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Supreme Court of India
SWATANTER KUMAR & FAKKIR MOHAMED IBRAHIM KALIFULLA
Kuria & Another
Versus
State of Rajasthan
CRIMINAL APPEAL NO. 2488 OF 2009
Decided On : 13-09-2012
(2010) 10 SCC 259; (2006) 13 SCC 65; (2003) 7 SCC 56 – Relied upon
(b) Criminal Trial – Appreciation of evidence – Contradiction and variation – Statements of witnesses at variance – Variations explainable – Cannot be termed as contradiction – Minor variations or insignificant improvements not going to the core of prosecution story – Not material. (Para 21)
(2012) 5 SCC 724; (2000) 8 SCC 457; (2001) 2 SCC 205; (2002) 5 SCC 100; (2003) 11 SCC 367; (2010) 12 SCC 350; (2011) 9 SCC 561 – Relied upon
(c) Criminal trial – Appreciation of evidence – Related witness – Eye witness – Evidence reliable – Cannot be discarded merely because he is related to the deceased – Held all witnesses were present at place of occurrence and their statements are reliable. (Para 25, 26)
(2003) 11 SCC 367; (1991) 1 SCC 519; 2012 (5) SCALE 595 – Relied upon
(d) Criminal Trial – Hostile witness – Though the witness was declared hostile, he provided a motive for the incident – Even otherwise prosecution has been able to prove its case beyond reasonable doubt. (Para28, 29)
(2005) 9 SCC 769 – Distinguished
(e) Indian Penal Code, 1860 – Section 34 – All accused persons coming with weapons – Assaulting the deceased outside and inside the house – Dragging his body and throwing it near hand pump – Section 34 squarely attracted. (Para 31, 32, 33)
2012 (6) SCALE 381; (2008) 11 SCC 303; (2011) 12 SCC 120 – Relied upon
Facts of the case:
15 accused face trial for offences under Sections 302 and 364 IPC.
All accused except 3 were acquitted. These three accused were convicted under both sections.
During appeal before High Court one accused died and the High Court confirmed conviction and sentence of the remaining two accused.
Finding of the Court:
Impugned judgment does not require interference.
Result: Appeal dismissed.
Distinction between contradictions and variations in witness statements: Contradictions must be distinguished from mere variations or improvements, which are explainable and do not affect the core prosecution case if minor and insignificant. (!) [1000522500016][1000522500017][1000522500018][1000522500019][1000522500020][1000522500022]
Primacy of oral (ocular) evidence over medical evidence: Oral evidence of eyewitnesses has primacy unless totally irreconcilable with medical evidence; minor discrepancies do not discredit reliable eyewitness accounts, especially in group assaults. [1000522500007][1000522500008][1000522500015] (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Eyewitness reliability in group assaults: In cases involving a large number of accused assaulting a single victim, witnesses cannot be expected to precisely recall or describe the specific role or weapon used by each accused; focus is on overall assault. [1000522500001][1000522500003][1000522500015] (!) (!)
Testimony of related witnesses: Evidence of relatives who are eyewitnesses cannot be discarded solely due to relationship if reliable, consistent, and corroborated. [1000522500023][1000522500024][1000522500025]
Value of hostile witnesses: A hostile witness's testimony can still corroborate prosecution if it supports key facts like motive, even if not fully supportive. [1000522500026][1000522500027]
Application of Section 34 IPC: Common intention established where multiple accused arrive armed, jointly assault victim inside and outside house, drag body, and discard it; specific individual roles unnecessary if acts done in furtherance of shared object. [1000522500030][1000522500031][1000522500032] (!) [1000522500001]
Corroboration by medical, forensic, and circumstantial evidence: Post-mortem findings (e.g., blunt trauma, rib fractures, haemothorax, asphyxia), inquest report, blood-stained recoveries (matching deceased's group), and site plan corroborate eyewitnesses despite no sharp-edged injuries. [1000522500003][1000522500008][1000522500009][1000522500010][1000522500011][1000522500012][1000522500013][1000522500014] (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) [1000522500026][1000522500027]
Presence and conduct of eyewitnesses: Natural for witnesses (son of deceased, others arriving sequentially) to flee for help amid fear, return to find body dragged; FIR promptly lodged without naming all due to shock. [1000522500003] (!) (!) [1000522500018][1000522500023]
Motive from land disputes: Animosity over agricultural land provided motive, confirmed even by defense witness. [1000522500003][1000522500027] (!) (!)
