Chattisgarh High Court
Rajkumar Pandey vs State Of Chhattisgarh on 2 November, 2022
Cr.A.Nos.266/2016 & 525/2016
Page 1 of 25
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.266 of 2016
(Arising out of judgment dated 13-11-2015 passed by the 2nd Additional
Sessions Judge, Durg in Sessions Trial No.182/2014)
Judgment reserved on: 19-10-2022
Judgment delivered on: 2-11-2022
J. Venktesh @ J. Venkat @ Motu, S/o J. Ram Babu, aged about 22 years,
Occupation Carpenter, R/o Adarsh Nagar, Durg, Near General Store,
Camp No.1, Bhilai, P.S. Chhavani, Distt. Durg (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, through District Magistrate, Distt. Durg (C.G.)
---- Respondent
AND
Criminal Appeal No.525 of 2016
Rajkumar Pandey, S/o Late Rajeshwar Pandey, aged about 22 years,
Occupation Labour/Helper/Conductor, R/o Sharda Para, In front of
Shrawan Kirana Store, Camp-2, Bhilai, Police Station Chhawni, District
Durg (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through Station House Officer, Police Station
Chhawni, Bhilai, District Durg (C.G.)
---- Respondent
--------------------------------------------------------------------------------------------------
For Appellant in Cr.A.No.266/2016: -
Mr. Awadh Tripathi, Advocate.
For Appellant in Cr.A.No.525/2016: -
Mr. Manoj Kumar Jaiswal, Advocate.
For Respondent / State: -
Mr. Ishan Verma, Panel Lawyer.
--------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Cr.A.Nos.266/2016 & 525/2016
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. Since both the above criminal appeals have arisen out of one and
same judgment dated 13-11-2015 passed by the learned 2nd
Additional Sessions Judge, Durg in Sessions Trial No.182/2014 and
since common question of fact and law is involved in both the
appeals, they have been clubbed together, heard together and are
being disposed of by this common judgment.
2. Sole appellant in Cr.A.No.266/2016 J. Venkatesh and sole appellant
in Cr.A.No.525/2016 Rajkumar Pandey have preferred by these two
appeals under Section 374(2) of the CrPC against the impugned
judgment convicting them for the offences punishable under Section
302 read with Section 34 of the IPC and sentencing them to
undergo imprisonment for life with fine of ₹ 250/- each, in default, to
further undergo rigorous imprisonment for six months.
3. Case of the prosecution, in brief, is that on 15-8-2014 at night 8
p.m. at J.P. Chowk, Near Jhola Kunwa, Camp-2, Bhilai, Police
Station Chhawni, in furtherance of their common intention, the
appellants herein and one juvenile accused Shiva assaulted
deceased Laxman Thakur by wooden stick by which he suffered
injury on his head and succumbed to death and thereby committed
the offence punishable under Section 302 read with Section 34 of
the IPC. Further case of the prosecution, in brief, is that on 15-8-
2014, the appellants herein and the juvenile accused assaulted the
deceased by wooden stick by which he suffered death and
thereafter, one boy - unknown to him, resident of same locality,
Cr.A.Nos.266/2016 & 525/2016
informed to the brother of the deceased - Mahesh Thakur (PW-2)
about the incident, then Mahesh Thakur (PW-2) firstly lodged first
information report against the appellants herein and the juvenile
accused vide Ex.P-8 and thereafter, lodged morgue intimation vide
Ex.P-7 stating that on the fateful day, three accused persons
assaulted the deceased by which he suffered injury and died on the
spot. Thereafter, Alexander Kiro (PW-12) - investigating officer,
reached to the spot and collected bloodstained soil and plain soil
vide Ex.P-15 and thereafter, panchnama was prepared vide Ex.P-
20. Dead body of the deceased was sent for postmortem which
was conducted by Dr. Vipin Jain (PW-3) and his postmortem report
is Ex.P-3. Cause of death was head injury. Thereafter, the
appellants were arrested and pursuant to the memorandum
statement of appellant J. Venkatesh vide Ex.P-13, wooden stick ad-
measuring 29½" width 5¼" circumference was recovered with blood
stains vide Ex.P-16. Similarly, on the basis of memorandum
statement of appellant Rajkumar Pandey vide Ex.P-14, one broken
piece of wooden stick 27¼" x 6¼" was seized vide Ex.P-17.
Articles seized were sent for forensic examination to the Forensic
Science Laboratory and the FSL report is Ex.P-25 according to
which blood as well as human blood was found on wooden stick
Articles C & D and blood was found on shirt & pant of the deceased
also, but blood group could not be ascertained. Statement of
eyewitness G. Ashok Kumar (PW-9) under Section 161 of the CrPC
was recorded on 16-8-2014 and statements of other two
eyewitnesses - Soni Bai (PW-10) & Tulsi Beni (PW-11) under
Section 161 of the CrPC were recorded on 29-8-2014.
