IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
CRA No 1154 of 2002
1 Sonraj Jangade
2 Daneshwar (Daaneshwar) Jangde
...Petitioners
VERSUS
State of Chhattisgarh
...Respondent
! Mr S L Bajaj counsel for the appellants
^ Mr Ashish Shukla Additional Public Prosecutor
for the State respondent
Honble Mr L C Bhadoo J and
Honble Mr Sunil Kumar Sinha J
Dated: 01/08/2007
: Judgment
{Criminal appeal under Section 374 (2) of
the Code of Criminal Procedure}
JUDGMENT
(Delivered on 01-08-2007)
The following judgment of the Court was delivered by L.C.
Bhadoo, J.: –
1. By this appeal under Section 374 (2) of the Cr.P.C. the
appellants have questioned legality and correctness of the
judgment of conviction and order of sentence dated 18-10-2002
passed by the 2nd Additional Sessions Judge (F.T.C.), Mungeli
in Sessions Trial No.402/2000, whereby learned Additional
Sessions Judge after holding the accused/appellants guilty
for commission of offence under Sections 302, 302 in the
alternative 302 read with Section 34 and 302 read with
Section 34 of the I.P.C. for committing the murders of
Sidhram & Yashwant, sentenced each of them to undergo
imprisonment for life and to pay a fine of Rs.5,000/-, in
default of payment of fine to further undergo R.I. for six
months, on each count. It was further directed that the
substantive sentences shall run concurrently.
2. Case of the prosecution, in brief, is that Deepa Kumari
(PW-4) is sister of deceased Yashwant, she was residing along
with her brother in Old Basti of Village: Lachanpur, whereas,
Kirti Kumari (PW-8) is daughter of deceased Sidhram, she was
residing along with her father in New Basti of Village:
Lachanpur. Accused Sonraj is also resident of the same
village and he is father of accused/appellant Daneshwar.
3. On the occasion of the festival of Lord Ganesh, deity of
Lord Ganesh was installed publicly in the public street in
front of the house of Gokul Pusad. In the morning of 3-9-
2000, Kirti Kumari (PW-8) was cooking meal in her house,
whereas her father Sidhram was sitting near the corridor of
his house, at that time, Yashwant, nephew of Kirti Kumari,
came running from the place of Lord Ganesh festival and
entered the house of Kirti Kumari. After picking up Lathi,
Yashwant went outside the house saying that a quarrel has
taken place with the accused persons. In the mean time, the
accused persons also came running towards the house of Kirti
Kumari. Accused Sonraj was carrying Tabbal, whereas accused
Daneshwar was carrying Lathi, they started abusing in filthy
language on which Sidhram enquired as to what has happened.
On that, Sonraj attacked Sidhram with Tabbal on his head and
accused Daneshwar attacked Sidhram with Lathi on his head as
a result of which Sidhram fell down on the ground.
Thereafter, Sonraj attacked Yashwant on his head with Tabbal
3-4 times and accused Daneshwar also attacked him with Lathi.
The accused persons ran away from the scene of occurrence.
Bodies and clothes of both the injured persons namely,
Sidhram & Yashwant were drenched with blood. When Sidhram &
Yashwant were being taken to Mungeli hospital in a bullock
cart, by the time the bullock cart reached Fasterpur, both
the injured succumbed to the injuries sustained by them.
Kirti Kumari (PW-8) gave Dehati Merg intimation Ex. P-10 at
Fasterpur in connection with the death of Sidhram and based
on that, merg intimation Ex.P-10A was registered at Police
Station: Kunda. Based on the information of Kirti Kumari (PW-
8), Dehati Nalishi Ex.P-9 was given to Virendra Kumar Singh
(PW-11) in Village: Fasterpur and first information report
Ex.P-9A was registered at Police Station: Kunda. In respect
of the death of Yashwant, Dehati merg intimation Ex.P-11 was
given and based on that, merg intimation Ex.P-11A was
registered in Police Station: Kunda. Investigation was
conducted by A.R. Sahu (PW-10), Assistant Sub Inspector and
Virendra Kumar Singh (PW-11), Sub Inspector.
4. The investigating officer after giving notice Ex.P-21 to
the Panchas, prepared inquest Ex.P-22 on the body of deceased
Sidhram and after giving notice Ex.P-23 prepared inquest Ex.P-
24 on the body of Yashwant. Bodies of Sidhram & Yashwant
were sent for post-mortem examination to Primary Health
Centre, Mungeli where Dr. Vibha Sindur (PW-6) conducted post-
mortem on the body of Sidhram. She prepared post-mortem
report Ex.P-15. She opined that cause of death was head
injury, the death was homicidal in nature. She also
conducted post-mortem on the body of Yashwant, prepared post-
mortem report Ex.P-17. She opined that the cause of death
was head injury leading to coma and death, the nature of
death was homicidal. Blood stained soil and plain soil were
seized under Ex.P-2 from the place of occurrence where dead
body of Yashwant was lying. Accused Sonraj while in police
custody gave memorandum Ex.P-3 regarding the place where he
kept Tabbal & Lathi, weapons of offences, in pursuance of
that, Tabbal (Article `A’) and Lathi (Article `B’) were
seized under Ex.P-14. Clothes of accused Daneshwar were
seized under Ex.P-5. Tabbal & Lathi were sent to the
Assistant Surgeon, Primary Health Centre, Mungeli under Ex.P-
29 for her opinion as to whether the injuries found on the
bodies of Sidhram & Yashwant could be caused by the weapons.
