Lakhmichand vs State Of M.P.
2022 Latest Caselaw 896 MP

                                         1
                             Cr.A. No.670/2010



            THE HIGH COURT OF MADHYA PRADESH
                    BENCH AT GWALIOR
                     (DIVISION BENCH)
                  Criminal Appeal No.670/2010
Lakhmichand                                                 ..... Appellant
                                      Versus
State of M.P.                                              ..... Respondent
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CORAM

              Hon. Mr. Justice G.S. Ahluwalia, Judge.

            Hon. Mr. Justice Deepak Kumar Agarwal, Judge.

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Presence

       Shri A.K. Jain., learned counsel for appellant.
       Shri     A.P.S.    Tomar,      learned      Panel     Lawyer       for      the
respondents/State.
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                                 JUDGMENT

( January, 2022)

PER JUSTICE DEEPAK KUMAR AGARWAL

The appellant has filed this criminal appeal under Section 374

of Cr.P.C. being aggrieved by the judgment dated 19.07.2010 passed

by Second Additional Sessions Judge, Guna in Sessions Trial

No.354/2009, convicting and sentencing the appellant under Section

302 of IPC for life imprisonment with fine of Rs.1,000/-, with default

stipulation.

Cr.A. No.670/2010

2. Brief facts giving rise to present case are that on 05.08.2009 at

2:30 pm mother of the deceased Soram Bai lodged a report at Police

Station Raghogarh, District Guna alleging therein that on 05.08.2009

at 12 in the noon her son Dilip aged about 12 years went to answer the

call of nature towards tank boundary, she and her daughter were

standing outside the door. Before reaching the deceased-Dilip to the

boundary, she saw that due to past animosity, appellant-Lakhmichand

having hasiya in his hand, his son Kallu having knife in his hand and

another accused-Kanhaiya were running behind him. Accused-

Kanhaiya and appellant-Lakhmichand sat over Dilip and Appellant-

Lakhmichand was cutting his neck by Hasiya. She and her daughter

by crying "save" reached the spot. By that time, appellant-

Lakhmichand killed her son by Hasiya. Accused Kallu also inflicted

injury by knife. On her cry, nearby persons came there. On seeing

them, the appellant and co-accused persons ran away from the spot.

On her report, a crime against appellant Lakhmichand, Kallu and

Kanhaiya under Section 302/34 of IPC bearing Crime No.295/2009

was registered. After preparing dead-body Panchnama, dead-body

was sent for postmortem. As per postmortem report, deceased died

due to shock and hemorrhage. Death is homicidal. Spot map was

prepared.

2.1 Appellant Lakhmichand, co-accused Kallu and Kanhaiya were

Cr.A. No.670/2010

apprehended. At the behest of Lakhmichand, Hasiya, at the behest of

Kallu, one knife was seized. From the spot, ordinary and blood-

stained soil were seized. Statements of the witnesses were recorded.

Thereafter, charge-sheet against present appellant-Lakhmichand and

accused Kanhaiya has been filed. After trial, appellant-Lakhmichand

was found guilty for the aforesaid offence whereas Khanhiya was

acquitted of the aforesaid offence.

3. Prosecution in order to prove its case examined 19 witnesses.

However, defence examined only two witnesses. The trial Court after

marshalling the evidence of witnesses, found the appellant guilty.

4. Learned counsel for the appellant has submitted that the

impugned judgment passed by the trial Court is illegal, arbitrary and

has been passed ignoring the evidence of Kaluram (D-2) which is on

record. The trial Court has appreciated the evidence in hyper technical

manner and reasoning given while passing the impugned judgment is

against the settled principle of law, therefore, the impugned judgment

deserves to be set aside. The evidence of prosecution is highly

interested, partisan, self contradictory and contradictory to each other

on material particulars. There are material omissions and

contradictions in the statements of eye-witnesses. Prosecution has

failed to examine any independent eye-witness to prove its case.

Hence, prayed to allow this appeal.

Cr.A. No.670/2010

5. Learned counsel for the State supported the impugned judgment

of conviction and sentence and submitted that there is no infirmity in

the impugned judgment of conviction and sentence and findings

recorded by the trial Court do not require any interference by this

Court. Hence prayed for dismissal of the appeal.

6. Heard the counsel for the parties at length and perused the

record of the trial Court.

