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1991 (7) TMI 382

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..... nion 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 x 5cms x 1cm, (ii) a piercing stab wound 8cms below the scapular bone and 8cms outside the vertebral column of the size of 2.5cms x 1.5cms x 3cms, and (iii) an incised wound on the frontal auxiliary line 2.5cms x 1.5cms x 2cms deep on the left hipocardium region. This witness, who performed the post-mortem, deposed that injury No. 1 which had injured the heart was sufficient in the ordinary course of nature to cause death. He further stated that all the three injuries were collectively sufficient to cause death in ordinary course of nature. The three articles, namely, the knife, the Chhuri and the Chhura which were attached in the course of investigation were shown to this witness and he stated that the three injuries were possible by the aforesaid articles. It is clear from this evidence that Gulab died a homicidal death. 2. To bring home the guilt against the appellant the prosecution placed reliance on the ev .....

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..... d 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 human blood on the incriminating articles, the appellant and five others were charge-sheeted for the murder of Gulab. The trial court acquitted all except the appellant. Before the trial court PW 4 Ramesh, who had lodged the first information report, tried to disown it. He was declared hostile as he expressed his inability to identify the accused persons as the assailants of the deceased Gulab. PW 3, the Rickshaw Puller, while narrating the incident expressed a similar inability and he too was treated as hostile and cross-examined by the Public Prosecutor. The third eye-witness PW 1 Komal chand, however, supported the prosecution case in his examination-in-chief but in his cross-examination he expressed some doubt regarding the identity of the appellant and Guddu stating that he had seen their backs only. The trial court came to the conclusion that not only was this witness a chance witness but his presence at the sc .....

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..... d 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 purporting to have been lodged by PW 4 Ramesh is itself doubtful because Ramesh himself has disowned it. Since the prosecution had declared both PW 3 Kishan Lal and PW 4 Ramesh as hostile to the prosecution the trial court was justified in refusing to rely on their evidence. He further submitted that the presence of PW 1 Komal Chand at the place of occurrence at that hour was highly doubtful and this doubt was reinforced by his conduct in not raising a hue and cry or going to the help of the victim. The evidence disclosed that this witness resides at a place almost two furlongs from the scene of occurrence and claims to have seen the incident from a distance of about 22 feet from a point wherefrom the incident could not have been witnessed by him as is evident from the physical condition of the locality described in this sketch Exh. P-20A. He, therefore, submitted that the trial court was justified in describing .....

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..... ath. 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 were sufficient in the ordinary course of nature to cause death. In the absence of positive evidence that injury No. 1 was caused by the appellant and none else, his conviction substantively under Section 302 cannot be sustained. In that case at best he can be convicted for hurt under Section 324, IPC. He further submitted that since his companions were acquitted and the State had not preferred any appeal against their acquittal he could not be convicted with the aid of Sections 34 or 149 IPC. 5. Mr. Prithvi Singh, the learned Counsel for the State, submitted that the trial court was wrong in rejecting the evidence of PWs 3 and 4 merely because they were declared hostile as if their evidence was totally against the prosecution on that account. He submitted that their evidence cannot be treated as effaced from the record merely because the prosecution chose to treat them as hostile on the limited question of identi .....

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..... 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 merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye-witnesses was challenged by the prosecution in cross-examination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned Counsel for the State that the trial court made no effort to scrutinise the evidence of these two witnesses even in regard to the factum of the incident. On a careful consideration of their evidence it becomes crystal clear that PW 4 had accompanied the deceased in PW 3's rickshaw to the place of incident. In the incident that occurred at the location pointed ou .....

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..... ho 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 later he turned to the deceased as he was informed by one of his companions Gopal that the person he was pursuing was not Gulab. Therefore, from the evidence of these two eye-witnesses the fact that the deceased and PW 4 came to the place of occurrence in the rickshaw of PW 3 is established. So also the fact that on their reaching the place of occurrence they were surrounded by some persons and an assault was launched on them in which PW 4 received an injury and Gulab died is clearly established. The only area where they have not supported the prosecution and have resiled from their earlier statements is regarding the identity of the assailants. We will deal with that part of the evidence a little later but the fact remains that the deceased had received three injuries as narrated by PW 12 Dr. Nagpal, to which he succumbed on the spot. Once these facts are accepted as proved, the only question which really survi .....

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..... ntify 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 hazardous to convict the appellant solely on the basis of identification by such a wavering witness. The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief. Since the incident occurred at a public place, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have, therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab, his presenc .....

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..... oyed 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 reliance can be placed on the evidence of such an highly interested and specially chosen witness. The witness comes from the same locality and his house is situate within 100 yards of the residence of the deceased. He knows the family of the deceased quite well being a neighbour and of the same 'biradari'. It is equally true that he had gone to the hospital on learning about the assault on Gulab and had stayed back with Babulal since the latter was not feeling well. But would it be proper to throw out his evidence on account of his neighbourly relations with the family of the deceased, when nothing has been brought out in cross-examination to shake the intrinsic value to be attached to his evidence? Even in the cross-examination of the investigating officer nothing has been brought out to infer that the choice of PW 5 as a Panch witness was a deliberate one made with a view to enlisting his support to the p .....

