Omprakash Choudhary vs Vs State Of Madhya Pradesh

S.K. Gangele, J.

Appellant has filed this appeal against the judgment dated 26.04.2013 passed by 1st Additional Session Judge, Hoshangabad in Session Trial No.

48/2007. Appellant was prosecuted for commission of offence punishable under Section 302 of the I.P.C. Trial court held appellant guilty for

commission of offence punishable under Section 302 of IPC and awarded the sentence of life with fine of Rs.5,000/-.

Prosecution story in brief is that there was quarrel between accused, Surendra (absconded co-accused) and deceased Maheshchandra Choudhary

(PW-4). Sukhdeo @ Baba (PW-11) pacified the quarrel. Thereafter these accused persons-appellant alongwith other accused persons went on the

spot. The present appellant was armed with lathi and other accused persons were armed with farsa, sword and axe. They had beaten the deceased.

He was died on the spot. The Station Officer received information on phone that somebody was killed. He reached on the spot and registered Dehati

Nalishi (Ex.P-7). Thereafter investigation was conducted and police filed the charge-sheet. Initially seven persons were made accused. Four persons

were tried separately, one accused was tried in separate trial and two accused persons are absconding.

Appellant was absconding initially thereafter he was arrested on 18.07.2010 and prosecuted. He abjured his guilt and pleaded innocence. The trial

Court has held that the appellant guilty for commission of offence punishable under Section 302 of the I.P.C and awarded sentence.

Learned counsel appearing on behalf of the appellant has submitted that conviction of the appellant is based on the testimony of related

eyewitnesses therefore, their testimony is not reliable. There are many contradictions and omissions. Hence the appellant is entitled for benefit of

doubt.

Learned counsel for the State has submitted that there are eyewitnesses and ocular evidence finds support from medical evidence. Weapon was

also seized from the appellant, he was absconding initially, hence, the trial Court has rightly convicted the appellant and awarded a proper sentence.

Navin Chimaniya (PW-1) turned hostile.

Akhilesh Choudhary (PW-5) deposed that at the time of quarrel, I was standing with Lakhan and there was argument between Surendra and

deceased-Kallu. My father was coming from the filed along with grass. He pacified both the persons. Thereafter the present appellant was armed

with weapon and he had inflicted a blow from farsa on the neck of the deceased. Thereafter, other persons had beaten the deceased. Deceased was

lying dead. I informed the police on phone, police reached on the spot. In the cross examination he admitted that he had not seen the incident. The

present appellant inflicting blow by axe on the deceased. Other persons had told me about the said act. The present appellant was not involved in the

incident.

Maheshchandra Choudhary (P.W.-4) deposed that deceased was my nephew. The appellant had killed the deceased by axe along with other

accused persons. There was quarrel between the appellant and the deceased due to Panchayat Election. Appellant was armed with axe. I informed

the police on phone. Police came on the spot, thereafter, Dehati Nalishi (Ex.P-7) was recorded, I signed the same. Marg was registered (Ex.P-8). I

signed the same. Police recorded my statement.

Pankaj Choudhary (P.W.-6) deposed that the deceased was my brother. The appellant had inflicted injuries on the person of deceased alongwith

other accused persons his both hands were cut down. He also sustained injuries I signed all documents. Police recorded my statement. On the

memorandum of appellant (Ex.P-25) an axe was seized vide Seizure Memo (Ex.P-26). I signed the documents.

Nand Kishore (P.W.-8) turned hostile.

Nakul Choudhary (P.W.-9) also turned hostile.

Sukhdeo (P.W.-10) also turned hostile.

K.P.S Chouhan (P.W.-11) is the Investigation Officer, he deposed that at around 10 O’clock on 6.10.2006. I received information on phone

that somebody was killed. I immediately went to village Baikhedi. I noticed that dead body of one person was lying, I inquired from some persons and

recorded Dehati Nalish, on the information provided by Maheshchandra, which is Exhibit P-7. I signed the same, thereafter I prepared the spot map

and I also recorded statements of the witnesses.

Dr. D.N. More (P.W.-3), performed postmortem of the deceased. He deposed that I noticed following injuries on the person of the body of

deceased.