7. As per Soram Bai (PW-7), deceased Dilip was his son. On the

day of Rakshabandhan, in the afternoon, her son Dilip went to answer

the call of nature and she was at home. She told her son Kundan

Singh (PW-1) to go and see the deceased Dilip. Thereafter, Kundan

Singh went there and after some time she listened crying sound of

Kundan Singh as he said "Dilip ko kaat diya". On listening Kundan

Singh's voice, she reached the spot and saw that appellant-

Lakhmichand along with other accused persons were running.

Thereafter, Kundan Singh narrated her that appellant-Lakhmichand

was having hasiya and his son Kallu was having knife in their hand.

Kanhaiya caught hold of Dilip and appellant-Lakhmichand cut his

neck by Hasiya. She had also seen appellant Lakhmichand and Kallu

while running and were having Hasiya and knife respectively. Village

persons caught hold of appellant and his son Kallu and took them to

police station, where she lodged a report, vide Ex.P-9.

Cr.A. No.670/2010

7.1 During cross-examination, she had admitted that during

recording of FIR, (Ex.P-9) and giving her statement to the police, vide

Ex.D-5, she narrated that she had sent Kundan Singh to see Dilip.

Thereafter, Kundan Singh cried and told her that Kanhaiya was

holding Dilip and appellant-Lakhmichand was assaulting on his neck

by Hasiya. If this fact is not mentioned in her report (Ex.P-9) and

statement (Ex.D-3), she cannot say. When we go through the report

(Ex.P-9) lodged by her after the incident and statement (Ex.D-5), it is

true that aforesaid facts are missing from there, but in her report she

has specifically stated that the appellant-Lakhmichand assaulted on

the neck of her son Dilip with Hasiya. This witness is mother of the

deceased-Dilip aged about 12 years. Due to aforesaid omission, her

whole testimony can not be disbelieved, specially when she was

specifically alleged that appellant-Lakhmichand has cut neck of her

child by means of Hasiya.

8. By supporting the evidence of complainant-Soram Bai, her son

Kundan Singh (PW-1) stated that he knows deceased Dilip and

appellant. On the date of incident, between 12-12:30 pm when he was

standing outside of his house, Dilip went towards the tank boundary

to ease out, at that time, he saw the appellant-Lakhmichand having

Hasiya and his son Kallu having knife in his hand were siting on

Dilip. Appellant Lakhmichand cut neck of Dilip by hasiya and Kallu

Cr.A. No.670/2010

stabbed with knife. On seeing this, he got frightened and went

towards Mohalla where Khushilal, Ashok, Jagdish, Soram Bai, Jyoti,

Vikram and Pinki were present. With the help of aforesaid persons,

the appellant and co-accused were caught hold. Dilip died on the spot.

The injuries were found on his neck and hand. He was taken to

hospital. His mother lodged a report at Police Station Raghogarh.

8.1 During cross-examination, he stated that in his colony 60-70

persons houses are built, after that water tank is situated, whose height

is 60-70 feet, boundary wall height is 8-9 feet. While coming from

market, appellant-Lakhmichand's house is situated before his house.

From his house, lower part of tank is not visible. Jagdish's house is

beneath the water tank. Houses of Ramesh Shikari, Ramparsad

Shikari, Bhamarya Chamar, Nannu Chamar, Bhurelal Dhimar, Gopal,

Harisingh Ojha, Kamlesh Kori and Musafir Khan were situated near

tank boundary. Near water tank, there was no toilet. In said boundary,

they go to ease out. At the time of incident, he was standing alone

outside the house. He denied that deceased Dilip did not go to ease

out. He also denied that on listening crying noise, instead of going to

the spot, he had gone to call the villagers. He specifically stated that

he directly reached the spot. He was the first person who reached on

the spot. When he reached the spot, Dilip had already died. On his cry,

village persons came there. Blood stains were found on boundary

Cr.A. No.670/2010

wall.

8.2 He admitted that during statement (Ex.D-1) before police, he

has stated that on seeing the incident, he panicked and ran away

towards Mohalla and collected Khushilal, Ashok, Jagdeesh, Soram

Bai, Jyoti, Vikram and Pinki. Thereafter, they caught hold of the

appellant and his son. His statement by the police was recorded after

two days. It is true that in his statement (Ex.D-1) name of aforesaid

villagers are not there. This fact is not there that they caught hold of

the appellant and Kallu but in his statement (Ex-D-1), he specifically

stated that he has seen the incident. After the incident, by crying, he

ran away to collect local persons. Only on aforesaid omission, his

whole testimony cannot be thrown out, specially when at the time of

incident, he was only 14 years of age and is elder brother of deceased

Dilip.

