Roshan vs The State Of Madhya Pradesh
2021 Latest Caselaw 9019 MP

                                                               Cr.A.No.1481/2010
                HIGH COURT OF MADHYA PRADESH
                  PRINCIPAL SEAT AT JABALPUR

                  CRIMINAL APPEAL NO. 1481/2010

                             Roshan and others

                                    Vs
                       The State of Madhya Pradesh


Counsel for the appellants           : Mr.H.S.Dubey, Learned Senior Advocate
                                       with Mr. Shivam Chhalotre, Advocate

Counsel for the Respondent/State :    Mr.Manhar Dixit, Panel Lawyer



            Corum :      Hon'ble Mr. Justice Atul Sreedharan
                         Hon'ble Mrs. Justice Sunita Yadav

                                 ******
                             JUDGMENT

( 21-12-2021)

Per : Sunita Yadav, J.

The present appeal has been filed by the appellants aggrieved by

the judgment dated 30.07.2010 passed in Sessions Trial No. 370/2007

by the learned 11th Additional Sessions Judge, Jabalpur, by which the

appellants herein have been convicted for the offence under Section

302/34 of IPC and sentenced to undergo life imprisonment and fine of

Rs.1,000/- with default stipulation of additional rigorous impris -

onment of 3 months. The appellants have also been convicted under

Section 307/34 of IPC and sentenced to undergo rigorous imprisonment

for seven years and fine of Rs.1,000/-, with default stipulation of 3

months additional rigorous imprisonment. The appellants have further

been convicted under Section 324/34 of IPC and sentenced to undergo

rigorous imprisonment for two years, with default stipulation of 3

months additional rigorous imprisonment.

2. The prosecution case in brief is that on 14.05.2007 at about 08:00

p.m. near Chandimata Mandir, Badhai Mohalla, by reason of the

dispute over money transaction, the appellants herein hurled abuses at

deceased Naresh Koshta. On protest being made by the deceased,

appellant No.1 Roshan Vishwakarma gave him a blow of knife. When

Ajay Berman (PW-2) and Kanju Vishwakarma (PW-3) who were

standing nearby intercepted and tried to rescue Naresh Kostha, the

appellants assaulted them with knife and gupti. Thereafter, the FIR was

lodged by Ajay Berman (PW-2) and the police have registered various

offences against the appellants.

3. The learned trial Court after recording the evidence of the

prosecution witnesses and hearing the parties, convicted and sentenced

the appellants for the offences as mentioned above; hence the

appellants preferred this appeal before this Court.

4. The learned counsel for the appellants submitted that the

prosecution has failed to prove its case as the eye witnesses PW-1

Munna Koshta, PW-2 Ajay Berman and PW-4 Vicky Rajak, who are

also injured witnesses, have not supported the case of the prosecution

and turned hostile. He has further argued that the evidence of PW-11

Mahesh Kumar Koshta cannot be relied upon as he is an interested

witness being the uncle of the deceased. He has further argued that

initially the name of PW-11 Mahesh Kumar Koshta was not there in the

challan papers and his name has been introduced as a false witness later

on. That PW-17 Dr. Arun Jain has not stated that the injuries to the

deceased were sufficient to cause death and as such no case under

Section 302/34 is made out.

5. On the other hand the learned counsel for the respondent-State

submitted that the appellants had not been able to show any material

which would merit the interference of this court in the concurrent

findings of the court below.

6. PW-17 Dr.Arun Jain conducted the post-mortem of the dead body

of deceased Naresh Koshta on 15.05.2007 and gave his report Ex.P-33.

This witness has noted following injuries on the dead body:

Injury No.1 one stab wound on right side of chest close to sternum between 3 to 4 inter costal space, ½ X ½ inches deep to penetrating left atrium, chest cavity was full of blood, third rib was partially cut. Underlying muscles, tissues, blood vessels found cut.

Injury No.2 three incised wounds were present on right side of chest, close to nipple size ½ x ½ x ½ inches. Injury No.3 two abrasions, one on right cheek and another on right wrist each size 1 x ½ inches.

Injury No.4 incised wound ½ x ½ x ¾ inches, on left axilla directing upwards blood found at the site of injury.

7. PW-17 Dr. Arun Jain has opined that the death of Naresh Koshta

was on account of hemorrhagic shock caused by excessive bleeding.

8. Dr. A.K.Jain (PW-12) has done MLC of injured Kanju Vishwakarma and Ajay Raikwar on the same day at 9 pm at Victoria Hospital. He found following injury on the body of Kanju Vishwakarm:

An incised wound on left axilla region, the injury was one inch long; width was ¾ inch, however the depth could not be ascertained. There was excessive bleeding from the said injury.

9. According to Dr.A.K.Jain (PW-12) the injuries found on the body of Ajay Raikwar were as below:

Injury No.1- incised wound over the right lateral aspect of abdomen 1½ inch x ¾ inch deep.

