Kalabhai Hamirbhai Kachhot vs The State Of Gujarat on 28 April, 2021


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Kalabhai Hamirbhai Kachhot vs The State Of Gujarat on 28 April, 2021

Author: R. Subhash Reddy

Bench: Ashok Bhushan, R. Subhash Reddy

Crl.A.No.216 of 2015 etc.



                                                                       REPORTABLE

                               IN THE SUPREME COURT OF INDIA

                             CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL APPEAL NO.216 OF 2015


      Kalabhai Hamirbhai Kachhot                                     …..Appellant

                                              Versus

      State of Gujarat                                               …..Respondent

                                              WITH

                             CRIMINAL APPEAL NO. 453 OF 2021
                            [Arising out of S.L.P.(Crl.)No.3227 of 2015]

                                              AND

                              CRIMINAL APPEAL NO.290 OF 2018




                                         JUDGMENT

R. Subhash Reddy, J.

1. Leave granted in S.L.P.(Crl.)No.3227 of 2015.

2. All these criminal appeals are filed against the common

judgment dated 09.05.2014 passed by the High Court of Gujarat at

1
Crl.A.No.216 of 2015 etc.

Ahmedabad in Criminal Appeal Nos.405 of 2010 and 459 of 2010, as

such, they are heard together and disposed of by this common

judgment.

3. Criminal Appeal No.290 of 2018 is filed by accused no.1 –

Vajashibhai Ramshibhai Kachhot; Criminal Appeal arising out of

S.L.P.(Crl.)No.3227 of 2015 is filed by accused no.2 – Mulubhai

Markhibhai Nandaniya; and Criminal Appeal No.216 of 2015 is filed

by accused no.3 – Kalabhai Hamirbhai Kachhot. For the sake of

convenience, the appellants in the above appeals shall be referred to

as accused nos.1 to 3 hereafter.

4. The aforesaid appellants were the accused in FIR no.I­

215/2006 dated 11.11.2006 on the file of Keshod Police Station,

which was registered for the offences punishable under Sections 302,

326, 324 and 34 of Indian Penal Code (IPC) and Section 135 of the

Bombay Police Act, in which chargesheet was filed on 07.02.2007 in

the court of First Class Magistrate, Keshod. As much as the offences

were triable by Sessions Court, the case was committed to the Court

of Additional Sessions Judge, Junagadh and the accused were tried

for the aforesaid offences in Sessions Case No.14 of 2007. All the

accused were convicted for the offences under Section 302 read with

34, IPC and Section 135(1) of the Bombay Police Act. Accused no.1 –

2
Crl.A.No.216 of 2015 etc.

Vajashibhai Ramshibhai Kachhot – was found guilty for offence

punishable under Section 302 read with 34, IPC and was sentenced to

undergo life imprisonment and to pay fine of Rs.10,000/­ and in

default, to undergo further S.I. for 12 months. He was also found

guilty for offence punishable under Section 324, IPC and was

sentenced to pay fine of Rs.3000/­ and in default, to undergo further

S.I. for six months. He was also found guilty for the offence

punishable under Section 135(1) of the Bombay Police Act and was

sentenced to undergo S.I. for four months and to pay fine of Rs.100

and in default, to undergo further S.I. for ten days. Accused no.2 –

Mulubhai Markhibhai Nandaniya – was found guilty for offence

punishable under Section 302 read with 34, IPC and was sentenced to

undergo R.I. for life and to pay fine of Rs.10000/­ and in default, to

further undergo S.I. for 12 months. He was also found guilty for

offence punishable under Section 135(1) of Bombay Police Act and

was sentenced to undergo S.I. for four months and to pay fine of

Rs.100/­ and in default, to further undergo S.I. for ten days. Accused

no.3 – Kalabhai Hamirbhai Kachhot – was found guilty for offence

punishable under Section 302 read with 34, IPC and was sentenced to

undergo R.I. for life and to pay fine of Rs.10000/­ and in default, to

further undergo S.I. for 12 months. He was also found guilty for

3
Crl.A.No.216 of 2015 etc.

offence punishable under Section 135(1) of Bombay Police Act and

was sentenced to undergo S.I. for four months and to pay fine of

Rs.100/­ and in default, to further undergo S.I. for 10 days. The

learned Sessions Judge has acquitted the original accused nos.2 and

3 of the charges under Sections 326 and 324 read with 34, IPC.