9. As per Smt. Sheela (PW-5), deceased Dilip is her brother. On

the festival of Rakshabandhan, she came to her paternal home at

Village Panchkuiya. On the date of incident at noon time, she was

standing outside her house, at that time she heard noise of crying of

her brother Kundan (nhiw dks ekj fn;k&nhiw dks ekj fn;k). After hearing the

noise, she reached the spot. Her father, mother and sisters also rushed

to the spot. Dead body of her brother Dilip was lying down. His neck

was completely cut. There were injuries on the hand and face of

Cr.A. No.670/2010

deceased. Appellant Lakmichand was armed with Hasiya while co-

accused Kallu armed with knife.

9.1 During cross-examination, she has stated that Panchkuiya

village is situated on hilly area. Near the tank boundary wall of 10 ft.

height is situated where people go to ease themselves. Her brother had

gone there to ease himself. Appellant Lakshmi is residing in the house

adjacent to her house. On the date of incident there was broad

sunlight. By standing infront of house, she and her family members

were thinking that where is Deepu. They knew that Deepu had gone to

attend the call of nature. Her family members sent Kundan for the

search of Dilip alias Deepu. When Kundan reached the spot, appellant

and other accused person were assaulting Dilip. After one month, she

returned to her matrimonial home. When she and her family members

reached the spot, other persons also reached there. After half an hour

of the incident, police reached the spot. In front of her and her family

members, appellant and other accused persons ran away.

10. On going through examination-in-chief and cross-examination

of this witness, it comes out that on hearing noise of her brother

Kundan, she reached the spot. She saw that her brother Dilip was

lying dead. Appellant Lakhmichand was having Hasiya.

11. Likewise father of deceased Khusilal (PW-6) has also stated

that on the date of incident, there was Rakshabandhan festival. At

Cr.A. No.670/2010

noon, his son Dilip went to attend call of nature. After lapse of much

time, since he did not return, Kundan, Vikram and Jyoti went to see

him. Afterwards on listening sound of crying of children, when he

reached the spot, he saw that appellant and other accused persons

were running. Appellant Lakhmichand was carrying Hasiya while

Kallu was armed with knife. He saw that neck of deceased Dilip was

completely cut. There were injuries on other part of the body of

deceased. Later on, they had gone to Police Station alongwith dead

body of Dilip. Postmortem of the body of deceased was conducted.

11.1 During cross-examination he has stated that on the date of

incident at 12:30 pm, he returned to his home from market. He denied

that while returning from market on listening hue and cry, he reached

the spot directly. If this fact is not mentioned in his police statement

Ex.D-4, he can not say. He has also stated in his police statement Ex.

D-4 that after lapse of much time, since he did not return, Kundan,

Vikram and Jyoti went to see his son Dilip. He has also stated in his

statement that appellant Lakhmichand was armed with Hasiya. If this

fact is not mentioned in his police statement Ex.D-4 he can not say.

Container in which Dilip after filling water had gone to ease out was

found lying on the spot. He had no past animosity with appellant.

Though there is some contradictions and omissions in his statement

but they are not of such nature that his entire testimony can be

Cr.A. No.670/2010

discarded. On going through evidence of father of deceased Khusilal

(PW-6), it clearly emerges out that on listening noise of crying when

he reached the spot his son Dilip was lying dead. Appellant

Lakhmichand was armed with Hasiya. When we go through his police

statement Ex.D-4 we find that he has specifically stated that appellant

and two others were having Hasiya and knife.

12. As per Smt. Pinki (PW-8), Dilip was her brother. On the date of

incident, there was festival of Rakshabandhan. She was at the house.

Dilip went to outside for easing himself but when he did not return,

her mother sent Kundan for his search. Thereafter they listened noise

of crying (nkSMks &nkSMks nhiw dks dkV fn;k). After listening the noise, she

rushed to the spot. She saw that Kanhaiya was running while

Lakhmichand and Kallu were having Hasiya and knife. Having caught

hold of Kallu and Lakshmi, they took them to Police Station. Neck of

Dilip was cut.

12.1 During cross-examination she has stated that she had seen Kallu

and Lakshmi running away. Dead body of deceased was taken by the

Police. If Kundan would not have screamed, they could not have

knowledge of the incident. Police took statement of her family

members. Dead body of deceased was lying down inside the boundary

wall of the tank. She has stated in her police statement Ex. D-6 that

her mother had sent Kundan to search Dilip and she listened noise that

Cr.A. No.670/2010

(dkV fn;k&dkV fn;k). If this fact is not mentioned in her statement

Ex.D-6 she can not say. She has also stated in her statement that

Kundan narrated her about the incident. She denied that her father

Khusilal killed her uncle Shivnarayan. She admitted that Shivnarayan

committed suicide. She denied that at the time of incident appellant

Lakhmichand was doing cultivation work in the field of Kallu

Sarpanch.