Injury No.2- incised wound over the lateral aspect below umbilicus size of 1 ½ inch x ¾ inch x 1½ inch deep.

10. PW-15 Dr.Anil Gupta has deposed that he examined the patient

Kanju Vishwakarma who had a cut vein. This witness has repaired the

vein while the patient was admitted in the hospital. The injured were

also examined by PW-9 Dr.D.U.Pathak who has deposed that he treated

and operated the injuries of the above mentioned injured. This witness

has further deposed that the police had sent the queries asking him to

give opinion on the nature of injuries caused to the above injured

persons. He has answered the queries through his letters Ex. P-19 and

Ex P-20 respectively stating that the nature of injuries caused to Kanju

and Ajay were grievous and might cause their death.

11. The testimonies of PW-9 Dr.D.U.Pathak, PW-17 Dr.Arun Jain,

PW-12 Dr.A.K.Jain and PW-15 Dr.Anil Gupta remained unchallenged

in their cross-examination which proves that the deceased Naresh died

due to the injuries caused upon him and PW-7 Munna Koshta and

PW-2 Ajay Berman had grievous injuries on their bodies which might

have caused their death. The next question is whether the above injuries

were caused by the appellants herein?

12. The prosecution case is based on direct evidence. According to

the prosecution story PW-1 Munna Koshta, S/o late Laxman Prasad

Koshta, PW-2 Ajay Berman, PW-3 Kanju Vishwakarma, PW-4 Vikkey

Rajak, PW-7 Munna Kostha, S/o Punnulal Koshta and PW-11 Mahesh

Kumar Koshta are the eye witnesses. However, out of these eye

witnesses only PW-7 Munna Koshta and PW-11 Mahesh Kumar Koshta

have supported the case of the prosecution.

13. PW-7 Munna has deposed that on 14.5.2007 at about 8:00 p.m. he

was coming back home from work. When he was near Chandimata

Mandir he heard sounds of scuffle. He followed the sound to see that

the accused Raju had caught hold of Naresh and accused Roshan and

Rahul were assaulting Naresh. He has further deposed that Roshan was

wielding a Gupti and Rahul had a knife. This witness saw that Kanju

Vishwakarma (PW-3) and Ajay Berman (PW-2) were trying to rescue

Naresh. The accused persons assaulted Kanju and Naresh with knife

and gupti.

14. The Trial Court disbelieved the evidence of PW-7 Munna Koshta

on account of material omissions and contradictions between his Court

statements with the Police statement. In his police statement this

witness didn't say that at the time of incident accused Raju had caught

hold of Naresh and other accused persons were assaulting him. During

the cross-examination this witness has changed his earlier version that

he saw accused persons assaulting Ajay and Kanju, instead said Ajay

Berman and Kanju Vishwakarma were running away from the spot

with blood oozing out from their injuries; therefore, he is saying they

might have been beaten up by the accused persons. In the light of above

material omissions and variations in the statement of this witness, his

evidence has rightly been disbelieved by the trial Court.

15. Now we have to consider whether sole testimony of the eye

witness PW-11 Mahesh Kumar Koshta is sufficient to convict the

appellants herein for the crime? This witness has deposed that on

14.5.2007 at about 8:00 pm he was out for a stroll. As he reached

Badhai Mohalla near Chandimai Temple he saw Roshan, Rahul and

Raju Vishwakarma were abusing Naresh. Thereafter accused Roshan

inflicted a blow of gupti on the chest of Naresh who fell down on the

ground. When Ajay Berman and Kanju Vishwakarma tried to rescue

Naresh, Rahul assaulted them too. Ajay Berman and Kanju

Vishwakarma also received injuries. This witness has further stated

that the fight took place because of the dispute over money transaction

between the two parties.

16. In the cross-examination of PW-11 Mahesh Kumar Koshta,

nothing has been brought by the defence to discredit him. No material

omissions or contradictions have been proved by the defence to cast

suspicion on the story of prosecution. The presence of this witness at

the scene of occurrence cannot be disbelieved because his presence as

an eye witness is mentioned in the FIR Ex.P/2 which was registered

within 20 minutes from the incident. The Registration of FIR was so

prompt that there was no time to concoct or fabricate a false case

against the appellants. The oral statement of PW-11 Mahesh Kumar

Koshta has also been corroborated by the medical evidence of PW-9

Dr. D.U.Pathak and PW-12 Dr.A.K.Jain.

17. The presence of PW-11 Mahesh Kumar Koshta at the scene of

crime is also corroborated by the evidence of PW-6 Ghanshyam who is

the witness of subsequent event. At Paragraph-7 of his statement this

witness has said that upon hearing scuffling sounds he reached at the

place of incident and before his arrival his uncle (PW-11 Mahesh

Kumar Koshta) was already there. The said statement of this witness

PW-6 Ghanshyam has remained unchallenged in his cross-examination.

Therefore, the presence of PW-11 Mahesh Kumar Koshta on the spot at

the time of incident cannot be disbelieved upon.

