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2003 DIGILAW 357 (MP)

VISHWANATH v. STATE OF MADHYA PRADESH

2003-03-04

A.K.SHRIVASTAVA, DIPAK MISRA

body2003
Judgment ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 2-2-1990 passed by the learned Sessions Judge, Sagar in Sessions Trial no. 298/88 convicting the appellant under Section 302, IPC and sentencing him to suffer life imprisonment, the appellant, has preferred this appeal under section 374 of the Criminal Procedure Code, 1973. ( 2. ) THREE persons, namely, Bissu @ Vishwanath, Munna @ Pramod kumar and Keshav Prasad were tried by the Trial Court, however, according to it, the prosecution was unable to prove the charges framed under Section 302 read with Section 109 of the IPC against the Munna @ Pramod Kumar and Keshav Prasad, eventually, they were acquitted, but, as the prosecution was able to prove the case under Section 302, IPC against the appellant, he has been convicted by the impugned judgment. ( 3. ) IN brief, the case of prosecution is that in the afternoon of 30-7-1988, Veer Singh (P. W. 1) was going to attend the Court case and for that purpose he was waiting for a bus at the bus stand. His cousin brother Mardan singh (hereinafter referred to as the deceased) was also waiting for a bus as he was also required to go to attend a Court case. At 12. 45 p. m. a bus came at the bus-stand and the deceased tried to board it from the rear side. At that time, accused/appellant, who was having a tabal (a weapon like an axe) came and inflicted it on the head of the deceased, as a result of which he fell down. It was also the prosecution case that at the same time, acquitted co-accused munna and Keshav also arrived there having lathis in their hands and provoked the appellant to kill the deceased, as a result of which he (the appellant) inflicted two blows on the person of the deceased. The deceased wreathed for one or two minutes and thereafter he breathed his last. According to the prosecution, the accused and the deceased were inimically disposed towards each other, eventually, it led the accused to commit the crime of murder. The deceased wreathed for one or two minutes and thereafter he breathed his last. According to the prosecution, the accused and the deceased were inimically disposed towards each other, eventually, it led the accused to commit the crime of murder. Veer Singh, on the same day, lodged the First Information Report in the Police Station, Chhanbeela at 2 p. m. As the place of incident comes under the jurisdiction of Police Station, Baraitha, the FIR was sent to the said Police station, Baraitha, where the case was registered against the accused persons and in this manner, the criminal law set into motion. ( 4. ) AFTER registering the case against the accused persons, the police arrived at the spot and the investigation commenced. The dead-body of the deceased was sent for the post- mortem. On 1-8-1988 accused/appellant was arrested and at his instance the weapon of the crime, namely, Tabal, was seized from the house of Aaji (Grandmother) of the accused. The police also seized lathis on the basis of information supplied by the acquitted co-accused persons. ( 5. ) AFTER completing the investigation, the charge-sheet was filed in the Competent Court which committed the case to the Court of Session. ( 6. ) THE learned Trial Judge framed charges against the accused/appellant under Section 302, IPC and framed charges under Section 302 read with Section 109, IPC against the acquitted co- accused persons, namely, munna @ Pramod Kumar and Keshav Prasad. ( 7. ) THE accused persons abjured their guilt and pleaded complete innocence as well as their maladroit implication. The accused/appellant examined one witness, namely, Kamoda (D. W. 1), in his defence. ( 8. ) THE learned Trial Judge after scrutinising the oral and documentary evidence came to the conclusion that no offence has been committed by munna @ Pramod Kumar and Keshav Prasad, as a result of which acquitted them, however, found charge to be proved against the accused/appellant and, thus, convicted. ( 9. ) WE have heard Shri Pushpendra Yadav, learned Counsel for the appellant and Shri Ajay K Mishra, learned Deputy Advocate General for the state. ( 10. ) IN order to bring home the charges, the prosecution examined as many as 24 witnesses and has placed Ex. P-l to Ex. P- 51 on record. ( 11. ( 9. ) WE have heard Shri Pushpendra Yadav, learned Counsel for the appellant and Shri Ajay K Mishra, learned Deputy Advocate General for the state. ( 10. ) IN order to bring home the charges, the prosecution examined as many as 24 witnesses and has placed Ex. P-l to Ex. P- 51 on record. ( 11. ) THE sole eye-witness to that incident is Veer Singh (P. W. 1), who is the cousin brother of the deceased. According to him, on the fateful day the deceased was going to attend a Court case and for that he was waiting for a bus. He was sitting in a restaurant which is adjacent to the bus-stand. When the bus arrived and the deceased was trying to board it, at that juncture, upon the instigation of acquitted co-accused Keshav Prasad, the appellant gave a blow with tabal on the head of the deceased, as a result of which he fell down and then again appellant gave another blow on the head which landed on the middle region of the head and thereafter he inflicted third blow which struck on the back side of the shoulder of the deceased, as a result of these injuries, the deceased wrethed for few minutes and ultimately he breathed his last. ( 12. ) THIS witness has stated that when the deceased died, the accused persons went away from the spot, however, before they left the spot, they shouted that W ctt *1ft f" and fled towards the Jungle. In the cross-examination, this witness remained firm on his stand and stated that the entire incident took place before him. He has stated that when the deceased was trying to board the bus and kept his foot on its staircase, at that time the appellant caused the injuries. He has further stated that the blow was having sufficient force and by the single stroke the brain matter came out from the head of the deceased, thereafter two more blows were dealt by him. ( 13. ) A very natural version he has given in his cross- examination, explaining the cause why he did not intervene. Because on seeing the gruesome murder, he became shocked and could not shriek as the deceased was be-smeared with the blood. Narrating the incident, this witness has