1 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (D. B.: P.K. Jaiswal & Mrs. S.R. Waghmare, JJ.) Criminal Appeal No.41/2003 Ida S/o Nanka Bhil Vs. State of M.P. Smt. Sharmila Sharma, learned counsel for the appellant. Shri M.S. Chouhan, learned GA for the respondent/State. --------------------------------------------------------------------------------------- J U D G M E N T ( Delivered on this 19th day of September, 2011) Per P.K. Jaiswal, J. This appeal arises out of the judgment of conviction dated 21/11/2002, passed by the Additional Sessions Judge, Jobat, District Jhabua (M.P.) in S.T. No.23/2001, whereby the appellant has been convicted for commission of offence under Section 302 of the IPC. 2. As many as three accused persons namely Ida, Sekdiya and Sobar @ Sobat came to be tried by the Additional Sessions Judge, Jobat in S.T. No.23/2001. The trial Court convicted the accused Ida under Section 302 of the IPC and sentenced him to suffer RI for life and pay fine of Rs.5,000/- with default stipulation. The other two accused persons were acquitted by the trial Curt. 3. According to the prosecution case, on 15/9/2000, Kunwarbai (PW1) along with her husband Amar Singh and children after taking their night meal were sleeping at the Courtyard of their house. At around 2.00 a.m. Ida, Sekadiya and Sobar @ Sobat came to the house of Amar Singh. They started abusing him with filthy language and said that his son Kalu had abducted his daughter thrice, yesterday also his son had abducted his daughter and stated that today he will kill him. On hearing 2 this, Amarsingh get up and at the relevant point of time Ida who was armed with a hammer had caused hammer injury on the head of the deceased. The other two accused persons namely Sekadiya and Sobar @ Sobat were armed with Falia and arrows and bows respectively and have caused injuries to him as a result of which Amar singh fell down. On hearing the verbal altercation between them, wife of Amarsingh woke up and saw that the accused persons were inflicting injuries on her husband. Due to the injuries, he fell down on the cot and died on the spot itself. When wife of Amarsingh (deceased) named Kunwarbi (PW1) cried for help, at that time, Deetu (PW5) and Heeru (PW3) rushed to the place of occurrence. Kunwarbai(PW1) narrated the whole story to them. In the morning at about 8.20 a.m., PW.1 Kunwarbai lodged FIR (Ex-P/1) at Police Station Jobat, vide Crime No.236/2000. 4. During investigation, police Jobat reached at the place of occurrence and in presence of witnesses prepared inquest report of deceased Amar Singh vide Ex-P/3. He also seized plain and controlled earth from the spot and prepared seizure memo Ex-P/13. The dead body of the deceased was sent to Community Health Centre, Jobat for postmortem. His postmortem was conducted by Dr. A.N. Kulkarni on the same day vide Ex-P/10. Due to death of Dr. Kulkarni, Dr. H.N. Potdar, Assistant Surgeon, who was examined before the trial Court as PW6, he has narrated the injuries received by the deceased. As per postmortem report, following injuries were found on the dead body of the deceased:- (i) Lacerated wound 6 x 2 cm x brain deep on the right parietal region of head with depressed fracture. Brain material was coming out. (ii) Lacerated wound 4 x 2 cm x bone deep on occipital region with fracture and, (iii) Haematoma 4 x 3 cm on left parietal region. All the injuries were caused by hard and blunt object. 3 5. PW6 Dr. H.N. Potdar has deposed that postmortem report has been signed by Dr. A.N. Kulkarni and he knows his signature which has been appended in place A to A portion. He also stated that death of deceased was homicidal in nature. 6. After investigation, charge-sheet was filed. The learned trial Court framed charges against the appellant and other co-accused persons. They were tried under Section 302 of the IPC read with Section 34 of the IPC. 7. The accused persons abjured their guilt. During trial, the prosecution had examined as many as seven witnesses to support its case. The appellant examined one witness in his defence. Upon consideration of the evidence, the trial Court convicted the the present appellant for offence punishable under Section 302 of the IPC and acquitted the other two co-accused persons. 8. Learned counsel for the appellant contended that the trial Court has committed serious error in relying on the wholly unreliable testimony of PW.1 Kunwarbai, examined by the prosecution as eye- witnesses. It is submitted that there are contradictions and discrepancies in her statement. It was pleaded that the appellant had been falsely implicated in the alleged offence. 9. Shri M.S. Chouhan, learned GA for the respondent/State, on the other hand, supported the judgment of the trial Court and submitted that the evidence of the eye-witness, coupled with the medical evidence and the recovery of weapons of offence clearly prove the case against the appellant. 