The doctor opined that the injuries found on the bodies of
Sidhram & Yashwant could be caused by the weapons in
question. Seized articles were sent for chemical examination
to Forensic Science Laboratory, Raipur, from where report
Ex.P-31 was received.
5. After due completion of investigation, charge sheet was
filed against the accused/appellants in the Court of Judicial
Magistrate, First Class, Mungeli, who in turn committed the
case to the Sessions Judge, Bilaspur, from where learned 2nd
Additional Sessions Judge (F.T.C.), Mungeli, received the
case on transfer for trial.
6. The prosecution in order to establish charges against
the accused/ appellants examined 12 witnesses. Statements of
the accused persons were recorded under Section 313 of the
Cr.P.C. in which they denied the material appearing against
them in the prosecution evidence and stated that they are
innocent, they have been falsely implicated in the crime in
question.
7. Learned Additional Sessions Judge after hearing the
arguments of counsel for respective parties, convicted and
sentenced the accused/appellants in the aforesaid manner.
8. We have heard Mr. S.L. Bajaj, learned counsel for the
accused/appellants and Mr. Ashish Shukla, learned Additional
Public Prosecutor on behalf of the State/respondent.
9. At the outset, Mr. Bajaj has not disputed the homicidal
death of Sidhram & Yashwant. Moreover, Deepa Kumari (PW-4) &
Kirti Kumari (PW-8) have categorically stated in their
evidence that accused Sonraj & Daneshwar attacked Sidhram
with Tabbal & Lathi, thereafter, they attacked Yashwant with
the same weapons as a result of which both of them sustained
injuries on head, became unconscious and died on the way when
they were being taken to Mungeli hospital in a bullock cart.
Above ocular evidence is corroborated by the medical evidence
of Dr. Vibha Sindur (PW-6) who has stated in her evidence
that she was working as Assistant Surgeon in Primary Health
Centre, Mungeli, on 4-9-2000, she conducted post-mortem on
the body of Sidhram, blood was oozing out of the left ear,
there was big haemotoma on the left parito temporal region,
there was incised pierced perforated wound above left ear in
the temporal area which was deep up to bone, skull bone was
also fractured from that place, temporal bone was found
fractured, there was intracranial haemotoma also, brain was
lacerated and the death was homicidal in nature on account of
head injury. She has further stated that on the same day she
conducted post-mortem on the body of Yashwant. She found
that there was bleeding from right ear, blood was coming out
from nostril & mouth, there was incised pierced perforated
wound on left side of occipital temporal area, the bone was
found fractured in that area, brain material was lacerated,
haemotoma was also found, cause of death was head injury and
the death was homicidal in nature. In view of the above
ocular and medical evidence, it is established that the death
of Sidhram & Yashwant was homicidal in nature.
10. As far as involvement of the accused/appellants in the
crime in question is concerned, Mr. S.L. Bajaj, learned
counsel for the appellants, argued that in this case, time of
occurrence is said to have been the day time, at the
place of occurrence number of persons were residing, but none
of the independent witnesses has been examined in this case
except Deepa Kumari (PW-4), sister of Yashwant & Kirti Kumari
(PW-8), daughter of Sidhram. In the circumstances, they
being closely related to the deceased persons, their evidence
cannot be relied upon. He also argued that both these
witnesses have stated that accused Sonraj attacked the
deceased persons with Tabbal (iron pointed weapon), whereas
accused Dhaneshwar is alleged to have attacked with Lathi,
only one injury has been found on the heads of each of the
deceased, there is no Lathi injury, therefore, there is
variance between ocular and medical evidence, as such, the
evidence of these two so called eye witnesses cannot be
believed. Learned counsel further submitted that as far as
the evidence of Deepa Kumari (PW-4) is concerned, as per the
prosecution case, Deepa Kumari was residing in the vicinity
of old Basti along with her brother Yashwant (since
deceased), whereas, Kirti Kumari was residing in new Basti
along with her father Sidhram (since deceased), there is
distance between the two Bastis, therefore, it was not
possible for Deepa Kumari to have come on the spot to witness
the incident, as such, her evidence cannot be believed.
