosecution called 11 witnesses in all. Amongst these, complainant Khunni (PW1/C), Beti Bai (PW2/C), Indal (PW3/C) and Jahari (PW4/C) were examined as eyewitnesses to the incident. The other witnesses were – (i) S.K. Goswani (PW6/C), the then in-charge of Digoda Outpost, who registered the case upon the FIR (Ex.P-1/C) lodged by Khunni and investigated thereinto. (ii) Ramswaroop (PW5/C) and Gyan Singh (PW9/C), the panch witnesses to the seizure memo (Ex.P-3C/C) evidencing seizure of bloodstained shirt of Mulua by S.K. Goswani (PW6/C). :: 13 :: Criminal Appeal Nos.1089/1993 and 389/1994 (iii) Harinarayan (PW7/C), the Patwari, who prepared the spot map (Ex.P-10/C). (iv) Chandrashekar (PW8/C), the then SHO of Police Outpost Digora, who registered the case at the Outpost. (v) Gandharva Singh (PW10/C) as witness to inquest panchnama (Ex.5C/C) and memo seizure (Ex.P7C/C). (vi) Dr. J.K. Jain, the Autopsy Surgeon and scriber of the corresponding report (Ex.P-6C/C). 33. Khunni (PW1/C) came forward to corroborate the recitals of the FIR, as already reproduced above, indicating involvement of Gorelal, Mulua, Brijbhushan, Kailash, Parmanand, Munnu and Kalloo in Gantha’s murder. In the complaint case, Beti Bai (PW2/C) claimed to have seen the murderous assault on her husband Gantha. These relatives of the deceased further introduced Indal and Jahari as eyewitnesses to the incident. According to Khunni, when he returned to the spot along with Swami and the other co-villagers, he had found Indal and Jahari standing there. Both Indal and Jahari vividly described as to how they were able to witness the assault on Gantha in the course of which Brijbhushan, Parmanand, Gorelal and Mulua had pressed down upon him and Ramdas as well as Kailash had inflicted injuries with respective axes on his person. 34. A bare perusal of the judgment would reveal that finding of not guilty was recorded for the following reasons - (i) Khunni (PW1/C) clearly admitted that his mother Parwatia and sister-in-law Betibai were not able to witness the assault leading to death of his brother Gantha and, therefore, the eyewitness account given by Beti Bai to the effect that she was able to view