JUDGMENT
Deepak Verma, J.
1. Both the aforesaid appeals arise out of the judgment and order of conviction recorded on 21-2-97, by 3rd Additional Sessions Judge, Camp Rehli, Sagar in S.T. No. 157/1996. Accordingly, the appellants have been found guilty for commission of offences under Section 302 of the IPC, and.have been awarded rigorous imprisonment for life with fine of Rs. 2,000/-, in default further rigorous imprisonment for 1 year.
2. Thus, both the appeals were heard analogously and are being disposed of by this common judgment.
3. It may be mentioned herein that these appeals were earlier heard and dismissed (vide judgment dated 10-2-2005) by Division Bench, of which none of us was a Member. The matter was carried to the Supreme Court with the grievance that the appellants were un-represented at the time of hearing of their appeals. By judgment dated 20-7-2006 in Criminal Appeal Nos. 1463-1464/2005, the Supreme Court has remitted the matter for a fresh decision in accordance with law with the following directions:
The High Court shall hear the appeals afresh after appointing an Advocate to represent the appellants, in case the appellants do not make any arrangement for their representation before it. It will also be open to the High Court to provide legal aids to the appellants through legal aid committee.
Since the incident is of the year 1996 and several years have passed by, we request the High Court to dispose of the appeals as soon as possible.
4. Prosecution case, in short, is as under:
(A) On 5-3-96, at about 11.30 AM, Killu @ Kailash (since deceased), coming from the direction of Pandalpur, was passing by the house of Rama Tailor in Village Bildaripura, Rehli. The aforesaid day happened to be the day of ‘HolV (the spring festival of colours). At that time Rakesh armed with knife; Rajesh with gupti; and, Dinesh with katarna, with a common intention of killing Killu @ Kailash, appeared on the spot and started assaulting him with respective weapons. He had sustained injuries on his neck, chest and abdomen. Anil, the nephew of Kailash was following him. On shouts being raised Ishwar Nayak, Awadh, Dharmendra and father of Anil reached the spot. They caught hold of the accused. Ramdas Havaldar and Sainik Pannalal also arrived there from Khirka side. Taking advantage of the situation, accused got themselves released and ran away from the place of occurrence. Kailash was taken to the hospital, but was declared dead.
(B) Report of the incident (Exh. P-33) was lodged on the same day at 12.30 PM, i.e., just one hour after the incident at Police Station, Rehli, by Anil Kumar. On the basis of the information, Merg (Exh. P-34) was also registered at 12.35 PM. Investigation commenced. Spot map was prepared. The accused named in the FIR were taken into custody and were interrogated. On the information given by Rajesh a gupti; by Dinesh a katarna; and, by Rakesh a knife, respectively were recovered. Shirts of accused Rajesh, Dinesh and Rakesh which were stained with blood were also seized. Blood stained and controlled earth together with one pair of hawai chappal was seized from the spot. Inquest of the dead body was prepared and the same was immediately sent for post-mortem. Blood stained clothes of the deceased were also seized. All the seized articles were sent to Forensic Science Laboratory, Sagar for chemical examination. After completion of investigation, the charge-sheet was submitted in the Court of JMFC, Rehli. The case was committed to the Sessions Court for trial in accordance with law.
5. Appellants abjured their guilt and pleaded that they had falsely been implicated in the case. They also examined D.W. 1 Halle in their defence. Prosecution examined 21 witnesses, to prove the charges against the appellants.
6. The learned Trial Judge after appreciating the evidence available on record found the appellants guilty for commission of offence under Section 302, IPC. Hence, this appeal.
7. We have accordingly heard learned Counsel for the parties at length and perused the record.
8. Before we proceed to find out whether the judgment of the learned Trial Judge suffers from any infirmity or perversity, we have to find out whether deceased Kailash had met with a homicidal death?
9. P.W. 8, Dr. R.K. Singhai who performed the post-mortem on the body of deceased Kailash found the following injuries:
(i) One incised wound in the right clavicle bone measuring 5 x 2 x 5 cms with regular edges. Facial muscle blood vessels and lungs were cut. Blood had accumulated in the chest.
(ii) One incised wound on the right side of 3rd intercostals sp ace measuring 5 x 11/2 x 5 cms, facial muscles and veins were cut.
(iii) One incised wound on right side of chest below 9th intercostals space measuring 4 x 2 x 4 cms.
In his opinion, the death of Kailash had occurred within 3 to 6 hours prior to the post-mortem and its cause was haemorrhagic shock due to aforesaid ante-mortem injuries, which were caused by sharp edged weapons. The post-mortem report (Exh. P-21) indicates that it was performed at 1.00 PM, i.e., one and half hour of the occurrence. No dispute was raised as to the opinion expressed by the autopsy surgeon. Thus, the learned Judge did not commit any error in holding that Kailash had met with a homicidal death.
