GUNARAM SHRIRAM SURYAVANSHI v. STATE OF MADHYA PRADESH
2012-01-10
RADHE SHYAM SHARMA, SUNIL KUMAR SINHA
body2012
DigiLaw.ai
JUDGMENT Radhe Shyam Sharma, J. [1] This appeal is directed against judgment dated 19th January, 1996 passed in Session Trial No. 147/1995 by the Second Additional Session Judge, Bilaspur. By the impugned judgment, accused/appellant Gunaram has been convicted under Sections 302 and 325 of the Indian Penal Code and sentenced to undergo imprisonment for life and rigorous imprisonment for three years, respectively. Both the sentences are directed to run consecutively. [2] The facts, briefly stated, are as under: On 1-10-1994. at about 8.00 a.m., deceased Sitaram and Narbada Prasad alias Lallu (PW-2) were going to Gadhiyakhar. At the same time, the appellant was returning from Gadhiyakhar. He was armed with an iron Chatwar. When the deceased and Narbada Prasad alias Lallu (PW-2) reached near the appellant, the appellant assaulted on the head of the deceased with the Chatwar. Narbada Prasad alias Lallu (PW-2) snatched the Chatwar from the appellant and ran away from there. On the way, Narbada Prasad alias Lallu (PW-2) met with Ghurau Ram (PW-3). Narbada Prasad alias Lallu (PW-2) narrated the incident to Ghurau Ram (PW-3) and thereafter they returned to the place of occurrence. While deceased Sitram, Narbada Prasad alias Lallu (PW-2), Ghurau Ram (PW-3) and Saraswati Bai (PW-1) wife of the deceased were returning to their village and when they had reached near the Well, the appellant came there and snatched the Chatwar from Narbada Prasad alias Lallu (PW-2) and assaulted the deceased. The deceased sustained injuries on his head. When Saraswati Bai (PW-1) tried to save her husband, the appellant also assaulted Saraswati Bai (PW-1) with the Chatwar. She sustained injuries on her right hand. Saraswati Bai (PW-1) lodged First Information Report (Ex. P/17) in Police Station Seepat and an offence under Section 307. IPC was registered. Deceased Sitaram and Saraswati Bai (PW-1) were sent for medical examination. Dr. V. Venktesh (PW-5) examined Saraswati Bai (PW-1) and gave his report (Ex. P/4). He also examined Sitaram and gave his report (Ex.P/5). Sitaram was referred to District Hospital, Bilaspur and Saraswati Bai (PW-1) was also referred for X-ray examination. Dr. S. Chatterjee (PW-12) examined the X-ray report and gave his report (Ex-P/22) in which he opined that Saraswati Bai (PW-1) had sustained fracture in her right radius bone. Sitaram was admitted in the District Hospital. Bilaspur, where he died during treatment. Intimation was sent to Police Station. Kotwali Bilaspur. Merg Intimation (Ex.P/9) was also recorded.
Dr. S. Chatterjee (PW-12) examined the X-ray report and gave his report (Ex-P/22) in which he opined that Saraswati Bai (PW-1) had sustained fracture in her right radius bone. Sitaram was admitted in the District Hospital. Bilaspur, where he died during treatment. Intimation was sent to Police Station. Kotwali Bilaspur. Merg Intimation (Ex.P/9) was also recorded. The offence was converted from Section 307, IPC to Section 302, IPC. R. Tigga (PW-9) reached District Hospital, Bilaspur, gave notice (Ex. P-6) to the Panchas and prepared inquest (Ex. P/7) on the body of the deceased. Body of the deceased was sent for post-mortem examination to District Hospital, Bilaspur. Postmortem examination was conducted by Dr. R. J. P. Verma (PW-10), who gave his report (Ex. P-16) in which he found (i) incised wound, 3" x linear, bony deep, placed anterio. posteriorily and obliquely, posterior end of wound was over enter of scalp from a line joining the tip of both ears, blood clot present (ii) incised wound, 31/2" linear x bony deep, placed horizontally from post end of injury No. (i), on removal of scalp, blood clot present between scalp and skull over left temparo-parietal area. Fracture of skull cap from tip of right ear, passing towards posterior laterally, 6" x linear, bone pieces are separated from each other, communicating with the skull cavity. He opined that the cause of death was head injury producing fracture of skull and mode of death was coma. In further investigation, plain soil and blood stained soil were seized from the place of occurrence vide Ex-P/1. The Chatwar was seized from the appellant vide Ex-P/2. Patwari Sukhnandan Prasad Shukla (PW-7) prepared site map vide Ex-P/8. Seized articles were sent for chemical examination to Forensic Science Laboratory, Bilaspur. Report (Ex.P/24) of chemical examination was received vide Ex. P-26. Report (Ex. P/28) of Serologist was also received. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate, First Class, Bilaspur, who, in turn, committed the case to the Court of Session, from where, it was received on transfer by the Second Additional Session Judge, Bilaspur, who conducted the trial, convicted and sentenced the appellant as mentioned above. [3] Shri Sushobhit Singh, learned counsel for the appellant argued that there is no independent eyewitness. Saraswati Bai (PW-1) is widow of the deceased. She is a relative and highly interested witness.