Against the judgment and order of conviction passed by the learned

Sessions Court, accused nos.1 and 3 filed Criminal Appeal No.459 of

2010 and accused no.2 filed Criminal Appeal No.405 of 2010 before

the High Court.

5. The High Court, by the impugned common judgment, while

confirming the conviction, has partly allowed the appeals and ordered

that all the sentences imposed against the accused shall run

concurrently and, by extending the benefit of Section 428 of the Code

of Criminal Procedure, also ordered that the period of detention of the

accused as under­trial prisoners be set off against the sentence.

6. On 10.11.2006, one Rajshibhai Maldebhai Karangiya,

resident of Bamnasa Ghed, Taluka Keshod, gave complaint before the

Sub­inspector ‘B’ Division, Junagadh stating that he lives at Bamnasa

Ghed with his family and is engaged in agricultural work and lives in

the orchard situated in sim of village Akha. In his complaint, he has

stated that at about 5:00 p.m. on 10.11.2006 Rajshibhai Maldebhai

4
Crl.A.No.216 of 2015 etc.

Karangiya; Mitesh Hardasbhai and Gokalbhai Karsanbhai went to

Keshod for some work on Gokalbhai’s Hero Honda motorcycle.

Gokalbhai was riding the motorcycle. While returning, when they

reached near to orchard of Kalabhai at about 7:15 p.m., Vajashibhai

Ramshibhai, Mulubhai Markhibhai and Kalabhai Hamirbhai Kachhot

were waiting with axe and knives. In order to stop Rajshibhai

Maldebhai Karangiya, Mulubhai gave axe blow, which hit on

Gokalbhai’s head, due to which Rajshibhai Maldebhai Karangiya,

Miteshbhai Hardasbhai and Gokalbhai fell down from the motorcycle.

Thereafter the three accused have attacked the deceased Gokalbhai

with knives and when Rajshibhai Maldebhai intervened, Vajashibhai

gave knife blow on the head of Rajshibhai Maldebhai Karangiya. It is

also alleged that Vajshibhai hit knife blow on the back side of head on

ear and hit Mitesh on left shoulder. Gokalbhai became unconscious.

The three accused then ran away towards Akha on Kalabhai’s

motorcycle. Thereafter, relatives of the deceased and injured were

called and they were shifted to Government Hospital where Gokalbhai

was declared dead and Rajshibhai Maldebhai and Miteshbhai were

given medical treatment. It is also stated that the reason behind the

incident is that six months earlier to the date of incident there was a

quarrel between Vajshibhai and Mulubhai with Gokalbhai. He has

5
Crl.A.No.216 of 2015 etc.

stated in the complaint that the present incident is consequence of

such rivalry between the accused and the deceased.

7. Based on the abovesaid complaint, crime was registered and

after necessary investigation, chargesheet was filed before the Addl.

Sessions Judge, Junagadh. Learned Sessions Judge framed charges

against the accused. When the accused pleaded not guilty to the

charges and claimed trial, they were tried for the offences alleged

against them.

8. To prove the charges framed against the accused, prosecution

has examined, in all, 32 witnesses and marked 61 documents and at

the end of the trial, after recording the statement of the accused under

Section 313, Cr.PC and after hearing the arguments of prosecution

and defence, learned Additional Sessions Judge held appellant­

accused were guilty for the offences and awarded sentence, as

narrated above. Aggrieved by the judgment of conviction and sentence

imposed on the appellant­accused, the accused nos.1 and 3 have

preferred Criminal Appeal No.459 of 2010 and original accused no.2

has preferred Criminal Appeal No.405 of 2010 before the High Court.

The High Court, while confirming the conviction, has extended the

benefit of Section 428, Cr.PC and allowed the appeals partly by

common judgment, only to the extent indicated above.

