Munna @ Pooran Yadav vs State Of Madhya Pradesh

1. The Appellant herein challenges his conviction for an offence

under Section 302 for having committed murder of one Chhota S/o

Gariba. Initially three accused persons were tried for the offence

under Section 302 read with Section 34 IPC as also under Section

302 simpliciter. They were Munna @ Puran Chamar (Yadav) S/o

Khusali Chamar (A-1), Barra @ Radhacharan S/o Kallu Chamar (A-

2) and Brijlal S/o Devicharan Chamar (A-3). In addition to the above

charge under Section 302, Munna was also tried for an offence under

Sections 25 and 27 of Indian Arms Act. 1st Additional Sessions Judge

Chhattarpur, M.P. convicted the appellant under Section 302 2

Simpliciter and sentenced him to suffer rigorous imprisonment for life

while acquitting him from the charges under Sections 25 and 27 of

Arms Act whereas the other two co-accused were convicted for

offence under Section 302 read with Section 34 IPC.

2. Two Criminal Appeals came to be filed before the High Court of

Madhya Pradesh; one being by the appellant Munna (Accused No. 1)

and Brijlal (Accused No.3) while another appeal came to be filed by

Barra @ Radhacharan (Accused No. 2). The High Court allowed the

appeal in the case of Accused No. 2 and Accused No. 3 and

acquitted them of the charge under Section 302 read with Section 34

IPC. However, the appeal of the present appellant Munna (Accused

No.1) was dismissed confirming his conviction for an offence under

Section 302 IPC. It is this judgment which is in challenge before us.

3. The prosecution story is based on the First Information Report

(Ex. P-11) lodged by Gariba (P.W.4), the father of the deceased

Chhota on 01.02.1997 to the effect that in the morning, three

accused persons came to his house when his son Chhota was

sleeping. The appellant then entered the house and took away

Chhota to a nearby place - Chamrola (the platform used by the

villagers for chit- chatting etc.). It was further alleged that while the 3

two acquitted accused caught hold of Chhota by his hands, the

appellant Munna fired at Chhota due to which he fell down and died

on the spot. On that basis the investigation started and after the

completion of the investigation, all the accused were tried before the

1st Additional Sessions Judge, Chattarpur. On their conviction, all

the accused filed appeals before the High Court which resulted in the

conviction of the appellant being confirmed.

4. Shri S.K. Gambhir, learned Senior Counsel appearing on

behalf of the appellant firstly contended that the High Court was not

justified in relying upon the evidence of sole eye witness Gariba

(P.W.4) on account of his interest and secondly as his evidence was

disbelieved insofar as it related to the original accused no. 2- Barra

and accused no. 3 - Brijlal. He further pointed out that the First

Information Report in this case was obviously incorrect as the timings

of the First Information Report could not match with the oral

testimony of Gariba (P.W.4), in that, he submitted that had the

incident taken place at about 7 O'clock in the morning and the police

station at Jujharnagar being six kilometres away, the First

Information Report could not have been lodged at 8.05 O'clock as in

fact much time was spent in contacting the other persons who,

admittedly, attended the Police Station alongwith P.W.4 - Gariba. 4

The learned senior counsel, therefore, says that the whole

prosecution story itself becomes suspect.

5. The learned senior counsel next contended that Chhota himself

was a dreaded criminal and, therefore, a number of persons in and

around the village were his enemies. The learned counsel argued

that it may be that Chhota was found dead outside his house and not

knowing as to who had killed Chhota, his father had falsely

implicated the three accused persons who had no reason, atleast

visible reason to commit murder of Chhota. The learned senior

counsel also took us through the post mortem report to suggest that

the death had occurred much earlier to the time indicated in the post

mortem report. We were taken through the medical evidence more

particularly of Dr. S.S. Chourasia (P.W. 2). Lastly, learned senior

counsel suggested that the evidences of other witnesses like

Ambika Prasad (P.W.1) as also of Sunderlal Vishwakarma (P.W.3),

Mstt. Munni Bai (P.W.5) and Rahmat (P.W.8) could not be believed

and according to the learned senior counsel both the courts below

erred in accepting that evidence.