While inviting attention of the Court towards Court evidence
and police case diary statement under Section 161 of the
Cr.P.C., Mr. Bajaj argued that there is variance between
Court evidence and police case diary statement. This fact
also further supports his argument that Deepa Kumari was not
a witness to the incident. He further submitted that no
blood has been found on the weapons of offence alleged to
have been used in committing the crime. In the
circumstances, the accused persons have been falsely
implicated in the crime. Learned counsel placed reliance on
the judgments of the Apex Court in the matters of Hem Raj and
others v. State of Haryana (2005 Cri.L.J. 2152) & Pohlu v.
State of Haryana (2006 Cri.L.J. 532). Regarding
contradiction between medical and ocular evidence, he relied
upon the judgment of the Apex Court in the matter of Ram
Swaroop and others v. State of Rajasthan (2004 Cri.L.J.
5043).
11. On the other hand, Mr. Ashish Shukla, learned Additional
Public Prosecutor supported the judgment of the trial Court.
12. In order to appreciate the arguments advanced by
respective counsel, we have examined the record. It is true
that Deepa Kumari (PW-4) is sister of deceased Yashwant and
Kirti Kumari (PW-8) is daughter of deceased Sidhram.
Yashwant was nephew of Kirti Kumari. Therefore, these two
eyewitnesses are closely related to the deceased persons. It
is also admitted position that the time of incident was
during the festival of Lord Ganesh and the deity of Lord
Ganesh was installed in public street in front of the house
of one Gokul Pusad. On the occasion of the festival of Lord
Ganesh, people of Village: Lachanpur were offering their
prayers and attending various functions during these days at
the place where the deity of Lord Ganesh was installed. Case
of the prosecution is that on the fateful day i.e. 3-9-2000
in the morning some altercation took place between the
accused persons and deceased Yashwant, therefore, Yashwant
rushed towards the house of deceased Sidhram & Kirti Kumari
(PW-8). Hearing the commotion, Deepa Kumari (PW-4) also
rushed towards the house of Sidhram, there in the first
instance, she witnessed the accused persons attacking Sidhram
and thereafter, Yashwant. At that time, Kirti Kumari was
cooking meal, Yashwant came running to their house, picked up
Lathi and went outside the house saying that some quarrel has
taken place. In the mean time, accused Sonraj came carrying
Tabbal in his hand and accused Daneshwar came carrying Lathi
in his hand, as both are son & father respectively, they
first attacked Sidhram, when he enquired from them as to what
has happened, they also attacked Yashwant.
13. It is settled law that the evidence of eyewitness cannot
be rejected merely on the ground that they are relative
witnesses, therefore, they are interested witnesses. On the
contrary, in order to ascertain veracity of the evidence of
such witness the Court has to scrutinize the evidence of such
witness with care and circumspection.
14. In the matter of Namdeo v. State of Maharashtra reported
in 2007 AIR SCW 1835, the Apex Court has held that a close
relative cannot be characterized as an `interested’ witness,
he is a `natural’ witness, his evidence however, must be
scrutinized carefully. If on such scrutiny, his evidence is
found to be intrinsically reliable, inherently probable and
wholly trustworthy, conviction can be based on the `sole’
testimony of such witness. Close relationship of witness
with the deceased or victim is no ground to reject his
evidence. On the contrary, close relative of the deceased
would normally be most reluctant to spare the real culprit
and falsely implicate an innocent person.
15. In the matter of Dalbir Kaur (Mst.) v. State of Punjab
reported in (1976) 4 SCC 158, the Apex Court held that the
accused killed his own father and real brother over a
property dispute. Eyewitnesses to the `gruesome, brutal and
unprovoked’ double-murder were near relatives of the
deceased. It was, therefore, contended that they were
`interested’ witnesses and their evidence should not be
accepted for holding the appellants guilty. Negativing the
contention and upholding the order of conviction, the Court
stated that
“There can be no doubt that having regard to
the fact that the incident took place at mid
night inside the house of Ajaib Singh, the
only natural witnesses who could be present
to see that assault would be Jaswant Kaur and
her mother Shiv Kaur. No outsider can be
expected to have come at that time because
the attack by the appellants was sudden.
Moreover, a close relative who is a very
natural witness cannot be regarded as an
interested witness. The term “interested”
postulates that the person concerned must
have some direct interest in seeing that the
accused person is some how or the other
convicted either because he had some animus
with the accused or for some other reason.
Such is not the case here.”
16. In the matter of Harbans Kaur v. State of Haryana
reported in (2005) 9 SCC 195, the conviction of the accused
was challenged before the Apex Court, inter alia on the
ground that the prosecution version was based on testimony of
relatives and hence it did not inspire confidence.
