2008(1) Crimes 137 (M.P.)
LONG NOTE
MADHYA PRADESH HIGH COURT
Abhay Gohil and Sheela Khanna, JJ.
Shambhusingh and Ors. —Appellants
versus
State of M.P. —Respondent
Criminal Appeal No. 489 of 1998
Decided on 6.9.2007

IMPORTANT POINT
There is no legal bar to base conviction upon testimony of witness who turned hostile in cross-examination of corroborated by other reliable evidence.

Headnote:Indian Penal Code, 1860—Section 302/149—Appellants armed with weapons like lathi, ballam and spear assaulted deceased—Conviction on testimony of eyewitnesses—Appeal—PW1 and 2, eyewitnesses though supported prosecution case in examination in chief but on adjourned date in cross-examination they resiled—Value of evidence of hostile witness—Evidence was however fully corroborated by medical evidence —Trial Court rightly appreciated the legal position and conviction called for the interference.

       Held: Now the material question is that who caused these injuries, and whether the evidence of Gangaprasad (PW1), who has supported the prosecution in the examination-in-chief and in the cross-examination which took place after three months partly supported the prosecution and partly turned hostile and also whether the evidence of Harivallabh (PW2), who supported the prosecution in examination-in-chief but after two months when he was cross-examined he has conveniently partly supported the prosecution and partly not can be relied. Raghunandan Singh (PW3) though is the brother of deceased, has supported the prosecution story as a child witness. His evidence cannot be discarded totally.

       Trial court found that the evidence of motive is also available on record. Durgaprasad (PW10) has deposed that he was having 51 bigha of land in Fattukhedi, which was given by him as a grass land to Shambhusingh and the period of agreement had expired on 31.3.1997 thereafter on 21.4.1997 Shambhusingh filed a suit showing him as a Shikmi and on 15.5.1997, Durgaprasad had kept deceased as servant on the aforesaid land and therefore the incident took place and the deceased Samandar Singh was beaten by the accused persons. But this evidence is a very remote kind of evidence of motive. In fact when there is a direct ocular and medical evidence is available on record, the question of motive is quite irrelevant. There may be many more reasons. One does not know the mind and intention working behind the criminal act of a person. The Trial Court has also considered this aspect of the matter that in a case where witnesses supported the prosecution case at the time of examination-in-chief and if there was time gap in cross- examination and if he resiles from his earlier statement in the cross-examination, that part of his statement can be discarded in which he has not supported the prosecution and it can be held that subsequently in the cross-examination he gave the statement with a view to help the accused persons and in that case the statement given by him in the examination-in-chief can be considered and reliance can be placed thereon and other evidence can be discarded. The evidence of Gangaprasad, who was very well on spot and accompanying with the deceased alongwith Harivallabh (PW2) and Raghunandan (PW5), is fully reliable. Gangaprasad had informed to other family members and villagers such as Raghuveer Singh (PW4), Rajendra Singh (PW6), Ramnath Singh (PW8) and Phool Singh (PW11) and on the information of Gangaprasad they came on spot and had also seen the deceased in injured condition immediately after the incident, he was unconscious and bleeding from injuries. This proves the conduct of Gangaprasad, who had given information to them. Ganga-prasad has also admitted his signatures on the FIR (Ex.Pl) and court placed reliance on the evidence of this witness of his examination-in-chief, corroborated by other ocular as well as medical evidence and convicted all the appellants. (Paras 15 and 16)

       If the case in hand is examined, as has been discussed by the trial court and in view of the aforesaid law laid down by the Apex Court, there is a clear evidence of Gangaprasad (PW1), who in the examination-in-chief fully supported the prosecution case. He admitted his signatures on FIR, which is Ex. Pl. He also identified all the accused persons in the court except Devendra Singh, who was referred for trial to juvenile court. He is also the witness of Ex.P2 spot map, seizure of soil from the spot Ex.P3 and seizure of one umbrella Ex.P4 which he has proved, which goes to show that he fully supported the prosecution, thereafter the trial court conveniently granted time for cross-examination and thereafter he conveniently resile from his earlier statement and stated that he was threatened by the complainant party to lodge the FIR though he was going with the deceased when the accused persons were present in the way. There was exchange of abuses between the deceased and the accused persons and thereafter he says that he left the place and informed the family members of the deceased. He admitted that thereafter he had not seen the deceased alive. He again came on spot alongwith the family members and the injured was taken by him to village Belka and from village Belka to Vijaypur thana in the jeep. His admission in para 17 of his cross-examination is sufficient to discard his other statement of cross examination. As the incident took place on 6.8.1997 at about 4.30 p.m. and report of the same was lodged on 20.15 p.m. and the distance of the place of incident from the police station was shown as 10 km., therefore, it is very much clear that the report of the incident was promptly lodged and on the next day the post-mortem of the dead body was performed and the duration of injuries was within 24 hours. The aforesaid prosecution evidence is fully corroborated by medical evidence as well as by other ocular evidence. Thus, we find that the trial court has rightly and properly appreciated the legal position in the matter.

       We have also considered that as per the chemical examination report (Ex.P15), the blood was found on the farsa (Art. D), which was seized at the instance of Manoj Singh, which also corroborates the prosecution case. All the accused persons were the member of unlawful assembly, as they were standing in the way and waiting for Samandar Singh. Therefore, from the prosecution evidence, it is clear that the appellants are the assailants and their presence shows their intention in committing crime. Ballam and Farsa are the dangerous weapons. The injuries received by the deceased are also corroborated by the weapons i.e. Farsa and Ballam, which are seized. The injury No.1 was found fatal as the farsa blow was severe that has caused two fractures in the skull and that injury was sufficient to cause death in the ordinary course of nature. Therefore, there is no iota of doubt that the crime was not committed by appellants or the appellants were successful in raising serious doubts in the prosecution story. On the contrary, we are of the view that the prosecution has proved the charges against the appellants by producing evidence beyond reasonable doubt. (Paras 21 and 22)

       Result: Appeal dismissed.