[3] Shri Sushobhit Singh, learned counsel for the appellant argued that there is no independent eyewitness. Saraswati Bai (PW-1) is widow of the deceased. She is a relative and highly interested witness. There are contradictions in the FIR (Ex-P/17) lodged by her and her evidence before the Court. The prosecution story is doubtful. The appellant is falsely implicated in the case, therefore, the appellant deserves to be acquitted of the charges framed against him. [4] On the other hand, Shri Ajay Dwivedi, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Session Judge are impeccable and do not warrant interference by this Court. [5] The conviction of the appellant is based on the testimonies of Saraswati Bai (PW-1), Narbada Prasad alias Lallu (PW-2) and Ghurau Ram (PW-3). It is not disputed that Saraswati Bai (PW-I) is the widow of the deceased. According to the prosecution, Saraswati Bai (PW-1) also sustained injury in the same incident. [6] In Dharnidhar v. State of Uttar Pradesh and others, 2010 7 SCC 759 , the Hon'ble Supreme Court held as follows : "12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry, 2010 1 SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24) (Para 21 of AIR, CriLJ) "23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency.
The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim." 13. Similar view was taken by this Court in Ram Bharosey v. State of U. P., 2010 1 SCC 722 , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." [7] In Brahm Swaroop and another v. State of U. P., 2011 AIR(SC) 280, the Hon'ble Supreme Court held as follows : "21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a facutal foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide : Dalip Singh & Ors. v. State of Punjab, 1953 AIR(SC) 364, Masalti v. State of U. P., 1965 AIR(SC) 202, Lehna v. State of Haryana, 2002 3 SCC 76 ; and Rizan & Anr. v. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur.
(Vide : Dalip Singh & Ors. v. State of Punjab, 1953 AIR(SC) 364, Masalti v. State of U. P., 1965 AIR(SC) 202, Lehna v. State of Haryana, 2002 3 SCC 76 ; and Rizan & Anr. v. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur. Chhattisgarh, 2003 2 SCC 661 )" (See also Shaukat v. State of Uttaranchal, 2010 5 SCC 68 ) [8] In Paragraph 22 of the decision in Brahm Swaroop, the Hon'ble Supreme Court held that 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 within 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. "Convincing evidence is required to discredit an injured witness. [9] It is not disputed that Saraswati Bai (PW-1) is widow of the deceased. It is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the Court is satisfied that the evidence of the interested witness has a ring of truth such evidence could be relied upon even without corroboration. The fact of being a relative cannot by itself disredit the evidence. When the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope-in innocent persons. [10] In Waman and others v. State of Maharashtra, 2011 7 SCC 295 , the Hon'ble Supreme Court held as follows : "17. In Balraje v. State of Maharashtra, 2010 6 SCC 673 , this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence.
[10] In Waman and others v. State of Maharashtra, 2011 7 SCC 295 , the Hon'ble Supreme Court held as follows : "17. In Balraje v. State of Maharashtra, 2010 6 SCC 673 , this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, this Court held that (SCC p. 679. para 30) : (Para 10 of AIR SCW, CriLJ) "30..........if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 19. The above principles have been once again reiterated in State of U.P. v. Naresh, 2011 4 SCC 324 . Here again, this Court has emphasized that relationship cannot be a factor to affect the credibility of witness. The following statement of law on this point is relevant (SCC p. 334, para 29) : "29.........The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. Vide Jarnail Singh v. State of Punjab, 2009 9 SCC 719 , Vishnu v. State of Rajasthan, 2009 10 SCC 477 and Balraje, 2010 6 SCC 673 .'" [11] Saraswati Bai (PW-1) deposed that her husband (the deceased) and Narbada Prasad alias Lallu (PW-2) were going to see their fields situated in Gadhiyakhar and the appellant was coming from Gadhiyakhar.