6
Crl.A.No.216 of 2015 etc.

9. We have heard Sri Harin P. Raval, learned senior counsel

appearing for the appellant in Criminal Appeal No.216 of 2015; Sri

D.N. Ray, learned counsel appearing for the appellant in Criminal

Appeal No.290 of 2018; and Sri Nachiketa Joshi, learned counsel

appearing for the appellant in Criminal Appeal arising out of S.L.P.

(Crl.)No.3227 of 2015 and Ms. Vishakha, learned counsel appearing

for the respondent­State.

10. Sri Harin Raval, learned senior counsel has contended that

the conviction of the appellant­accused is mainly based on the

testimony of PW­18 and PW­19, who are the injured eye witnesses. It

is submitted that if their depositions are scrutinized closely, there are

major contradictions. It is submitted that they are the chance

witnesses and their evidence is not trustworthy to base the conviction

of the appellant­accused. Further, it is submitted that there is no

mention about the nature of injuries in the postmortem report and the

motorcycle used in the crime was not recovered. It is further

contended that though it is the case of the prosecution that there was

a head injury caused by the accused on the deceased, there is no

corresponding medical injury in the postmortem Report of the

deceased. It is submitted that the medical records including

postmortem report are not reliable and the prosecution has failed to

7
Crl.A.No.216 of 2015 etc.

prove the case beyond reasonable doubt. He has thus requested to

extend the benefit of doubt to the accused and set aside their

conviction. In support of his arguments, learned counsel has relied

on the judgments of this Court in the case of Anand Ramachandra

Chougule etc. v. Sidarai Laxman Chougala & Ors.1; Akula Veera

Venkata Surya Prakash @ Babi v. Public Prosecutor, High Court of

Andhra Pradesh2; and Mohinder Singh & Anr. v. State of Punjab &

Ors.3.

11. Learned counsel Sri D.N. Ray appearing for the appellant in

Criminal Appeal No.290 of 2018 has contended that though a fatal

injury was attributed on the deceased, caused by one of the

appellants, there were no blood marks on PWs­18 and 19 who are

stated to be injured witnesses and were travelling on the same

motorcycle of the deceased. Further, it is submitted that the deceased

and injured were taken in Maruti car but there were no traces of blood

in the car. No blood was also found on PWs­18 and 19 and injuries

suffered by them are superficial. It is further submitted that the

alleged incident happened at about 07:30 p.m. in the month of

November, as such, there was no possibility of identifying the accused

1 (2019) 8 SCC 50
2 (2009) 15 SCC 246
3 (2004) 12 SCC 311

8
Crl.A.No.216 of 2015 etc.

in the darkness. Further it is submitted that no injury was found on

the head of the deceased as per the doctor’s deposition. It is further

submitted that the alleged motive, that an amount of Rs.15000/­ was

payable to the deceased, was no basis to record the guilt of the

accused as the said incident was about eight months earlier to the

date of the incident.

12. Shri Nachiketa Joshi, learned counsel appearing for the

appellant in the Criminal Appeal arising out of S.L.P.(Crl.)No.3227 of

2015, while adopting the arguments of Sri Harin Raval and Sri D.N.

Ray, has contended that though there is no acceptable evidence on

record, the appellant was convicted for the offences alleged. He has

submitted that if overall evidence is taken into consideration, the

charges framed against the accused are not proved beyond reasonable

doubt and even the High Court has not considered the grounds raised

by the appellant­accused in proper perspective and dismissed the

appeals.