13. When we go through her statement recorded by police during

investigation, it is quite clear that she had seen incident and

specifically narrated that appellant Lakhmichand alongwith two other

accused caught hold of her brother Dilip. Lakhmichand assaulted with

Hasiya on his neck. It is true that there is some contradictions and

omissions in her evidence recorded in front of Court and statement

recorded by Police but on the point that appellant Lakhmichand

assaulted his brother Dilip on his neck she remained unrebutted.

14. As per Vikram (PW-13) aged about 9 years, on the date of

incident, her brother had gone to attend call of nature near a tank but

when he did not return, he alongwith Kundan went to search him. On

reaching spot he saw that the accused present in the court were

assaulting his brother. Kanhaiya ran away. Appellant Lakhmichand

and Kallu were caught on the spot. Lakshmi and Kallu were having

knife and Hasia.

Cr.A. No.670/2010

14.1 During cross-examination he has stated that incident occurred at

12 noon. His father had gone to market. After returning he was taking

lunch. When Kundan came from market, his mother told him to go

and search Dilip. He denied that when Dilip went to ease himself,

appellant, Kanhaiya and Kallu rushed there and caught hold of him

and took him towards boundary and committed maarpeet with him. It

is true that there are some contradictions and omissions in his

evidence. He being a child witness, such minor discrepancies in his

statement are but natural and in the circumstances, his statement

clearly inspires confidence regarding involvement of the accused

persons in the crime.

15. In Nivrutti Pandurang Kokate & Ors. Vs.State of

Maharashtra AIR 2008 SC 1460, this Court dealing with the child witness

has observed as under:

"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

16. As per Police Inspector Dharamjeet Rai (PW-19) on

05.08.2009, he was posted as SHO Police Station Raghogarh. On the

Cr.A. No.670/2010

said date, complainant Sorambai lodged a report against present

applicant Lakhmichand and two others that they killed her son Dilip.

On her report vide Ex.P-9, he has registered offence punishable under

Section 302/34 bearing crime No. 295/09 and sent copy thereof to the

concerned Magistrate. He prepared Laash panchnama Ex.P-8 in front

of witnesses. The dead body had deep gash/wound on the neck.

Safina panchanama Ex.P-7 was prepared. Blood stained soil and

ordinary soil from the spot were collected. Appellant Lakhmi was

arrested vide Ex.P/1. On his behest, Hasiya vide Ex.P/3 was seized.

Statements of witnesses were recorded. Clothes of the deceased were

seized. Ordinary and blood stained soil, Hasiya, Knife and clothes of

deceased were sent for chemical analysis to FSL Sagar vide Ex.P/31,

report of which is at Ex.P/32.

16.1 During cross-examination he has admitted that alongwith

complainant, Kushilal, Jyoti, Rani Pinki, Vikram, Kundan and Ashok

also came there. He received information at 2:30 pm. Place of incident

is 2 km. away from police station. He reached the spot at 5:00 pm.

Spot map vide Ex.P/27 is not in the handwriting of head constable

Suresh Sharma because he had some problem in his hand. He

admitted that Ex.P-3, 5, 30, 1, 28, 15, 2, 29, 16, 6 are not in his

handwriting because he had some problem in his hand. He denied that

he did not seize Hasiya at the behest of appellant Lakhmi. He had not

Cr.A. No.670/2010

seized container of water from the spot. Khushilal (PW-6) had not

stated in his statement that on the spot and near boundary there were

some blood stains. Soram Bai had not stated in his statement that he

had sent Kundan for search of her son Dilip. She had also not stated

that Kundan told her that Kanhaiya had caught hold of deceased-Dilip

and Lakhmi and Kallu were assaulting him. He denied that he had not

visited the place of incident.

17. Dr. Shri B.L. Kushwah (PW-4) testified that on 05.08.2009 he

was posted as Medical Officer at Community Health Center

Raghogarh. On the said date, he conducted postmortem of deceased

and found following injuries on the body of deceased:-

1. An incised wound on the ante aspect of neck sized 8 cm

x 4 cm x 3cm and placed transevenely. All the major

vessels, trachea and soft tissues are cut.

