JUDGMENT
Sunil Kumar Garg, J.
1. This appeal has been preferred by the accused appellant Bhapa Ram from jail against the judgment and order dtd. 27,5.2003 passed by the learned Additional Sessions Judge (Fast Track), Bhinmal by which he convicted the accused appellant for offence under Section 302 I.P.C. and sentenced him to imprisonment for life and a fine of Rs. 1000/- in default of payment of fine to further undergo 6 month’s S.I.
2. It may be stated here that since accused appellant preferred this appeal from jail and nobody was representing the accused appellant, therefore, this Court by order dtd. 5.8.2003 appointed Shri K.L. Joshi as amicus curiae in this case to represent the accused appellant in this appeal.
3. It arises in the following circumstances:
i) That on 2.10.2001 at about 4.30 p.m., P.W.3 Mohan Lal lodged a written report (Ex.P/7) before P.W.9 Rupa Ram (SHO Police Station, Jaswantpura) inter alia stating that on 2.10.2001 at about 2.45 p.m., when he was sitting in the office near Sundha Hill, at that time, one labourer Pota (P.W.4) came there and told P.W.3 Mohan Lal that Smt. Leela Devi (hereinafter referred to as the deceased) had been murdered by the accused appellant near the gate of Parking and she died on the spot and it was further stated in the report (Ex.P/7) that the accused appellant was trying to run away from the place of occurrence having an iron rod in his hand.
ii) It was further stated in the report (Ex.P/7) that this incident was further witnessed by P.W.5 Pura and P.W.6 Rekha and thereafter he tried to contact the police over telephone, but he could not succeed.
iii) It was further stated in the report (Ex.P/7) that on the date of occurrence there was full noon and as a result of that, there was rush and thus, this incident was seen by so many passers by also and it was further stated in the report (Ex.P/7) that the accused appellant was apprehended by the people on the place of occurrence.
iv) On this report (Ex.P/7) of P.W.3 Mohan Lal, a regular FIR Ex.P/12 was chalked out and police started investigation.
v) During investigation site plan (Ex.P/2) was prepared and through Fard Ex.P/4 the police seized simple cement of the floor and the cement which was stained with blood and through Fard Ex.P/5 dtd. 2.10.2001, the accused appellant was got arrested at 7.30 p.m. in the presence of Deepa Ram and Sujan Singh (P.W.2) and at that time he was under the control of P.W.5 Pura Ram and P.W.6 Rekha Ram and . through Fard Ex.P/6 dtd. 2.10.2001 iron rod (article 1) which was stained with blood was recovered from the accused appellant in presence of P.W.2 Sujan Singh and Deepa Ram.
vi) P.W. I2 Dr. Rajesh Kumar conducted post mortem of the body of the deceased and her post mortem report is Ex.P/15 and P.W.12 Dr. Rajesh Kumar opined that cause of death of the deceased was head injury.
vii) The FSL report is Fard Ex.P/16 and through Fard Ex.P/18 the Cloths of the deceased, namely, Feticot, Blouse and Saree were seized by P.W.17 Gyan Chand is presence of Deepa Ram and Durga.
viii) After investigation, the police filed challan against the accused appellant for offence under Section 302 I.P.C. in the court of Additional Chief Judicial Magistrate, Bhinmal on 11.1.2001 and the learned Additional Chief Judicial Magistrate through order dtd. 5.1.2002 committed the case to the court of Additional Sessions Judge, Bhinmal.
ix) The learned Additional Sessions Judge through order dtd. 27.5.2002 framed charge for offence under Section 302 I.P.C. against the accused appellant who denied the same and claimed trial.
x) At the trial 17 witnesses were produced on behalf of the prosecution and thereafter statement of accused appellant under Section 313 Cr.P.C. was recorded in which he had stated that some Gujarati Tourist had murdered the deceased and he had snatched the iron rod (Article 1) from him and therefore, iron rod (Article 1) was seized by the police from him and he did not murder the deceased but the accused appellant did not produce any evidence in defence.
xi) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dtd. 27.5.2003 convicted and sentenced the accused appellant for offence under Section 302 I.P.C. as stated above inter alia holding:-
a) That the accused appellant was arrested at the place of occurrence along with iron rod (Article 1) which was stained with human blood and this fact was confirmed by FSL report Ex.P/16 and therefore, this circumstance was found to be incriminating against the accused appellant.
