Case: Khujji @ Surendra Tiwari Vs. The State Of Madhya Pradesh

This appeal by special leave is preferred by the appellant Khujji @ Surender Tiwari who has been convicted by both the courts below under302 IPC for the murder of one Gulab. The facts leading to this appeal, briefly stated, are that on the evening of May 20,1978 the deceased Gulab and his companion PW4 Ramesh Chander hired a Rickshaw to go to the dispensary of Dr. Mukherjee. PW 3 Kishan Lal pulled the Rickshaw and while he was passing through Suji Mohalla near Panchsheel Talkies the appellant and his companions surrounded the Rickshaw and launched an attack on the deceased and his companion. PW 4 was the first to receive an injury by a cycle chain. Sensing trouble both Gulab and PW 4 jumped out of the Rickshaw and ran in different directions. Gulab ran towards Suji Mohalla whereas PW 4 ran towards Panchsheel Talkies. They were chased by the assailants who formed themselves into two groups. PW 4 was fortunate enough to escape with not too serious an injury but his companion Gulab received stab wounds to which he succumbed on the spot. The evidence of PW 12 Dr. Nagpal shows that the deceased had received three injuries, namely, (i) a penetrating stab wound with a second injury on the intercostal space on right side rib of the size of 3 cms x 5cms x(ii) a piercing stab wound 8cms below the scapular bone and 8cms outside thecolumn of the size of 2.5cms x 1.5cms x 3cms, and (iii) an incised wound on the frontal auxiliary line 2.5cms xx 2cms deep on the left hipocardium region. This witness, who performed the post-mortem, deposed that injurywhich had injured the heart was sufficient in the ordinary course of nature to cause death. He further stated that all the three injuries were collectively sufficient to cause death in ordinary course of nature. The three articles, namely, the knife, the Chhuri and the Chhura which were attached in the course of investigation were shown to this witness and he stated that the three injuries were possible by the aforesaid articles. It is clear from this evidence that Gulab died a homicidal death.To bring home the guilt against the appellant the prosecution placed reliance on the evidence of three eye-witnesses, namely, PW 1 Komal Chand (an on-looker), PW 3 Kishan Lal (the Rickshaw Puller) and PW 4 Ramesh (the companion of the deceased) besides the find of human blood on the weapon discovered at the instance of the appellant and on the land which he was wearing at the time of his arrest.The First Information Report, Exh. P-3, was lodged by PW 4 Ramesh immediately after the incident and the same was recorded by the Investigating Officer PW 13 Ramji Singh at about 9.15 p.m. In the said first information report PW 4 gave the details regarding the incident and furnished the names of all the six assailants. Soon after the first information report was lodged the Investigating Officer visited the scene of occurrence and drew up the Panchnama on the basis of which a sketch plan Exh. P-20A was prepared in due course. The appellant and some of his companions could not be traced till May 22, 1978. After they were traced, they were interrogated and on their expressing willingness to discover the weapons used in the commission of the crime, the Investigating Officer summoned two witnesses, namely, PW 5 Panna Lal and Rajinder to act as Panch witnesses. The prosecution case is that in the presence of these witnesses the appellant and his companions made certain confessional statements under27 of Evidence Act which led to the discovery of the weapons used in the commission of the crime. According to the prosecution the appellant Khujji discovered a Chhura (knife) from his garage and the same was attached under the Panchnama Exh. P-9. Since this weapon hadstains, it was sent to the Chemical Analyser and Serologist for examination and report. The report indicates that it was stained with human blood but the blood group could not be determined. The other two companions of the appellant, namely, Parsu and Guddu, also discovered a knife,and a Chhura, Exh. P-13, which were attached under PanchnamasP-6 and P-12, respectively. As stated earlier the shirt and pant of Khujji were also attached as blood-like stains were noticed thereon. Both these articles were sent to the Chemical Analyser and Serologist. So far as the shirt is concerned, since the blood stains were disintegrated it was not possible to determine the origin thereof. But so far as the pant is concerned, the report states that the stains were of human blood but the blood group could not be determined as the result of the test was inconclusive. On the basis of the first information report, the statements of three witnesses recorded in the course of investigation as well as the evidence regarding discovery and the find of human blood on the incriminating articles, the appellant and five others were charge-sheeted for the murder of Gulab. The trial court acquitted all except the appellant. Before the trial court PW 4 Ramesh, who had lodged the first information report, tried to disown it. He was declared hostile as he expressed his inability to identify the accused persons as the assailants of the deceased Gulab. PW 3, the Rickshaw Puller, while narrating the incident expressed a similar inability and he too was treated as hostile and cross-examined by the Public Prosecutor. The third eye-witness PW 1 Komal chand, however, supported the prosecution case in his examination-in-chief but in his cross-examination he expressed some doubt regarding the identity of the appellant and Guddu stating that he had seen their backs only. The trial court came to the conclusion that not only was this witness a chance witness but his presence at the scene of occurrence was extremely doubtful as it was difficult to believe that he had come out at that hour to purchase vegetables. Thus the trial court refused to place reliance on the evidence of the threeThe trial court, however, came to the conclusion that the appellant was absconding and that he had discovered the weapon which was found to be stained with human blood. It also relied on the factum of find of human blood on the pant worn by the appellant at the time of his arrest. On the basis of this evidence the trial court convicted the appellant under302 IPC and sentenced him to life imprisonment. Khujji preferred an appeal against the said conviction. The High Court while ignoring the evidence of PW 3 Kishan Lal and PW 4 Ramesh relied on the evidence of PW 1 Komal Chand and came to the conclusion that his evidence clearly established the presence of the appellant as one of the assailants notwithstanding his effort in cross-examination to wriggle out of his statement in examination-in-chief in regard to the identity of the appellant. The High Court noticed that the examination-in-chief of this witness was recorded on November 16, 1976 whereas his cross-examination commenced on December 15, 1976 i.e. after a month and in between he seemed to have been won over or had succumbed to threat. This inference was drawn on the basis of PW 3s statement that he was severely beaten on the night previous to his appearance in court as a witness. The High Court, therefore, took the view that the subsequent attempt of PW 1 Komal Chand to create a doubt regarding the identity of the appellant was of no consequence since there was intrinsic material in his evidence to establish the presence of the appellant amongst the assailants of deceased Gulab. Relying further on the discovery evidence as well as the find of human blood on the weapon found from the garage of the appellant and on his pant which he was wearing at the time of his arrest, the High Court came to the conclusion that his conviction was well founded and dismissed his appeal. It may here be mentioned that the State did not prefer an appeal against the five companions of the appellant who came to be acquitted by the trial court. It is in these circumstances that the appellant has invoked this Courts jurisdiction under Article 136 of the Constitution.