6. As against this, Shri Siddhartha Dave, learned counsel

appearing on behalf of the State supported the conviction and 5

pointed out that there was no reason for Gariba (P.W.4) to falsely

implicate the accused. He pointed out that it was quite possible for

Gariba to reach the police station at about 8 O'clock in the morning

and to lodge the First Information Report. He also pointed out that

the medical evidence as well as the post mortem report itself showed

that the death had taken place at the time as indicated in post

mortem report and thus supports the evidence of the doctor. Lastly,

the learned counsel pointed out that the other witnesses were rightly

believed by the Sessions Court as well as the High Court as

corroborative evidence of Gariba (P.W. 4)

7. It is on this backdrop that we have to consider the correctness

of the judgment.

8. The first and the foremost thing is that the homicidal death of

Chhota by firing is not disputed. There is practically no challenge to

the evidence of the Dr. S.S. Chaurasia (P.W.2) who asserted that the

deceased had died due to the bullet wound which was slightly below

the back side of the neck and the bullet turned towards the right

rupturing internal organs and breaking bones of right side ribs

stopped below the skin. In para 9 of his examination in chief, he

opined that the death of the deceased was caused due to shock 6

suffered due to firearm injury to him. There is hardly any cross

examination of the witness except a feeble suggestion that the injury

could not be sustained if the bullet is fired from the sides. One other

suggestion was regarding the timing of injury in which the doctor

affirmed that there could be difference of 2-3 hours in the period of

injury. The learned counsel for defence argued that in the post

mortem report, it was indicated that the timing of injury and death

could be about 24 hours to 36 hours earlier from the time of post

mortem. The post mortem was conducted on 02.02.1997, i.e. the

next day at 9.00 a.m. From this, the learned counsel argued that if

36 hours have to be counted backwards from 9.00 a.m. on 2.2.1997,

then the death of Chhota could not have occurred in the morning but

it must be somewhere at night between 01.02.1997 and 02.02.1997.

It was on this basis that the learned counsel tried to develop his

theory of false implication as also the wrong timing of filing of F.I.R.

9. This basic premise about the hour of death is wholly incorrect.

The post mortem clearly suggests that the death must have occurred

between 24 hours to 36 hours. Therefore, if the death is 24 hours

prior to the post mortem with a difference of about 2-3 hours as

admitted by the doctor in his cross examination then it is obvious that

the death might have occurred in the morning of 01.02.1997 which 7

completely matches the testimony of Gariba (P.W.4). It is nowhere

tried to be brought out in the cross-examination that the death had

not occurred 24 hours prior to the post mortem examination or that it

had occurred much before that; i.e. about 36 hours. No suggestion

was put to the doctor nor was the post mortem report assailed in the

cross examination on that particular aspect. The learned senior

counsel argued that it was the duty of the prosecution to establish

the timing of injury and the death and that it had failed to establish

the exact hour. We do not agree with this contention in as-much-as

the post mortem report specifically states that the death had

occurred 24 hours prior to the post mortem was conducted. We,

therefore, reject the contention of the learned senior counsel that the

death must have occurred much more than 24 hours earlier to the

hour of the post mortem near about 36 hours.

10. Once this basic argument is rejected, the rest of the arguments

based on this very aspect predominantly must fall and the argument

that Chhota was already dead at night and only was found to be

shown in the morning has to be rejected.