b) That no doubt there was some discrepancies in the statements of P.W.4 Poti, P.W.5 Pura Ram and P.W.6 Rekha Ram who were eye witnesses, but their statements were found believable.
c) That defence of the accused appellant that some Gujarati tourist had murdered the deceased was rejected.
d) That from the medical evidence the fact that death of the deceased was homicidal was proved and further more, from the medical evidence the fact that head injury which was received by the deceased was sufficient in the ordinary course of nature to cause death.
xii) After being aggrieved by the judgment and order dtd. 27.5.2003 passed by the learned Additional Sessions Judge by which he convicted and sentenced the accused appellant for offence under Section 302 I.P.C, the accused appellant has preferred the present appeal.
4. In this appeal, following submissions have been raised by the learned counsel for the accused appellant:
i) That the learned trial Judge has wrongly treated P.W.4 Pota, P.W.5 Pura Ram and P.W.6 Rekha Ram as eye witnesses as they were not the eye witnesses and the incident took place when they were not present and moreover as per the report (Ex.P/7) which was lodged by P.W.3 Mohan Lai, the whole incident was narrated to him by P.W.4 Pota and in that report (Ex.P/7) there is mention of the fact that P.W.5 Pura Ram was also present, but P.W.5 Pura Ram is about 82 years of age and since he has admitted in the cross- examination that his eye-sight was weak, therefore, there was no occasion for him to see the occurrence and hence the statements of eye witnesses, namely, P.W.4 Pota, P.W.5 Pura Ram and P.W.6 Rekha Ram should not have been believed.
ii) That the defence which had been taken by the accused appellant in his statement under Section 313 Cr. P.C. should have been believed as murder of the deceased was committed by some other person and not the accused appellant and since he was in relation with the deceased, therefore, he snatched the iron rod from Gujarati tourist who had murdered the deceased but he was treated as murderer and therefore, benefit of doubt should have been given to him on this point.
5. On the other hand, the learned P.P. has supported the judgment and order did. 27.5.2003 and submitted that the findings of guilt and conviction recorded by the learned Additional Sessions Judge (Fast Track), Bhinmal are based on proper appreciation of evidence available on record and they do not require any interference by this Court.
6. Heard and perused the record.
7. Before proceeding further, first medical evidence of this case has to be .seen which is found in the statement of P.W.12 Dr. Rajesh Kumar who conducted the post mortem of the dead body of the deceased and has proved her post mortem report (Kx.P/15) and P.W. 12 Dr. Rajesh Kumar found the following injuries on her body:
1) Compound fracture of frontal bone (head).
2) Upper l/3rd part of Rt. Radius bone fractured.
8. From the statement of P.W.12 Dr. Rajesh Kumar the fact that the deceased received the above injuries is well proved and he has further staled that on opening of scalp of the deceased he found compound and depressed fracture of frontal bone and upper l/3rd part of radius bone was also found fractured and he also staled that compound fracture of frontal bone was sufficient in the ordinary course of nature to cause death.
9. Thus, from the statement of P.W.12 Dr. Rajesh Kumar the fact that death of the deceased was homicidal one stands proved and there is no dispute on this point.
10. The next question which arises for consideration is whether the above injuries were caused by the accused appellant or not?
11. In this case P.W.3 Mohan Lal is author of report Ex.P/7 dtd. 2.10.2001 which was lodged at about 4.30 pm., which the incident had taken place on the same day at about 2.30 p.m. The salient features of report Ex.P/7 are as under:
i) That P.W.3 Mohan was informed by P.W.4 Pota about the incident in the manner that the accused appellant had caused injuries to the. deceased with iron rod on her head.
ii) That the accused appellant was trying to run away from the place of occurrence, but he was apprehended by the persons along with iron rod which was stained wilh human blood.
iii) That apart from P.W.4 Pota, this incident was witnessed by P.W.5 Pura Ram and P.W.6 Rekha Ram.
12. P.W.3 Mohan Lal has given statement in the court corroborating the facts mentioned by him in his report (Ex.P/7). Apart from this, from the statement of P.W. 17 Dr. Gyan Chandra Yadav, the fact that the accused appellant was got arrested through Fard Ex.P/5 is also well established and at that time he was having an iron rod (Article 1) which was stained with blood and that rod was seized through Fard Ex.P/6.