Negativing the contention, the Apex Court said:
“There is no proposition in law that
relatives are to be treated as untruthful
witnesses. On the contrary, reason has to be
shown when a plea of partiality is raised to
show that the witnesses had reason to shield
actual culprit and falsely implicate the
accused.”
17. Further, the Apex Court in the matter of Harbans Kaur
(supra) ruled that the testimony of the solitary witness can
be basis for conviction. Neither the legislature nor the
judiciary mandates that there must be particular number of
witnesses to record an order of conviction against the
accused. Criminal Justice system has always laid emphasis on
value, veracity and quality of evidence rather that on
quantity, multiplicity or plurality of witnesses. It is,
therefore, open to a competent Court to fully and completely
rely on a solitary witness and record conviction.
Conversely, it may acquit the accused in spite of testimony
of several witnesses if it is not satisfied about the quality
of evidence. The bald contention that no conviction can be
recorded in case of a solitary eye-witness, therefore, has no
force and must be negatived.
18. The Apex Court in the matter of Rizan and another vs.
State of Chhattisgarh, through the Chief Secretary, Govt. of
Chhattisgarh, Raipur, reported in AIR 2003 SC 976, in para 6,
held that “the relationship is not a factor to affect
credibility of a witness. It is more often than not a
relation would not conceal actual culprit and make
allegations against an innocent person. Foundation has to be
laid if plea of false implication is made. In such a case,
the Court has to adopt a careful approach and analyze
evidence to find out whether it is cogent and credible.”
19. Relying upon the decision of the Apex Court in State of
U.P. vs. Paras Nath Singh and others AIR 1973 SC pg. 1073,
the Division Bench of the Kerala High Court also held in the
matter of Sahadevan Rajan and others vs. State of Kerala 1992
Cri.L.J. 2049 that “the straightforward and trustworthy
evidence of relations of the deceased need no corroboration
for sustaining the conviction. Such evidence cannot be
discarded on the sole ground of interestedness in the
prosecution case.”
20. In the light of the above principle, if we scrutinize
the evidence of Deepa Kumari (PW-4) & Kirti Kumari (PW-8),
Kirti Kumari (PW-8), near whose house the incident took
place, has stated in her evidence that at about 7 a.m. on the
fateful day she inflamed the hearth in order to cook meal,
her father was sitting in the house, her nephew Yashwant came
from the street, accused Sonraj carrying Tabbal & accused
Daneshwar carrying Lathi came to their house, they started
abusing on which her father Sidhram asked them not to abuse
and why they are abusing, on that Sonraj attacked her father
with Tabbal on his head as a result of which he fell down,
thereafter, Daneshwar attacked his father with Lathi.
Thereafter, they attacked Yashwant, her nephew, Sonraj chased
him and attacked with Tabbal. Daneshwar attacked with Lathi
as a result of which Yashwant also fell down. Sonraj
attacked Yashwant with Tabbal 3-4 times. When she came out,
Sonraj threatened her that they will beat her also,
therefore, she closed the door and after attacking her father
and nephew they ran away. Her father sustained injuries on
head and her nephew also sustained injuries on head. She
brought her father & nephew in the house by dragging them one
by one. Looking to place of occurrence and time of
occurrence, presence of this witness at the scene of
occurrence cannot be doubted. It was morning time,
therefore, as a natural course, one has to remain in the
house. In cross-examination of this witness defence has not
been able to elicit anything which discredits the evidence of
this witness.
21. Mr. Bajaj argued that Kirti Kumari (PW-8) has stated in
her evidence that she took her father & nephew inside the
house from the place of occurrence and as per the prosecution
case, both of them had sustained injuries on head and blood
was oozing out of the injuries, whereas, no material has been
produced by the prosecution in order to establish that blood
of Sidhram & Yashwant fell on the clothes of Kirti Kumari or
on any article, therefore, her evidence cannot be believed.
22. In the light of the argument advanced by Mr. Bajaj, we
have perused the evidence of Kirti Kumari (PW-8). In para 3
of her evidence, she has stated that when the accused persons
ran away she dragged her father into the house and
thereafter, Yashwant into the house. Nothing has come in
cross-examination of this witness that she in any way lifted
Sidhram or Yashwant and their bodies touched to her clothes
so that some blood fell on her clothes. If any one drags an
injured person, who is bleeding, by holding his hands or
legs, the injuries were on head, there was no injury on other
parts of the body, then it was not possible that the person
who has dragged the injured will have any blood spots on
his/her cloths.