Cr.A.Nos.266/2016 & 525/2016
4. Thereafter, after usual investigation, the appellants were charge-
sheeted for offence under Section 302 read with Section 34 of the
IPC and their case was committed to the Court of Sessions for
hearing and disposal in accordance with law.
5. The prosecution, in order to prove the offence against the
appellants, examined as many as 12 witnesses and brought on
record 26 documents Exs.P-1 to P-26. The defence has examined
the appellants herein as DW-1 Rajkumar & DW-2 J. Venkatesh and
witnesses Smt. S. Sarita (DW-3) & J. Rambabu (DW-4), and
brought into record six documents Ex.D-1 to D-6.
6. The trial Court after appreciating oral and documentary evidence on
record, finding the testimony of eyewitnesses G. Ashok Kumar (PW-
9), Smt. Soni Bai (PW-10) & Tulsi Beni (PW-11) reliable and further
holding that recovery of weapon of offence stick with bloodstains
has been found proved by G. Ashok Kumar (PW-9) on which
human blood has been found vide FSL report Ex.P-25, proceeded
to convict the appellants herein for offence under Section 302 read
with Section 34 of the IPC against which the appellants herein have
preferred these two appeals (juvenile accused Shiva being tried
separately before the Juvenile Justice Board).
7. Mr. Awadh Tripathi, learned counsel appearing for appellant J.
Venkatesh in Cr.A.No.266/2016, would submit as under: -
1. FIR Ex.P-8 and morgue intimation Ex.P-7 have been lodged
by Mahesh Thakur (PW-2) - brother of the deceased in which
he has stated that one boy of the locality had came and
informed him about the assault by the appellants to his
Cr.A.Nos.266/2016 & 525/2016
brother Laxman Thakur (deceased), but in the statement
before the Court, taking U-turn to his statement under Section
161 of the CrPC, he has stated on oath that it is G. Ashok
Kumar (PW-9) who has informed him about the incident
which is material omission and which amounts to
contradiction within the meaning of proviso to Section 162 of
the CrPC, as Mahesh Thakur (PW-2) has improved his
version projecting G. Ashok Kumar (PW-9) as eyewitness,
whereas he has not witnessed the incident.
2. Admittedly and undisputedly, G. Ashok Kumar (PW-9) had
assaulted J. Durga - sister of appellant J. Venkatesh and also
appellant J. Venkatesh and against that, a case under
Section 307 of the IPC is pending consideration before the
criminal court which is clear from the statement of J.
Rambabu (DW-4) - father of appellant J. Venkatesh and
therefore G. Ashok Kumar (PW-9) is interested witness and
his testimony cannot be relied upon unless it is corroborated
by some material particulars. Similar is the testimony of G.
Tulsi Beni (PW-11), who is sister of G. Ashok Kumar (PW-9),
and they are only projected witnesses as they have never
seen the incident, therefore, their testimonies are liable to
discarded.
3. Smt. Soni Bai (PW-10) has been cited as eyewitness by the
prosecution and relied upon by the trial Court, but her
statement under Section 161 of the CrPC was recorded on
29-8-2014, whereas in paragraph 15 of her statement before
Cr.A.Nos.266/2016 & 525/2016
the Court, she has clearly stated that on the next day, the
police has interrogated her, but she has not stated anything to
the police and thereafter, on 29-8-2014, after 14 days from
the date of incident, she had become eyewitness and
informed the police and gave statement to the police
implicating the appellant herein, she is totally unreliable and
her testimony is liable to be discarded.
4. Furthermore, memorandum and seizure have not been
proved as S. Raja (PW-5), who is one of the independent
eyewitnesses, has not supported the case of the prosecution
at all except his signature and has clearly stated in cross-
examination that he has signed Ex.P-14 as per the direction
of G. Ashok Kumar (PW-9) and all the proceedings are being
done at the instance of G. Ashok Kumar (PW-9).
Memorandum and seizure have been proved only by G.
Ashok Kumar (PW-9), who is interested witnesses, therefore,
it would be unsafe to rely upon him and convict the appellant
for offence under Section 302 read with Section 34 of the
IPC. Conviction and sentences imposed upon the appellant
herein are liable to be set aside.
8. Mr. Manoj Kumar Jaiswal, learned counsel appearing for appellant
Rajkumar Pandey in Cr.A.No.525/2016, would principally adopt the
submissions of Mr. Tripathi and additionally submit that there is no
motive alleged against Rajkumar Pandey and only on the basis of
alleged eyewitnesses G. Ashok Kumar (PW-9), Soni Bai (PW-10) &
Cr.A.Nos.266/2016 & 525/2016
G. Tulsi Beni (PW-11), appellant Rajkumar Pandey has been
convicted which is liable to be set aside.
