Bhiliya vs State of Madhya Pradesh

Instant criminal appeal is preferred to challenge the judgment dated 24/08/2005 passed in Sessions Trial No.199/1996 by First Additional

Sessions Judge, Dewas, whereby appellant has been convicted for offence under Section 148, 449 and 302 read with Section 149 of IPC and

sentenced to 1 year R.I., 4 years R.I., and life imprisonment, respectively, with fine of Rs.100/- for each offence with default stipulation.

The facts necessary to be stated for disposal of the instant appeal are that in the intervening night of 1st and 2nd July, 1996, complainant

Rukmanibai was sleeping with her family members, in her house situated at village Shanti Nagar, Dewas. At about 2.30 am, as many as 17

persons, armed with sticks, swords, axe and pipes, came and made assault on Shriram due to which he died on the spot. Thereafter they broke

open the door of the house of Rukmanibai and made assault on Laxmichand by aforesaid weapons as a result he sustained injuries and succumbed

on the spot. When Bebibai and Tulsibai tried to rescue Laxmichand, the accused persons also caused injuries to them. At the time of the incident

accused Mirabai and Anarbai were also present on the spot and were extorting to kill the complainant party. Co-accused Nathu had a dispute

with Shriram in relation to coal contract due to which the accused persons committed the assault.

Rukmanibai lodged F.I.R under Sections 148, 449 and 302 read with Section 149 of IPC and 25, 27 of Arms Act, 1959 at Police Station-

Industrial Area, Dewas on 2nd July, 1996, at about 6.15 am. After receiving this information, S.H.O Police Station-Industrial Area, Dewas,

reached the spot, recovered dead bodies of the deceased persons and ''lash panchnama'' was prepared. The dead bodies were sent for

postmortem and injured persons were sent for their medical examination. According to postmortem report, death of Shriram and Laxmichand

were homicidal in nature and had occurred on account of fatal injuries. Spot map was prepared by the police, blood stained soil and simple soil

were also collected from the spot and statement of the witnesses were recorded. Accused persons were arrested, memorandum under Section 27

of accused persons were recorded. Police seized various articles from the accused persons vide seizure memo Ex.P/23 to P/25 and all the

recovered articles were sent for forensic examination.

On completion of investigation, charge-sheet was filed before the Chief Judicial Magistrate, Dewas, who committed the case to the Court of

Sessions Court, ultimately, it was transferred to First Additional Sessions Judge, Dewas. After the incident, appellant/accused Bhiliya remained

absconding, therefore, charge-sheet was filed in his absence. He was declared absconder by the Court and a perpetual warrant of arrest was

issued against him. Later on appellant/accused was arrested by police and he was tried before the Court with other accused persons. He abjured

his guilt and took a plea that he is innocent and has been falsely implicated in the matter . He also submitted that at the time of the incident he was

not present on the stop, however, he has not produced any evidence in his defense.

The trial Court, after considering the evidence adduced by the prosecution, convicted the appellant and coaccused persons and sentenced as

mentioned herein-above.

The learned counsel for the appellant has submitted that the incident has taken place at about 2.30 am, whereas, the F.I.R was lodged after four

hours of the said incident and no explanation was given for the delay in lodging F.I.R. Witnesses have made material improvements in their

statements and changed their version regarding the weapons used by the accused persons. The incident has taken place at the mid night and it was

very difficult for the witnesses to identify the assailants in the dark. Witnesses are closely related to the victim, therefore, their evidence cannot be

accepted without corroboration but the trial Court has committed error in believing their statements. Trial Court has not appreciated the evidence

in proper manner and accepted only those versions, which are against the appellant. In these circumstances, counsel prayed for setting aside the

conviction and sentence.

Per contra, learned public prosecutor appearing on behalf of the respondent/State has supported the impugned judgment & order of conviction

and has submitted that the learned trial Court, on proper evaluation of evidence, has recorded conviction and that the same does not call for any

interference.

We have heard learned counsel for the parties and perused the record.

