Criminal Appeal No.315 of 1997

19th July, 2002

Petitioner Counsel: Shri V.S. SIRPURKAR
Respondent Counsel: Shri S. G. LONEY

Cases Cited:
Balbir Vs. State of Haryana, 2000(1) SCC 285 [Para 4,12]
State of Haryana Vs. Ram Singh, 2002(2) SCC 426 [Para 4,10,12]
Ashraf Hussain Shah Vs. State of Maharashtra, 1996 Cri.L.J. 3147 [Para 4,17]
Maharaj Deen Vs. The State, 1996 Cri.L.J. 506 [Para 4,15]
Takhaji Hiraji Vs. Thakore Kubersing Chamansing, AIR 2001 SC 2328 [Para 5,12]
Appabhai Vs. State of Gujarat, AIR 1988 SC 696 [Para 14]
State of U.P. Vs. Anil Singh, 1988 (3) Crimes 367 [Para 14]
State of Himachal Pradesh Vs. Jeet Singh, 1999 Cri.L.J. 2025 [Para 15]
Keshavlal Vs. State M.P., 2002 SCC (Cri) 641 [Para 17]

JUDGMENT

R. K. BATTA, J.:- The appellant, who was accused No.2 in the Session Trial No. 109/1995 before the learned Additional Sessions Judge, Yavatmal, has been found guilty for murder of Mukesh Chavan under Section 302 of the Indian Penal Code. The appellant has been sentenced to imprisonment for life and fine of Rs. 10,000/-, in default, rigorous imprisonment for one year. Along with the appellant, seven other persons were tried who have been acquitted by the trial Court.

2. The prosecution had examined six witnesses in all in support of the said charges. The trial Court has accepted the evidence of eye witnesses PW-1 Nitesh and PW-2 Sunil as also the recovery of weapon of offence namely Gupti at the instance of the appellant as also the blood stains found on the clothes of the appellant. The case of the appellant is total denial and in the Written Statement filed on his behalf, it is stated that some persons had gone to the house of Deepak for committing his murder but be was not seen in darkness and they murdered Mukesh thinking him to be Deepak.

3. The prosecution case is that the appellant along with others had assaulted the deceased on 19.03.1995 at 8:00 P.M. in front of pan shop of Rizwan near Ambedkar Chowk, Yavatmal. At the time of the incident, the deceased along with PW-1 Nitesh and PW-2 Sunil was eating Kharra. The appellant along with the other co-accused who have been acquitted, came with weapons with them and appellant gave two blows with Gupti on the abdomen of the deceased. Besides this, the prosecution case is that another accused Gullu had assaulted deceased Mukesh by means of Rapi and accused Suraj stabbed Mukesh by means of knife. Both these accused have been acquitted by the trial Court. After the assault, the deceased was taken to Government Hospital, Yavatmal and the doctor informed that he was dead. During the course of investigation, at the instance of the appellant, weapon of offence Gupti used by him was recovered under Section 27 of the Indian Evidence Act from the grabage bin. On this Gupti, human blood stains were found. The police has also seized the clothes of the appellant and on the jean shirt of the appellant human blood stains were found.