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..... 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, however, argued that since the report of the serologist does not determine the blood group of the stains on the weapon and the pant of the appellant, the mere find of human blood on these two articles is of no consequence, whatsoever. In support of this contention he placed strong reliance on the decisions of this Court in Kansa Behera v. State of Orissa 1987CriLJ1857 and Surinder Singh v. State of Punjab 1989(1)SCALE903 . In the first mentioned case the conviction was sought to be sustained on three circumstances, namely, (i) the appellant and the deceased were last seen together; (ii) a dhoti and a shirt recovered from the possession of the appellant were found to be stained with human blood; and (iii) the appellant had made an extra-judicial confession to two witnesses when arrested. There was no dispute in regard to the first circumstance and the third circumstance was held not satisfactorily proved. In this b .....

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..... ary 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 them, the latter cannot be convicted with the aid of Section 34 or 149, IPC. In support of this contention he invited our attention to a few decisions, namely, Baikuntha Nath Chaudhury v. The State of Orissa AIR1973SC432 ; Kasturi Lal v. The State of Haryana 1976CriLJ1574 ; Chandubhai Shanabhai Parmar v. State of Gujarat 1982CriLJ987 and Sukh Ram v. State of M.P. 1982CriLJ987 . Counsel for the state, however, submitted that while it may be correct that the appellant cannot be substantively convicted under Section 302, IPC, he can certainly be convicted with the aid of Section 34 or 149, IPC, if this Court on a reappreciation of the evidence comes to the conclusion that more than one person, may be six or seven of them, had launched an attack on the deceased. In this connection he submitted that notwithstanding the acquittal of others by the Trial Court this Court can reach its own conclusion regarding the number o .....

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..... tate 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, IPC, with the aid of Section 34, IPC. Before this Court the appellant contended that on the acquittal of his uncle the sharing of common intention disappeared and the High Court was not justified in invoking Section 34 for maintaining the conviction against him under Section 302, IPC. This Court while dealing with this submission held that in the matter of appreciation of evidence the powers of the Appellate Court are as wide as that of the Trial Court and the High Court was, therefore, entitled in law to review the entire evidence and to arrive at its own conclusion about the facts and circumstances emerging therefrom. To put it differently, this Court came to the conclusion that the High Court was not bound by the appreciation of the evidence made by the Trial Court and it was free to reach its own conclusions as to the proof or otherwise of the circumstances relied upon by the prosecution on a review of the ev .....

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..... ed 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 accused No. 2, the appellant, had called the deceased to his house and while he was there accused No. 1 inflicted two lathi blows which proved fatal. The dead body was then put in a gunny bag supplied by accused No. 3 and drowned into a nearby tank. The three accused persons were charged under Sections 302/34, and 201, IPC. The Trial Court acquitted accused No. 3 but found the other two guilty. On appeal the High Court acquitted accused No. 1 rejecting the prosecution evidence in regard to his involvement but confirmed the conviction of accused No. 2 under Section 302/34, IPC, though the fatal injuries were inflicted by the acquitted accused No. 1. It will thus be noticed that on a reappreciation of evidence by the High Court accused No. 1 came to be acquitted although he was stated to have given the fatal lathi blows while his brother, the appellant, was convicted on the same evidence. This Court, therefore, conc .....

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..... n 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 Court and came to a different conclusion regarding the participation of others in the compression of the crime. In Sukh Ram's case to which one of us (Ahmadi, J.) was a party, this Court interfered with the conviction of the appellant recorded with the aid of Section 34 by the High Court because on the facts found proved on evidence the conviction of the appellant could not be sustained on the acquittal of the co-accused on the same set of established facts. This Court on its own did not come to the Conclusion that the acquittal of Gokul was not well-founded as High Court's appreciation of evidence was not correct. Had it come to that conclusion it could have recorded a conviction of the appellant under Section 302/34, IPC, notwithstanding the acquittal of Gokul. There-fore, all the aforesaid cases are clearly distinguishable from the facts of Brathi's case where the High Court had clearly departed from .....

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..... 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, came to a definite conclusion that accused Nos. 1, 3 and 4 had not participated in the commission of the crime. On that appreciation of the evidence the High Court could not have come to the conclusion that any of those acquitted accused was privy to the crime even for the limited purpose of convicting the appellant with the aid of Section 34. This again is not a case where the Appellate Court disagreed with the appreciation of evidence and reached a conclusion different from the conclusion recorded by the Trial Court in regard to the participation of the other co-accused. This decision is also distinguishable on the same ground as this Court distinguished the other decisions in Brathi's case. We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathi's case per incuriam. We are, therefore, in respectful agreement with the law explained in Brathi .....

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