10. Now, we shall proceed to examine the other evidence available on record to find out whether conviction of the appellants has rightly been recorded by learned Trial Judge.
11. As recorded in the FIR, complainant P.W. 11, Anil had witnessed the entire incident and his father P.W. 10, Khemchandra and other witnesses including Ishwar Nayak, Awadh Khan, Dharmendra Kori reached the spot only after hearing the alarm. P.W. 6, Ishwar Nayak, P.W. 12, Dharmendra and P.W. 17 Awadh @ Abdu while corroborating the fact that they had seen injured Kailash lying in front of the house of Rama tailor, did not say anything incriminating against the accused. Dharmendra and Awadh were declared hostile by the prosecution and Ishwar Nayak was confronted with his case diary statement by the defence. P.W. 14, Kanhaiyalal and P.W. 20, Shiv Charan, who were also examined as the alleged eye witnesses of the incident, did support the prosecution case to the extent that Kailash was assaulted by 3 persons, but according to them, the assailants, were Ramsu, Indu and their companions.
12. Thus, the most important evidence that requires consideration is of P.W. 11, Anil and P.W. 10, Khemchandra, the nephew and brother respectively of the deceased.
13. P.W. 11, Anil, the son of P.W. 10, Khemchandra, has stated that his uncle Kailash was proceeding to his home on bicycle from Pandalpur and he himself was returning from Khirka for going to his own house. According to him, at about 11.30 A.M., at a place opposite the house of Rama tailor, all the three accused; Rakesh, Rajesh and Dinesh started assaulting his uncle Kailash. Rakesh was having knife, Rajesh was having Gupti and Dinesh was having Katarna. Rakesh dealt first blow on Kailash on right side of his neck. Rajesh dealt a gupti blow on the right side of chest, whereas Dinesh dealt a blow with katarna on the right side of abdomen of the deceased. Kailsh shouted for help, but fell down. Blood had started oozing out from the injuries. Persons from locality including Ishwar Nayak and Dharmendra gathered at the spot and his father also came running. Although, in his examination-in-chief, he deposed that the accused ran towards the fort, yet in his cross-examination, he clarified that after being apprehended, all the three accused managed to extricate themselves. As per his statement, Khemchandra ran after the accused but was not able to catch hold of them. He has further admitted in cross-examination, that all of them were painted with colours, as it happened to Holi, but since the accused were known to him from before, he was able to identify all the three accused properly. Kailash was taken to the hospital, but was declared dead.
14. As pointed out already, P.W. 10, Khemchandra was one of the four witnesses named in the FIR (Exh. P-33), who had come to the spot only after hearing hue and cry. However, in his statement before the Trial Court, he claimed to have witnessed the murderous assault on his younger brother by the accused/appellants. His evidence, therefore, requires closer scrutiny.
15. According to P.W. 10, Khemchandra, accused Rakesh had assaulted Kailash 5-6 times with knife, whereas accused Dinesh dealt lathi blows. This description is not only inconsistent with his son Anil’s evidence, but is also not supported by the medical evidence as no injury caused by any hard and blunt object like lathi was found by P.W. 8, Dr. R.K. Singhai on the person of Kailash. Further, he had denied presence of Dharmendra and Ishwar on the spot. Moreover, he did not support Anil’s version that all the three assailants, after being apprehended, had managed to escape. These material contradictions clearly suggest that testimony of P.W. 10, Khemchandra suffers from falsehood.
16. However, the partly reliable testimony of P.W. 10, Khemchandra does not, in any way, affect the version of his son P.W. 11, Anil adversely. It is relevant to note here that, P.W. 11, Anil, in his deposition, re-stated the fact, as recorded in the FIR (Exh. P-33), that his father Khemchandra could reach the place of occurrence only after the assault on Kailash was completed by the accused. Incidentally, no material inconsistency with the other details of the incident as mentioned in the FIR or in his case diary statement could be brought in his cross-examination. This apart, no motive was imputed against him that he wanted to spare the real assailants and to falsely implicate the accused.
17. Learned Senior Counsel for the appellant contended that the evidence of P.W. 11, Anil is not reliable due to following reasons:
(i) He is not only related witness, but also a chance witness whose testimony, although was not necessarily false, but proverbially unsafe to rely on the same. In this regard, reliance has been placed on the decision of Hon’ble the Supreme Court Guli chand and Ors. v. State of Rajasthan and that of the Privy Council in AIR 1941 PC 11 Ismail Ahmed Peepadi v. Momin Bibi and Ors.