13. Per contra, Ms. Vishakha, learned counsel appearing for the

respondent­State has submitted that there are concurrent findings of

conviction against the appellants. It is submitted that the trial court

itself has considered at length, the oral and documentary evidence on

record and has come to conclusion that the appellants were guilty for

9
Crl.A.No.216 of 2015 etc.

the offences alleged and there are no grounds to interfere with the

same. It is further submitted that accused nos.1 and 3 were found

with knives and accused no.2 caused the injury on the deceased by

hitting on his head with axe when, all three were travelling on

motorcycle. It is submitted that murder of the deceased was

committed by injuring PWs­18 and 19 with the common intention, as

such, they were rightly found guilty by the Sessions Court. Further,

learned counsel, by referring to the deposition of PW­21 who was the

person first to reach the place of occurrence, i.e., the brother of the

deceased, has submitted that postmortem report indicates the injury

on the lower back side of the head. Further, submitting that the

identity of the accused cannot be questioned as all are known to each

other and are of the same village. She has further submitted that the

medical and ocular evidence supports the case of the prosecution, to

prove the case against the accused. The learned counsel has lastly

contended that discrepancies, if any, in the depositions are minor and

same will not affect the case of the prosecution. The learned counsel

placed reliance on the judgments of this Court in the case of Mohar &

Anr. v. State of U.P.4 and State of Uttar Pradesh v. Naresh & Ors.5.

4 (2002) 7 SCC 606
5 (2011) 4 SCC 324

10
Crl.A.No.216 of 2015 etc.

14. In reply, Sri Harin Raval, learned senior counsel and Sri D.N.

Ray, learned counsel appearing for the appellant­accused have

submitted that the alleged incident has occurred at about 07:30 p.m.

on 10.11.2006 and even according to evidence, PWs­18 and 19

remained at the site of the occurrence for about 45 minutes, which is

unusual. It is submitted that in a situation like this, PWs­18 and 19,

who suffered injuries, should have made an attempt to shift the

deceased to the nearest hospital immediately. Referring to the

deposition of PWs­18 and 19 in cross­examination, it is submitted

that such injuries suffered by PWs­18 and 19, can be self­inflicted.

Further reiterating that the discrepancies noticed in the depositions

are major, hence, benefit of doubt has to go to the appellants and

prayed for acquittal of the accused.

15. Having heard the learned counsel on both sides, we have

perused the judgment of the trial court as well as that of the High

Court and other material placed on record.

16. Upon close scrutiny of the evidence on record and the

findings recorded by the trial court, as confirmed by the High Court,

we do not find any merit in the submissions of the learned counsel for

the appellant­accused, to interfere with the conviction recorded by the

trial Court, as confirmed by the High Court.

11
Crl.A.No.216 of 2015 etc.

17. To prove the charges framed against the appellants, the

prosecution has examined 32 witnesses and marked 61 documents as

exhibits, during the trial. Among the other witnesses examined on

behalf of the prosecution, Rajshibhai Maldebhai Karangiya, who was

with the deceased at the time of incident, was examined as PW­18. In

his deposition he has stated that the incident occurred at about 07:30

in the evening on Bamnasa­Akha road on 10.11.2006. On that day,

he, along with Miteshbhai and Gokalbhai (deceased), went to Keshod

on Hero Honda motorcycle at about 05:00 O’clock in the evening.

Gokalbhai was driving the motorcycle and thereafter at about 06:45

p.m. Gokalbhai’s brother Vajshibhai made a phone call to Gokalbhai

and stated that he wants motorcycle to go for some other work and

requested him to come back if his work is completed. Therefore, they

proceeded from Keshod to Village Bamnasa and when they reached

near the farm of Kalabhai – a policeman, Vajshibhai Ramshibhai

armed with knife, Mulubhai Markhibhai armed with axe and Kalabhai

Hamirbhai armed with knife were standing across the road to stop

them. When Gokalbhai slowed down the vehicle, Mulubhai

Markhibhai gave axe blow on the head of Gokalbhai and, therefore,

they fell down from the motorcycle and thereupon the accused started

giving blows with axe and knife to Gokalbhai haphazardly. Further it

12
Crl.A.No.216 of 2015 etc.

is also deposed that when he and Mitesh tried to interfere, they also

suffered injuries. Thereafter he made a phone call to Masaribhai at

Bamnasa from his mobile and requested him to come to the place of

incident with vehicle. Therefore, after sometime, Rajubapu Bavaji

came with Maruti van and Samat Govind and Vajsi Karsan were with

Rajubapu. Even as per the say of this witness the reason for the

incident is the altercation, between Gokalbhai and Vajashibhai with

regard to rent of Rs.15000/­, which occurred six months prior to the

occurrence, of which complaint was lodged in Junagadh Police

Station. Other person, who was with the deceased on the day of

occurrence was Mitesh Hardas Kachhot – PW­19, has also deposed on

similar lines as that of PW­18. The testimony of PWs­18 and 19 who

were with the deceased on the day of occurrence and who were

travelling on the same motorcycle, is quite natural and trustworthy.