First of all, it is to be considered as to whether, death of the deceased Shriram and Laxmichand were homicidal in nature or not. In this

connection, evidence provided by Doctor Prakash Lakad (P.W.17), who conducted postmortem of the dead body of the deceased persons, is

important. According to Dr. Lakad (P.W17), deceased persons died due to incised and multiple injuries found on their body. Looking to the

injuries sustained to the deceased persons, it is clear that the same cannot be sustained due to suicide attempt. Similarly, such injuries cannot be

caused by the deceased persons themselves or sustained due to any accident, therefore, it is transparent that the death of the deceased persons

Shriram and Laxmichand were homicidal in nature.

In the present case, eye witnesses Rukmani Bai (P.W.1), Bebi Bai (P.W.3), Tulsi Bai (P.W.4), Magan (P.W.5), Bhagirath (P.W.6), Raju

(P.W.7) and Anita (P.W9) were examined before the Court. According to them, 2 and 1/2 years ago, at about 2.30 am, in the intervening night,

accused persons Anupsingh, Nattu, Bhiliya Kalu and Hiralal, equipped with swords, axe, crowbar and sticks came and broke open the door of

the house and made assault on Shriram and Laxmichand with the aforesaid arms, due to which, they sustained injuries and succumbed on the spot.

Although Rukmani Bai (P.W.1) who lodged F.I.R (Ex.P/1) at Police- Station, later on, changed her version and started asserting that the accused

persons were armed with some other weapons, then what were detailed in Ex.P/1. Other eye witnesses, Bebi Bai (P.W3), Tulsi Bai (P.W.4),

Magan (P.W.5), Bhagirath (P.W.6), Raju (P.W7) and Anita (P.W.8) have made certain improvements in their statement and they also changed

their versions regarding the weapons present in the hands of the accused persons at the time of the incident. After going through the statements of

these witnesses, we are unable to held that the improvements made by them are absolutely, inconsequential. Similarly, the omissions which are

sought to be projected as contradictions, in fact, are not omissions amounting to contradictions, but these are fine details, which were not given

either in the F.I.R., or in the statement of the witnesses recorded under Section 161 of Cr.P.C.

This Court, while deciding Cr.A. No.828/2000, with respect to other accused persons, has ascertained that it is always to be presumed that

the F.I.R is generally lodged within a very short time of the incident, either by the injured or by the relatives of the injured or by any of the eye

witnesses. If the eye witness comes to be a relation of the injured or deceased then, he is always in the stage of a shock because he has seen or

ghastly the incident. At this stage, it is not expected of a person to remember the fine details, such a witness always wants that he should in fact

name the real culprit and see that they are brought to book. The fine details regarding availability of the source of light, availability of the other

witnesses etc. are to be given when the person is clamposed or is trying to recreate the entire scene.

In the present matter, Rukmani Bai had seen the murder of her husband Shriram and borther-in-law Laxmichand. Similarly, she had seen Bebi

Bai and Tulsi Bai suffered certain injuries, if in such situation, she had lodged a report and gave wrong description of the weapons, then she could

not be disbelieved when she asserted in the Court that the present appellant was armed with particular weapon and had opened an assault on the

deceased persons. Even assuming that the prosecution witnesses had changed their version in relation to the weapons, then too the presence of the

present appellant on the spot cannot be disputed nor it can be disputed that he was armed with certain weapon.

From the statement of the aforesaid witnesses, it appears that there are no much discrepancies in their statements regarding the presence of the

appellant on the spot and the act which he has done along with other co-accused persons, therefore, the contention raised by the counsel, in our

opinion, has no substances. As the discrepancies and contradictions pointed out by the learned counsel are not so material, which affect the

credibility of the evidence of the witnesses and on the basis of which the judgment of conviction can be reversed. Hon''ble apex Court, in the case

of State of Rajasthan vs. Smt. Kalki, AIR 1981 SC 1390, has held that :

The second ground on which the High Court refused to place reliance on the evidence of P.W. 1 was that there were ""material discrepancies"".

As indicated above we have perused the evidence of P.W. 1. We have not found any ""material discrepancies"" in her evidence. The discrepancies

referred to by the High Court are, in our opinion, minor, insignificant, natural and not ''material''. The discrepancies are with regard to as to which

accused ""pressed the deceased and at which part of the body to the ground and sat on which part of the body; with regard to whether the

respondent Kalki gave the axe blow to the deceased while the latter was standing or lying on the ground, and whether the blow was given from the

side of the head or from the side of the legs. In the depositions of witnesses there are always some normal discrepancies however honest and

truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental

disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not

expected of a normal person. As indicated above we have not found any material discrepancies in the evidence of the P. W. 1.