(ii) The evidence of Ishwar Prasad completely demolishes his evidence.
(iii) He did not say in so many words that the FIR (Exh. P-33) was lodged by him only.
(iv) The FIR (Exh. P-33) was ante-timed as names of the assailants were not recorded in the inquest report.
(v) His statement is not consistent with the opinion of P.W. 8, Dr. R.K. Singhai that none of the injuries found on the body of deceased could be caused by katarna alleged to have been seized from the accused Dinesh.
18. The fact that P.W. 11, Anil is the nephew of the deceased will not afford a ground to reject his testimony. The only requirement is to analyse his evidence carefully. He could not be treated as chance witness as he was the resident of the same village and on the date of incident he had come out of his residence to play Holi with his friends and other residents of the village. Moreover, nothing had come in his cross-examination so as to support that he is in any way to ill disposed to any of the appellants. In these circumstances, the decision in Ismail Ahmed’s case (supra), or Guli Chand’s case (supra) is not of any avail to the appellants.
19. It has also been contended that prosecution is bound by evidence of P.W. 6, Ishwar Prasad, as he was not declared hostile even after giving an unfavourable statement that completely demolishes the evidence of P.W. 11, Anil. To buttress this point, reliance has been placed on the following judgments of the Supreme Court reported in 2003 (2) SCC (Cri.) 1491 Jagan M. Seshadri v. State of Tamil Nadu 2005 (2) SCC (Cri.) 1037 Mukhtiar Ahmed Ansari v. State (NCT) of Delhi; 2005 (2) SCC (Cri.) 1050 Raja Ram v. State of Rajasthan.
20. P.W. 6, Ishwar Prasad had deposed that on the Holi day he along with other boys and Anil was playing Holi. On way, they had met Rajesh, Dinesh and one more boy. They played Holi with them also. On meeting Kailash, they applied gulal and took Rs. 10/- as contribution for Holi. They all proceeded to Khirka. After some time, when Halle came and informed that Kailash had been murdered. Anil had rushed to the spot from Khirka and Khemchandra had also reached there. It is true that he was not declared hostile by the prosecution but he was confronted, by the defence, with his police statement (Exh. D-1), wherein he had stated that deceased was lying in the middle of the road and Rakesh, Rajesh and Dinesh with the aid of knife, gupti and katama had inflicted blows on him. It is well settled that a witness can be declared hostile even during cross-examination. But in the aforesaid situation, when his credit was impeached by the defence on the ground that he had resiled from his earlier statement, the omission on the part of the prosecutor in not declaring him hostile lost significance. Resultantly, the evidence of P.W. 6, Ishwar had no bearing on the reliability of P.W. 11, Anil, whose testimony was fully consistent with his earlier version, as recorded in the FIR (Exh. P-33).
21. It is also true that the learned prosecutor failed to get the FIR (Exh. P-33) exhibited by P.W. 11, Anil, but the fact that it was lodged by none other than him only, was duly proved by Sub Inspector P.W. 21, B.M. Dubey. Incidentally, no dispute was raised in his cross-examination on this point. Thus, it was amply proved that the report (Exh. P-33) was promptly lodged by P.W. 11, Anil.
22. In support of the next contention that the absence of names of the accused in the inquest report was indicative of the fact that the prosecution case was in embryo state up to the point of time when the dead body of Kailash was sent for postmortem. The learned Senior Counsel placed strong reliance on the observations made by the Supreme Court in Thanedar Singh v. State of M.P. . However, the principle propounded in Maharaj Singh v. State of U.P. , and reaffirmed in Thanedar Singh’s case (supra), stands overruled by the latest decision of the Apex Court in Radha Mohan Singh v. State of U.P. 2006 Cri.L.J. 1121 (SC). Highlighting the very purpose of Inquest report, under Section 174 of Criminal Procedure Code, the Court observed:
Section 174 is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal, or homicidal or caused by animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under Section 175. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under Section 174. Neither in practice nor in law it is necessary for the person holding the inquest to mention all these details.
1994 AIR SCW 2210, overruled.
23. Accordingly, no significance could be attached to non-mention of names of the assailants in the Inquest Report (Exh. P-20).
24. According to Sub Inspector P.W. 21, B.M. Dubey, all the accused had informed that the weapons were kept hidden in the fort. He has further deposed that a knife, a gupti and a katarna were recovered at the instance of the appellants Rakesh, Rajesh and Dinesh respectively. Relevant memoranda (Exh. P-7, P-8 and P-9) and corresponding seizure lists (Exh. P-12, P-10 and P-11) were also placed on record. In absence of any hostility towards the accused, evidence of P.W. 21, B.M. Dubey can not be discarded simply because none of the panch witnesses P.W. 5, Imam and P.W. 9, Balram support the factum of recovery of a knife, a gupti and a katarna at the instance of the appellants.