9. Mr. Ishan Verma, learned Panel Lawyer appearing for the State /
respondents, would support the impugned judgment and submit
that the prosecution has been able to bring home the offence
against the appellants as G. Ashok Kumar (PW-9), Soni Bai (PW-
10) & Tulsi Beni (PW-11) are undoubtedly eyewitnesses. Statement
of G. Ashok Kumar has been recorded promptly on the next date of
incident on 16-8-2014 and statements of Soni Bai & Tulsi Beni have
been though recorded with some delay on 29-8-2014, but their
testimonies inspire confidence and are trustworthy and therefore
they have been rightly relied upon by the trial Court to base
conviction of the appellants. Mr. Verma, learned State counsel,
would further submit that pursuant to the memorandum statements
of the appellants Exs.P-13 & P-14, wooden sticks have been seized
vide Exs.P-16 & P-17 in which human blood has been found vide
FSL report Ex.P-25, even on Articles E-1 & E2 - shirt & pant of the
deceased, blood has been found which is also human blood.
Therefore, the appeals deserve to be dismissed.
10. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
11. The first question for consideration would be, whether the death of
the deceased was homicidal in nature to which the trial Court after
appreciating the medical evidence on record, particularly the
statement of Dr. Vipin Jain (PW-3) and taking into account the
Cr.A.Nos.266/2016 & 525/2016
postmortem report Ex.P-3 has rightly come to the conclusion that
the death of the deceased was homicidal in nature which is a pure
and correct finding of fact based on the evidence available on
record and which is neither perverse nor contrary to the record.
Even otherwise, it has not been seriously disputed by learned
counsel for the appellants that death of deceased Laxman Thakur
was homicidal in nature. In view of the aforesaid analysis, we
hereby accept and hold that death of the deceased was homicidal
in nature and we also hereby affirm the finding recorded by the trial
Court that death of the deceased was homicidal in nature.
12. Now, the main question is, whether the appellants herein were the
authors of the crime in question?
13. Conviction of the appellants is principally based on the testimony of
eyewitness G. Ashok Kumar (PW-9) and his sister Smt. G. Tulsi
Beni (PW-11) and furthermore, on the testimony of Soni Bai (PW-
10), all three have been cited as eyewitnesses. Furthermore, the
trial Court has found that pursuant to the memorandum statement
of the appellants Exs.P-13 & P-14, seizure of bloodstained wooden
sticks have been made vide Exs.P-16 & P-17 which has been
proved by G. Ashok Kumar (PW-9), though S. Raja (PW-5) - other
witness, has turned hostile and on the wooden stick, human blood
has been found vide FSL report Ex.P-25 which completes the chain
of circumstances to convict the appellants for the offence in
question.
14. In order to consider the correctness of the finding so recorded by
the trial Court, it would be appropriate to consider the questions:-
Cr.A.Nos.266/2016 & 525/2016
1. Whether G. Ashok Kumar (PW-9), his sister Smt. G. Tulsi
Beni (PW-11) & Soni Bai (PW-10) are eyewitnesses and the
trial Court is justified in relying upon them as eyewitnesses?
2. (A) Whether G. Ashok Kumar (PW-9) & Smt. G. Tulsi Beni
(PW-11) are interested witnesses?
(B) Whether the testimony of interested / inimical witnesses
G. Ashok Kumar (PW-9) & Smt. G. Tulsi Beni (PW-11) can be
relied upon to base conviction of the apellants for the
aforesaid offence?
3. Whether the memorandum statement of the appellants and
the subsequent recovery pursuant to their disclosure
statements have been proved in accordance with law?
15. As per the FIR, date of incident is 15-8-2014 (Friday) at 8 p.m.
which has been informed to the police on the same day at 9.15
p.m. by brother of the deceased - Mahesh Thakur (PW-2). He has
clearly stated in the FIR Ex.P-8 that one boy from his locality
(whom he was not acquainted with), in which he resides, came to
him at 8 p.m. and informed him that the two appellants herein and
one juvenile accused assaulted his brother Laxman Thakur on head
and murdered him, then he immediately rushed to the spot and
lodged first information report (FIR) Ex.P-8. FIR is followed by
morgue intimation Ex.P-7 lodged at 9.20 p.m. in which similar
statement has been made by Mahesh Thakur (PW-2) that a boy of
the locality came and informed him about the incident. FIR Ex.P-8
and morgue intimation Ex.P-7 have been proved by Mahesh Thakur
(PW-2).
Cr.A.Nos.266/2016 & 525/2016
16. Mahesh Thakur (PW-2) - brother of the deceased, who lodged FIR
and morgue, has been examined before the Court. In paragraph
19, he has explained that he does not know the name, father's
name, surname, etc. of the boy, who has informed him about the
incident on the basis of which he lodged Exs.P-7 & P-8, whereas,
so far as G. Ashok Kumar (PW-9) is concerned, in paragraph 29 of
his statement, he has clearly stated that he has visiting and dining
terms with G. Ashok Kumar. As such, before the date of incident,
he knew G. Ashok Kumar (PW-9), as he has good terms with G.
