2017 Supreme(Bom) 890

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
B.P. Dharmadhikari & V.M. Deshpande, JJ.
Virendrasingh s/o Rampurkar Khairwar - Appellant
Versus
The State of Maharashtra - Respondent
CRIMINAL APPEAL NO. 174, 236, 263 of 2015
Decided On : 11-07-2017

Headnote:Criminal Procedure Code, 1973 - Section 154-FIR.-Merely because of some discrepancy in FIR and in substantive evidence, testimony of witness cannot be discarded.

       According to the submission of the counsel for the appellants, the evidence of this prosecution witness `P` is not reliable in view of material discrepancy in respect of the assault as mentioned in the FIR Exh. 68 in and his substantive evidence. They pointed out that in the FIR it is stated that the accused `R` and accused `F` assaulted by sharp weapon on the deceased and `V` assaulted on the first informant.

       Merely because there are some discrepancy in the FIR and in the substantive evidence, Court is not accepting the submission of the counsel for the appellant that for that reason the testimony of `P` should be discarded. It is not that the names of the present appellants were not finding place in Exh.-68.

       It is the further submission of the counsel for the accused persons that the other prosecution witnesses who were examined by the prosecution and who are the eye-witnesses have turned hostile and therefore the conviction cannot be based on the sole testimony of PW 8 who is an interested one.

       Evidence Act, 1872 - Section 3-Testimony of injured witness.-Failure of injured witness to mention vehicle registration number, on which he reached hospital, is not sufficient to cast doubt on his version.

       Indian Penal Code, 1860 - Sections 302 and 34-Evidence Act, 1872, Sections 3 and 45-Conviction for murder.-Since presence of accused persons on spot of incident is proved by scientific evidence hence conviction of accused persons under Section 302/34, IPC justified.

       No doubt true in the substantive evidence (PW 8) does not attribute that the accused has dealt any knife or sword blow. However, his evidence clearly shows that the accused `R` forcibly stopped `P` when he tried to save the deceased `A`. He was pushed down by the accused. Further, the fact that accused was present on the spot, is also proved by the scientific evidence. The murderous assault on two persons was made in his presence by his two friends still he did not try to stop them this factor shows that he also shared the common intention with his friends, the remaining two accused. Further, from the evidence of (PW 8) it is clear that right from the beginning, accused was in the company of the remaining accused persons. He was also present in the beer bar where initial altercations have taken place. Further, the clinching evidence of (PW 8) shows that the accused was present with the remaining accused in front of Babde Sabhagruha when PW 8 and deceased stepped outside Babde Sabhagruha after finishing their meals. The above facts show that accused shared common intention with `V` and `F` and therefore he was rightly convicted by the Court below by taking the aid of Section 34 of the Indian Penal Code.

       On representation of the entire prosecution case, that for homicidal death of `A` and for murderous assault on Pralhad the accused persons are responsible. They are responsible for death of `A` and causing grievous injuries to `P`. Consequently, Court see no merit in the present appeals.

       Indian Penal Code, 1860 - Sections 302 and 34-Evidence Act, 1872, Section 45-Conviction for murder.-Since report of forensic science laboratory regarding blood group of accused found on seized article is reliable hence conviction based on such report justified.

       Before sending to the CA, the weapons were also sent to doctor (PW 7) for query under requisition Exh. 65. His report is at Exh. 66. As per the said report, the weapon Gupti is a dangerous weapon. The blood stains were noticed at the time of its examination and the injuries as mentioned in column No. 17 at post-mortem report Exh. 65 are possible by the said weapon. Similarly, the weapon knife, according to the autopsy surgeon was a dangerous weapon and it was stained with blood, the injuries mentioned in column No. 17 are possible by the said weapon.

       Evidence Act, 1872 - Section 3-Evidence of interested witness.-If evidence of interested witness is worth credence, his evidence cannot be discarded.

       It is clear that these prosecution witnesses did not reach to the hospital on his own motorcycle. Therefore, if he is not remembering the number of the motorcycle that by itself is not sufficient to cast doubt on his testimony. Further, in the FIR itself, the first informant disclosed the make of the vehicle and its registration number. He has also stated in the FIR that registration number was gathered by him from PW 2 at the spot itself.

       Though PW 2 has turned hostile, he has established the presence of PW 8 along with the deceased for marriage and to that extent, he is supporting the prosecution. Thus even this witness establishes the presence of `P` with the deceased `A`.