Prem Narayan Singh, J
The present appeal has been filed on behalf of the appellant under Section 374 being disgruntled by the order dated 08.01.2024 passed in Sessions Trial No. 21/2021, whereby the appellant has been convicted for the offence under Section 304 (Part-II) of the Indian Penal Code, 1860 (hereinafter referred as to 'IPC, 1860') for 9 years R.I. with fine of Rs.5,000/- and default stipulation.
2. The Prosecution case, in a nutshell, is that on 04.06.2021, the complainant Pankaj S/o Shivram Bhagora alongwith his grandfather Raichand, his father Shivram and her mother Durgabai were preparing a hut for living in their own field. At the same time, Ambu Ganawa, Dinesh Ganawa, Ramesh Ganawa and Basantibai Ganawa resident of Kunwarjhar came there and said “why are they constructing a hut on that land”, by saying this, they started to abuse the complainant party. On refusal, the appellant took angle lying near the house of Kalu Khadiya and assaulted the complainant’s grandfather on his head and on face, due to which blood started oozing and Dinesh assaulted complainant’s father on the head and right leg, due to which, blooding was started. Ambu Ganawa threw a stone by catapult (gophan/gulel) on mother of the complainant Durgabai, which hit on right leg and Bansantibai also assaulted Durgabai with kick and fists. The incident was seen by complainant’s uncle (Mama) Lalsingh S/o Bhurji Ninama. The appellant Ramesh alongwith others gave threat for life to the complainant party. The injured were admitted in the hospital. An FIR was lodged by the complainant bearing Crime No. 299/2021 for the offence punishable under Sections 294, 323, 506 & 34 of IPC, 1860 at Police Station Balakwada, District Khargone. The injured Raichand S/o Dayaram Bhagora was taken to the CHC Petlawad for primary treatment and thereafter referred to Dahod Hospital. While reaching on Dahod Hospital, injured Raichand expired. The said information was given to the police station bearing Merg No. 33/2021 and due to death of injured Raichand, offence under Section 302 of IPC, 1860 was aggravated.
3. The police after following the due procedure, prepared the spot map, taken the statements of the witnesses, seized the articles, prepared the medical documents, arrested the accused persons and after due investigation, the charge-sheet was filed and the case was committed to the Session Judge and thereafter, appellants were charged for offence under Sections 302, 294, 323, 506 & 34 of IPC, 1860. They abjured their guilt and took a plea that they had been falsely implicated in the present crime and prayed for trial.
4. In order to bring home the charges, the prosecution has adduced as many as 16 witnesses namely Shivram (PW-1), Durgabai, (PW-2), Ritubala, Lady Constable (PW-3), Ramsingh Damar, Patwari (PW-4), Pankaj Bhagora (PW-5), Ratan (PW-6), Lalsingh (PW-7), Raju (PW-8), Ramesh (PW-9), Jitendra Rawat, Constable (PW-10), Deepak (PW-11), Rakesh Mourya, Constable (PW-12), Digvijaysingh, Head Constable (PW-13), Munnalal Lashkari, Sub-Inspector (PW-14), Dr. Dharmesh Singh Baghel, Medical Officer (PW-15) and Richhusingh, Constable (PW-16). On behalf of defence, 01 witness namely Ramesh S/o Ambaram Ganawa was produced.
5. Learned trial Court, on appreciation of the evidence and argument adduced by the parties, pronounced the impugned judgment on 08.01.2024 and finally concluded the case and convicted the present appellant Ramesh S/o Ambu @ Ambaram for commission of offence punishable under Section 304 (Part-II) as mentioned in para No. 1 and also convicted the appellant Dinesh S/o Ambu @ Ambaram for commission of offence punishable under Section 323 of IPC, 1860 and sentenced to undergo for 06 months with fine of Rs.500/- and default stipulations while acquitted the appellants Ambu @ Ambaram S/o Bhurji and Shantibai for the offence under Sections 302/34, 323/34, 294 and 506 (Part-II) of IPC, 1860.
6. The appellant has preferred this criminal appeal on several grounds and submitted that the order of learned Sessions Court is against law and facts, hence deserves to be set aside. Witnesses are related to each other. There are serious contradictions in the statements of prosecution witnesses. As per statement of Dr. Dharmesh Singh Baghel (PW-15), in para 13, it was stated that reason of causing death, has not been mentioned in the post-mortem report (Exhibit-P/12). There is no intention to cause injury. The incident was happened on the spur of the moment and the appellant has caused sole injury by angle only. The said offence is not coming under the purview of Section 304 (part-II) but rather it came in purview of Section 325 of IPC. It is further submitted that in para No. 14 of the judgment, the learned trial Court found that according to the medical documents, no organ of the head had come out and there was no fracture. It is further submitted that in the present case, the learned trial Court has awarded maximum sentence to the appellant. It is also submitted that the learned Court below has failed to appreciate the prosecution evidence and has also erred in convicting the appellant. Further, the appellant also alternatively prayed that the appellant has already suffered more than three years in custody. On these grounds, his sentence should be reduced to the period already undergone by enhancing the fine amount.