Ashok Kumar and he did not know the boy, who has informed him
about the incident. Therefore, there was no reason for Mahesh
Thakur (PW-2) not to name G. Ashok Kumar if he had informed him
about the incident, to the police while lodging FIR Ex.P-8 and
morgue intimation Ex.P-7, but for the first time, he has introduced
G. Ashok Kumar in his statement before the Court as he has
informed him about the incident, then he reached to the spot and
then G. Ashok Kumar became eyewitness cited by the prosecution
and relied upon by the trial Court.
17. Explanation to Section 162 of the CrPC states as under: -
"Explanation.-An omission to state a fact or
circumstance in the statement referred to in sub-section
(1) may amount to contradiction if the same appears to
be significant and otherwise relevant having regard to the
context in which such omission occurs and whether any
omission amounts to a contradiction in the particular
context shall be a question of fact."
18. The Explanation to Section 162 of the CrPC provides that an
omission to state a fact or circumstance in the statement recorded
by a police officer under Section 161 of the CrPC, may amount to
Cr.A.Nos.266/2016 & 525/2016
contradiction if the same appears to be significant and otherwise
relevant having regard to the context in which such omission occurs
and whether any omission amounts to a contradiction in the
particular context shall be a question of fact. Thus, while it is true
that every improvement is not fatal to the prosecution case, in
cases where an improvement creates a serious doubt about the
truthfulness or credibility of a witness, the defence may take
advantage of the same. (See Harbeer Singh v. Sheeshpal and
others1.)
19. In the instant case, admittedly, Mahesh Thakur (PW-2) knew G.
Ashok Kumar (PW-9) as he had visiting and dining terms with G.
Ashok Kumar and he did not know the person of the locality who
had informed him about the incident, but while making statement
before the Court he has introduced G. Ashok Kumar as informer
and later-on, G. Ashok Kumar (PW-9) has been introduced as
eyewitness and his statement has been recorded under Section
161 of the CrPC on 16-8-2014, whereas his statement before the
Court has been recorded on 18-8-2015. In our considered view,
omission on the part of Mahesh Thakur (PW-2) is material omission
amounting to contradiction covered by the Explanation to Section
162 of the CrPC. In view of the contradiction, we are of the
considered opinion that it is doubtful as to whether G. Ashok Kumar
(PW-9) is eyewitness to the incident.
20. Similarly, Smt. Soni Bai (PW-10) is the next eyewitness cited by the
prosecution and relied upon by the trial Court who is said to be the
independent eyewitness. In her statement before the Court
1 (2016) 16 SCC 418
Cr.A.Nos.266/2016 & 525/2016
(paragraph 15), she has clearly stated that on the next day of
incident, the police enquired her and questioned her as to how she
has not witnessed the incident and has not informed anything to the
police and thereafter, it appears from the record that her statement
under Section 161 of the CrPC (Ex.D-5) was recorded on 29-8-
2014 (after delay of 14 days) in which she has stated that she has
seen the incident and stated the same in his testimony before the
Court. As such, on 16-8-2014, she did not inform anything to the
police and it appears that she succumbed to the pressure of the
police and on 29-8-2014, she made statement under Section 161 of
the CrPC to the police that she has witnessed the incident and the
appellants herein are assailants of deceased Laxman Thakur. The
testimony of Smt. Soni Bai (PW-10), we also entertain doubt as to
whether she has actually seen the incident by which the appellants
have assaulted the deceased, particularly in view of the fact that on
the next date of incident, she did not inform anything to the police
about the incident, but after fifteen days of incident, she became
eyewitness to the incident.
21. Tulsi Beni (PW-11) is the next witness. Her statement under
Section 161 of the CrPC has also been recorded on 29-8-2014 and
in her statement before the Court in paragraph 3, she has stated
that she has seen that the two appellants herein and one juvenile
accused had assaulted the deceased by which his parts of brain
came out and he cried "bachao bachao". The tenor and texture of
her statement would show that she came to the spot after the
incident and seen the body of the deceased lying on the spot.
Cr.A.Nos.266/2016 & 525/2016
There is no explanation by the investigating officer for recording the
statement of this witness after 14 days, particularly it is not the case
of the prosecution that this witness was not available for recording
her statement.
22. The Supreme Court in the matter of Ganesh Bhavan Patel and
another v. State of Maharashtra2 has held that inordinate delay in
interrogation of witness during investigation is itself a sufficient
ground for excluding his testimony in considering involvements of
the appellants and observed as under: -
"15. ... Delay of a few hours, simpliciter, in recording
the statements of eye-witnesses may not, by itself,
amount to a serious infirmity in the prosecution case.
But it may assume such a character if there are
concomitant circumstances to suggest that the
investigator was deliberately marking time with a view to
decide about the shape to be given to the case and the
eye-witnesses to be introduced. A catena of
circumstances which lend such significance to this delay,
exists in the instant case.