No material contradictions or improvements affecting case: Variations (e.g., neck description, PW15's presence) explainable as normal human recollection; "sterling worth" means reliable/trustworthy overall, not rigid perfection. [1000522500016][1000522500017][1000522500018][1000522500019][1000522500020] (!) (!) (!) (!) (!)
Conviction upheld on concurrent findings: Trial court convicted 3 of 15 accused under Sections 302/364/34 IPC (life + 10 years); High Court affirmed after one death; no interference warranted. [1000522500001][1000522500002][1000522500004][1000522500028][1000522500033]
Judgment :-
Swatanter Kumar, J.
1. At the outset, we may notice that 15 accused persons had faced trial for offences under Sections 302 and 364 read with Section 34 of the Indian Penal Code, 1860 (for short “IPC”) before the Court of the Additional Sessions Judge, Banswara (Rajasthan). Vide its judgment dated 5th September, 2003, learned Trial Court acquitted all the accused persons except Laleng son of Bajeng, Laleng son of Dalji and Kuriya son of Laleng. These three accused were convicted for both these offences and were directed to undergo rigorous imprisonment for life with a fine of Rs.4,000/- each and in default to further undergo rigorous imprisonment for four months under Section 302/34 IPC and to undergo rigorous imprisonment for ten years with a fine of Rs.1000/- each and in default to undergo further rigorous imprisonment for one month under Section 364/34 IPC.
2. All the three accused persons preferred separate appeals before the High Court, impugning the judgment of the Trial Court. Unfortunately, during the pendency of the appeal before the High Court, Laleng son of Bajeng died. Vide its judgment dated 25th May, 2008, the Division Bench of the High Court of Rajasthan at Jodhpur confirmed the judgment of conviction and order of sentence against the remaining two accused, i.e., Kuria son of Laleng and Laleng son of Dalji.
3. Aggrieved from the judgment of the High Court, both the accused have filed the present appeal. The State did not challenge the acquittal of the 12 accused persons by the Trial Court before the High Court. Thus, in the present appeal, we are only concerned with the appeal of the aforementioned two accused.
4. Now, we may notice the case of the prosecution in brief. Laleng, son of Mogji Patidar went to the Police Station, Garhi on 28th January, 2001 and lodged a written report (Exhibit P3) to the effect that his father had gone to some other place as a guest. At about 5.30 in the evening, he was returning to his house. The informant (who was also going in the same direction), was at some distance behind him. Along with him were two persons, namely, Dhulji and Bapulal. When his father reached near the house of Yatendra, son of Shivaji and was standing on the road, Laleng and Dalji started assaulting his father and on their hands, took him inside their house. According to Laleng, who was examined as PW3, Laleng son of Dalji, the accused, was carrying an axe in his hand. The other accused, Laleng s/o Wajeng, was carrying a ‘kash’ and Kuriya was carrying a ‘lath’ in his hands and others were also carrying ‘laths’. PW3 and the others with him could not interfere because of the large number of accused and, due to fear, they ran to the village to get help. Once this fact was disclosed, Dhulji son of Gotam, Bajeng son of Pemji and Dalji son of Gotam had also arrived at the place of incident. In their presence, Laleng and his son Kuria, Laleng son of Dalji, Dhulji son of Bajeng, Kuber son of Jasu and Bhemji son of Nathu were beating his father and while assaulting him, dragged and threw him on the road in front of the house of Laleng, the accused. When the informant and the others came near his father, they saw that he had expired. The body of the deceased was lying at the spot. According to this witness, there was rivalry between these persons and the deceased. PW3, thus, had seen the incident. The FIR was registered under Sections 147, 148, 149 and 302 of the IPC vide Exhibit P/4. The Investigating Officer commenced his investigation, went to the place of occurrence, prepared the site plan (Exhibit P/5) and recorded statement of the witnesses vide panchnama (Exhibit P/2). The body of the deceased was taken into custody. The clothes worn by the deceased were also taken into possession vide Exhibit P/7. The body of the deceased was subjected to post mortem which was prepared by Dr. S.K. Bhatnagar, PW6 being Exhibit P/11. From the house of the accused Laleng, blood stained Dahli (piece of wood of the do
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