2. An incised wound sized 1.5 cm x ½" cm x 1 cm on the

face superolaterally to lateral canthus of left eye.

3. An I/W (incised wound) on the left cheek sixed 1.5 cm

x ½ cm x 1 cm.

4. An I/W on left lower eye-lid size 1 cm x ½ cm x ½ cm.

5. An I/W 8 cm x ½ cm x ½ cm sized on the right cheek to right

ext. ear transversely.

6. Multiple abrasions over an area of 10 cm x 5 cm on the right

Cr.A. No.670/2010

cheek and chin.

7. An I/W sized 2 ½ cm x ½ cm x 1 ½ cm on the left parietal

region of skull.

8. An I/W on the nape of neck sized 1.5 cm x ½ cm x 1 cm.

9. An I/W on the post aspect of neck sized 1.5 cm x ½ cm x 1

cm below injury No.8.

10. An I/W on the left scapular region sized 1 cm x ½ cm x ½

cm.

11. An incised wound on the lumbar region of back sized 1 cm

x ½ cm x ½ cm.

12. An incised wound on the lumbar region of back blow injury

No.11.

13. An incised wound on the right buttock sized 1.5 cm x ½ cm

x 1 cm.

14. An incised wound on the dorsal aspect of left wrist sized 1.5

cm x ½ cm x ½ cm.

15.An incised wound on the dorsal aspect of left wrist sized 1.5

cm x ½ cm x ½ cm. half inch distal to injury.

16. An incised wound on dorsum of left hand opposite thenar

region sized 1 cm x ½ cm x ½ cm.

17. An incised wound of dorsum of left hand two cm. medially

to the injury No. 16 sized 1 cm x ½ cm x ½ cm.

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18. An incised wound on the 4th knuckle of left hand sized sized

1 cm x ½ cm x ½ cm.

19. An incised wound on the dorsum of left hand sized 1 cm x

1/2 cm x 1/4 cm just proximal to injury No. 18.

20. An abrasion sized 1 cm x ½ cm lateral to injury No.18.

21. An incised would on the right blank of abdomen sized 1.5

cm/ ½ cm.

In his opinion, cause of death is shock and hemorrhage due to

multiple injuries.

17.1 In his cross-examination, he has stated that dead body of

deceased came before him at 6:25 pm. He opined that if deceased gets

treatment within five minutes of incident, he could have survived.

Except Injury No.1, all injuries are simple in nature.

18. As per Ashok Kumar Jatav (PW-2) on 05.08.2009 on the

festival of Raskshabandhan, he came to his in-laws house where

Khushilal (PW-6) informed him that appellant Lakhmichand,

Kanhaiya and his son by cutting throat of deceased-Dilip killed him.

Accused were having Hasiya and Knife. When he came back to

Raghogarh, he saw dead-body of Dilip. His throat was cut and various

injuries on the body were present. Police arrested appellant-

Lakhmichand before him. His arrest memo is at Ex.P-1. Hasiya was

seized from the appellant. Seizure memo in this regard is at Ex.P-3.

Cr.A. No.670/2010

18.1 During cross-examination, he has stated that at 10 am, he had

gone from Raghoragh to Guna. At 01:45 pm, he received a phone call

of Khushilal. Thereafter he proceeded for Raghogarh. Police took his

statement wherein he has stated that Khushilal told him at noon that

appellant Lakhmichand killed his son. If this fact is not mentioned in

his statement, he can not say. He denied that in his presence seizure of

Hasiya is not made from appellant Lakhmichand.

19. As per Jyoti (PW-9), deceased Dilip was his brother. On the

date of incident, she was standing outside the house and sweeping the

road. Deceased had gone to ease out but after lapse of sufficient time

did not return. Her mother told Kundan to go and search Dilip. After

sometime Kundam PW-1 by screaming told that appellant

Lakhmichand, Kallu and Kanhaiya killed Dilip. When she alongwith

other family members reached the spot, they saw that Kallu had run

away from the spot. Appellant Lakhmichand was having Hasiya in his

hand, Kallu was having knife. Appellant Lakhmichand and Kallu

were apprehended on the spot and handed over to the Police.

19.1 During cross-examination, she has stated that police took her

statement in which she has stated that on the date of incident, she was

sweeping the road. She also narrated that after lapse of sufficient time,

when Dilip did not return, her mother sent Kundan to search Dilip.

