WAMAN Vs STATE OF MAHARASHTRA
Bench: P. SATHASIVAM,A.K. PATNAIK, , ,
Case number: Crl.A. No.-000364-000364 / 2009
Diary number: 11368 / 2008
Advocates: J. P. DHANDA Vs
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 364 OF 2009
Waman & Ors. .... Appellant(s)
Versus
State of Maharashtra .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) This appeal is filed against the final judgment and order
dated 15.03.2007 passed by the Division Bench of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in
Criminal Appeal No. 521 of 2002 whereby the High Court
dismissed the appeal of the appellants herein and confirmed
the order dated 22.08.2002 passed by the Additional Sessions
Judge, Gondiya convicting the accused persons under various
Sections of Indian Penal Code (hereinafter referred to as “IPC”).
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2) Brief facts:
(a) On 29.10.2000 at about 12:30 p.m., Kamalabai Atmaram
Bohare (PW-1), Kusmanbai Suresh Bohare (PW-2) and
Pushpabai Ramesh Bohare (PW-3) were working in their fields
situated at village Shivantola. At that time, Atmaram Bohare
and Suresh Bohare (deceased persons) were also present
there. Gowardhan (A-1) was also standing on the road side.
Suresh Bohare and Atmaram Bohare after putting paddy at
the threshing machine were coming back to their home. When
they reached near the D.P. of electricity situated in the land of
Kamalabai, Gowardhan (A-1) passed a comment on them and
a quarrel between the parties took place. Immediately after
starting of quarrel, A-2 to A-13 rushed there with weapons
and started assaulting Suresh Bohare and Atmaram Bohare.
b) Gowardhan (A-1) was having Farsha and he gave a blow
of it on the leg of Suresh Bohare. Mahadeo( A-2) who
possessed sword gave a blow of it on the leg of Suresh Bohare.
Abhiman (A-3), who was having an axe in his hand gave a
blow on the back of Suresh Bohare. Kalpanabai (A-11), gave a
blow of spade on the head of Suresh Bohare. Pramilabai (A-
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10) who was having stick also beat Suresh with it. At the
same time, Manoj (A-5) and Waman (A-4) who were having axe
in their hands, gave blows on the head of Atmaram. During
this, Jaipal (A-6) and Kantabai (A-8) gave an axe blow and
stick blow respectively to Atmaram. Shantabai (A-7) and
Parvatabai (A-9) gave scissors blow on the mouth of Atmaram.
Due to this sudden attack by the accused persons, Suresh
Bohare and Atmaram Bohare sustained serious injuries and
they fell down on the ground. On hearing the commotion, PWs
1-3 and one Sakhubai Rakhade (PW-4) rushed towards the
place of incident. The accused persons fled away. Suresh and
Atmaram were brought to home and were taken to Amagaon
Hospital from where they were immediately shifted to KTS
Hospital at Gondiya. The doctor on duty declared Suresh
brought dead and after sometime Atmaram also died in the
hospital. On the oral complaint of Kamlabai (PW-1), a case
with FIR No. 183/2000 was registered on 29.10.2000 against
13 accused persons under Sections 147, 148, 302 r/w 149,
323 r/w 149 and 447 r/w 149 of IPC.
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c) During the course of investigation, the accused persons
were arrested and various weapons were recovered at their
instance. After completion of investigation, they were charge
sheeted.
d) After examining the witnesses, the Additional Sessions
Judge, Gondiya vide his order dated 22.08.2002, acquitted A-
7, A-9, A-10 and A-11 of the offences punishable under
Sections 302, 447 and 323 r/w 149 of the IPC and Sections
147 and 148 of IPC and convicted A-1 to A-6 and A-12 for the
offences punishable under Section 302 r/w 149 IPC and
awarded life imprisonment with a fine of Rs. 1000/- in default
to suffer rigorous imprisonment for one month. Each of
them were also convicted for the offences punishable under
Section 447 r/w 149 of IPC and were directed to suffer
rigorous imprisonment for one month and to pay a fine of Rs.