18. In this connection, the second circumstance, which
enhances the potentiality of this delay as a factor
undermining the prosecution case, is the order of priority
or sequence in which the investigating officer recorded
the statements of witnesses. Normally, in a case where
the commission of the crime is alleged to have been
seen by witnesses who are easily available, a prudent
investigator would give to the examination of such
witnesses precedence over the evidence of other
witnesses. ...
29. Thus considered in the light of the surrounding
circumstances, this inordinate delay in registration of the
'F.I.R.' and further delay in recording the statements of
the material witnesses, casts a cloud of suspicion on the
credibility of the entire warp and woof of the prosecution
story."
2 AIR 1979 SC 135
Cr.A.Nos.266/2016 & 525/2016
23. Similarly, in the matter of State of Orissa v. Mr. Brahmananda
Nanda3, the Supreme Court has held that in a case where the sole
eyewitness did not disclose the name of the murderer for a day and
a half after the occurrence, the fact seriously affects his credibility,
and observed as under: -
"2. ... It is indeed difficult to believe that this witness
should not have disclosed the name of the respondent to
the police or even to A.S.I. Madan Das and should have
waited till the morning of June 15, 1969 for giving out the
name of the respondent. This is a very serious infirmity
which destroys the credibility of the evidence of this
witness. The High Court has also given various other
reasons for rejecting her testimony and most of these
reasons are, in our opinion, valid and cogent. If the
evidence of this witness is rejected as untrustworthy,
nothing survives of the prosecution case."
24. In the matter of Jagjit Singh alias Jagga v. State of Punjab 4, their
Lordships of the Supreme Court while dealing with the effect of
delay in recording statement of the witness held as under: -
"30. ... The delay in examining her in the course of
investigation also creates a serious doubt in the absence
of any explanation for her late examination after three
days, when admittedly she was the sole eyewitness who
was also injured in the course of the occurrence. We
are, therefore, of the view that though she may have
witnessed the occurrence, she did not know the
appellant by name as she had no opportunity of knowing
or seeing him earlier, and that she has involved the
appellant at the instance of her father, who was the
person who suggested the involvement of the appellant
when her statement Ext. PW-6/A was being recorded."
25. In the matter of Ramanand Yadav v. Prabhu Nath Jha and others5,
the Supreme Court while dealing with the effect of delayed
examination of witnesses has held that the investigating officer
3 (1976) 4 SCC 288
4 (2005) 3 SCC 689
5 (2003) 12 SCC 606
Cr.A.Nos.266/2016 & 525/2016
would have to be asked specifically the reason for their delayed
examination and unless the investigating officer is categorically
asked as to why there was delay in examination of the witnesses,
the defence cannot gain any advantage therefrom.
26. Reverting to the facts of the case in light of the principles of law laid
down by their Lordships of the Supreme Court in the aforesaid
judgments, it is quite vivid that the incident is of 15-8-2014 and the
statement of G. Ashok Kumar was recorded on 16-8-2014 by the
police, whereas according to Mahesh Thakur (PW-2), if the
statement of Mahesh Thakur is accepted that G. Ashok Kumar had
informed him about the incident and he was the eyewitness, there
was no reason for the police not to record the statement of G.
Ashok Kumar on 15-8-2014 and there is no explanation for not
recording his statement on 15-8-2014. Similarly, Smt. Soni Bai
(PW-10) was examined under Section 161 of the CrPC on 16-8-
2014, but she did not tell anything to the police on 16-8-2014 and it
appears that under the pressure of police, her statement under
Section 161 of the CrPC implicating the accused persons was
recorded on 29-8-2014. Similar is the statement of G. Tulsi Beni
(PW-11), who is sister of G. Ashok Kumar (PW-9), whose statement
under Section 161 of the CrPC was also recorded on 29-8-2014
and there is no reason for not recording her statement at
appropriate time, as it has not been explained by investigating
officer Alexander Kiro (PW-12) of not recording the statements right
in time. This creates a doubt in the mind of the Court that these
eyewitnesses though all are said to have seen the incident on 15-8-
Cr.A.Nos.266/2016 & 525/2016
2014, but the statement of one eyewitness G. Ashok Kumar (PW-9)
under Section 161 of the CrPC was recorded on 16-8-2014,
whereas the statements of other two eyewitnesses Smt. Soni Bai
(PW-10) & Tulsi Beni (PW-11) under Section 161 of the CrPC were
recorded on 29-8-2014. Apart from the above fact, there is a
serious contradiction in the prosecution case in terms of the
statement of Mahesh Thakur (PW-2) who did not name G. Ashok
Kumar (PW-9) as the first informant to him or to the police at the
first available opportunity while lodging FIR Ex.P-8 and morgue
intimation Ex.P-7 and later-on the prosecution has introduced him
as eyewitness. As such, the substantial delay in recording the
statements of material witnesses G. Ashok Kumar (PW-9), Smt.