13. It may be stated here that the iron rod (Article 1) which was stained with blood was recovered from the accused appellant through Fard Ex.P/6 and there is no dispute on that point and this fact has been admitted by the accused appellant himself in his statement under Section 313 Cr.P.C.
14. There is also no dispute on the point that as per the FSL report (Ex.P/16), the blood which was found on the iron rod (Article 1) and the blood which was found on the cement seized through Fard (Ex/p4) was human blood and further more, Peticot, Blouse and Saree of the deceased seized through Fard Ex/P/18 were also stained with human blood.
15. P.W.I Sohan Giri is another witness of the prosecution who has stated that when the accused appellant was got arrested, he was having an iron rod in his hand and further P.W.2 Sujan Singh has also given the same statement as has been given by P.W.I Sohan Giri.
16. The next question which arises for consideration is whether PAV.4 Pota, P.W.5 Pura Ram and P.W.6 Rekha Ram can be regarded as eye witnesses of the present case or not?
17. Whether a particular witness is an eye witness or not, the Court to adhere to the following two principle, as held by the Hon’ble Supreme Court in the State of U.P. v. Noorie, AIR 1996 SC 3073:-
(i) Whether it was possible for witnesses to be present, and
(ii) Whether there was anything inherently improbable or unreliable.
18. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence.
19. In the present case P.W.4 Pota is an eye witness whose name is found in the report (Ex.P/7) lodged by P.W.3 Mohan Lal and P.W.4 Pota has clearly stated that when the deceased was riding towards Sundha Hill, the accused appellant was following her having an iron rod in his hand and he caused blows with iron rod on the hand and head of the deceased and he has further stated that after injury was caused by the accused appellant on her head, the deceased fell down and her brain as well as blood came out and the deceased died on the spot, P.W.4 Pota has further stated that this incident was further witnessed by P.W.5 Pura Ram and P.W.6 Rekha Ram, P.W.4 Pota was cross-examined, but nothing has come which effects his testimony.
20. So far as the statement of P.W.5 Pura Ram another eye witness is concerned, he has corroborated in material particulars to the statement of P.W.4 Pota. The learned counsel for the accused appellant has raised an argument that since P.W.5 Pura Ram was 82 years of age, therefore, it was not possible for him to see the occurrence as he himself had admitted that his eye- sight was weak. In our considered opinion, no doubt he is an old man, but the fact that he was old man and it is also expected from such a person that he will tell nothing but truth and from this point of view also, his statement cannot be disbelieved merely on the ground that he was an old man and his eye sight was weak. P.W.5 Pura Ram in his statement has clearly slated that he saw the occurrence from a distance of 10 to 12 ft. and this distance cannot be said to be a lengthy distance and thus, it cannot be said that this witness was telling lie. On the other hand statement of P.W.5 gets corroboration from the statement of P.W.4 Pota and thus, it appears that P.W.5 Pura Ram is honest and truthful witness.
21. Similar is the statement of P.W.6 Rekha Ram whose name is also found in the report (Ex.P/7) and thus, the learned Trial Court was right in treating P.W.4 Pota, P.W.5 Pura Ram and P.W.6 Rekha Ram as eye witnesses and in doing so, it cannot be said that the approach of the learned Trial Court was wrong and thus, their evidence appears to be reliable and trustworthy. Further more, statements of P.W.4 Pota, P.W.5 Pura Ram and P.W.6 Rekha Ram further get corroboration from the medical evidence which is found in the statement of P.W.I2 Dr. Rajesh Kumar who conducted the post mortem of the deceased and thus, the learned Trial Court has rightly placed reliance on the statements of P.W.4 Pota, P.W.5 Pura Ram and P.W.6 Rekha Ram as eye witnesses.
ON DISCREPANCIES
22. It may be stated here 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 scrutinise the evidence more particularly keeping in view the deficiencies, 11 raw-backs and infirmities pointed out in the evidence as a whole and evaluate them 10 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 of trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here and 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.
23. In the present case, the discrepancies which have been pointed out in the statement of P.W.4 Pota were minor discrepancies and such discrepancies were bound to come being natural one. In the statement Ex.D/1 recorded by the Police, though P.W.4 Pota has not stated that the accused appellant caused injury on the hand of the deceased, but the fact that he gave blow by iron rod on the head of the deceased is well established and therefore, if that fact was missing, it would not effect the testimony of P.W.4 Pota. Further the discrepancy in the statement (Ex.D/1) that the blood came out was missing is minor discrepancy and it would not effect the testimony of P.W.4 Pota and hence the statement of P.W.4 Pota was rightly believed by the learned Trial Court as eye witness.