1- dVk gqvk ?kko] xnZu esa nkbZ vksj Dysfody ds Bhd Ã…ij 8 ls-eh- x 4 ls-eh- x 6 ls-eh-A

2- dVk gqvk ?kko pksV Ø- 1 ls nks ls-eh- Åij xnZu ij 8 ls-eh-@2 ls-eh- x 6 ls-eh- dk FkkA

3- dVk gqvk ?kko xnZu ij pksV Ø- 2 ds ,d ls-eh- Åij 8x2x6 ls-eh- dk FkkA

4- dVk gqvk ?kko xnZu ij chpksachp 9 ls-eh- x 2 ls-eh- x 6 ls-eh-dk FkkA

5- dVk gqvk ?kko xnZu ij nkbZ vksj Ã…ij dh rjQ nkfgus tcM+s dh gM~Mh ds uhps 8 ls-eh- x 3 ls-eh- x 4 ls-eh- dk FkkA

6- dVk gqvk ?kko xnZu esa ihNs dh vksj nkfgus dku ls vkM+k xnZu dh nwljh rjQ dk Fkk ftldk vkdkj 18 ls-eh- x 4 ls-eh- x 6 ls-eh-FkkA

7-Â dVk gqvk ?kko xnZu esa ckbZ rjQ uhps dh vksj 5 ls-eh- x 4 ls- eh- x 7 ls-eh- dk FkkAÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

8- xnZu esa ckbZ vksj Åij dh rjQ ?kko ckbZ tcM+s dh gM~Mh ds uhps 7 x 3 x 4 ls-eh- dk

FkkAÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

9-Â dVk gqvk ?kko ekFks ij ckbZ vksj 7Â ls-eh- x 1 ls-eh- x 1@2 ls-

eh- dk FkkAÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

10-Â QVk gqvk ?kko nkfguh HkkSag ij 2 ls-eh- x 1@2 x 1@2 ls-eh-dk FkkAÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

11- dVk gqvk ?kko xnZu esa ihNs dh vksj 3 ls-eh- pksV Ø- 6 ds uhps Fks] ftldk vkdkj 16 ls-eh- x 4 ls-eh- x 4 ls-eh- dk FkkA     Â

12-Â dVk gqvk ?kko nkfgus da/ks ij 7 ls-eh- x 3 ls-eh- x 2 ls-eh- dk FkkAÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

13-Â dVk gqvk ?kko nkfgus gkFk ij dksguh ds uhps 10 ls-eh- x 6 ls- eh- x 5 ls-eh- dk FkkAÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

14-Â dVk gqvk ?kko ck;as gkFk esa ckbZa dykbZ ds Ã…ij 7 ls-eh- x 2 ls- eh- x 1 ls-eh- dk

FkkAÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

15-Â dVk gqvk ?kko ck;sa gkFk ij gFksyh ds mYVh rjQ NksVh maxyh ij 11 ls-eh- x 1 ls-eh- x 1@2 ls-eh- dk FkkA

16- dVk gqvk ?kko nk;s gkFk ij 3 ls-eh- ckbZ vksj pksV Ø- 15 ls Fkk] ftldk vkdkj 6 ls-eh- x 1 ls-eh- x 1@2 ls-eh- dk FkkA

17-Â dVk gqvk ?kko ck;sa gkFk dh vaxwBh okyh maxyh ij 3 ls-eh-Â x 1@2 ls-eh- x 1@2 ls-eh- dk FkkA

18- dVk gqvk ?kko ckfguh gkFk dh rtZuh maxyh ij 2 ls-eh- x 1@2 ls-eh- x 1@4 ls-eh- dk FkkA    Â

19- dVk gqvk ?kko isV ij ckbZ vksj lekukarj ukHkh ls 3 ls-eh- Ã…ij 17 ls-eh- x 5 ls-eh- x 2 ls-eh- dk FkkAÂ Â Â Â

20- dVk gqvk ?kko ck;sa ikao ij ck;sa V[kus ls Ã…ij ihNs dh vksj 10 ls-eh- x 4 ls-eh- x 2 ls-eh- dk FkkAÂ Â Â Â Â