Soni Bai (PW-10) & Tulsi Beni (PW-11) and of Mahesh Kumar (PW-
2) not naming G. Ashok Kumar in the FIR (Ex.P-8) / morgue (Ex.P-
7) casts a cloud of suspicion on the credibility of these witnesses
and the prosecution story. The question is answered accordingly.
27. Admittedly, on the report of appellant J. Venkatesh (A-1)'s father for
attempting to cause murder of his sister J. Durga, an offence under
Section 307 of the IPC has been registered against G. Ashok
Kumar (PW-9) which is pending consideration before the Additional
Sessions Judge in which statement of the sister of appellant J.
Venkatesh (A-1) namely J. Durga has been recorded on 27-3-2014
and documents have been filed vide Exs.D-2 & D-3 in which G.
Ashok Kumar was making his endeavour to get the matter settled
by compromise, but could not be settled till the date of offence
which is also apparent from the statement of J. Rambabu, father of
Cr.A.Nos.266/2016 & 525/2016
appellant J. Venkatesh vide Ex.D-3 and the prosecution itself is
clear that on the report of father of appellant J. Venkatesh (A-1) and
sister of appellant (A-1) namely J. Durga, offence under Section
307 of the IPC is registered and pending consideration. Even it is
stated at the Bar that G. Ashok Kumar has been convicted by the
jurisdictional criminal court.
28. In that view of the matter, Mr. Tripathi, learned counsel for appellant
J. Venkatesh, would submit that G. Ashok Kumar (PW-9) and her
sister G. Tulsi Beni (PW-11) are inimical / interested witnesses,
therefore, their testimony cannot be relied upon because they have
been projected as eyewitnesses and the other witness of
memorandum and seizure S. Raja (PW-5) has turned hostile and
he has not supported the case of the prosecution.
29. Bentham stated that "Witnesses are eyes and ears of justice."
Undoubtedly, witnesses are important players in the judicial system
and help the Judges in arriving at correct factual findings. In the
matter of Dalip Singh and others v. The State of Punjab 6, their
Lordships of the Supreme Court have held that "A witness is
normally considered to be independent unless he or she springs
from sources which are likely to be tainted and that usually means
unless the witness has caused, such as enmity against the
accused, to wish to implicate him falsely. Ordinarily, a close relation
would be the last to screen the real culprit and falsely implicate an
innocent person. But it is also true when feelings run high and
there is a personal cause for enmity."
6 AIR 1953 SC 364
Cr.A.Nos.266/2016 & 525/2016
30. Furthermore, in the matter of State of Karnataka v. Amajappa and
others7, their Lordships of the Supreme Court have held that there
is a tendency to drag in an innocent person against whom a
witness has a grudge along with the guilty. These witnesses who
have some kind of animosity with the accused are called inimical
witnesses.
31. In the matter of Lakshmi Singh v. The State of Bihar 8, the Supreme
Court has held that when the witness was involved in some other
murder case and the accused had testified against him in that case
or when the accused had deposed against the witness in a title
deed case. Further, in the matter of State of Jammu and Kashmir v.
Hazara Singh and others9, the Supreme Court has held that the
testimony of inimical witness has to be examined with due caution
and diligence and the testimony of witnesses cannot be rejected
merely on the point of inimical background.
32. In the matter of Shivaji Sahabrao Bobade and another v. State of
Maharashtra10, it has been held by the Supreme Court that in case
of inimical witness, since the reliability of inimical witness is tainted
by bias and interestedness, their testimony is warily evaluated.
Further, in the matter of Dharam Singh and others v. State of
Punjab11, their Lordships of the Supreme Court have held that the
testimony of inimical witness has to be corroborated with evidence,
judged with great caution and diligence. In the matter of
7 (2003) 9 SCC 468
8 (1976) SCC (Cri) 671
9 (1981) SCC (Cri) 537
10 (1973) 2 SCC 793
11 1993 Supp (3) SCC 532
Cr.A.Nos.266/2016 & 525/2016
Ramashish Rai v. Jagdish Singh12, the Supreme Court has held that
the requirement of law is that the testimony of inimical witnesses
has to be considered with caution. If otherwise the witnesses are
true and reliable their testimony cannot be thrown out on the
threshold by branding them as inimical witnesses. A duty is cast
upon the court to examine the testimony of inimical witnesses with
due caution and diligence. In the matter of State of Maharashtra v.
Tulshiram Bhanudas Kamble and others13, their Lordships of the
Surpeme Court have held that enmity is a double-edged weapon, it
can be a ground for false implication, but it can also be a ground for
correct implication and therefore the testimony of the inimical
witnesses cannot be discarded merely because of the enmity.
Further, in the matter of Balraje alias Trimbak v. State of
Maharashtra14, it has been held that the evidence has to be
weighed pragmatically with myopic scrutiny, caution and
circumspection.