7. In alternate, learned counsel for the appellants Submits that the learned trial Court has convicted the appellant under Section 304(II) of IPC and sentenced for 09 years R.I. which is approximately maximum as per the provisions of law because the maximum sentence is 10 years. The appellants have already undergone approximately 03 years of their incarceration period and prays that if the appellants are awarded sentence of jail for the period of the imprisonment already undergone under the provisions of Section 304(II) of IPC then the ends of justice will be met. In support of this contention, counsel for the appellant has placed reliance upon the judgment of this Court in the case of Vimal Rana & Others vs. State of Madhya Pradesh passed in Criminal Appeal No.745/2006 dated 19.07.2010 whereby the Division Bench has awarded Six years of jail sentence under Section 304(2) of IPC.
8. Learned Government Advocate for the State has opposed the prayer. Inviting my attention towards the conclusive paragraphs of the impugned judgment, learned public prosecutor has submitted that the deceased had died due to the injury caused by the appellant. As per statement of Dr. Dharmesh Singh, it has been stated that the injuries received by the Raichand were serious in nature. Certainly, there was single blow by iron angle but the death can be caused by the weapon used by the appellant. The learned trial Court has rightly convicted the appellant by sentencing him appropriately. Hence, prays for dismissal of the appeal.
9. I have considered rival contentions of the parties and perused the record.
10. The statements of the injured and eye-witnesses of the incident who are Shivram (PW-1), Durgabai (PW-2), Pankaj Bhagora (PW-5) and Lalsingh (PW-7) have been recorded before the trial Court. All of these witnesses have supported the case of prosecution. Complainant Pankaj Bhagora (PW-5) graphically disposed that on the day of incident, the appellants came on the spot and started hurling abuses and assaulted complainant’s grandfather on his head and on face, due to which blood was oozing and co-accused Dinesh assaulted complainant’s father on the head and right leg, due to which, blooding was started. Ambu Ganawa threw a stone by catapult (gophan/gulel) on mother of the complainant Durgabai, which hit on right leg and Bansantibai also assaulted Durgabai by kick and fists. Thereafter, the appellants/accused fled away. Statement of this witness has been supported by eye-witness i.e. Lalsingh (PW-7). In cross-examination, the testimony of these witnesses has not been rebutted. The prosecution case is also well fortified by Dr. Dharmesh Singh Baghel (PW-15).
11. Learned counsel for the appellant, on this point, vehemently contended that the testimonies of these witnesses are full of contradictions and omissions and since they are relatives of the deceased, they should not be relied.
12. On this aspect In Babasaheb Apparao Patil v. State of Maharashtra [AIR 2009 SC 1461] the Hon'ble Apex Court held as under:-
"12. It is to be borne in mind that some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Merely because there is inconsistency in evidence, it is not sufficient to impair the credibility of the witness. It is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence."
13. Now, the contention of learned counsel regarding relative witnesses, is also required to be pondered. Certainly, all eye-witnesses are relative of deceased, however, the defence failed to evince the submission regarding their interestedness against the appellant. On this aspect, the decision laid down by Hon'ble Apex Court in the case of Laltu Ghosh vs. State of West Bangal AIR 2019 SC 1058 is relevant to be referred here:-
"This Court has elucidated the difference between ‘interested’ and ‘related’ witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused".
14. So far as the arguments regarding non-availability of independent witnesses is concerned, it is well settled that no criminal case can be over-boarded due to non-availability of independent prosecution witnesses. In this regard, the following verdict of landmark judgment of the Hon'ble Apex Court rendered in the case of Appa Bhai vs. State of Gujarat, AIR 1988 SC 696 is worth referring here as under:
"10.......Experience reminds us that 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 broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused...…"
15. Actually, in many of criminal cases, it is quite often that the offence is witnessed by close relatives of the victim whose presence on the spot of the incident would be natural. The evidence of such witnesses cannot automatically be discarded by levelling them as interested witnesses. In order to arrive at the conclusion of the guilt, the Court has to judge the testimonies of the witnesses by the yardstick of the probabilities and their intrinsic worth.
16. In terms of the culpability of both accused Dinesh and Ramesh in the offence, virtually, the learned trial Court has not found that both have made any common intention for committing the offence of culpable homicide not amounting to murder. It is also worth to mention that accused Dinesh has already completed the sentence and released from jail. Since there is no appeal in this regard has been filed by the prosecution, no decision can be made regarding common intention of both accused for the same person. On this aspect, learned counsel for the appellant has also raised the question that on the same set of evidence when two accused have been acquitted, the present appellant cannot be convicted. On this aspect, the law laid down by Hon’ble the Apex Court in the case of Javed Shaukat Ali Qureshi Vs. State of Gujarat, (2023) 9 SCC 164, relevant paragraphs of the judgment is condign to quote here :-
“15. When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination.”