23. Moreover, Kirti Kumari has stated that her father
Sidhram & nephew Yashwant were placed in bullock cart and
were being taken to Mungeli hospital in order to provide
treatment, but both of them succumbed to the injuries on the
way at Fasterpur, there the Police Officer met her. She gave
Dehati Nalishi Ex.P-9 in respect of the incident to Virendra
Kumar Singh (PW-11), Sub Inspector, Dehati merg intimation
Ex.P-10 in respect of Sidhram and Dehati merg intimation Ex.P-
11 in respect of Yashwant. Perusal of Dehati Nalishi Ex.P-9,
reveals that the manner in which the offence took place has
been categorically mentioned, it was given at 3.10 p.m. and
distance between the place of occurrence & Fasterpur was 20
kms. Within a reasonable time, this Dehati Nalishi was given
by this witness (Kirti Kumari). What she has stated in her
Court evidence has been categorically mentioned in the Dehati
Nalishi. There is no variance between Court evidence and
Dehati Nalishi. Therefore, this further establishes the fact
that she had witnessed the offence.
24. The case of Hem Raj (supra) cited by learned counsel for
the appellants is distinguishable on facts and the
observation of the Apex Court in that case that there were no
blood stains on their clothes is of no help in the present
case. In that case, since those witnesses claimed that they
picked up the deceased injured person, placed him on the cot
and carried him to the hospital, the Court observed that no
blood was found on their clothes, therefore, the evidence of
this witness cannot be believed. Whereas, in the present
case, Kirti Kumari (PW-8) has simply stated that she dragged
her father & nephew Sidhram & Yashwant, respectively, in the
house. Therefore, there was no occasion that blood must have
been found on her clothes.
25. Mr. Bajaj further argued that Deepa Kumari (PW-4) &
Yashwant were residing in old vicinity of Lachanpur whereas,
Kirti Kumari (PW-8) & Sidhram were residing in new vicinity.
The statement made by Deepa Kumari that her house was at a
distance of 3-4 houses from the place of occurrence cannot be
believed, because one of the witnesses has stated that
distance between old and new vicinity is about one furlong.
Perusal of the evidence of Radhey Prasad (PW-5) reveals that
distance between the two houses is about 100-150 meters.
Latel Ram (PW-9) who is a Patwari, a Government servant and
an independent witness, in his cross-examination stated that
old vicinity and new vicinity are adjacent. Therefore, in
view of the above evidence of these two witnesses (PW-5 & PW-
9), it cannot be said that the evidence of Deepa Kumari (PW-
4) is not correct that her house is at a distance of 3-4
houses from the place of occurrence.
26. As far as the argument about variance between police
case diary statement and Court evidence is concerned, Mr.
Bajaj invited attention of the Court towards paras 4, 5, 6 &
7 of the evidence of Deepa Kumari (PW-4) wherein it has
been stated by her that she disclosed to Police that after
hearing the commotion when she came out of the house, she saw
accused Sonraj carrying Tabbal and Dineshwar carrying Lathi
in their hands, going towards the house of Kirti
Kumari, if the same is not written in Ex.D-1
she does not know why it has not been
written. She also disclosed to the Police that she went
towards the house of Kirti Kumari, if the same is not written
in her police case diary statement Ex.D-1, then she cannot
explain. She also disclosed to the Police that Kirti Kumari
also witnessed the incident from the door of her house, if
the same is not written in Ex.D-1, then she cannot assign any
reason. She further disclosed to the Police that Daneshwar
attacked her brother with Lathi, he also attacked Sidhram
with Lathi, if the same is not written in Ex.D-1, then she
cannot assign any reason. Mr. Bajaj argued that on account
of these discrepancies between Court evidence and police case
diary statement, the evidence of this witness cannot be
believed.
27. Deepa Kumari (PW-4) has stated in her evidence that on
the fateful day at about 7 a.m. she was at her residence, she
heard commotion from the side of the street, she came out of
her house and saw that Sonraj carrying Tabbal & Daneshwar
carrying Lathi were going towards the house of her paternal
aunt (Kirti Kumari), therefore, she also went towards that
side. Her house is at a distance of 3-4 houses from the
house of her paternal aunt. She saw that Sonraj attacked her
grand-father Sidhram, Sidhram fell down, thereafter,
Daneshwar attacked him with Lathi on his head. At that time,
her brother Yashwant was standing at certain distance from
Sidhram, accused Sonraj attacked him with Tabal as a result
of which he fell down, thereafter, Daneshwar also attacked
him with Lathi. The incident was also witnessed by Kirti
Kumari, she witnessed the crime from the door of her house.
Deepa Kumari was frightened after seeing the incident,
therefore, she had not gone near the incident.
28. Law laid down by the Apex Court on the point is that
discrepancies found in ocular account of the witnesses unless
they are so vital, cannot affect the credibility of the
evidence of the witnesses. There are bound to be some
discrepancies between the narrations of different witnesses
when they speak on details, and unless the contradictions are
of a material dimension, the same should not be used to
jettison the evidence in its entirety.