33. In the matter of Mohd. Rojali Ali and others v. State of Assam,
Ministry of Home Affairs Through Secretary 15, defining the meaning
of interested witness, relying on its earlier judgments, their
Lordships have held that a witness may be called interested only
when he or she derives some benefit from the result of a litigation,
which in the context of a criminal case would mean that the witness
has a direct or indirect interest in seeing the accused punished due
12 (2005) 10 SCC 498
13 (2007) 14 SCC 627
14 (2010) 6 SCC 673
15 (2019) 19 SCC 567
Cr.A.Nos.266/2016 & 525/2016
to prior enmity or other reasons, and thus has a motive to falsely
implicate the accused.
34. As such, it is quite vivid that the testimony of inimical witness has to
be examined with due care, caution and diligence and it has to be
judged according to the facts and circumstances with the
application of 'test of stricter scrutiny' and 'general rule of prudence'.
Furthermore, in case of interested witness, corroboration by
material evidence or independent witnesses should be made an
indispensable rule in cases where the prosecution is primarily
based on the evidence of seemingly inimical witnesses and it must
be corroborated by material evidence or independent evidence.
Only in exceptional cases where the testimony of an inimical
witness is intrinsically reliable or inherently probable, it may, by
itself, be sufficient, to base a conviction thereon.
35. Reverting to the facts of the case in light of the aforesaid
parameters of law laid down by the Supreme Court, it is quite vivid
that in the instant case, the eyewitnesses cited by the prosecution
are firstly, G. Ashok Kumar (PW-9) and his sister G. Tulsi Beni (PW-
11). The police has also while filing charge-sheet has cited G.
Ashok Kumar (PW-9) as eyewitness, as admittedly, on the report of
the father of appellant J. Venkatesh for assaulting the sister of
appellant J. Venkatesh (A-1) namely, J. Durga an offence under
Section 307 of the IPC was registered and pending consideration
before the jurisdictional criminal court against G. Ashok Kumar
(PW-9), which is apparent from the statement of J. Rambabu (DW-
4) and even G. Ashok Kumar (PW-9) in his statement in paragraphs
Cr.A.Nos.266/2016 & 525/2016
36 & 38 has clearly admitted the fact of having registered criminal
case under Section 307 of the IPC against him by the father of
appellant J. Venkatesh and documents to that effect have been filed
as Exs.D-2 & D-3.
36. As such, witnesses G. Ashok Kumar (PW-9) & G. Tulsi Beni (PW-
11) are admittedly interested / inimical witnesses and they are
interested to see that appellant J. Venkatesh is convicted for the
offence of which he is charged. Therefore, his testimony has to be
tested with stricter scrutiny and with due care and caution.
37. G. Ashok Kumar (PW-9) has stated before the Court that at the
place of incident there was large crowd, but no such independent
witness except Smt. Soni Bai (PW-10) has been examined and
furthermore, the weapon of offence wooden stick has been
recovered pursuant to the disclosure statements of the appellants
vide Exs.P-16 & P-17, but seizure witness S. Raja (PW-5) has
turned hostile and has not supported the case of the prosecution,
though he has stated that he has signed on Ex.P-14 at the instance
of G. Ashok Kumar (PW-9) and he has also stated that he has seen
the appellants for the first time before the Court. Another
memorandum and seizure witness is G. Ashok Kumar (PW-9). He
has proved the fact of seizure and memorandum and the seizure of
the weapon of offence wooden stick. In paragraph 3 of his
statement before the Court, he has clearly stated that half portion of
wooden stick has been left on the spot and half portion was taken
away by the appellants. Another eyewitness Smt. Soni Bai (PW-10)
in her statement before the Court in paragraph 30 has clearly
Cr.A.Nos.266/2016 & 525/2016
stated that 3-4 broken wooden pieces ad-measuring 1½ ft. were
lying on the spot. Similarly, next eyewitness G. Tulsi Beni (PW-11)
has also stated in paragraph 15 of her evidence that danda was
taken by the police from the spot, whereas the police have seized
wooden sticks vide Exs.P-16 & P-17 from the two appellants
herein. However, according to G. Ashok Kumar (PW-9), wooden
stick has been seized from the possession of the two appellants
pursuant to their memorandum statements Exs.P-13 & P-14,
whereas the two witnesses Smt. Soni Bai (PW-10) & G. Tulsi Beni
(PW-11) had clearly stated that it was lying on the spot and
according to G. Tulsi Beni (PW-11), the police has seized it from the
spot (paragraph 15).
38. As such, one of the memorandum witnesses - S. Raja (PW-5), who
is an independent witness, has turned hostile and G. Ashok Kumar
(PW-9), who happens to be interested witness, has stated that
seizure of two dandas was made from the house of the two
appellants pursuant to their disclosure statements, but from the
statements of Smt. Soni Bai (PW-10) & G. Tulsi Beni (PW-11) it
appears that wooden sticks (danda) were lying on the spot and it
was seized from the spot by the police, however, it has been shown
to be recovered at the instance of the two appellants herein.