4. Learned Advocate of the appellant urged before us that the prosecution has examined two witnesses who are interested witnesses on account of which their testimony requires close scrutiny, but the scrutiny of the evidence of these two eye witnesses shows that the evidence of these witnesses word by word is same which is the result of the tutoring and as such the evidence of those two eye witnesses cannot be believed. He also states that though both the eye witnesses say that the appellant stabbed twice on the abdomen of the deceased, yet only one injury was found in the abdomen region, whereas other injury is in the heart region, which can, by no stretch of imagination, be said to be injury on the abdomen. He also pointed out that the prosecution has not examined the independent eye witness Rizwan near whose pan thela the incident in question took place and the non examination of the said witness is fatal to the prosecution case. In this respect, reliance has been placed on Balbir Vs. State of Haryana and another (reported in 2000 (1) SCC 285). On the question that the medical evidence does not tally with the evidence of eye witnesses, reliance is placed on State of Haryana Vs. Ram Singh (reported in 2002 (2) SCC 426). The next submission made by the learned Advocate for the appellant is that the recovery of Gupti suffers from various infirmities including that two panchas, Exhs. 161,162 and 163,164 have been recorded at the same time in respect of two recoveries namely one at the instance of appellant/original accused No.2 and the other at the instance of original accused No.3. Therefore, according to him, this fact itself is sufficient to discard the discovery since two discoveries at the same time in pursuance of two disclosures at the same time is not possible. In this connection, it is further urged that the Gupti was not sealed and non sealing of Gupti is fatal to the prosecution case. In this connection, reliance has been placed on Ashraf Hussain Shah Vs. State of Maharashtra (reported in 1996 Cri.L.J. 3147). It is further submitted that no site plan in respect of the recovery of the knife has been placed and in this connection, reliance has been placed on Maharaj Deen and another Vs. The State (reported in 1996 Cri .L.J. 506). Lastly, it is contended that the recovery is from open place which was accessible to all. In view of this, it is urged that the evidence relating to recovery of Gupti has to be discarded. In respect of the seizure of the blood stained clothes on the person of the appellant, it is also submitted that the said clothes were not sealed and as such no reliance can be placed on the seizure of the clothes showing blood stains in the light of the judgment in Ashraf Hussain Shah Vs. State of Maharashtra (cited supra).

5. On the other hand, learned A.P.P. has submitted before us that two eye witnesses have fully supported the prosecution case in respect of the two blows given by the appellant and the same is supported by the medical evidence. According to learned A.P.P., it was not necessary to duplicate evidence in the light of evidence of PW-1 Nitesh and PW-2 Sunil which does not suffer from any infirmity and in support of his submissions, he has placed reliance on Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others (reported in AIR 2001 SC 2328). It is further submitted by learned A.P.P. that in the facts and circumstances of this case, non sealing of the weapon as also the clothes of the appellant upon which blood stains were found does not have much impact since the eye witnesses have identified the Gupti with which blows were given by the appellant and the presence of the human blood on the blade of the Gupti is but natural corollary of the blows inflicted on the deceased. According to the learned A.P.P., the recovery of the Gupti at the instance of the appellant cannot be disbelieved since the Gupti was recovered at the instance of the appellant from cement pipe used for dumping garbage. According to him, there was no requirement of preparing site plan of the place from where the weapon of offence is recovered and from the evidence of the Investigating Officer as also the panch witness it is clear that the first panchnama was conducted in relation to the appellant and it is only thereafter that the second panchnama was conducted in relation to the recovery at the instance of original accused No.3. According to learned A.P.P. the recovery can not be disbelieved merely on the ground that in both the panchnmas, timings shown are same and if at all any recovery is to be discarded, the recovery which is second in point of time, may have to be rejected, but there is no reason whatsoever to discard the recovery first in point of time at the instance of the appellant. He also pointed out that the report of the Chemical Analyser shows that the articles were received by him in a sealed cover and in the circumstance, in the absence of cross-examination of the Investigating Officer it cannot be said that the blood stains were planted by the Investigating Officer on the clothes of the appellant or on the Gupti which has been identified by the eye witnesses. He, therefore, contends that the prosecution had proved the case against the appellant beyond doubt and as such the conviction and sentences imposed does not call for interference.

6. The evidence adduced by the prosecution consists of evidence of two eye witnesses PW-1 Nitesh and PW-2 Sunil; recovery of Gupti, weapon of offence, at the instance of the appellant under Section 27 of the Indian Evidence Act and the blood stains found on the person of the appellant.

7. We shall first deal with the evidence of the witnesses. PW-1 Nitesh has stated that he along with the deceased, Sunil (PW-2) and Ritesh, were eating Kharra at the pan shop of Rizwan. The appellant along with others came running towards them. The appellant was armed with Gupti and he gave two stab blows with Gupti on the abdomen of deceased Mukesh. He also stated that original accused No.7 Gullu assaulted him by Rapi and original accused No.3 Suraj stabbed Mukesh by means of knife. Later, the appellant (sic-deceased) was taken to the hospital where he was declared dead. He further stated that while taking the deceased to the hospital he has kept the deceased on his thigh as a result of which his blood fell on his clothes which were attached by the police as Articles 11 and 12. He identified the weapon namely Gupti with which the appellant had assaulted the deceased. He admitted during cross-examination that deceased Mukesh was his close relative. There has been practically no cross-examination in respect of the evidence on material particulars that is to say assault by the appellant with Gupti twice on the abdomen of the deceased. It was suggested to him that they had assaulted deceased Mukesh under the impression that he was original accused No.1 Deepak, which was denied by him. However, subsequently, in the written statement it was stated that some persons had gone to the house of Deepak Chavan who is related to deceased Mukesh (not original accused No.1 Deepak); for committing the murder of said Deepak Chavan, but in darkness, they murdered deceased Mukesh, thinking him to be Deepak. There is no foundation for this defence stand.