17. Nevertheless, the aforesaid law laid down by Hon'ble Apex Court is having different aspect and it only applies when the evidence and circumstances are the same and identical. In this case, the present appellant has different case with regard to causing grievous injuries over the person of deceased.
18. However, in this appeal on the basis of evidence available on record, this Court is satisfied that the findings of the learned trial Court regarding causing voluntary grievous hurt by hard and blunt object to the deceased, are in accordance with law and facts and it is also proved beyond reasonable doubt that the deceased succumbed to that injury.
19. Learned counsel for the appellant submitted that since the co-accused persons namely Ambu @ Ambaram and Shantibai were acquitted from the same set of evidence, then the appellant cannot be convicted on the same. The law laid down by Hon'ble Supreme Court in its Full Bench decision, rendered in the case of Gurcharan Singh Vs. State of Punjab reported in AIR 1956 SC 460, is poignant in this regard. The relevant part of the judgment is mentioned below:-
“Be that as it may, we are no more concerned with the case against those two accused persons who have been acquitted by the High Court; but so far as the appellants are concerned, the evidence of the four eyewitnesses referred to above is consistent and has not been shaken in cross-examination. That evidence has been relied upon by the courts below and we do not see any sufficient reasons to go behind that finding. It is true that three out of those four witnesses are closely related to the deceased Inder Singh. But that, it has again been repeatedly held, is no ground for not acting upon that testimony if it is otherwise reliable in the sense that the witnesses were competent witnesses who could be expected to be near about the place of occurrence and could have seen what happened that afternoon. We need not notice the other arguments sought to be advanced in this Court bearing upon the probabilities of the case because those are all questions of fact which have been adverted to and discussed by the courts below.”
20. Here, it has to be kept in mind that this Court is not testing the legality of acquittal of other accused persons. However, in this appeal on the basis of evidence available on record, this Court is satisfied that the judgment of conviction passed by the learned trial Court is in accordance with law and facts. It is also well-settled principle that the maxim "falsus in uno falsus in omnibus" has no application in India. Hon'ble Supreme Court in the case of Smt. Shakila Abdul Gaffar Khan Vs. Vasant Raghunath Dhoble reported in (2003) 7 SCC 749 has held as under :-
“.....it is the duty of Court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence.”
21. In view of the aforesaid prepositions, the testimony of the witnesses cannot be discredited or wiped out only on the basis that other co-accused persons are acquitted on the same set of evidence. As such the aforesaid contention is also not liable to be accepted.
22. In view of the aforesaid propositions of law, the finding of learned trial Court regarding conviction of the appellant under Section 304(Part-II) of IPC, 1860 is found immaculate and infallible and therefore, warranting no interference.
23. So far as the sentence part is concerned, certainly, this case is pending since 2021 and the period of three years has been completed and the appellant Ramesh is in jail and suffering the sentence so awarded by learned trial Court. On this aspect, guidelines can be taken from the judgment of the Division Bench of this Court rendered in Vimal Rana (Supra). It is worth mentioning here that the punishment of 10 years under Section 304(Part-II) of IPC, 1860 is maximum sentence. This is a case of single blow, where ferocious intention is not emanated from the record. Hence, the sentence part of the accused is required to be modified.
24. On this aspect, the following excerpt of the judgment of Hon'ble Apex Court rendered in Bhagwan Narayan Gaikwad vs. State of Maharashtra; [2021 (4) Crimes 42 (SC) which is as under:-
"28. Giving punishment to the wrongdoer is the heart of the criminal delivery system, but we do not find any legislative or judicially laid down guidelines to assess the trial Court in meeting out the just punishment to the accused facing trial before it after he is held guilty of the charges. Nonetheless, if one goes through the decisions of this Court, it would appear that this Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation, etc."
25. In conspectus of aforesaid proposition of law and mitigating circumstances of the case, this appeal is partly allowed. The finding of the learned trial Court regarding conviction for the offence under Section 304(Part-II) is affirmed with modification of sentence to the extent of 05 years R.I. instead of 09 years of R.I. and with fine of Rs.25,000/- in place of Rs.5,000/-. In case of default of payment of fine amount, the appellant shall undergo further three months Simple Imprisonment.
26. He be set at liberty forthwith if not required in jail in any case after completion of the aforesaid jail sentence and depositing the fine amount.
27. The judgment regarding disposal of the seized property stands confirmed. Out of the total fine amount, if recovered fully, Rs.20,000/- be paid to son of the deceased namely Shivram S/o Raichand.
28. The fine amount already deposited and the compensation amount already paid, shall be adjusted.
29. A copy of this order be sent the learned trial Court concerned for information and compliance.
30. Pending application, if any, stands closed.
Certified copy, as per rules.