29. The Apex Court in the matter of Leela Ram (Dead) through
Duli Chand V. State of Haryana and another reported in (1999)
9 SCC 525 held that:-
“…..the discrepancies found in the ocular
account of the witnesses unless they are so
vital, cannot affect the credibility of the
evidence of the witnesses. There are bound
to be some discrepancies between the
narrations of different witnesses when they
speak on details, and unless the
contradictions are of a material dimension,
the same should not be used to jettison the
evidence in its entirety. Incidentally,
corroboration of evidence with mathematical
niceties cannot be expected in criminal
cases. Minor embellishment, there may be,
but variations by reason therefor should not
render the evidence of eyewitnesses
unbelievable. Trivial discrepancies ought
not to obliterate an otherwise acceptable
evidence.”
30. In the matter of State of U.P. V. M.K. Anthony reported
in (1985) 1 SCC 505, in para-10, the Apex Court observed
that:-
“While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read as a whole
appears to have a ring of truth. Once that
impression is formed, it is undoubtedly
necessary for the court to scrutinize the
evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is
against the general tenor of the evidence
given by the witness and whether the earlier
evaluation of the evidence is shaken as to
render it unworthy of belief. Minor
discrepancies on trivial matters not touching
the core of the case, hypertechnical approach
by taking sentences torn out of context here
or there from the evidence, attaching
importance to some technical error committed
by the investigating officer not going to the
root of the matter would not ordinarily
permit rejection of the evidence as a whole.
Even honest and truthful witnesses may differ
in some details unrelated to the main
incident because power of observation,
retention and reproduction differ with
individuals.”
31. In the matter of Rammi V. State of M.P. reported in
(1999) 8 SCC 649, in para-24, the Apex Court observed that:-
“When an eyewitness is examined at length it
is quite possible for him to make some
discrepancies. No true witness can possibly
escape from making some discrepant details.
Perhaps an untrue witness who is well tutored
can successfully make his testimony totally
non-discrepant. But courts should bear in
mind that it is only when discrepancies in
the evidence of a witness are so incompatible
with the credibility of his version that the
court is justified in jettisoning his
evidence. But too serious a view to be
adopted on mere variations falling in the
narration of an incident (either as between
the evidence of two witnesses or as between
two statements of the same witness) is an
unrealistic approach for judicial scrutiny.”
In paras-25 to 27 it was observed that:-
“25. It is a common practice in trial
courts to make out contradictions from the
previous statement of a witness for
confronting him during cross-examination.
Merely because there is inconsistency in
evidence it is not sufficient to impair the
credit of the witness.
26. A former statement though seemingly
inconsistent with the evidence need not
necessarily be sufficient to amount to
contradiction. Only such of the inconsistent
statement which is liable to be
`contradicted’ would affect the credit of the
witness. Section 145 of the Evidence Act
also enables the cross-examiner to use any
former statement of the witness, but it
cautions that if it is intended to
`contradict’ the witness the cross-examiner
is enjoined to comply with the formality
prescribed therein. Section 162 of Code also
permits the cross-examiner to use the
previous statement of the witness (recorded
under Section 161 of the Code) for the only
limited purpose i.e. to `contradict’ the
witness.
27. To contradict a witness, therefore, must
be to discredit the particular version of the
witness. Unless the former statement has the
potency to discredit the present statement,
even if the latter is at variance with the
former to some extent it would not be helpful
to contradict that witness (vide Tahsildar
Singh vs. State of U.P. reported in AIR 1959
SC 1012).”
32. In the light of the above law laid down by the Apex
Court, we have perused the evidence of Deepa Kumari (PW-4)
and her police case diary statement Ex.D-1. Perusal of the
statement Ex.D-1 reveals that she has stated that on the
fateful day i.e. 3-9-2000 at about 6.30 a.m. to 7 a.m. she
was at her residence, her brother went towards the vicinity,
she heard commotion and saw that the accused persons were
going towards the house of her grand-father Sidhram,
therefore, she also went towards that side following those
persons and saw that Sonraj & his son Daneshwar carrying
Tabbal & Lathi were attacking her grand-father & brother.
Blood was oozing out from their heads, they were lying on the
ground and her aunt Kirti Kumari dragged them inside the
house. Perusal of the above statement shows that there is no
variance between police case diary statement and Court
evidence of this witness, what to talk of vital or material
contradiction. It is true that the version given by Deepa
Kumari before the Court is in detail, whereas, in police case
diary statement Ex.D-1 which is written by the Investigating
Officer in his own manner, all the material points viz.,
hearing commotion, coming out from the house, seeing the
accused persons going towards the house of Sidhram following
them, accused Sonraj carrying Tabbal & Daneshwar carrying
Lathi attacked her grand-father Sidhram & brother Yashwant,
both sustaining injuries on head thereafter, dragging Sidhram
& Yashwant by Kirti Kumari inside the house, have also been
mentioned. Deepa Kumari has also stated in her police case
diary statement that Kirti Kumari dragged the deceased
persons inside the house. Therefore, there is no question
that Deepa Kumari has not stated that Kirti Kumari has not
witnessed the incident. In the light of the above judgments
of the Apex Court, we are of the considered opinion that
there is no material contradiction or variance between Court
evidence or police case diary statement of this witness.