Though it is the contention of the learned counsel for the appellant­

accused that as the incident happened in the month of November it

was not possible to identify the assailants in the darkness, at the

same time it is clear from the evidence on record that the headlight of

the vehicle was ‘on’ and it is evident from the record and panchnama

of the place of occurrence that there was a light which was there on

the Vadi. It is further to be noticed that the accused as well as the

13
Crl.A.No.216 of 2015 etc.

witnesses are of the same village, which appears to be a small village

and usually the persons residing in the village meet frequently, there

will not be any difficulty in identifying the persons. Therefore, as far

as the identification of the accused is concerned, the same is well

supported by the evidence on record. The prosecution also examined

Dr. Nikhilkumar Buch – PW­1 – who has deposed that he was on duty

in Civil Hospital, Junagadh on 10.11.2006. On that day at about

10:40 hrs. in the night, injured Rajshi Malde was brought to him by

his nephew Hitesh Hardas, for treatment with the complaint and

stated that Vajshi Ramshi attacked him and gave knife blow. The

witness doctor has issued injury certificate which is exhibited as

Exh.18. Dr. Prafulaben Mohanlal Dhabariya was examined as PW­2,

who has performed postmortem of the deceased. The said witness has

found the following injuries on the person of the deceased :

“i) There was one cut, incised wound which was
transverse, in mid way of left thigh. It was upto skin
and muscle. It was elliptical in shape and 5 inch long,
1 and ½ inch wide and ¾ inch deep.

ii) There was cut incised wound over left chest, left 6th
inter­coastal space starting from mid clavicular line
and was going downwards and laterally. It is 2 and ½
inch long, ¾ inch wide and penetrates the cavity. The
wound track is tapering and infiltrated with blood.
There is no exit wound. It penetrates the rear and left
ventricular wall.

14
Crl.A.No.216 of 2015 etc.

iii) There was incised wound at the level of the hair line
over the neck posteriorly measuring 3 inch long
starting from ½ inch from the midline on the left and
extending transversely to the right. The wound is ½
inch wide, cuts through skin, muscles and grazes the
cervical vertebra. Bleeding noted.

iv) There was was incised wound over right side of neck
below above injury laterally measuring 1 x ½ x ½ inch
long x wide x deep.

v) There was incised wound parallel to above ½” below it
measuring 1” x ½” x ½”.

vi) There was incised wound just above right scapula at
base of neck starting 1” lateral to the vertebral margin
and extending laterally and transversely and upwards.
It is 2” long, 1” wide and penetrates the chest cavity.
The wound is tapering upwards. It penetrates the right
upper lung lobe.

vii) There was incised wound over right scapula region
medially measuring 1”x 1/2” x 1/2” cutting through
skin and muscle, next to vertebral margin, transverse.

viii) There was incised wound over right scapula region
about centrally and transversely measuring 1½” x 1”
x ½”.

ix) There was incised wound over right chest just below
right scapula vertically and at border of scapular
measuring 1 ½” x 1” x ½” cutting through skin and
muscle.

x) There was incised wound lateral to above wound, also
parallel to above wound, 2” distant from it and
measuring 1 ½ “x 1” x ½” cutting through skin and
muscle.

15
Crl.A.No.216 of 2015 etc.

xi) There was incised wound and lateral and parallel to
above, 2” distant from it, measuring 1 ½ “x 1”x 1/2”
cutting through skin and muscle.

xii) There was incised wound over right back, 10th
intercostal space transverse, measuring 2”x1” x ½”.

xiii) There was incised wound over left scapula, at the
base, vertical wound measuring 2” x 1” x ½” deep
cutting through skin and muscle.

xiv) Incised wound at level of T12, transverse wound
measuring 3 ½ “x 1” and cutting through skin,
muscles and grazing bone.

xv) Incised wound at level of L2, transverse wound
measuring 1 ½ “x 1” x ½” cutting through skin and
muscle.

xvi) Incised wound at level of L5­S1 transverse wound
measuring 3” x ½” and cutting through skin, muscles
and grazing bone.

xvii) Incised wound over sacral region, vertical, midline
measuring 1” x1/2” x ½”, muscle deep.

xviii) Incised wound over sacral region, vertical, midline
measuring 1”x ½” x ½”, 2” below above wound
muscle deep.

xix) Incised incised wound about 1” below injury no 16,
lateral to it measuring 1” x ½ “x 1/2”.”