8. The testimony of Nitesh (PW-1) is fully corroborated by evidence of Sunil (PW-2) who has stated that he, along with deceased Mukesh and Nitesh, were eating Kharra; that the accused came running with weapons; they made enquiries in respect of Deepak Chavan, the brother of Mukesh and thereafter the appellant gave two stab blows by means of Gupti on the abdomen of Mukesh. He also stated that original accused No.7 Gullu assaulted Mukesh by means of Rapi and original accused No.3 Suraj assaulted deceased by means of knife. Again there is no cross-examination in respect of evidence on material particulars in relation to the appellant giving two stab blows by means of Gupti on the abdomen of Mukesh.

9. Learned Advocate for the appellant has urged before us that the testimony of these interested witnesses cannot be accepted, in view of the medical evidence on record. The postmortem report was admitted under Section 294 of Cr.P.C. The postmortem report shows four injuries on the person of the deceased which are as under:-

(1) Incised wound on Lt. forearm dissal aspect 2" proxima to Lt. wrist size 1" x ½" x muscle deep.

(2) Incised wound just above part superior ilice spine Lt 1" x ½ x cavity deep.

(3) Incised wound on Lt. 2,3 rd intercostal space 1 and ½" x ¾" damaging underlying Lt. lung and heart.

(4) Linear abrasion on Rt. thigh anteriorly in the centre 1" in length, skin deep.

The cause of injuries was sharp and cutting object. The internal examination revealed incised wound on posterior lateral aspect of upper lobe of left lung of the size of 2" x ½" damaging the lung substance. The pleura covering left lung was torn. He also found incised wound 1" x ½" opening into the chamber of Lt. atrium from posterior aspect and incised wound ½ x ½ cm. on the large intestine. The death was due to shock secondary to massive internal hemorrhage as a result of injury to vital organs.

10. The two injuries which are attributed to the appellant are injury Nos.2 and 3. There are two other injuries. Though PW-1 and PW-2 also attributed assault by original accused Nos.3 and 7 by knife and rapi respectively on the deceased but the part of body where he was assaulted is not specified due to which and other reasons they have been acquitted. However, in so far as appellant is concerned, PW-1 and PW-2 have categorically stated about the two injuries namely injury Nos.2 and 3 which have been inflicted by the appellant. Injury No.2 is on the abdomen and it resulted in incised wound of ½ x ½ cm on the large intestine. The injury No.3 is on the left second, third intercostal space and it has damaged the underlying left lung and heart. It is on account of this injury that it is vehemently urged by the learned Advocate for the appellant that the testimony of the two eye witnesses examined by the prosecution cannot be accepted. We had called for the jean shirt of the deceased in order to examine the cut in the shirt. The panchnama (Exh.84) showed cut on the right side pocket and two holes below it and the inquest panchnama (Exh.77) shows cut mark on the lower portion of the right pocket. It appears that the panchnama and inquest panchama have been prepared by keeping the shirt position in front and on account of which the cuts are stated to be on the right of the pocket. However, we have examined the shirt in question and there is no cut on the right side of the shirt nor there is any pocket on the right side. The shirt has only pocket on the left side and near the left side pocket towards the strip where there are button holes there is a cut square in nature which indicates that the Chemical Analyser has taken out that square strip from the shirt for the purpose of examination. This cut is corresponding to injury No.3. There is also a similar cut in the lower left portion of the shirt which corresponds to injury No.2 Injury No.2 is on the abdomen. Though injury No.3 is not on the abdomen, but it is very close to abdomen on account of which the witnesses though they had seen both the blows being given by the appellant felt that both the blows were given on the abdomen. Therefore, we do not find any discrepancy in oral evidence of PW-1 and PW-2 and the medical evidence on record. In State of Haryana Vs. Ram Singh (supra), it was found that medical evidence ran positively counter to the eye witnesses account rendering the ocular testimony not being dependable or trustworthy. This ruling has no application to the facts of the case under consideration.