11. Further, learned senior counsel had developed an argument

that the three accused had never come to the house of the deceased 8

nor did the appellant enter the house of the deceased. On seeing the

evidence of Gariba (P.W.4), Munni Bai (P.W.5) and Rahmat (P.W.8),

there is nothing to disbelieve their evidences. Gariba (P.W.4)

specifically deposed that the three accused had come and appellant

had actually entered the house. It was tried to suggest by the

learned senior counsel that this was not possible since the appellant

had never earlier entered the house of Gariba. In our opinion, such a

plea is not possible. True, it is that Gariba (P.W.4) is a relation

witness and as such requires a closer scrutiny keeping that factor in

mind. When we see the judgment of the High Court, it is clear that

the High Court was quite alive to the fact that it was the evidence of a

near relation and therefore court had to use caution. We are

satisfied that such caution was exercised by the High Court while

appreciating the evidence of Gariba (P.W.4) and the High Court was

right in accepting the evidence of Gariba. The rule of appreciation of

a relation witness is now well-settled. The court should not only

exercise the caution while appreciating such evidence, but also it

should be seen from the judgment. We do find that the courts below

have not only exercised caution but it is also apparent from the

judgments that such caution is in fact exercised. 9

12. The defence counsel tried to suggest that Gariba (P.W.4) had

falsely implicated Barra (A-2) and Brijlal (A-3) and that the High Court

had in fact disbelieved the evidence of the witness in so far as those

two accused are concerned and hence his evidence should be

disbelieved even as regards the appellant, we do not agree. The

High Court has only exercised a cautious approach in partly rejecting

Gariba's evidence. The High Court realised the fact that when

Gariba (P.W.4) related the incident to other witnesses, he had not

mentioned the names of Brijlal (A-3) and Barra (A-2) nor had he

suggested that they had caught hold of the deceased and thereafter

Munna (A-1) had shot fire from the fire arm. The High Court also had

realized that Gariba (P.W.4) was a sole eye-witness to the incident

and as he has not attributed any role to accused nos. 2 and 3, those

accused should get the benefit of doubt. We do not attach much

importance to this kind of rejection of the evidence of the eye-

witness. It is not as if Gariba (P.W.4) was totally disbelieved nor was

a finding recorded by the courts below that he had falsely implicated

the two accused persons. The High Court merely gave the benefit of

doubt to those two accused considering that immediately after the

incident, the witness had not stated the above story regarding the

role played by the two accused persons to Munni Bai (P.W.5) and

Rahmat (P.W.8). It is one thing to disbelieve the witness and to give 10

benefit of doubt to the accused on the basis of that evidence and it is

quite another to hold that the witness had deliberately and falsely

implicated the two other accused. That did not happen in this case.

A criticism would have been justified had the finding been that Gariba

(P.W.4) deliberately and falsely implicated the two accused in this

case. However, that did not happen. The High Court merely gave

the benefit of doubt to accused nos. 2 and 3 and, therefore, it was

quite justifiable to believe the testimony as against the appellant

while granting benefit of doubt to accused nos. 2 and 3. Obviously

the theory of falsus in uno, falsus omnibus has long back ceased to

apply in our criminal jurisprudence. We, therefore, do not see

anything wrong in the High Court accepting the evidence of P.W.4

against the appellant which evidence was well corroborated by the

evidence of Munni Bai (P.W.5) and Rahmat (P.W.8). They were the

witnesses who were informed about the role of Munna almost

immediately after the incident.

13. Much was tried to be suggested about the time of F.I.R. We

have seen the original Hindi First Information Report as also the

original Hindi evidence of the witness. The witness has specifically

stated that the time was the day-break time, sun was about to rise

(Din Nikalne me thaa). Considering that the witness was not a literate 11

witness and did not know how to read the watch, the mention of 7

O'clock as the time of incident in the First Information Report

appears to be the handiwork of the person who recorded the First

Information Report. Much importance cannot be given to such

insignificant factors. Much was tried to be suggested from the

evidence of Gariba (P.W.4) that immediately after the incident, he

went to the neighbours, like Ambika Prasad (P.W.1) and Sunderlal

Vishwakarma (P.W.3) and substantial time was spent and, therefore,

he could not have reached alongwith all those persons to

Jujharnagar police station at about 8 O'clock which was six

kilometers away. In our considered opinion, such criticism has no

merits. Nothing has come in the evidence as to how these persons

reached the police station. There is no cross examination to any of

these witnesses regarding the time taken from the village to the

police station. If that is so, it would not be possible to reject the First

Information Report on that flimsy ground alone. Again the distance

between the village and the police station which is given in First

Information Report is six kilometers approximately. That in our

opinion is not such a distance which would not be covered within an

hour or so. Giving overall consideration to this aspect, we are of the

opinion that the First Information Report was a genuine document

and was correctly recorded at the time when it was given and there is 12

nothing unusual in the timings of First Information Report. We,

therefore, reject the argument of the defence on that ground.

