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1991 (7) TMI 382

..... @ Surender Tiwari who has been convicted by both the courts below under Section 302 IPC for the murder of one Gulab. The facts leading to this appeal, briefly stated, are that on the evening of May 20,1978 the deceased Gulab and his companion PW4 Ramesh Chander hired a Rickshaw to go to the dispensary of Dr. Mukherjee. PW 3 Kishan Lal pulled the Rickshaw and while he was passing through Suji Mohalla near Panchsheel Talkies the appellant and his companions surrounded the Rickshaw and launched an attack on the deceased and his companion. PW 4 was the first to receive an injury by a cycle chain. Sensing trouble both Gulab and PW 4 jumped out of the Rickshaw and ran in different directions. Gulab ran towards Suji Mohalla whereas PW 4 ran towards Panchsheel Talkies. They were chased by the assailants who formed themselves into two groups. PW 4 was fortunate enough to escape with not too serious an injury but his companion Gulab received stab wounds to which he succumbed on the spot. The evidence of PW 12 Dr. Nagpal shows that the deceased had received three injuries, namely, (i) a penetrating stab wound with a second injury on the intercostal space on right side rib of the size of 3 cms .....

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..... hujji discovered a Chhura (knife) from his garage and the same was attached under the Panchnama Exh. P-9. Since this weapon had blood-like stains, it was sent to the Chemical Analyser and Serologist for examination and report. The report indicates that it was stained with human blood but the blood group could not be determined. The other two companions of the appellant, namely, Parsu and Guddu, also discovered a knife, Exh. P-7, and a Chhura, Exh. P-13, which were attached under Panchnamas Exh. P-6 and P-12, respectively. As stated earlier the shirt and pant of Khujji were also attached as blood-like stains were noticed thereon. Both these articles were sent to the Chemical Analyser and Serologist. So far as the shirt is concerned, since the blood stains were disintegrated it was not possible to determine the origin thereof. But so far as the pant is concerned, the report states that the stains were of human blood but the blood group could not be determined as the result of the test was inconclusive. On the basis of the first information report, the statements of three witnesses recorded in the course of investigation as well as the evidence regarding discovery and the find of huma .....

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..... rt as a witness. The High Court, therefore, took the view that the subsequent attempt of PW 1 Komal Chand to create a doubt regarding the identity of the appellant was of no consequence since there was intrinsic material in his evidence to establish the presence of the appellant amongst the assailants of deceased Gulab. Relying further on the discovery evidence as well as the find of human blood on the weapon found from the garage of the appellant and on his pant which he was wearing at the time of his arrest, the High Court came to the conclusion that his conviction was well founded and dismissed his appeal. It may here be mentioned that the State did not prefer an appeal against the five companions of the appellant who came to be acquitted by the trial court. It is in these circumstances that the appellant has invoked this Court's jurisdiction under Article 136 of the Constitution. 4. Mr. U.R. Lalit, learned Counsel for the appellant, took us through the entire evidence and submitted that the prosecution version regarding the incident, particularly the involvement of the appellant, is highly doubtful since the correctness of the statement made in the first information report .....

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..... an blood on the weapon and pant of the appellant, Mr. Lalit further submitted that one set of Panch witnesses, PW 5 Pannalal and Rajinder (not examined), had been employed for all the discovery panchnamas as well as the attachment of clothes of the appellant and others which went to show that PW 5 was a stock witness for the prosecution. He, therefore, submitted that no reliance could be placed on the evidence of PW 5 and consequently the find of human blood on the weapon and the pant looses its probative value. In the end he submitted that the conviction of the appellant substantively under Section 302 IPC was not well founded for the simple reason that not a single witness had deposed that the fatal injury was caused by the appellant. The evidence of PW 12 Dr. Nagpal shows that the deceased had three injuries and out of them only injury No. 1 was by itself sufficient in the ordinary course of nature to cause death. So far as injuries Nos. 2 and 3 are concerned, the medical evidence does not show that each one of them separately was sufficient in the ordinary course of nature to cause death. But the medical evidence is to the effect that all the three injuries taken collectively w .....