25. The weapons, so recovered, were also sent for examination and opinion to the autopsy surgeon P.W. 8, Dr. R.K. Singhai. According to him, he examined the alleged weapons of offence – one gupti 21″ long and 1.8″ wide with wooden handle 7.5 cm in length, yellow spots were found on the blade. One knife 6.2″ long and 1.5″ wide. One farsa fixed on 42″ long wooden danda having sharp edge of 6″ long and 4″ wide. Even though, he has reiterated the opinion recorded in his report (Exh. P-22) that the injury found on the person of deceased could be caused by gupti and knife and not by katarna referred to him, yet in his cross-examination, he has categorically admitted that the incised wounds found by him could be caused by any sharp edged weapon. According to the expert, the injury No. (i) above was possibly inflicted by a katarna with a 12 inches long and one inch wide blade. From his evidence, it appears that katarna and farsa are two names of the same sharp edged weapon. As such, the evidence of Dr. R.K. Singhai not only suffers from inner inconsistency, but is also not sufficient to rule out the complicity of appellant Dinesh, allegedly armed with a katarna, in the attack. As one of the injuries found on the body of Kailash was possible by a Katarna, his case would fall under second or third of the three categories made/demarcated as under in Thaman Kumar v. State of Union Territory of Chandigarh :
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 are 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 eye-witnesses. 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 straight away 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 distances, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.
26. According to P.W. 2, Kaluram Patwari, he was the first to reach the spot to prepare the map Exh. P-2 in presence of P.W. 10, Khemchandra and P.W. 11, Anil. It has been shown therein that at the relevant point of time, P.W. 10, Khemchandra was at distance of 189 feet, and P.W. 11, Anil was at a distance of 176 feet from the place of occurrence. As reflected further, Khirka is situated at a distance of only 250 paces and the residence of P.W. 15, Pradeep Kumar Pathak was located only at a distance of 45 paces from the spot. It is relevant to note here that P.W. 15, Pradeep Kumar clearly admitted that, after hearing hue and cry when he reached the place of occurrence, he heard bystanders, saying that Kailash was killed by Dinesh, Rajesh and one other boy. The defence witness D.W. 1 Halle also lends assurance to the fact that as many as 3 persons were involved in the joint attack on Kailash. However, according to him, the assailants were some unknown Muslims whose faces were also painted with colours and whose heads were covered with strip of cloth. He also claimed to have informed Anil by going to Khirka where he was busy in playing Holi, but the fact remains that this assertion was specifically denied by P.W. 11, Anil.
27. Evidence of D.W. 1, Halle does not inspire confidence. Had he really been an eye-witness, then he would have also gone to the Police Station to lodge FIR, but he has not done so. The FIR was in fact lodged by P.W. 11, Anil. Anil has not deposed that Halle was present at the time of the incident. None of the documents prepared by police indicate the presence of Halle. Thus, it is obvious that only with an intention to help the accused, he has given this statement. It would not be safe and proper to rely on the evidence of D.W. 1, Halle to record a finding of not guilty.
28. However, benefit of doubt would accrue only to Rakesh and Dinesh, for the reasons mentioned hereinabove. But, it is well established that Rajesh had dealt blows with gupti on the person of deceased Kailash, which proved to be fatal.
29. Both P.W. 11, Anil and his father P.W. 10, Khemchandra corroborated the fact as mentioned in the FIR (Exh. P-33) that Kailash had refused to give utensils to Rakesh when the same were demanded on the occasion of wedding of his sister. This fact has not been controverted by the defence.
30. To sum up, even if the evidence of P.W. 10, Khemchandra is discarded, the eye-witness account of complainant P.W. 11, Anil is sufficient to prove beyond a reasonable doubt that all the three accused shared the common intention to kill Kailash and all of them participated in the joint assault in furtherance thereof. His presence on the scene of occurrence was quite natural and probable and there was nothing on record to suggest that he was interested in sparing the real culprits and falsely implicate the accused persons for murder of his uncle that was committed on a festive day of Holi.
31. For the reasons recorded above, we do not find any merit or substance in these appeals. However, as it was not possible to conclude as to which of the injuries ultimately proved fatal to Kailash, the conviction ought to have been recorded under Section 302 read with Section 34 of the IPC.
32. In the result, the appeals are dismissed with the only modification that the appellants are convicted under Section 302 read with Section 34 of the IPC. The impugned sentences are, accordingly, affirmed.
33. The appellants are reported to be in jail. However, in any case, if any one of them, is released on bail, he shall forthwith surrender to his bail bonds for undergoing the remaining part of the sentence.