24. Since in this case, when there is direct evidence on the point that the accused appellant caused injury with iron rod (Article 1) on the head of the deceased and the accused appellant was arrested through I’ard Ex.P/5 having the iron rod (Article 1) in his hand which was stained with human blood, in these circumstances, if the plea of the defence that some stranger had murdered the deceased was rejected by the learned Trial Court, by doing so, in our considered opinion, the Trial Court has not committed any illegality or irregularity because from the statement of eye witnesses P.W.4 Pota, P.W.5 Pura Ram and P.W.G Rekha Ram, direct involvement of accused appellant with the commission of crime is well established.
25. Not only this s stated above, the fact that the accused appellant was arrested having an iron rod in his hand which was stained with blood, is another circumstance which connects the accused appellant with the commission of crime.
26. Thus, for the reasons mentioned above, we have no reason to dissent with the findings arrived at by the learned Additional Sessions Judge and thus, conviction and sentence as recorded by the learned Additional Sessions Judge are liable to be confirmed one.
FINDINGS BASED ON APPRECIATION OF EVIDENCE
27. The Hon’ble Supreme Court in the case of Sarju Prasad v. Pratap Narain, AIR 1951 SC 1120 , has observed that when the question for consideration is one of the fact, the decision which depends upon the appreciation of oral evidence, the appellate Court has got to bear in mind that it has not the advantage which the Trial Court had of having witnesses before him and of observing the manner in which they deposed in Court. This certain does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the Trial Judge. The rule is when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses then unless there is special feature about the evidence of a particular witness which has escaped trial Judge’s notice and there is sufficient balance of improbability to displace the opinion as to whether the credibility lies, appellate Court should not disturb the findings of fact by the Trial Judge.
28. The Hon’ble Supreme Court in the case of M.S. Jagdomlal v. Southern Indian Education Center, AIR 1988 SC 103, has held that so far as appreciation of oral testimony is concerned by the appellate Court, there are two views. One view is that the Court of appeal has undoubted duty to review the recorded evidence and to drew its own inference itntl conclusion. The other view is that the Court of appeal must attack due weight to the opinion of the Trial Judge who had the advantage of seeing the witnesses and noticing their look and manners. The rule of practice which has almost the force of law is that the appellate Court does not reverse a finding of fact rested on a proper appreciation of oral evidence.
29. Thus, on the basis of above observations just mentioned above, it can be concluded that opinion of the Trial Judge on appreciation of evidence cannot be disturbed except for exceptional reasons.
30. Since in the present case, the learned Trial Judge has given so many cogent reasons alter discussing the evidence of prosecution as well as case of defence, this Court has no reason to disturb the findings of facts arrived at by the learned Trial Court as they do not suffer from basic infirmity or illegality and the exceptional circumstances are missing in this case.
31. Now the next question which arises for consideration is whether the accused appellant has committed the offence of culpable homicide amounting to murder punishable under Section 302 l.P.C?
32. It maybe stated here that the injuries were caused by the accused appeikuil on the head of the deceased and they were so serious in their nature that as a result of which, brain of the deceased came out and compound fracture was also found in the head of the deceased and thus, it can be concluded that the act was done by the accused appellant with an intention of causing murder of the deceased and thus, the findings of the learned court below by which he convicted the accused appellant for offence under Section 302 l.P.C. are liable to be confirmed one.
33. For the reasons mentioned above, the view taken by the learned Trial Court cannot be said to be either unreasonable or erroneous or much less perverse and the appreciation of evidence by the learned Trial Court is proper. We are not persuaded to take a different view and hence all the contentions raised by the learned counsel for the accused appellant stands rejected and no interference is called for with the findings of guilt and conviction recorded by the learned Additional Sessions Judge through judgment and order dtd. 27.5.2003 against the accused appellant for the offence under Section 302 l.P.C. and this appeal deserves to be dismissed.
Accordingly this appeal filed by the accused appellant is dismissed after confirming the judgment and order 27.5.2003 passed by the learned Additional Sessions Judge (Fast Track), Bhinmal.