33. In the circumstances, evidence of Deepa Kumari (PW-4) &
Kirti Kumari (PW-8) establish their presence at the time of
occurrence. Their evidence supports the prosecution version
in material particulars and they cannot be held to be created
witnesses.
34. Now, coming to the point of non-examination of
independent witness, in the first instance, one witness
namely, Vishnu Prasad (PW-1) has been examined, but he has
been declared hostile. Sukhdev Das (PW-2) has also been
examined who has stated in his evidence that he reached on
the spot and saw Sidhram & Yashwant in injured condition,
there were injuries on their heads, but at that time the
accused persons were not there. In the first instance, it is
common knowledge that in criminal activities normally
independent witnesses do not come forward to speak against
criminals, as they do not want to antagonize the accused
persons. Therefore, non-examination of independent witness
cannot be said to be fatal in every case. Only in cases
where the evidence of relative witness is not sterling worth,
is shaky in nature, does not inspire full confidence of the
Court, suffer from inherent weakness, then such evidence
requires corroboration from independent witness, in order to
convict the accused, in case implicit reliance cannot be
placed on relative evidence. In other cases conviction can
be rest on the evidence of relative witness.
35. In the present case, evidence of Deepa Kumari (PW-4) &
Kirti Kumari (PW-8) have been scrutinized and evaluated in
the light of the arguments advanced by Mr. S.L. Bajaj. Their
evidence inspire confidence and their evidence stood up to
the scrutiny in order to ascertain the veracity of their
evidence. Therefore, if no other independent witness has
been examined by the prosecution, that does not affect the
prosecution case.
36. Now, coming to variance between medical and ocular
evidence, in the matter of Thaman Kumar v. State of U.T. of
Chandigarh reported in (2003) 6 SCC 380, at page 389 para 16,
the Apex Court held that
“The conflict between oral testimony and
medical evidence can be of varied dimensions
and shapes. There may be a case where there
is total absence of injuries which are
normally caused by a particular weapon.
There is another category where though the
injuries found on the victim or of the type
which are possible by the weapon of assault,
but the size and dimension of the injuries do
not exactly tally with the size and dimension
of the weapon. The third category can be
where the injuries found on the victim are
such which are normally caused by the weapon
of assault but they are not found on that
portion of the body where they are deposed to
have been caused by the accused. The same
kind of inference cannot be drawn in the
three categories of apparent conflict in oral
and medical evidence enumerated above. In
the first category it may legitimately be
inferred that the oral evidence regarding
assault having been made from a particular
weapon is not truthful. However, in the
second and third categories no such inference
can straightaway be drawn. The manner and
method of assault, the position of the
victim, the resistance offered by him, the
opportunity available to the witnesses to see
the occurrence like their distance, presence
of light and many other similar factors will
have to be taken into consideration in
judging the reliability of ocular testimony.”
37. In the matter of Mani Ram v. State of U.P. reported in
1994 Supp (2) SCC 289, the appellant was convicted under
Section 302 IPC. The only eyewitness admitted in his cross-
examination that the deceased was shot on his back while he
was running, whereas the injury as per the medical evidence
was on the right shoulder and front side of the upper arm of
the deceased. Acquitting the appellant, the Apex Court held
in para 9 that
“It is well settled by long series of
decisions of this Court that where the direct
evidence is not supported by the expert
evidence then the evidence is wanting in the
most material part of the prosecution case
and, therefore, it would be difficult to
convict the accused on the basis of such
evidence. If the evidence of the prosecution
witnesses is totally inconsistent with the
medical evidence this is a most fundamental
defect in the prosecution case and unless
this inconsistency is reasonably explained it
is sufficient not only to discredit the
evidence but the entire case.”
38. In the light of the above judgment, if we examine the
present case, Dr. Vibha Sindur (PW-6), who has conducted post-
mortem has stated in her evidence, in respect of deceased
Sidhram, that there was a big haemotoma in left side of
parietal temporal region, incised perforated wound above left
ear in temporal area, the bone was fractured, brain was
lacerated and there was intracranial haemotoma. In respect
of deceased Yashwant, she has stated that there was bleeding
from right ear, nostril & mouth, on examination it was found
that on left parietal region there was incised wound,
perforating pierced wound, bone was fractured and there was
haemotoma near the injury. In para 12 of her evidence, she
has stated that she had examined Lathi & Tabbal and the
injuries which were found on the bodies of Sidhram & Yashwant
could be caused by both the weapons. Tabbal is an iron
weapon with pointed corners. Therefore, if injuries were
inflicted by Tabbal such injuries were possible. Thereafter,
if Lathi blow is also given on the same place, then such
injuries are possible. The doctor has also stated that there
was haemotoma apart from perforated injury.