Reasoning:
We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief. Since the incident occurred at a public place, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have, therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab, his presence at the scene of occurrence is not unnatural norhis statement that he had come to purchase vegetablesdo not find any material contradictions in his evidence to doubt his testimony. He is a totally independent witness who had no cause to give false evidence against the appellant and his companions. We are, therefore, not impressed by the reasons which weighed that the trial court for rejecting his evidence. We agree with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of theis, therefore, clear from the decision of this Court that merely because the same set of Panch witnesses were used for witnessing all the three discoveries as well as the attachment of the clothes of the appellant and his companions, PW5s evidence could not be discarded since nothing had surfaced in cross-examination to shake his evidence. We are, therefore, satisfied that the evidence of PW5 Pannalal was rightly accepted by both the courts below. We make limited use of this evidence in the sense that we do not use any part of the evidence admissible under27. Evidence Act, against the appellant. We merely use the factum of find of the incriminating weapon from his garage and his inability to explain the presence of human blood thereon as a circumstance against the appellant. The evidence of PW5 further shows that when the appellant was arrested his garments, namely, shirt and pant were attached as blood-like stains were noticed thereon. These articles were sent to the Chemical Analyser and Serologist for examination and report. As stated earlier these reports reveal that the blood stains on the pant worn by the appellant were of human origin. The appellant has not offered any plausible explanation for the existence of human blood on his pant. This too is a circumstance against the appellant particularly because no injury was noticed on the person of theappellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of the accused is of no consequence. We, therefore, see no substance in this contention urged by Mr.are of the opinion, for reasons which we will immediately state, that the contention urged bycounsel for theappellant is notall the aforesaid cases are clearly distinguishable from the facts of Brathis case where the High Court had clearly departed from the appreciation of the evidence by the Trial Court and had reachedn in regard to the proof of various facts and circumstances relied on by the prosecution. We are,in respectful agreement with the distinction drawn by this Court on the ground that in none of the cases citedbehalf of the appellant it was shown that the Appellate Court had disagreed with the appreciation of evidence by the Trial Court and the conclusion of facts and circumstances recorded byCourt held that before a Court can convict a person under302/34, IPC, it must record a definite finding that the said person had prior consultation with one or more other persons, named or unnamed, for committing the offence. When three of the accused came to be acquitted on the ground that the evidence was not acceptable or on the ground that they were entitled to benefit of doubt, in law it meant that they did not participate in the offence. It was further held that the effect of the acquittal of the three co-accused is that they did not co-jointly and with the appellant commit the murder. These observations have to be read in the context of the facts stated above. The High Court on an appreciation of the evidence, came to a definite conclusion that accused Nos. 1, 3 and 4 had not participated in the commission of the crime. On that appreciation of the evidence the High Court could not have come to the conclusion that any of those acquitted accused was privy to the crime even for the limited purpose of convicting the appellant with the aid of34. This again is not a case where the Appellate Court disagreed with the appreciation of evidence and reached a conclusion different from the conclusion recorded by the Trial Court in regard to the participation of the other co-accused. This decision is also distinguishable on the same ground as this Court distinguished the other decisions in Brathis case. We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathis case per incuriam. We are, therefore, in respectful agreement with the law explained in Brathis case.Coming now to the facts of this case the Trial Court acquitted the co-accused but convicted the appellant under302, IPC. The High Court has confirmed that conviction. Mr. Lalit is right when he says that the prosecution evidence does not disclose that the fatal blow which caused injury No. 1 was given by the appellant. Inherent of this submission is the assumption that the fatal blow was given by someone else. That establishes the fact that more that one person participated in the commission of the crime. We have also on an independent appreciation of the evidence of the three eye witnesses, namely, PW 1 Komal Chand, PW 3 Kishan Lal and PW 4 Ramesh, come to the conclusion that several persons had participated in the commission of the crime. The failure on the part of the prosecution witnesses PWs 3 and 4 to identify the others does not alter the situation. We are, on the other hand, convinced from the evidence of PW 1 Komal Chand that some of the co-accused, particularly, Gunda, Parsu and Gopal had participated in the commission of the crime. It is another matter that in the absence of a State appeal the High Court could not, nor can we, interfere with their acquittal, but aspointed in Brathis case this Court is not bound by the facts found proved on the appreciation of evidence by the courts below and is, in law, entitled to reach its own conclusion different from the one recorded by the courts below on a review of the evidence. In that view of the matter we think that the conviction of the appellant can be sustained with the aid ofIPC, as the case may be. In the present case we feel it safe to confirm the conviction of the appellant with the aid of34, IPC. We, therefore, cannot agree with the submission of the learnedcounsel for theappellant that at best the conviction can be recorded under324, IPC. We confirm the conviction of the appellant under302, IPC, with the aid of34 and maintain the sentence awarded to him.