1. Murder trial under Section 302 and 302/34 IPC — Assault with weapons resulting in death — Conviction of some accused and acquittal of others. (Para 2 , 3 )
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1999 Supreme(SC) 1049
1999(8) Supreme 116
Supreme Court of India
(From Madhya Pradesh High Court)
G.B. Pattanaik & N. Santosh Hegde, JJ.
Ramesh S/o Laxman Gavli -Appellant
versus
State of Madhya Pradesh & Ors. -Respondents
Criminal Appeal No. 587 of 1996
With
Criminal Appeal No. 588 of 1996
Decided on 16-9-1999
Counsel for the Parties :
For the Appellant : B.R. Naik, Sr. Advocate, Vijay K. Jain, Advocate.
For the Respondent : Vivek Gambhir, Advocate.
For the State of Madhya Pradesh : K.N. Shukla, Sr. Advocate, (Mrs. Sushila Shukla) Advocate for Uma Nath Singh, Advocate.
Important Point
Delay in examining the witnesses ipso facto cannot be a ground to discard their testimony when in cross-examination of witnesses nothing tangible had been brought out to impeach their testimony.
Headnote:Indian Penal Code, 1860-Sections 302 and 302/34-Homicidal death-Appellant and accused gave axe blow on head of accused-‘R (Junior) pierced’ gupti on chest of deceased-Appellant along with ‘D’ and ‘R’ (Junior) convicted under Sections 302 and 302/34 IPC-Sentenced to imprisonment for life -High Court confirmed conviction and sentence of appellant and ‘D’-‘R’ (Junior) acquitted-Appeal by State dismissed by High Court-Appeals by convict and State to Supreme Court-No appeal by ‘D’-Delay in examining two witnesses ipso facto cannot be ground to discard their testimony - In cross-examination nothing tangible brought out to impeach testimony of witnesses-Evidence of PWs 2 and 4 fully corroborates reliable evidence of PW-1-High Court justified in maintaining conviction of appellant-No infirmity-While according to PWs 1 and 4 ‘R’ (Junior) pierced gupti on chest of deceased but according to PW 2 ‘D’ pierced gupti-Discrepancy as to alleged role played by ‘R’ (Junior) sufficient to give benefit of doubt-Rightly acquitted. (Paras 6, 7 and 8)
Legal Category Hierarchy
Table of Contents
2. Challenge to FIR authenticity — Reliability of eye-witness testimony — Failure to examine all available independent witnesses. (Para 4 , 6 )
3. Delay in FIR reaching Magistrate due to public holiday is acceptable — Delay in recording statements under Section 161 CrPC does not automatically impeach witness credibility. (Para 5 , 6 , 8 )
4. Material inconsistency among eye-witnesses regarding the specific role played by an accused entitles the accused to the benefit of doubt. (Para 8 )
5. Appeals by the convict and the State dismissed — Conviction under Section 302 IPC affirmed for one appellant and acquittal upheld for another. (Para 7 , 8 , 9 )
6. Does a delay in the FIR reaching the Magistrate necessarily imply fabrication of the document?
No, if there is a reasonable explanation, such as a public holiday, and other evidence, such as the fact that arrests were already made, suggests the FIR was lodged on the alleged date. (Para 5 )
7. Does a delay in examining witnesses under Section 161 CrPC justify discarding their testimony?
No, such delay is not ipso facto a ground to discard testimony, provided nothing tangible is brought out during cross-examination to impeach the witnesses' credibility. (Para 6 )
8. Is the prosecution required to examine all available independent witnesses to prove its case?
No, it is not necessary for the prosecution to multiply witnesses if it has already examined reliable independent witnesses who narrate the occurrence vividly. (Para 6 )
9. How does inconsistency among eye-witnesses regarding the role of an accused affect the verdict?
If eye-witnesses provide inconsistent accounts regarding which accused caused a specific injury, such discrepancy is sufficient to grant the accused the benefit of doubt and justify acquittal. (Para 8 )
Judgment
Pattanaik, J.-These two appeals, one by the convict, Ramesh and the other by the State are directed against one and the same judgment of the High Court of Madhya Pradesh and were therefore, heard together and are disposed of by this common judgment.
2. Appellant, Ramesh along with two others, Dalla alias Dayaram and Ramesh, son of Jagannath, commonly known as Ramesh (Junior), was convicted by the learned Sessions Judge for having committed offence under Section 302 and 302/34 IPC and sentenced to imprisonment for life. On appeal, the High Court confirmed the conviction and sentence imposed by the learned Sessions Judge on accused Dayaram as well Ramesh, son of Laxman, the present appellant but set aside the conviction of Ramesh (Junior) under Section 302/34 IPC and acquitted him of all the charges. The appeal preferred by the State is against the acquittal of Ramesh (Junior) of the charge under Section 302/34 IPC. It may be stated, at this stage, that the learned Sessions Judge has acquitted three other accused persons who stood trial along with the appellant and against their order of acquittal, the State moved the High Court in appeal and the State’s appeal being dismissed, the State has preferred Special Leave Petition (SLP (Crl.) No. 295/96) which stood dismissed by this Court on 8.9.99.
3. The prosecution case in nutshell is that the accused and the deceased belonged to ‘Gawli’ community and had been divided in two fractions, one led by the deceased, Kanhaiyalal whereas the other fraction was led by Mangilal, Jagannath and Pancham. Pancham is the father of accused, Dalla. Kanhaiyalal, the deceased was out-casted and on that score, there had been some dissension. On the date of occurrence, i.e. 1.10.85, the said Kanhaiyalal was proceeding to Kali temple for offering ‘Puja’, accompanied by Nandlal, PW 1. While they were proceeding, the accused persons came together armed with weapons in their hands and started mercilessly assaulting Kanhaiyalal. Accused, Dalla had an axe in his hand and gave blows on the head of the deceased by means of the axe. The present appellant, Ramesh (senior) gave also an axe blow and Kanhaiyalal tried to prevent him but his left hand was cut and Kanhaiyalal fell down. The other accused, Ramesh (Junior) pierced ‘Gupti’ on his chest. The further prosecution case is that the three other accused persons, who have since been acquitted, also caused injuries on the deceased with the weapons in their hands. ‘Halla’ was raised and a telephonic message was given to the police station, which was duly recorded in the ‘roznama’ and PW 11 came to the spot. Kanhaiyalal was taken to the hospital and he was declared dead. PW 1, Nandlal gave a written report which was treated as First Information Report and the police then registered a case and started investigation. On completion of the investigation, a charge-sheet was filed and the accused persons stood their trial, as already stated. The prosecution examined a number of witnesses of whom PWs 1, 2 and 3 are the eye witnesses to the occurrence. PW 3 did not support the prosecution case and was allowed to be cross-examined. PW 8 is a post occurrence witness and PW 12 is the Doctor who had conducted the autopsy on the dead body of the deceased, Kanhaiyalal. The postmortem report indicates that there were five injuries on the dead body of the deceased, four were incised and one abrasion. On the basis of medical evidence, the Sessions Judge came to hold that Kanhaiyalal met a homicidal death and the same finding is not assailed before us. Relying upon the evidence of PWs 1, 2 and 4 and finding corroboration of the same with the evidence of Doctor, PW 12, the learned Sessions Judge convicted three of the accused persons while acquitted three others, as already stated. Appeal being preferred, the High Court considered the inter-se inconsistency between the eye witnesses with regard to the finding as to which accused person caused the injury on the chest by