18. Learned counsel for the appellants argued that initially the name

of PW-11 Mahesh Kumar Koshta was not mentioned in the copy of the

charge-sheet/challan papers which was supplied to the appellants. Later

on his name was added as a witness in the charge-sheet; therefore, his

statement cannot be believed. But we don't find much weightage in the

above argument because the name of PW-11 Mahesh Kumar Koshta is

mentioned in the FIR as an eye witness which has been registered just

after 20 minutes from the incident.

19. The learned counsel for the appellants further argued that since

the injured witnesses PW-2 Ajay Berman and PW-3 Kanju

Vishwakarma have turned hostile therefore the prosecution story cannot

be believed. But, the said argument is not acceptable as PW-3 Kanju

Vishwakarma has categorically admitted in his court statement that he

has cordial relations with the appellants and he doesn't want to spoil it

which shows that the eye witnesses who have turned hostile are lying

just to protect the accused persons to save their friendship. It is also

apparent that the FIR was lodged within 20 minutes from the incident

and even though PW-2 Ajay Berman has denied having lodged the FIR

but has admitted that his sign is on it. The FIR was registered at 8.20

pm and PW-9 Dr. D.U.Pathak has examined PW-2 Ajay Berman and

PW-3 Kanju Vishwakarma at about 11.55 pm and found injuries caused

by sharp and cutting object. PW-12 Dr. A.K.Jain has also examined

PW-2 Ajay Berman and PW-3 Kanju Vishwakarma on the very date of

incident i.e. 14.5.2007 and corroborated the prosecution version that

injuries of sharp and cutting objects were found on their bodies as

described by PW-11 Mahesh Kumar Koshta. Therefore, only on

account of the injured witnesses being hostile the entire prosecution

case cannot be disbelieved. It is well settled that evidence is to be

weighed and not counted. For ascertaining the truth by the court, the

number of witnesses is not considered, but the quality of evidence is

taken into a note. The testimony of the sole witness is sufficient to

convict the accused provided he is wholly reliable.

20. In the case of State Through PS Lodhi Colony, New Delhi Vs.

Sanjeev Nanda reported in AIR 2012 SC 3104, it has been held by the

Apex Court that; "We cannot, however, close our eyes to the disturbing

fact that even the injured witness, who was present on the spot, turned

hostile. Further in the case of Sidhartha Vashisht @ Manu Sharma v.

State (NCT of Delhi), (2010) 6 SCC 1 and in Zahira Habibullah

Shaikh (5) v. State of Gujarat, (2006) 3 SCC 374 it has been observed

that; "Courts, however, cannot shut their eyes to the reality. If a

witness becomes hostile to subvert the judicial process, the Courts

shall not stand as a mute spectator and every effort should be made to

bring home the truth. Criminal judicial system cannot be overturned by

those gullible witnesses who act under pressure, inducement or

intimidation."

21. The next argument of the learned counsel for the appellants is

that the Doctor (PW-17 Arun Jain) who conducted the post-mortem of

deceased has not stated that the injuries to the deceased were sufficient

to cause his death; therefore, no case under section 302/34 of IPC is

made out. However, we do not agree with him as it is an accepted

principle that the opinion given by a medical witness need not be the

last word on the subject. Such an opinion shall be tested by the court.

The value of medical evidence is only corroborative; it proves that the

injuries could have been caused in the manner as alleged and nothing

more. In this case it has been proved by the testimony of eye witness

that the appellants inflicted injuries upon the deceased by sharp and

cutting weapons. The deceased suffered 4 incised wounds on account

of the assault as described earlier. PW-17 Dr.Arun Jain has opined that

the death of Naresh Koshta was on account of hemorrhagic shock

caused by excessive bleeding from the said injuries. Therefore, the

connection between the injuries caused by the appellants and the death

of Naresh Koshta is established. The defence has not proved that such

injuries were caused on account of some other reasons. Thus it is also

proved that the death of deceased was homicidal in nature and was

caused by the appellants only.

22. Consequently, as discussed above the impugned judgment and

order is found to be in accordance with facts and law and there is no

reason to interfere with the said judgment and order.

23. In view of above, the appeal is found to be without

substance, hence, dismissed.

24. The appellant No.2 Rahul and appellant No.3 Raju are on

bail. Their bail bonds stand cancelled. They are directed to

surrender forth with before the trial court and the trial Court

shall send them to jail for serving out remaining part of their jail

sentence, in accordance with law.

25. As far as appellant No.1 Roshan is concerned, as per Jail

report dated 10.04.2021 he is in jail and has completed 11 years,

3 months and 7 days of imprisonment on the said date.

26. However, we make it clear that dismissal of this appeal shall

not come in the way of State Government to exercise its

discretion for granting remission to the appellants as and when

the state feels it just and proper.

          (Atul Sreedharan)                    (Sunita Yadav)
              Judge                               Judge
   SM


SARSWATI MEHRA
2021.12.23 12:12:10
+05'30'