10. Having carefully gone through the judgment of the Court below, we feel that in the light of the evidence on record, the view taken by the trial Court is correct. 11. The mainstay of the prosecution is the testimony of PW.1 Kunwarbai, who claimed to be eye-witness of the occurrence. Though the prosecution has examined PW2 Juwansingh, PW.3 Heeru, PW.4 4 Indersingh and PW5 Deetu as eye-witnesses of the case, but from the statement of PW.1 Kunwarbai, it is clear that when she cried for help then only PW.3 Heeru and PW.5 Deetu came at the spot. PW.2 Juwansingh is father of the deceased, PW.3 Heeru and PW.5 Deetu are nephews of the deceased and they are closely related to the deceased. 12. PW.1 Kunwarbai in her statement has deposed that when she was sleeping along with her husband, deceased Amarsingh and children, at that time, accused Ida, Sekadilya and Sobar @ Sobat came to their house. Accused Ida was armed with hammer, Sekadiya with falia and Sobar @ Sobat was armed with arrows and bow. Accused Ida started abusing him and thereafter, he had caused hammer injury on the head of the deceased. Another accused Sekadiya extorted him and he said that if he will cry or ask for any help, he will cause falia injury on him. The impact of hammer injury caused by appellant Ida was such that her husband immediately fell down on the cot. She further stated that on seeing this, she cried for help. Hearing her voice, PW.3 Heeru and PW.5 Deetu came at the place of occurrence and she narrated the whole incident to them. In her statement she further deposed that in the courtyard, one bulb was on and in the light of said bulb, she identified all the accused persons. She has further stated that there was an enmity between her husband, deceased Amarsingh and the accused persons because the daughter of Ida ran away with the son of deceased. After the incident, she lodged the FIR (Ex-P/1) at Police Station Jobat. 13. PW.2 Juwansingh, father of the deceased at the time of the alleged incident, was sleeping near to their house. He stated that the deceased along with his wife and children were sleeping at the courtyard of their house. On hearing the noise of hammer, he immediately woke up and saw that accused Ida was armed with hammer, Sekadiya with 'Falia' and Sobar @ Sobat was armed with arrows and bow. On hearing the same, he shouted from the Dagle, but by that time the accused persons fled away from the place of occurrence. He has further deposed that in the 5 light of bulb, he saw the accused persons. On hearing his voice, PW.3 Heeru and PW.5 Deetu came to the place of incident. 14. PW.3 Heeru had deposed that when he reached at the spot, he saw that the appellant Ida and two other accused persons were running from the place of occurrence. 15. PW.5 Deetu had deposed that when he reached at the place of occurrence, he saw that the dead body of his uncle-deceased Amarsingh was lying on the cot and his aunt PW.1 Kunwarbai has narrated the whole incident to him. 16. All the above witnesses are closely related to the deceased and no independent witnesses were examined by the trial Court. In FIR (Ex- P/1) PW.1 Kunwarbai has very categorically stated that at the time of occurrence, there was light in their house and bulb of their courtyard was on and there was sufficient light, the accused persons were identified by her. There is no material contradictions and omissions in the statement of PW.1 Kunwarbai. PW.1 Kunwarbai, in her statement, very categorically stated that she on the basis of light as well as on hearing their voice identified all the accused persons. In the FIR (Ex- P/1), it has not been stated that on hearing her cry, PW.2 Juwansingh came at the place of occurrence and stated that at the time of occurrence PW.2 Juwansingh, PW.3 Heeru and PW.5 Deetu were not present. On examining the statement of PW.1 Kunwarbai, we find that there are minor contradictions in her testimony. 17. It is to be borne in mind that some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. It is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his/her version that the Court would be justified in discarding his/her evidence. The statement of the eye- 6 witness PW.1 Kunwarbai, who is the wife of the deceased is reliable and corroborated with medical evidence. 18. Having gone through the evidence of PW.1 Kunwarbai, we are unable to agree with the learned counsel for the appellant that the trial Court has failed to appreciate properly the evidence on record. We are convinced that the conclusions of the Court below, that the appellant had committed the offence of murder of Amarsingh (deceased), are supported by acceptable evidence. The view taken by the trial Court is both plausible and possible. We do not find any legal or factual infirmity in the impugned judgment warranting interference. The appeal is, accordingly, dismissed. (P.K. Jaiswal) (Smt. S.R. Waghmare) Judge Judge pn/