11. Learned Advocate for the appellant has strenuously urged before us both eye witnesses examined by the prosecution are interested witnesses and they should not be believed. There is no rule of law that the evidence of interested witness cannot be relied upon. The only caution is that their testimony should be closely scrutinised. After closely scrutinising their testimony, we do not find any infirmity in their testimony on material particulars. Moreover, we find that both the witnesses fully corroborated each other on the material particulars. Even though both the witnesses are related to the deceased, we have, therefore, no reason to discard the testimony of these witnesses.

12. We shall now deal with the argument advanced by the learned Advocate for the appellant that the prosecution has not examined material witness Rizwan, owner of the pan thela near which the incident took place. It is now well settled that the prosecution has to examine material witnesses to unfold the prosecution case and the prosecution need not duplicate material witnesses. In this respect,learned Advocate for the appellant has relied upon Balbir Vs. State of Haryana and another (cited supra) and State of Haryana .v. Ram Singh (cited supra) and learned A.P.P. has relied upon Takhaji Hiraji Vs. Thakore Kubersing Chamansing and other (cited supra). In the facts of the case, in Balbir Vs. State of Haryana and another (cited supra) it was found that the impact of non examination of certain material had not been considered. In Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others (supra), the Apex Court has observed that where the evidence of eye witnesses examined is consistent and reliable non examination of other eye witnesses does not cast any infirmity in prosecution case. It was further pointed out that it not necessary to repeat or duplicate evidence.

13. Learned Advocate for the appellant has stated that the Investigating Officer has not given any explanation for non examination of the independent witness Rizwan. In the facts of the case before us, we do not consider that the non examination of Rizwan is fatal to the prosecution case. There is no doubt that the Investigating Officer should have given explanation or the P.P. conducting trial, should have placed on record as to why witness Rizwan was not examined. But this is not sufficient to discard the prosecution case.

14. In so far as independent witnesses are concerned, the Apex court in Appabhai and another Vs. State of Gujarat (reported in AIR 1988 SC 696) has made the following observations :-

"It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally, insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."

The position has since worsened considerably and it is a matter of common knowledge that independent witnesses and panchas do not support the prosecution case. This is a common experience in the trial Courts of which judicial notice can be taken. Therefore, merely because independent witnesses have not been examined, the prosecution case cannot be thrown overboard. The Court has to examine evidence of the witnesses produced before it and find out whether there is a ring of truth in their statements and whether the same can be relied upon. The Apex Court in State of U.P. Vs. Anil Singh (reported in 1988(3) Crimes 367) has also laid down that the endeavour of the Court shall be to cull out the nuggets of the truth from the evidence and if there is a ring of truth in the main, the case should not be rejected unless there is a reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witness. We have already stated that the evidence of PW-1 and PW-2, though they are related witnesses, not only inspires confidence but there is no reason whatsoever to discard their testimony.

15. The prosecution case also gets support from the recovery of blood stained Gupti at the instance of the appellant. The Gupti was recovered on discovery made by the appellant under Section 27 of the Indian Evidence Act from cement pipe which was used for throwing garbage. The Apex Court in State of Himachal Pradesh Vs. Jeet Singh (reported in 1999 Cri.L.J. 2025) has laid down:-

"There is nothing in S. 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under S.27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed, beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until be discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."

In the light of the above observations, the recovery of the Gupti from the cement pipe used as garbage bin at the instance of the appellant cannot be disbelieved. PW-4 Ravindra has proved disclosure made by appellant and consequent recovery of the same from the garbage which was kept in big cement pipe. The recovery of Gupti was made on 21 st March, 1995 and the incident in question had taken place on 19th March, 1995 at 8:00 P.M. Though a Division Bench judgment of Allahabad High Court in Maharaj Deen and another .v. the State (cited supra) lays down that the Investigating Officer had not prepared site plan of the place from where the alleged recoveries are made, yet we do not find that there is any requirement of law under which it is laid down that the panchnama of the site plan from where the recoveries are made has to be prepared. Moreover, these observations were made by the Allahabad High Court since the place from where the recoveries were allegedly made could not be located or fixed in order to find out whether those places were in exclusive possession of the accused persons. Therefore, even on facts, this ruling has no application.