She admitted that if Kundan (PW-1) would not have screamed, they

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could not get information and reach the spot. She has also stated in

her statement that on reaching the spot, she saw that appellant-

Lakhmichand was having Hasiya and Kallu was having knife. If this

fact is not mentioned in her statement, she could not say.

20. When we go through the statement of this witness recorded by

Police (Ex.D-7), it is transpired that this witness has specifically

stated that appellant- Lakhmichand having Hasiya in his hand

assaulted his brother Dilip due to which he died. If actual wording

deposed before the Court is not in the statement Ex.D-7, her

testimony cannot be thrown out.

21. Balkishan (PW-10) has not supported the prosecution case. He

has been declared hostile. During cross-examination by the

prosecution nothing came out so that form his evidence prosecution

could get any support.

22. As per Parvat Singh (PW-11) police arrested appellant-

Lakhmichand before him and at the behest of appellant-Lakhmichand,

police seized Hasiya vide Ex.P-2. During cross-examination, he

admitted that at 04:00 pm police prepared memorandum of

Lakhmichand vide P/2 and seizure memo vide P/3 at police station.

He denied that at the behest of appellant-Lakhmichand, Hasiya was

not seized.

23. Pachelal (PW-12) also supported the prosecution to the extent

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that on listening the noise, he reached the spot. He saw that throat of

Dilip was cut and appellant and other co-accused were running.

During cross-examination, he has stated that he reached the spot.

Police took his statement on the date of incident. He denied that he

had no knowledge about the incident.

24. So far as evidence of Kallu @ Kalluram (DW-2) is concerned, he

has simply stated that on the date of incident appellant was working in

the agriculture field and he is of a good character. This witness belied

the whole prosecution story.

25. In view of aforesaid analysis, this Court is of the considered

opinion that prosecution has proved present case beyond reasonable

doubt. Prompt FIR has been lodged. Kundan Singh (PW-1) has

deposed in his examination-in-chief that when he was standing

outside his house, he saw the appellant causing injuries to the

deceased. His evidence is supported by Smt. Sheela who immediately

after the incident reached the place of occurrence and saw the

appellant alongwith other co-accused standing at the place of

occurrence carrying Hasiya in his hand. Besides that ocular evidence

is duly supported by the medical evidence as well as evidence of

Soram Bai (PW-7), Kundan Singh (PW-1), Smt. Sheela (PW-5),

Khushilal (PW-6), Smt. Pinki (PW-8), Ashok Kumar Jatav (PW-2),

Jyoti (PW-9) and Parvat Singh (PW-11). So far as evidence of Kallu

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@ Kalluram (DW-2) is concerned, this Court is of the considered

opinion that the prosecution evidence cannot be discarded in the light

of the defence evidence led by the appellant.

26. So far as the submission of learned counsel for the appellant

that independent witnesses have not been examined in support of the

case of the prosecution, the Apex Court in Karulal v. State of M.P. ,

2020 SCC OnLine SC 818 has held that testimony of related

witnesses, if found to be truthful, can be the basis of conviction.

27. As regards submission of learned counsel for the appellant that

there are various discrepancies in the statements of eyewitnesses, in

the opinion of this Court there are only minor discrepancies in the

statements of eye-witnesses and their evidence is firm on material

aspect. The Apex Court in the case of Mallikarjun and others vs.

State of Karnataka, (2019) 8 SCC 359 in regard to minor

contradictions & omissions has held as under :

"14. Observing that minor discrepancies and inconsistent version do not necessarily demolish the prosecution case if it is otherwise found to be creditworthy, in Bakhshish Singh v. State of Punjab and another, (2013) 12 SCC 187, it was held as under:-

32. In Sunil Kumar Sambhudaya Gupta v. State of Maharashtra, (2010) 13 SCC 657 this Court observed as follows: (SCC p. 671, para 30)

"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters

Cr.A. No.670/2010

without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan (2008) 17 SCC 587.)"

33. ....... this Court in Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722 has observed as under: (SCC p. 740, para43)

"43. ... It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief." (Emphasis supplied)

28. The findings recorded by the trial court is based on appreciation

of evidence in correct perspective and there is no illegality or

perversity in the said findings. Hence, we do not find any ground to

interfere in the impugned judgment passed by the trial court whereby

appellant has been convicted and sentenced adequately.

29. Consequently, the appeal is dismissed.

YOGEND RA OJHA (G.S. AHLUWALIA) (DEEPAK KUMAR AGARWAL) 2022.01.

17                 JUDGE                                  JUDGE
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