In the case of Baijnath and another vs. State of MP [ILR (2009) MP 3041] it has been observed by Hon''ble apex Court as under:

We have given very careful consideration to the matter, more particularly, as we are dealing with a judgment of reversal. It is true

that the trial court has given certain findings with respect to the evidence which had led to the acquittal, but we are of the opinion that

some of the findings recorded by the trial Court were unjustified and unrealistic. The broad principles dealing with appreciation of

evidence in a criminal matter have been laid down in Bhoginbhai Hirjibhai vs. State of Gujarat [AIR 1983 SC 753], and we

respectfully produce the same:-

...........Over much importance cannot be attached to minor discrepancies. The reasons are obvious:

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if

a video tape is replayed on the mental screen.

(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so

often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might

emboss its image on one person''s mind whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They

can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work

on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates

in such matters. Again, it depends on the timesense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a

short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by

counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur

of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being

disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him- Perhaps it is a sort of a

psychological defence mechanism activated on the spur of the moment.

(8) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed

with undue importance. More so when the all important ""probabilities-factor"" echoes in favour of the version narrated by the

witnesses.

In the considered opinion of this Court, the applicant could not give any dent to the reliability of the witnesses, therefore, their testimony cannot

be thrown out only on the ground that there are some contradictions in their statements. 17 It is true that initially 17 persons were named in the

F.I.R and 14 persons were tried and out of them, although, 10 persons were acquitted, however, their acquittal always show that there was no

evidence to connect them with the alleged crime. Acquittal of these accused persons on laxity of the evidence or short fall of the evidence can

never provide a foundation for acquittal of an accused against whom sufficient reliable cogent evidence is available on record. The principle of

falsus in uno falsus in omnibus is not applicable in the Indian criminal jurisprudence. In our system a judge is supposed to shift the grain from the

chaff and has to see that what was the reality and what truth is available on the records.

Learned counsel for the appellant has submitted that all the eye witnesses are closely related to the victim, therefore, there statement cannot be

taken into account, however, this contention of learned counsel for the appellant can be best answered by referring to the observations given by

Hon''ble apex Court in the case of Jayabalan vs Union Territory of Pondicherry, 2010 (1) SCC 199 in the following manner:

23 We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach

of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the

evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to

look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is

closely related to the victim.

In another judgement by Hon''ble Supreme court in the case of Seeman @ Veeranam vs State, By Inspector Of Police (2005) 11 SCC 142,

following has been observed:

It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or

both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a

case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny

it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground

that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested sole witness. The

prosecution''s nonproduction of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to

discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the

quantity of the evidence which is required to be judged by the court to place credence on the statement.

If the contention of the learned counsel for the appellant is examined, in the context of the aforesaid judgments, then we have no hesitation to

conclude that the statement of Rukmani Bai (P.W.1), Bebi Bai (P.W.3), Tulsi Bai (P.W.4), Magan (P.W.5), Bhagirath (P.W.6), Raju (P.W.7)

and Anita (P.W9) are consistent and establish the prosecution version of the story. These witnesses clearly narrated the events as they transpired

on in the intervening night of 1st and 2nd July, 1996 and the role played by the appellant which find support from the postmortem report (Ex.P/38

and P/39), therefore, merely because these witnesses are close relatives of the deceased Shriram and Laxmichand, therefore, their testimony

cannot be discarded because they were the only witnesses, who were present on the spot of the incident.

In the present case, the subsequent conduct of the appellant is also useful of corroborative evidence because, immediately after the occurrence,

he was absconding and he has not given any explanation regarding his absconsion and the absence of any plausible explanation leads to a

conclusion of his guilty mind.

Taking this view of the matter, we are of the considered opinion that the trial Court has not committed any error in convicting the appellant for

the offences under Sections 148, 449 and 302 read with Section 149 of IPC.

Accordingly, this appeal is hereby dismissed by affirming the conviction and sentence awarded by the trial Court. The appellant is in jail. A

copy of the judgment be sent to the trial Court along with record for information and compliance. Certified copy as per Rules.