Back
2020 Supreme(All) 717
IN THE HIGH COURT OF ALLAHABAD
PRITINKER DIWAKER, RAJ BEER SINGH, JJ.
Abdul Karim and Others - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal No. 579 of 1989 With Criminal Appeal No. 107 of 1989 With Criminal Appeal No. 126 of 1989
Decided On : 06-03-2020
For the Appellant :Shri Rajiv Lochan Shukla, Advocate.
For the Respondent: Shri J.K. Upadhyay, A.G.A.
Point of Law: Mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
Headnote:
Indian Penal Code, 1860 – Sections 302, 302/34 –Criminal Procedure Code, 1973 – Sections 313, 107,117, 145 – Issue on Testimony, Conviction – Offence of Murder – Appeal against conviction – The version of PW-1 Nizamuddin is quite clear and cogent and he has clearly stated that at the time of alleged incident, he was working at his field near Newajipur small canal and has witnessed the incident from there. PW 1 Nizamuddin has given detailed description of spot and entire vicinity around spot.
Facts of the case: Learned counsel for the accused-appellants submits as under that the conduct of alleged eye witnesses is highly unnatural – As per prosecution version, they have reached at the spot, but neither they tried to save the deceased nor to apprehend the accused persons that FIR is anti-timed and from statement of PW-4 Naseer Khan, it is clear that after 4:30 PM no other case was registered for sufficient long time that ocular testimony is not consistent with medical evidence that there are serious contradictions and inconsistencies in the prosecution version
Finding of the court: Court is of the considered view that the trial court was justified in convicting accused-appellant – In the present case, all the above mentioned contradictions and inconsistencies, cited by the learned counsel for the appellants, are of minor nature and same do not erode the substance of the testimony of the witnesses– Further even if a witness is found false on a point, it does not mean that his entire testimony has to be disbelieved, rather it is duty of the court to separate the grain from the chaff – The maxim 'falsus in uno, falsus in omnibus' is not applicable in India – A witness may be speaking untruth in some respect and it has to be appraised in each case as to what extent the evidence is worthy of acceptance –Accordingly, conviction and sentence of accused-appellants –All the three accused-appellants are stated to be on bail, their bail are cancelled and they shall be taken into custody forthwith to serve out the sentence
Result: Appeals dismissed
JUDGMENT :
Raj Beer Singh, J.
1. These criminal appeals have been preferred against the impugned judgment and order dated 13.01.1989 passed by Sessions Judge, Fatehpur in S.T. No. 297 of 1987 (State vs. Abdul Karim & Two Others), Police Station Bindki, District Fatehpur, whereby accused-appellant Abdul Karim has been convicted under Section 302 of Indian Penal Code (hereinafter referred to as 'I.P.C') and accused-appellants Munnu Kurmi and Taj Babu alias Tar Babu have been convicted under Section 302/34 of IPC and all the accused-appellants were sentenced to undergo imprisonment for life.
2. Prosecution version is that on 31.10.1986 complainant/PW-1 Nizamuddin has filed a written complaint before the police, alleging that on 31.10.1986, his brother Babu Khan (deceased) was returning from market to village and as he reached near culvert of village, accused Karim, Tar Babu and Munnu, who have waylaid there, started assaulting Babu Khan with clubs and knife. Babu Khan started running raising alarm and hearing cries of Babu Khan, one Jahur, complainant's cousin Kallu and complainant ran towards him and challenged accused persons, but accused persons Karim, Tar Babu and Munnu overpowered Babu Khan and fell him down in the field of Rampal Dhobi. Accused-appellant Munnu caught feet of Babu Khan, accused-appellant Tar Babu caught his hand and accused-appellant Karim managed to sit at the chest of deceased Babu Khan and inflicted knife blows at his neck. By the time complainant and above-stated persons reached near spot, all the three accused persons ran away towards eastern side. Complainant and his companions tried to chase them, but in vain. Babu Khan died at the spot.
3. On the basis of written complaint Ex. Ka-1 of PW 1 Nizamuddin, case was registered on 31.10.1986 at 18:40 hours against all the three accused persons, namely, Abdul Karim, Munnu Kurmi and Taj Babu alias Tar Babu under Section 302 of IPC vide FIR Ex. Ka-3.
4. On 01.11.1986, police reached at the spot and inquest proceedings were conducted by SI Krishanpal under supervision of PW 6 Inspector D.S. Malik vide inquest report Ex. Ka-9. Dead body of the deceased was sealed and sent for post-mortem.
5. Post-mortem on dead body of the deceased was conducted by PW-5 Dr. M.H. Khan and following injuries were found on the person of deceased:-
(i) Incised wound 3 cm x 1/2 cm x trachea on the front of neck below crecoid cartilage, oblique, with cutting of carotid. Margins were clear cut.
(ii) Incised wound 1/2 cm x 1/4 cm x 2 cm oblique on the left side of neck oblique 1 1/2 cm from the mid line.
(iii) Incised wound 1/2 cm x 1/4 cm x 2 cm on the left side of neck, transverse 2 1/2 cm lateral to mid line.
(iv) Incised wound 1 cm x 1/2 cm x 2 cm on the left side of face, transverse 2 1/2 cm lateral to the chin.
(v) Incised wound 1/2 cm x 1/4 cm x 2 cm on the right side face, oblique, 2 1/2 cm lateral to the chin.
(vi) Incised wound 1 cm x 1/4 cm x 2 cm on the middle of neck, transverse, just above the sternum.
As per Autopsy Surgeon, the cause of death of the deceased was due to shock and haemorrhage as a result of anti-mortem injuries.
6. Investigation was taken up by PW-6 S.H.O. D.S. Malik and after completion of investigation, all the three accused persons were charge-sheeted.
7. Trial court framed charge under Section 302 of IPC against accused-appellant Abdul Karim, whereas accused-appellants Taj Babu @ Tar Babu and Munnu Kurmi were charged under section 302/34 IPC.
8. In order to bring home the guilt of accused persons, prosecution has examined six witnesses. Accused persons were examined under Section 313 Cr.P.C., wherein they denied prosecution evidence and claimed false implication. However, no oral evidence was led in defence.
9. After hearing and analysing the evidence on record, accused-appellant Abdul Karim was convicted under Section 302 of IPC, whereas accused-appellants Munnu Kurmi and Taj Babu alias Tar Babu were convicted under Section 302/34 of IPC by the impugned judgment and o