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..... the aid of Section 34 or 149 IPC. He, therefore, submitted that the appeal is without merit and deserves to be dismissed. 6. We have given our anxious consideration to the submissions made by the learned Counsel for the contesting parties. The fact that an incident of the type alleged by the prosecution occurred on May 20, 1978 at about 8.20 p.m. is not seriously disputed nor is the location of the incident doubted. The evidence of PW 3 Kishan Lal and PW 4 Ramesh came to be rejected by the trial court because they were declared hostile to the prosecution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased. But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court Bhagwan Singh v. State of Haryana 1976CriLJ203 ; Rabinder Kumar Dey v. State of Orissa 1977CriLJ173 and Syed Akbar v. State of Karnataka 1979CriLJ1374 that the evidence of a prosecution witness cannot be rejected in toto mer .....

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..... nnot be doubted once the presence of PW 4 is accepted. The trial court did not go so far as to say that both these witnesses were not present at the scene of occurrence or that PW 4 was not injured in the incident but refused to look into their evidence treating their evidence as non-est on their being declared hostile by the prosecution. We think that the approach of the trial court insofar as the evidence of these two witnesses is concerned, is legally unacceptable. The High Court has not endeavoured to assess their evidence since it thought that the conviction of the appellant could be sustained on the evidence of PW 1 Komal Chand. We are satisfied on a close scrutiny of the evidence of the aforesaid two eye-witnesses, PWs 3 and 4, that the deceased and PW 4 came to the place of occurrence in the rickshaw pulled by PW 3. On reaching the spot where the incident occurred they were surrounded by certain persons who were lying in wait and a murderous assault was launched on them. The first to receive the injury was PW 4. When they gauged the intention of their assailants they jumped out of the rickshaw and both ran in different directions. The appellant first tried to chase PW 4 but .....

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..... struck PW 4 with a chain. He also stated that the appellant Khujji and his companions Gudda and Parsu were armed with knives and when Khujji tried to assault PW 4 with a knife, Gopal shouted "Khujji that man is not Gulab". Thereupon Khujji and his companions ran after the Gulab, overtook him and the appellant, Parsu and Gudda assaulted Gulab with their weapons. Gudda struck Gulab from the front on his chest, Parsu stabbed him on the side of the stomach while Ram Kishan and Gopal held him and the appellant attacked him from behind with a knife whereupon Gulab staggered shouting 'save-save' and fell in front of the house of Advocate Chintaman Sahu. Thereafter all the six persons ran away. His cross examination commenced on 15th December, 1978. In his cross-examination he stated that the appellant Khujji and Gudda had their backs towards him and hence he could not see their faces while he could identify the remaining four persons. He stated that he had inferred that the other two persons were the appellant and Gudda. On the basis of this statement Mr. Lalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be .....

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..... oceedings under Section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. We, respectfully agree and see no merit in this submission made by the counsel for the appellant. 9. After the appellant and his two companions Parsu and Gudda were arrested they were interrogated by the investigating officer PW 13 Ramji Singh. In the course of interrogation they showed their willingness to point out the weapons of assault, thereupon the investigating officer called two Panchas, one of them being PW 5 Panna Lal. The very same Panch witnesses were panchas to all the three discovery panchnamas as well as panchnamas regarding the attachment of the clothes worn by the appellant and his companions. It was, therefore, contended by the counsel for the appellant that PW 5 Panna Lal was a stock witness whom the police had employed to act as a panch witness. Pointing out that it was Tulsi Ram the brother of the deceased who had chosen him because he was closely associated with the family of the deceased and was intimated with Babulal another brother of the deceased, Mr. Lalit submitted that no re .....

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..... his companions, PW5's evidence could not be discarded since nothing had surfaced in cross-examination to shake his evidence. We are, therefore, satisfied that the evidence of PW5 Pannalal was rightly accepted by both the courts below. We make limited use of this evidence in the sense that we do not use any part of the evidence admissible under Section 27. Evidence Act, against the appellant. We merely use the factum of find of the incriminating weapon from his garage and his inability to explain the presence of human blood thereon as a circumstance against the appellant. The evidence of PW5 further shows that when the appellant was arrested his garments, namely, shirt and pant were attached as blood-like stains were noticed thereon. These articles were sent to the Chemical Analyser and Serologist for examination and report. As stated earlier these reports reveal that the blood stains on the pant worn by the appellant were of human origin. The appellant has not offered any plausible explanation for the existence of human blood on his pant. This too is a circumstance against the appellant particularly because no injury was noticed on the person of the appellant. 10. Mr. Lalit, h .....