21- dVk gqvk ?kko ck;sa ikao ij vkxs dh vksj chpksa chp 10 ls-eh- x 4 ls-eh- x 2 ls-eh- dk FkkAÂ Â Â Â Â Â Â Â

22- dVk gqvk ?kko ihB ij chpksachp lekukarj 16 ls-eh- x 4 ls-eh- x 8 ls-eh- dk FkkAÂ Â Â Â Â Â Â Â Â

23- dVk gqvk ?kko ihB ij nkbZ vksj chpksa chap 10 ls-eh- x 3 ls-eh- x 3 ls-eh- dk FkkAÂ Â Â Â Â Â Â Â Â

24- dVk gqvk ?kko ihB ij nkfguh vksj uhps dh rjQ 8 x 2 x 2 ls-eh- dk FkkAÂ Â Â Â Â Â Â Â Â Â

25- dVk gqvk ?kko ihB ij nkbZ vksj pksV Ø- 24 ls nks ls-eh- ls uhps 10 ls-eh- x 3 ls-eh- x 3 ls-eh- dk vkdkj dk FkkA  Â

26- dVk gqvk ?kko pksV Ø- 25 ls nks ls-eh- uhps 8 ls-eh- x 2 ls-eh- x 2 ls-eh- ds vkdkj dk FkkA      Â

27- dVk gqvk ?kko pksV Ø- 26 ls 3 ls-eh- uhps chpksa chp 3 ls-eh- x 1 ls-eh- x 1 ls-eh- dk FkkA       Â

28- dVk gqvk ?kko ihB ij ckbZ vksj uhps dh rjQ 11 ls-eh- x 4 ls- eh- x 3 ls-eh- dk FkkAÂ Â Â Â Â Â Â Â Â

Maheshchandra Choudhary (P.W-4) and Pankaj Chouchary (P.W.-6) are eye witnesses. They are the related witnesses, however, there presence

on the spot is natural. They have specifically deposed that the appellant was armed with axe and he had inflicted blows of axe on the person of

deceased.

The Hon’ble Apex Court, in regard to credibility of related witnesses in the case of Jodhan Vs. State of Madhya Pradesh reported in 2015

(11) SCC 52 has held as under:-

“24. First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab (AIR 1953 SC 364), it has been observed thus:

(AIR p. 366, para 25)

25.We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the

foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we

know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common

to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan, AIR 1952 SC54.

In the said case, it has also been further observed:- (AIR p. 366,para 26)

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means

unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to

screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a

tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and

the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

In Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675, the Court has ruled that evidence of interested witnesses per se cannot be said to be

unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduced a passage

from the said authority:-(SCC pp.683-84,para 13)

13…….An invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in

material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny

and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it

may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.

The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found

to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be

rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in

regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered

injuries in the occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the

cross-examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence

warranting to treat the same as improbable or untrustworthy.â€​

The Apex Court has specifically held that the principle of law is that evidence of a2n interested witness can be relied upon if it is found to be

trustworthy and credible and if the testimony after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected.

In our opinion the evidence of the Maheshchandra Choudhary (P.W.-4) and Akhilesh Choudhary (P.W.-5) is reliable. Hence, the trial Court has

rightly placed reliance on the aforesaid evidence.

The allegation against the appellant is that he caused injuries by axe. This fact has been proved from the evidence of the eye witnesses. The

Dehati Nalishi (Ex.P-7) was recorded on the spot, in which the name of the appellant has been mentioned. From the possession of the appellant axe

was seized. Dr. A.D. More (P.W.-3), who performed postmortem specifically deposed that number of incised injuries were caused on the person of

the body of deceased. Injuries could be caused by axe also. Looking to the aforesaid evidence of the case, in our opinion trial Court has rightly held

the appellant guilty for commission of offence.

Trial Court has convicted the appellant for commission of offence punishable under Section 302 of the I.P.C. We do not find any merit in this

appeal. It is hereby dismissed. The appellant is in jail. He has to suffer remaining jail sentence.

Accordingly appeal is dismissed.