In his deposition, with reference to abovesaid injuries, he has also

opined that all the injuries are ante­mortem. The injuries which are

referred to, are stated to have been enclosed in the postmortem note.

Sri Jagdishbhai Sarmanbhai Kamaliya, who was the panch witness of

16
Crl.A.No.216 of 2015 etc.

the panchmana of the dead body, was examined as PW­5. Sri

Hardasbhai Bhikhabhai Bhetariya was examined as PW­6 who was

panch witness to the scene of offence. The prosecution has also

examined Masharibhai Govindbhai Karangiya as PW­20. In his

deposition he has stated that on the date of incident when he was at

his field, he received a phone call of Rajshi Malde at about 07:30 in

the evening stating the incident and assault on them and he was

informed to come with Maruti van of Rajubapu and thereafter he has

gone to village on his motorcycle. As he could not meet Rajubapu, he

contacted Rajubapu on phone and requested him to come with his

Maruti van to the field of Kalabhai immediately which is situated on

the road of Aakha. He has clearly stated in his deposition that when

he reached the spot, he has noticed the injuries on Miteshbhai and

Rajashi Malde and Gokalbhai was lying in bleeding condition. He has

also stated that there was a lamp in the field of Kalabhai, light of

which was falling on the road. The brother of the deceased was

examined as PW­21. In his deposition he has also stated that as

Gokalbhai has taken the Hero Honda motorcycle and as the same was

required by him to go out of station on the motorcycle, he made a

phone call to Rajashi on his mobile no.9825921960 through the coin

drop box phone from the shop of Nathubhai in the village. Even this

17
Crl.A.No.216 of 2015 etc.

witness has stated that the reason for the incident is that Gokalbhai

unloaded the soil in the field of Vajashibhai Ramshi through his

tractor and the amount of Rs.15000/­ towards rent thereof was

outstanding from him. It is stated that as there was discord in this

regard, the incident has occurred, which resulted in the murder of

Gokalbhai. Sri Rajeshbhai Jethabhai Parmar who has investigated

the crime, was examined as PW­31. He also clearly stated in detail in

his deposition regarding the incident.

18. The submission of the learned counsels, that there was no

head injury, as deposed by PWs­18 and 19 on the deceased and also

as per the postmortem report, as such the deposition of PWs­18 and

19 is to be discarded, cannot be accepted for the reason that the

postmortem report indicates injury on the lower back side of the head.

An attempt was made to assault the deceased with an axe. We cannot

expect that it has to be hit on the centre of the head. It has fallen on

the lower back side of the head, same is evident from the postmortem

report. At this stage, it is to be noted, that the attack was made on

the deceased and injured, when they were moving on motor cycle. As

such, it cannot be said that merely because there is no injury on the

centre of the head, the testimony of PWs­18 and 19 is to be discarded.

The doctor who has conducted the postmortem, has also clearly stated

18
Crl.A.No.216 of 2015 etc.

in his deposition that all injuries which were noticed on the deceased

were ante mortem. If the entire evidence of all the witnesses is

examined with reference to medical and other evidence on record, it is

clear that the prosecution has proved the guilt of the accused beyond

reasonable doubt. All the accused have committed the crime with a

common intention. It is clear from the record that the role attributed

to accused nos.1, 2 and 3 is fully supported by the injured witnesses

as well as the deposition of investigation officer. Though the key

witness, were cross­examined at length, nothing adverse was elicited.

If the testimony of PW­20, i.e., Masharibhai is examined, same is fully

supported by the evidence of PW­18, 19 and 21. It is clear from the

evidence on record that their testimony is natural and trustworthy

and so far as PWs­18 and 19 are concerned it cannot be said that they

are the chance witnesses. Even the injuries sustained by PWs­18 and

19 are not self­inflicted as per the opinion of the medical expert.