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..... n that the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of the accused is of no consequence. We, therefore, see no substance in this contention urged by Mr. Lalit. 11. That brings us to the last contention whether the conviction of the appellant for the substantive offence of murder can be sustained in the absence of a finding that the fatal injury No. 1 was caused by the appellant. We must at once accept the fact that it is not possible from the ocular evidence to record a definite finding of fact that the appellant had caused that fatal injury. On the contrary the evidence of PW 1 Komal Chand indicates that in all probability the stab wound inflicted by the appellant resulted in injury No. 2. that injury by itself was not sufficient in the ordinary course of nature to cause death. If that be so, can the appellant be convicted under Section 302, IPC? Counsel for the appellant submits that the legal position is well-settled by a chain of decisions of this Court that if named accused are acquitted except one of the t .....

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..... e order of acquittal became final because the State did not choose to challenge it in appeal. The appellant, however, preferred an appeal against his conviction to the High Court. The High Court on a reappreciation of the evidence held that the fatal blow was given by the appellant's uncle and since the appellant was charged under Section 302/34, IPC, he could not be convicted substantively under Section 302, IPC. However, for assessing the credibility of the prosecution case, the High Court incidentally considered the involvement of the appellant's uncle and held that the eye witnesses had given a truthful account of the occurrence and the appellant's uncle had actually participated in the commission of the crime along with the appellant. In other words, the High Court came to the conclusion that the acquittal of the appellant's uncle was erroneous but since there was no appeal preferred by the State it could not interfere with that order of acquittal. It, however, came, to the conclusion that the crime was committed by the appellant and his uncle in furtherance of their common intention and accordingly maintained the conviction of the appellant under Section 302, .....

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..... aw. On this ratio this Court confirmed the conviction of the appellant under Section 302, IPC, but with the aid of Section 34, IPC. The fact-situation before us is more or less similar. 13. Several decisions were cited in support of the contention that where two named persons are charged for the commission of an offence with the aid of Section 34, IPC and one of them is acquitted the other cannot be convicted with the aid of Section 34, IPC. Dealing with these decisions this Court observed in Brathi's case that all the decisions relied on were distinguishable on the ground that in none of them the Appellate Court was shown to have disagreed with the Trial Court's appreciation of evidence but on the contrary the Appellate Court had proceeded on the footing that the appreciation of evidence by the Trial Court was correct. We think that the cases on which Mr. Lalit has placed reliance can also be distinguished on the same ground. 14. In Baikuntha Nath Chaudhury's case the evidence of two eye witnesses PWs 9 and 10 was to the effect that accused Nos. 1 and 2 had killed their brother with the active participation of accused No. 3, their mother. According to the prosecution a .....

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..... when the case of Kasturi Lal was not distinguishable from that of the above two, this Court felt that the High Court erred in convicting Kasturi Lal. It will thus be seen that this Court came to the conclusion that the reasons which weighed with the High Court for the distinction drawn were not correct and hence the conviction of Kasturi Lal had to be set aside.-This decision also does not help the appellant. In Chandubhai's case, the prosecution relied on the testimony of PWs 1, 5 and 6 Both the courts below found their testimony to be unreliable in several particulars and acquitted the co-accused of the appellant in two stages. This Court concluded that the appellant's case could not be distinguished from that of his two acquitted companions insofar as the reliability of the ocular evidence of three eye witnesses was concerned. It was in the Said circumstances that this Court thought that the conviction of the appellant under Section 302/34, IPC was not justified, particularly, after the evidence of the three witnesses was found to be unreliable. This also, therefore, is not a case where the Appellate Court disagreed With the appreciation of the evidence by the Trial Cou .....

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..... nd 4 on the ground that the evidence regarding their participation in the commission of the crime was doubtful but convicted accused No. 2 on the ground that one or more of them might have participated in the commission of the offence. Accused No. 2, therefore, preferred an appeal to this Court and contended that when three of the four named persons were acquitted the High Court was not justified in convicting him on the basis of constructive liability. This Court held that before a Court can convict a person under Section 302/34, IPC, it must record a definite finding that the said person had prior consultation with one or more other persons, named or unnamed, for committing the offence. When three of the accused came to be acquitted on the ground that the evidence was not acceptable or on the ground that they were entitled to benefit of doubt, in law it meant that they did not participate in the offence. It was further held that the effect of the acquittal of the three co-accused is that they did not co-jointly and with the appellant commit the murder. These observations have to be read in the context of the facts stated above. The High Court on an appreciation of the evidence, c .....

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