14. Learned counsel relied on a reported decision in Akhil Ali

Jehangir Ali Sayyed vs. State of Maharashtra {(2003) 2 SCC 708}

in support of his contention, that if the two other accused were

acquitted on the similar kind of evidence, the appellant should not

have been convicted. The learned senior counsel invited our

attention to para 6 which is to the following effect :

"6...... As the second accused Jabbar was placed in the same situation as the appellant in this case (if not lesser), Article 21 of the Constitution would not permit us to deny the same benefit to the second accused, notwithstanding the fact that the SLP and the review application filed by him have been dismissed by this Court...."

We do not think that this court has laid down any such law that

when the two other accused persons are acquitted (by giving benefit

of doubt), the third one must be given the same benefit of doubt.

Such is not a law laid down. We cannot apply the principle of parity

in this case where it is specifically proved that it was the appellant

alone who whipped out the gun and fired at the deceased killing him

instantly. Such evidence was not available against the two acquitted 13

accused. We, therefore, reject the argument that by reason of parity,

the appellant should also be acquitted.

15. The learned counsel also relied on another judgment reported

in Bhagirath vs. State of Madhya Pradesh { (1976) 1 SCC 20}

and more particularly the observations in para 18 which are to the

following effect :

"18... when the substratum of the evidence given by the eyewitnesses examined by the prosecution was found to be false, the only prudent course, in the circumstances of this case, left to the court was to throw out by the prosecution case in its entirety against all the accused"

Whereas in the present case case, the substratum of the

evidence of P.W. 4 has not been found to be false. On the other

hand, both the courts below have rightly chosen and relied on

prosecution evidence.

16. Lastly, almost by way of a desperate argument, the learned

senior counsel tried to argue on the nature of the offence. It was the

contention of the learned counsel that doctor had opined that the

death had been caused by shock, and since the said shock had not

been caused by the appellant, the offence could not be the one

under Section 302 IPC but would be a minor offence. We have 14

recorded this contention only for being rejected. The doctor has very

clearly opined that the shock was the result of the firing by the

appellant. In that view, the argument is rejected.

17. Learned senior counsel also argued that since there was

solitary eye-witness, his evidence should have been rejected.

18. Learned counsel appearing on behalf of the State relied on the

decision reported in Kunju Alias Balachandran vs. State of Tamil

Nadu {(2008) 2 SCC 151} which deals with the subject of the

appreciation of the single eye-witness. This Court following the oftly

quoted decision in Vadivelu Thevar vs. State of Madras [ AIR 1957

SC 614] and accepting that decision came to the conclusion that this

court can and may convict relying on the testimony of a single

witness provided he is wholly reliable and that there was no legal

impediment in convicting a person on the sole testimony of a single

witness. In the present case, not only was the evidence of PW-4

Gariba acceptable but it was also corroborated by his immediate

disclosure to P.W.5 and P.W.8. It was, therefore, rightly accepted

and acted upon. The contentions of the learned senior 15

counsel for the defence must be rejected. In short, we do

not find any merit in the present appeal and it is dismissed.

19. It is reported that the appellant was released on bail during the

pendency of his appeal. The State shall take immediate steps to

arrest him by issuing Non-bailable warrants against him and arrest

him for undergoing the rest of the sentence.

......................................J. ( D.K. Jain )

......................................J. (V.S. Sirpurkar) New Delhi;

November 4, 2008.