Therefore, recovery of two wooden sticks pursuant to the
memorandum statements has not been established beyond doubt
by G. Ashok Kumar (PW-9) and other witness S. Raja (PW-5) has
already turned hostile and not supported the case of the
prosecution at all. In view of the aforesaid contradiction in the
Cr.A.Nos.266/2016 & 525/2016
statement of G. Ashok Kumar (PW-9) with regard to recovery, it
would be unsafe to rely upon his statement to prove the fact of
recovery pursuant to the memorandum statements of the two
appellants herein.
39. The next circumstance that has been pointed out by the
prosecution is that human blood has been found on the
bloodstained wooden stick. True it is that vide FSL report Ex.P-25,
human blood has been found on the wooden stick seized, but as
discussed herein-above, the two wooden sticks on which human
blood has been found was lying on the place of incident according
to Smt. Soni Bai (PW-10) & G. Tulsi Beni (PW-11) and according to
G. Tulsi Beni (PW-11), it has been taken by the police from the
spot. Therefore, recovery of bloodstained stick has not been
proved beyond doubt by the prosecution.
40. The Supreme Court in the matter of Balwan Singh v. State of
Chhattisgarh and another16 has clearly held that if the recovery of
bloodstained articles is proved beyond reasonable doubt by the
prosecution, and if the investigation was not found to be tainted,
then it may be sufficient if the prosecution shows that the blood
found on the articles is of human origin though, even though the
blood group is not proved because of disintegration of blood. Even
otherwise, in the instant case, the prosecution has failed to
establish the recovery of bloodstained wooden sticks beyond
reasonable doubt as S. Raja (PW-5) has turned hostile and
according to G. Ashok Kumar (PW-9), bloodstained wooden stick
was lying on the spot, whereas according to G. Tulsi Beni (PW-11),
16 (2019) 7 SCC 781
Cr.A.Nos.266/2016 & 525/2016
it was recovered by the police from the spot. Merely on the basis
that human blood was found on the wooden sticks, it would be
difficult for us to rely upon the aspect of recovery of the weapon of
offence, particularly when the recovery of wooden sticks has not
been proved beyond reasonable doubt, and such recovery does not
help the case of the prosecution.
41. In view of the aforesaid analysis, we are of the considered opinion
that firstly, G. Ashok Kumar (PW-9), Smt. Soni Bai (PW-10) & G.
Tulsi Beni (PW-11) are not the real eyewitnesses and secondly,
even if they are taken to be eyewitnesses for the sake of argument,
G. Ashok Kumar (PW-9) & G. Tulsi Beni (PW-11) are interested /
inimical witnesses and their testimonies have to be examined with
due care and caution, as G. Ashok Kumar (PW-9) is the person
against whom on the report of father of appellant J. Venkatesh (A-
1), offence under Section 307 of the IPC has been registered and
pending consideration before the jurisdictional criminal court and G.
Tulsi Beni (PW-11) is sister of G. Ashok Kumar (PW-9). Examining
their statements with greater and stricter scrutiny, it appears that
firstly their testimonies do not inspire confidence and their
statements are not trustworthy, as Mahesh Thakur (PW-2) while
lodging FIR Ex.P-8 and morgue intimation Ex.P-7 did not disclose
the fact that it was informed by G. Ashok Kumar (PW-9) about the
incident and while giving statement before the Court, he improved
his version that G. Ashok Kumar (PW-9) has informed to him about
the incident, which amounts to material contradiction in terms of the
Explanation to Section 162 of the CrPC making it inadmissible in
Cr.A.Nos.266/2016 & 525/2016
evidence. Moreover, delay in recording the statements of
eyewitnesses under Section 161 of the CrPC i.e. G. Ashok Kumar
(PW-9) on 16-8-2014 and Smt. Soni Bai (PW-10) & G. Tulsi Beni
(PW-11) on 29-8-2014, creates a doubt on the testimonies of these
three alleged eyewitnesses. This Court is also of the considered
opinion that disclosure statements Exs.P-13 & P-14 and
subsequent seizure vide Exs.P-16 & P-17 pursuant to the said
disclosure statements have not been proved beyond reasonable
doubt. Even S. Raja (PW-5), one of the memorandum & seizure
witnesses, has turned hostile and another memorandum & seizure
witness G. Ashok Kumar (PW-9) has failed to prove disclosure and
recovery beyond reasonable doubt. Thus, we are of the considered
opinion that in absence of any other legal evidence, it would be
unsafe to affirm the conviction recorded by the trial Court to the
appellants herein and accordingly, we set aside the conviction and
sentences imposed upon the appellants under Section 302 read
with Section 34 of the IPC. The appellants are acquitted of the said
charge. They are in jail. They be released at once if their detention
is not required in any other offence.
42. Both the appeals succeed and they are allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Soma