Vide Jarnail Singh v. State of Punjab, 2009 9 SCC 719 , Vishnu v. State of Rajasthan, 2009 10 SCC 477 and Balraje, 2010 6 SCC 673 .'" [11] Saraswati Bai (PW-1) deposed that her husband (the deceased) and Narbada Prasad alias Lallu (PW-2) were going to see their fields situated in Gadhiyakhar and the appellant was coming from Gadhiyakhar. When her husband and Narbada Prasad alias Lallu (PW-2) reached near Mahua Khet, the appellant assaulted on the head of her husband with a Chatwar. At that time, she was returning after attending the call of nature. On seeing the incident, she had shouted. When she, Narbada Prasad alias Lallu (PW-2) and Ghurau Ram (PW-3) were bringing her husband to her house, the appellant met them on the way near the Well, he snatched the Chatwar from Narbada Prasad alias Lallu (PW-2) and gave two blows with the Chatwar on the head of the deceased. When she tried to save her husband, the appellant assaulted her also. She sustained injury on her right hand. Narbada Prasad alias Lallu (PW-2), Ghurau Ram (PW-3) and one Ramadhar, who were present there, caught the appellant and took him away. Thereafter, the deceased was brought to home. [12] Narbada Prasad alias Lallu (PW-2) deposed that on the date of incident, at about 9 a.m., he and the deceased were going to Gadhiyakhar and the appellant was coming from there. The appellant had assaulted the deceased with the Chatwar. He had snatched the Chatwar from the appellant and ran away. On the way, Ghurau Ram (PW-3) met him. He narrated him the incident. He returned to the place of occurrence along with Ghurau Ram (PW-3). Saraswati Bai (PW-1) enquired about the incident from the appellant. Thereafter, when they were bringing the deceased towards the village, on the way, Ramadhar met them. They narrated him the incident. When they reached near the Well, the appellant came there and snatched the Chatwar from him and assaulted the deceased with the Chatwar. When Saraswati Bai (PW-1) tried to save her husband, the appellant assaulted her also with the Chatwar. She sustained injury on her hand. [13] Ghurau Ram (PW-3) deposed that when he was returning from his field, the appellant met him near Gadhiyapul. After some time, Narbada Prasad alias Lallu (PW-2), running, came there. He was having a Chatwar in his hands.
She sustained injury on her hand. [13] Ghurau Ram (PW-3) deposed that when he was returning from his field, the appellant met him near Gadhiyapul. After some time, Narbada Prasad alias Lallu (PW-2), running, came there. He was having a Chatwar in his hands. He asked Narbada Prasad alias Lallu (PW-2) about his running. Narbada Prasad alias Lallu (PW-2) narrated him the incident. Thereafter, they went to the place of occurrence. He asked the appellant about the assault given by him to the deceased. The appellant did not answer him. Blood was oozing out of the head of the deceased. When they were bringing the deceased to home, the appellant met them on the way near the Well. The appellant snatched the Chatwar from Narbada Prasad alias Lallu (PW-2) and gave Chatwar blows on the head of the deceased. [14] Learned counsel for the appellant argued that the evidence of prosecution witnesses are contradictory to each other and they have improved their version in the Court made earlier. This argument is not acceptable. [15] In A. Shankar v. State of Karnataka, 2011 AIR(SC) 2302, the Hon'ble Supreme Court observed as follows : "17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle.