39. In the circumstances, in all possibilities it cannot be
said that the injuries which were found on the bodies of
Sidhram & Yashwant were not possible to be caused by these
weapons which the accused persons were holding, as such,
there is no variance between medical and ocular evidence.
40. Medical evidence is an expert’s evidence of a doctor and
it is the opinion of an expert form the field of science
which is admissible under Section 45 of the Evidence Act. A
medical witness is an expert to assist the court, he is not a
witness of fact it is advisory in character. As a general
rule, oral evidence is given preference over medical
evidence, in case of minor contradictions between the two.
But where the medical evidence completely rules out the oral
evidence, medical evidence is relied upon by the Courts for
deciding the guilt of the accused. The value of medical
evidence is only corroborative. It proves that the injuries
could have been caused in the manner alleged and nothing
more. Unless, however, the medical evidence in its turn goes
so far that it completely rules out all possibilities
whatsoever of injuries taking place in the manner alleged by
eyewitnesses, the testimony of the eyewitnesses cannot be
thrown out on the ground of alleged inconsistency between it
and the medical evidence.
41. In the present case, injuries found on the heads of
deceased Sidhram & Yashwant could be caused by Tabbal. By
Lathi blow the injury of fracture and haemotoma could be
caused. Therefore, there is no contradiction between medical
and ocular evidence.
42. As far as the argument of learned counsel for the
appellants that no blood stains were found on weapons of
offence is concerned, as per the F.S.L. report Ex.P-31, blood
was found on Tabbal, however, no blood was found on Lathi.
Even at the time of recovery of Lathi, there was no blood on
it. Therefore, it cannot be said that the accused persons
cannot be connected with the crime in question on account of
this discrepancy. In the first instance, the doctor has
stated in her evidence that the injuries found on the bodies
of Sidhram & Yashwant could be caused by these weapons.
Moreover, blood has been found on Tabbal as per the F.S.L.
report. Therefore, on the ground that no blood has been
found on Lathi, it cannot be held that it was not used in
commission of crime.
43. In the matter of State of Rajasthan vs. Teja Ram and
others reported in (1999) 3 SCC 507, in para 27 the Apex
Court held that “it cannot be said that in all cases where
there was failure of detecting the origin of the blood, the
circumstance arising from recovery of the weapon would stand
relegated to disutility”. Similarly, in the matter of Sanjay
alias Kaka vs. State (NCT of Delhi) reported in (2001) 3 SCC
190, the Apex Court held that “prosecution’s failure to prove
origin of blood found on the pant and shirt of the accused
who was alleged to have killed the deceased by inflicting
dagger injuries – Held on facts, not sufficient to hold that
the accused was not guilty of offence of murder”.
44. As far as the judgments cited by learned counsel for the
appellants, in the matter of Pohlu (supra), the Apex Court
held that in the F.I.R. the informant eyewitness named only
three persons, whereas later she added two other accused
persons, the place of occurrence was also shifted and the
other eyewitness, son of the deceased, stated during the
course of investigation that his father had been assaulted
only by main accused, thereafter in the Court evidence he
involved all the accused persons. Therefore, the Court held
that both the eyewitnesses are not reliable, particularly
when one of the injured persons was not examined. In the
circumstances, above case is distinguishable on facts and
does not apply to the facts of the present case.
45. Similarly, the judgment of the Apex in the matter of Ram
Swaroop (supra) is also distinguishable on facts for the
reason that in that case so called eyewitness, wife of the
deceased, stated that one of the accused assaulted the
deceased whereas in F.I.R. lodged by son of the deceased it
was not mentioned that the said accused had caused injuries
to the deceased. The evidence of wife of the deceased was
contrary to the evidence of other witnesses who stated that
it was other accused who assaulted deceased on his head.
Moreover number and nature of injuries caused by accused as
deposed to by her was wholly inconsistent with medical
evidence on record. Even her version regarding the assault
made by remaining accused persons was not believed.
Therefore, the testimony of that witness was not accepted.
Version of a witness was quite different from what has been
mentioned in the F.I.R. and also in his statement recorded in
the course of investigation. Hence, the Court held that the
person was not an eyewitness to the incident. In the
circumstances, this case is also not applicable to the facts
and circumstances of the present case and it is
distinguishable on facts. In the present case, evidence of
Deepa Kumari (PW-4) & Kirti Kumari (PW-8) is consistent in
all respects as has been discussed earlier.
46. No other point was argued by learned counsel for the
accused/appellants.
47. In the result, we do not find any illegality or
infirmity in the judgment of the trial Court, there is no
merit in this appeal, same is liable to be dismissed and it
is hereby dismissed.
J U D G E J U D G E