Further, it is also clear from the opinion of the doctor who was

examined, that all the injuries were possible with muddammal knife

and axe. It is further to be noticed that serological report from which

the blood group was found on the cloths of the deceased and that of

the accused nos.1 and 2 is the same. Even with regard to the

presence of accused no.3, it is also clear considering the entire oral

19
Crl.A.No.216 of 2015 etc.

evidence on record that his presence on the spot is also proved beyond

reasonable doubt.

19. We also do not find any substance in the argument of the

learned counsel that there are major contradictions in the deposition

of PWs­18 and 19. The contradictions which are sought to be

projected are minor contradictions which cannot be the basis to

discard their evidence. The judgment of this Court in the case of

Mohar4 relied on by the learned counsel for the respondent­State

supports the case of the prosecution. In the aforesaid judgment, this

Court has held that convincing evidence is required, to discredit an

injured witness. Para 11 of the judgment reads as under :

“11. The testimony of an injured witness has its own
efficacy and relevancy. The fact that the witness sustained
injuries on his body would show that he was present at the
place of occurrence and has seen the occurrence by
himself. Convincing evidence would be required to
discredit an injured witness. Similarly, every discrepancy
in the statement of a witness cannot be treated as fatal. A
discrepancy which does not affect the prosecution case
materially cannot create any infirmity. In the instant case
the discrepancy in the name of PW 4 appearing in the FIR
and the cross­examination of PW 1 has been amply
clarified. In cross­examination PW 1 had clarified that his
brother Ram Awadh had three sons: (1) Jagdish, PW 4, (2)
Jagarnath, and (3) Suresh. This witness, however, stated
that Jagarjit had only one name. PW 2 Vibhuti, however,
stated that at the time of occurrence the son of Ram
Awadh, Jagjit @ Jagarjit was milching a cow and he was

20
Crl.A.No.216 of 2015 etc.

also called as Jagdish. Balli (PW 3) mentioned his name as
Jagjit and Jagdish. PW 4 also gave his name as Jagdish.”

Learned counsel for the respondent­State has also relied on the

judgment of this Court in the case of Naresh & Ors.5. In the aforesaid

judgment, this Court has held that the evidence of injured witnesses

cannot be brushed aside without assigning cogent reasons.

Paragraphs 27 and 30 of the judgment which are relevant, read as

under :

“27. The evidence of an injured witness must be given due
weightage being a stamped witness, thus, his presence
cannot be doubted. His statement is generally considered
to be very reliable and it is unlikely that he has spared the
actual assailant in order to falsely implicate someone else.
The testimony of an injured witness has its own relevancy
and efficacy as he has sustained injuries at the time and
place of occurrence and this lends support to his
testimony that he was present during the occurrence.
Thus, the testimony of an injured witness is accorded a
special status in law. The witness would not like or want
to let his actual assailant go unpunished merely to
implicate a third person falsely for the commission of the
offence. Thus, the evidence of the injured witness should
be relied upon unless there are grounds for the rejection
of his evidence on the basis of major contradictions and
discrepancies therein. (Vide Jarnail Singh v. State of
Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri)
107] , Balraje v. State of Maharashtra [(2010) 6 SCC 673 :

(2010) 3 SCC (Cri) 211] and Abdul Sayeed v. State of
M.P
. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] )
…………
…………

21
Crl.A.No.216 of 2015 etc.

30. In all criminal cases, normal discrepancies are bound
to occur in the depositions of witnesses due to normal
errors of observation, namely, errors of memory due to
lapse of time or due to mental disposition such as shock
and horror at the time of occurrence. Where the omissions
amount to a contradiction, creating a serious doubt about
the truthfulness of the witness and other witnesses also
make material improvement while deposing in the court,
such evidence cannot be safe to rely upon. However,
minor contradictions, inconsistencies, embellishments or
improvements on trivial matters which do not affect the
core of the prosecution case, should not be made a ground
on which the evidence can be rejected in its entirety. The
court has to form its opinion about the credibility of the
witness and record a finding as to whether his deposition
inspires confidence.