16. Learned Advocate for the appellant has urged that the timings of two panchnamas effecting recovery at the instance of appellant and original accused No.3 is the same. According to the evidence on record, namely that of pancha and the Investigating Officer, the disclosure and the recovery at the instance of the appellant was made first. It appears that there is mistake in recording timings of the two panchnamas, PW-4 and I.O. have both cartegorically stated that the disclosure and recovery at the instance of the appellant was made first. Besides this, on the basis of timing,if any discovery or panchnama is to be disbelieved, the same would be the second disclosure and recovery and not the first one at the instance of the appellant. Moreover, merely on account of timings the discovery cannot be discarded if the discovery is otherwise proved. In the case before us, the prosecution with the help of the Investigating Officer and the pancha has been able to prove not only the disclosure made by the appellant but also discovery at his instance. Therefore, we do not find any merit in the submissions made by the appellant in this respect.

17. On the question of sealing, learned Advocate for the appellant has relied upon Ashraf Hussain Shah Vs. State of Maharashtra (cited supra) which speaks of the sealing of the blood stained clothes and knife. Sealing does assume importance in many cases but only on account of the fact that the articles were not sealed, it does not necessarily follow that the articles have been tampered with or interfered. The sealing is done to eliminate suspicion that blood might not have been put on the article subsequent to the recovery and prior to being sent to Chemical Analyser. In the case before us, the prosecution witnesses PW-1 and PW-2 have categorically stated that the appellant had inflicted two blows on the deceased with Gupti and both of them have identified the Gupti in question. It is not only natural but obvious that when two blows are given with Gupti, human blood is bound to be there. The panchnama of recovery (Exh.162) shows that there were blood stains on the blade of Gupti. Though I.O. and pancha do not speak of sealing, yet Chemical Analyser received the same under sealed cover. Chemical Analyser's report shows human blood on blade of Gupti. Hence, the question of any tampering with the Gupti so as to fabricate blood on the same, in the circumstances, does not arise. Therefore, we have no reason whatsoever to discard the recovery of Gupti and on the Gupti human blood stains were found though the blood group was inconclusive. The presence of human blood on the weapon of offence namely Gupti which has been identified by PW-1 and PW-2 is an incriminating circumstance against the appellant. The Apex Court in Keshavlal Vs. State of M.P. (reported in 2002 SCC (Cri) 641) had laid down that non-ascertainability of the blood group cannot be made a basis to discard the evidence of the witnesses who otherwise inspire confidence of the court and are believed by it. In this case it was submitted that the location of injury, as described by the witnesses,is not found in postmortem report and as such it should be presumed that the eye witnesses did not see the occurrence, but the same has been rejected.

18. The next circumstance against the appellant is recovery of his blood stained shirt. The Chemical Analyser has stated that the blood stains on the said shirt are of human origin though the blood group was inconclusive. The appellant was arrested on 20.03.1995 at 11:45 P.M. and the attachment of the shirt from his person was effected within minutes of his arrest. The attachment panchnama shows blood stains on the shirt. The Investigating Officer was not cross examined at all in this respect and it was not the case of the appellant that the blood was subsequently sprinkled on his shirt. There has to be some foundation for argument that there was tampering with the shirt and a mere possibility in air is not sufficient but the defence has to probablise the possibility and then only the same can be accepted. There was absolutely no cross-examination of the Investigating Officer on this aspect. The appellant was arrested on 20.03.1995 at 11:45 P.M. and shirt in question was attached under panchnama (Exh.158) within minutes of arrest. On this shirt there were blood stains on either side of front portion. Thus the presence of the human blood on the shirt of the appellant, which was attached from his person within minutes of his arrest, is strong incriminating evidence showing involvement of the appellant in the crime. In the facts and circumstances of the case, non sealing of this article is not sufficient to disbelieve the said recovery of shirt on which blood stains of human origin were found. It may be mentioned here that the Chemical Analyser's Report shows that the articles were in fact received by him duly sealed.

19. For the aforesaid reasons, we do not find any merit in this appeal and the appeal is hereby dismissed.

Appeal dismissed.