The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible or being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e. materially affect the trial or core of the prosecution' s case, render the testimony of the witness liable to be discredited.................." [16] Saraswati Bai (PW-J) deposed that she lodged the FIR (Ex.P-17). Sub-Inspector S.C. Mishra (PW-11) deposed that on 1-10-1994. at about 12 noon, when Saraswati Bai (PW-1) had taken deceased Sitaram to the police station, the deceased was in unconscious state. The deceased had sustained head injuries. She lodged the FIR (Ex.P-17). [17] The incident occurred at 9 a.m. on 1-10-1994. The FIR (Ex.P-17) was lodged on the same day at about 12 noon. The police station is not a distance of 15 kilometres from the place of incident. Therefore, the FIR (Ex.P-17) was lodged without delay. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In the FIR (Ex.P-17), it is reported by Saraswati Bai (PW-1) that on the date of incident, at about 9 a.m., the appellant met her husband Sitaram (the deceased) going towards Gadhiyakhar. He was armed with Chatwar. She was going there to attend the call of nature. As soon as her husband reached near Mahuakhet, the appellant gave two blows with the Chatwar on the head of her husband, on account of which, her husband fell down and blood started to ooze out of the head of her husband. Running, when she went there, the appellant assaulted her also with the Chatwar on her right hand.
As soon as her husband reached near Mahuakhet, the appellant gave two blows with the Chatwar on the head of her husband, on account of which, her husband fell down and blood started to ooze out of the head of her husband. Running, when she went there, the appellant assaulted her also with the Chatwar on her right hand. [18] Narbada Prasad alias Lallu (PW-2) deposed in cross-examination that it is true that when the appellant assaulted the deceased with the Chatwar, the deceased had held up the Chatwar with his Lathi. He further deposed that the appellant had given two blows on the head of the deceased with the Chatwar. This statement was made by the witness on being asked suggestive question by the defence. On being put a question by the accused, Ghurau Ram (PW-3) deposed in his answer that the appellant assaulted the deceased with sharp edge of the Chatwar. He further deposed that the appellant had given two blows on the head of the deceased with the Chatwar. When Saraswati Bai (PW-1) tried to save the deceased, the appellant assaulted her also. [19] The FIR (Ex.P-17) was lodged promptly and it contains name of the appellant as assailant as also description of the incident. Saraswati Bai (PW-1) is an injured witness and her presence at the place of occurrence is not doubtful. Her evidence is corrborared by Narbada Prasad alias Lallu (PW-2) and Ghurau Ram (PW-3). [20] Dr. R.J.P. Verma (PW-10) deposed that he conducted post-mortem examination on the body of the deceased and found above injuries. He opined that the cause of death was head injury producing fracture of skull and mode of death was coma. [21] Dr. V. Venktesh (PW-5) deposed that he had examined deceased Sitaram and found (i) incised wound with blood clot and fracture transversely placed in the middle head, (ii) incised wound with blood clot vertically placed just side of injury No. (i), fracture present. He further deposed that he had examined Saraswati Bai (PW-1) and found (i) lacerated wound, 1/2 x 1/4", swelling and tenderness on the dorsal side of right wrist joint, 2" above, (ii) abrasion, 2" x 1/2 on right wrist. Dr. S. Chatterjee (PW-12) deposed that he had taken out X-ray of right wrist and right fore-arm of Saraswati Bai (PW-1) and found that radius bone of wrist of right hand was fractured.
Dr. S. Chatterjee (PW-12) deposed that he had taken out X-ray of right wrist and right fore-arm of Saraswati Bai (PW-1) and found that radius bone of wrist of right hand was fractured. [22] In the instant case, some contradictions have occurred in the evidence of the prosecution witnesses due to normal errors and observation. The witnesses are villagers. The incident took place on 1-10-1994 and Saraswati Bai (PW-1), Narbada Prasad alias Lallu (PW-2) and Ghurau Ram (PW-3) were examined in the Court on 27-7-1995. i.e., after about 9 months of the incident. Keeping in view the educational and other backgrounds of the witnesses, it cannot be treated as fatal to the case of prosecution. Therefore, occurring of some contradictions and variations in the evidence of the prosecution witnesses is natural. We are of the view that the contradictions, inconsistencies or improvements occurred do not affect the core of prosecution case. [23] The evidence of Saraswati Bai (PW-1) is duly corroborated by Narbada Prasad alias Lallu (PW-2), Ghurau Ram (PW-3) and the FIR. Her evidence is also supported by the medical evidence. [24] For the foregoing reasons, we do not find any infirmity in the finding recorded by the learned Additional Session Judge that it was none else but the appellant who inflicted injuries on the skulll of the deceased with the Chatwar and the deceased succumbed to the injuries caused by him with the Chatwar. [25] In the above circumstances, we see no reason to interfere with the view taken by the Additional Session Judge. The appeal, accordingly, fails and is hereby dismissed. Appeal dismissed.