stated that the accused/appellant lifted the axe and with full force dealt the blows. ( 14. Because on seeing the gruesome murder, he became shocked and could not shriek as the deceased was be-smeared with the blood. Narrating the incident, this witness has stated that the accused/appellant lifted the axe and with full force dealt the blows. ( 14. ) AFTER carefully X-raying the testimony of this witness, we find that the evidence given by him is natural, clear, cogent and creditworthy. Shri yadav, learned Counsel for the appellant could not point out anything so as to dis-credit this witness. The learned Counsel for the appellant by placing heavy reliance upon the decision rendered by the Apex Court in the case of anil Phukan Vs. State of Assam, AIR 1993 SC 1462 , submitted that a conviction can not be based on the testimony of sole eye-witness who happens to be a close relative of the deceased and not attempting to save him. The argument, though appears to be an attractive one but on the deeper scrutiny, we find it to be devoid of any substance. In the case of Anil Phukan (supra), the testimony of the sole eye- witness who was distantly related to the deceased was con-tradictory to the medical evidence but in the present case, we find that the evidence of the star witness Veer Singh (P. W. 1) is corroborated by the evidence of Dr. R. K. Singhai (P. W. 2) who has categorically stated that the deceased sustained three incised wounds out of which two were on the parietal region and one on the left scapular region. The post-mortem report is Ex. P-3. If the testimony of these two witnesses are appreciated in juxtaposition, it is perceivable that whatever has been stated by Veer Singh (P. W. 1) in his testimony in respect of the injuries caused by the appellant by axe found corroborated by the report of the Dr. R. K. Singhai (P. W. 2 ). In this view of the matter, we do not find any substance in the argument of the learned counsel for the appellant that merely because the star eye-witness Veer Singh is near relative of the deceased, his testimony should be dis-believed. In this context, it shall be profitable to refer the recent judgment of the Apex Court in Gangadhar Behera Vs. State of Orissa, (2002) 8 SCC 381 . ( 15. In this context, it shall be profitable to refer the recent judgment of the Apex Court in Gangadhar Behera Vs. State of Orissa, (2002) 8 SCC 381 . ( 15. ) EYE-WITNESS Veer singh has also given the explanation in his deposition that why he refrained himself to intervene. It has been said by him that looking to the gruesome murder and as well as the accused/appellant was having a deadly weapon, he was unable to shriek. We have given our anxious consideration to this piece of evidence of Veer Singh and we find that his conduct was natural, because no one would indulge himself to put his life in danger, specially when the accused was having deadly weapon like axe and was dealing the repeated blows by its with full force. ( 16. ) THE other contention of the learned Counsel for the appellant is that the incident took place at the bus-stand and number of persons should have been present there, as the prosecution has failed to examine any independent witness, a dent has been made to the truthfulness of its story. We have given our attention to this aspect of the matter and we find that this argument has no merit. Under Section 134 of the Indian Evidence Act, no particular number of witnesses shall in any case be required for the proof of any fact. Though, in this case there is evidence of Suresh (P. W. 13), but the fact remains intact that why a clear, cogent and creditworthy testimony of Veer Singh should be dis-believed. We have already held hereinabove, that the evidence of this whiteness is trustworthy and can not be discarded merely on account of relationship with the accused. ( 17. ) APART from the above, the prosecution version also gets support from the testimony of Suresh Jain (P. W. 13 ). This witness boarded the bus from the front side of the door, he has stated that the deceased was trying to board the bus from the rear side of the door. According to him, when he tried to board the bus from the front side of the door, he heard some noise and he saw the deceased falling down. No doubt first blow was given by the accused/appellant was not seen by this witness but he has seen another two blows dealt by the appellant to the deceased. According to him, when he tried to board the bus from the front side of the door, he heard some noise and he saw the deceased falling down. No doubt first blow was given by the accused/appellant was not seen by this witness but he has seen another two blows dealt by the appellant to the deceased. The evidence of this witness corroborates the testimony of Veer Singh (P. W. 1 ). ( 18. ) WE may at this juncture also note that the prosecution has examined some independent witnesses who have been declared hostile. There is also a set of witnesses who are post-occurrence witnesses. If the evidence of these witnesses, namely Harishankar (P. W. 7), Bhagwan Singh (P. W. 11) and jahar Singh (P. W. 19) is analysed, it is quite clear that deceased was lying dead on a pool of blood. The restaurant owner, Madhav Singh (P. W. 14) has admitted the presence of the deceased in his restaurant. True it is, none of them have spoken how the deceased died and they have not ascribed any role to the accused. But the fact remains Veer Singh has in a clear, cogent and unequivocal manner described the part of the accused. The allegation of instigation by other accused is not believed but that does not necessarily mean that the entire version of this star witness should be treated as false or not beyond. It is well settled in law that the concept falsus in uno, falsus in omnibus is not applicable in India. ( 19. ) IN this regard, we may also profitably note the deposition of chittar Singh (P. W. 23), who is the witness of the seizure of the weapon tabal which according to him was recovered at the instance of accused/appellant. Nothing has been elicited in the cross-examination to dis-credit the factum of seizure at the instance of the accused. ( 20. ) ON the basis of the evidence of two star witnesses, Veer Singh (P. W. 1) and Suresh Jain (P. W. 13), corroborated by the medical evidence, we find that the learned Trial Judge did not err in convicting the appellant. ( 21. ) IN the result, the appeal, being sans substance, is hereby dismissed. Criminal Appeal dismissed.