“9. Exaggerations per se do not render the evidence brittle.
But it can be one of the factors to test credibility of the
prosecution version, when the entire evidence is put in a
crucible for being tested on the touchstone of credibility.”
[Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar
Singh
, (2004) 9 SCC 186, p. 192, para 9.]
Therefore, mere marginal variations in the statements of a
witness cannot be dubbed as improvements as the same
may be elaborations of the statement made by the witness
earlier. The omissions which amount to contradictions in
material particulars i.e. go to the root of the
case/materially affect the trial or core of the prosecution’s
case, render the testimony of the witness liable to be
discredited. [Vide State v. Saravanan [(2008) 17 SCC 587 :

(2010) 4 SCC (Cri) 580 : AIR 2009 SC
152], Arumugam v. State [(2008) 15 SCC 590 : (2009) 3
SCC (Cri) 1130 : AIR 2009 SC 331] , Mahendra Pratap
Singh v. State of U.P
. [(2009) 11 SCC 334 : (2009) 3 SCC
(Cri) 1352] and Sunil Kumar Sambhudayal Gupta
(Dr.) v. State of Maharashtra
[(2010) 13 SCC 657 : JT
(2010) 12 SC 287] .”

22
Crl.A.No.216 of 2015 etc.

Further, in the case of Narayan Chetanram Chaudhary & Anr. v.

State of Maharashtra6, this Court has considered the effect of the

minor contradictions in the depositions of witnesses while

appreciating the evidence in criminal trial. In the aforesaid judgment

it is held that only contradictions in material particulars and not

minor contradictions can be a ground to discredit the testimony of the

witnesses. Relevant portion of Para 42 of the judgment reads as

under:

“42. Only such omissions which amount to contradiction
in material particulars can be used to discredit the
testimony of the witness. The omission in the police
statement by itself would not necessarily render the
testimony of witness unreliable. When the version given by
the witness in the court is different in material particulars
from that disclosed in his earlier statements, the case of
the prosecution becomes doubtful and not otherwise.
Minor contradictions are bound to appear in the
statements of truthful witnesses as memory sometimes
plays false and the sense of observation differ from person
to person. The omissions in the earlier statement if found
to be of trivial details, as in the present case, the same
would not cause any dent in the testimony of PW 2. Even if
there is contradiction of statement of a witness on any
material point, that is no ground to reject the whole of the
testimony of such witness.

… … …”

20. By applying the aforesaid ratio, as laid down by this Court

coupled with the evidence on record, we are clearly of the view that

6 (2000) 8 SCC 457

23
Crl.A.No.216 of 2015 etc.

the prosecution has proved the case against all the appellant­accused

beyond reasonable doubt. The omissions like not seizing the

motorcycle and also not seizing the gold chain of one of the victims, by

itself, is no ground to discredit the testimony of key witnesses who

were examined on behalf of the prosecution, whose say is consistent,

natural and trustworthy.

21. In that view of the matter, we are fully in agreement with the

view taken by the trial court in recording the conviction against the

appellants, as confirmed by the High Court. Therefore, no

interference is called for with the concurrent findings recorded against

the appellants. As discussed earlier it is also clear that there was a

quarrel between the deceased about six months earlier to the incident

and one accused regarding payment of rent of tractor. Further it is

brought on record that there was animosity between them which is

the motive for the crime. As such, the prosecution has established,

beyond reasonable doubt, that all the accused have committed the

offence with a common intention and participated in committing the

crime. The trial court as well as the High Court has not committed

any error in law or on facts, as such, the same are required to be

upheld by this Court. As far as the judgments relied on by the

learned counsel for the appellants are concerned, having regard to the

24
Crl.A.No.216 of 2015 etc.

facts of the case and the evidence on record, we are of the view that

the abovesaid judgments would not render any assistance to support

the case of the appellants.

22. For the aforesaid reasons, we do not find any merit in these

appeals, same are accordingly dismissed.

………………………………J.

[Ashok Bhushan]

………………………………J.

[R. Subhash Reddy]

New Delhi.

April 28, 2021.

25



Source link