200/- each in default to suffer rigorous imprisonment for 7
days. A-1 to A-6 and A-12 were also convicted under Sections
147 and 148 of IPC but acquitted of the offences punishable
under Section 323 r/w 149 of IPC. A-13 being a juvenile
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offender, her trial was forwarded to the juvenile court. A-8 died
after framing of charge and trial against her got abated.
e) Aggrieved by the order dated 22.08.2002 of the trial
Court, A-1 to A-6 and A-12 preferred an appeal before the
Division Bench of the High Court of Judicature at Bombay.
The Division Bench, by impugned judgment and order dated
15.03.2007, dismissed the appeal of the appellants and
affirmed the order dated 22.08.2002 passed the Additional
Sessions Judge, Gondiya.
f) Aggrieved by the said decision, A-4 to A-6 and A-12 only
filed this appeal by way of special leave petition before this
Court.
3) Heard Mr. J.P. Dhanda, learned counsel for the
appellants and Mr. Dushyant Parashar, learned counsel for
the State.
4) Submissions by the counsel:
(a) After taking us through the entire prosecution case,
defence of the accused and the materials placed, learned
counsel for the appellants submitted that inasmuch as all the
prosecution witnesses, particularly, eye-witnesses PWs. 1-4,
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who are female members of the family of the complainant and
close relatives, the evidence of these related witnesses cannot
be relied upon. He also submitted that the courts below
committed an error in convicting the appellants mainly on the
ground that the weapons of offence were recovered on their
disclosure statements. He further pointed out that with the
same allegations and similar circumstances, the women
accused persons were acquitted by the trial Court and it is
not justified in convicting the male accused based on the very
same evidence. He also pointed out that in view of
contradictions among the eye-witnesses, namely, PWs. 1-4,
conviction based on their evidence cannot be sustained.
Finally he submitted that insofar as Dilip (A-12) is concerned,
in the absence of recovery of any weapon from him which is
also the finding of the trial Court convicting him for the offence
under Section 302 along with other accused cannot be
sustained.
(b) On the other hand, learned counsel for the State
submitted that there is no bar in accepting the evidence of
related witnesses. He pointed out that because of their
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relationship, courts have analysed their evidence carefully and
meticulously and ultimately accepted their version. According
to him, there is no contradiction in the evidence of PWs. 1-4,
as alleged even otherwise, minor contradictions in their
statement would not affect the ultimate conviction arrived at
by the trial Court and affirmed by the High Court. He further
pointed out that recovery of weapons and the medical evidence
show that the prosecution has proved its case beyond
reasonable doubt. Lastly, he submitted that inasmuch as two
persons were murdered in the incident and after analyzing the
entire materials the trial Court ultimately convicted the
accused persons which was affirmed by the High Court,
interference by this Court exercising jurisdiction under Article
136 is not warranted and it is not a fit case to interfere by this
Court.
5) We have carefully considered the rival contentions and
perused all the relevant materials.
Discussion:
6) The incident took place on 29.10.2000. The complainant
and others were working in the field. At that time, Atmaram
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Bohare and Suresh Bohare (the deceased persons) were also in
the field at the place of incident. At about 12:30 p.m.,
Govardhan (A-1) was standing on the road side and the
deceased persons were going home. They had a long standing
land and water dispute. On hearing something from A-1 all
the other accused rushed there and started abusing and
beating the two victims. According to the prosecution, all the
accused persons were armed with various weapons and they
gave blows on the victims. Due to this incident, both
Atmaram Bohare and Suresh Bohare sustained serious
injuries and they fell down on the ground. According to the
prosecution, the incident was witnessed by Kamlabai Bohare
PW-1, Kusmanbai Bohare PW-2, Pushpabai Bohare PW-3 and
Sakhubai Rakhade PW-4. PW-1 is wife of Atmaram Bohare
(since deceased), PW-2 is wife of Suresh Bohare (since
deceased), PW-3 is daughter-in-law of Atmaram Bohare, PW-4
though claimed as an independent witness, is sister-in-law of
Pushpabai Bohare (PW-3). It is the case of the prosecution
that all the above mentioned 4 persons (PWs 1-4) witnessed
the occurrence of the incident. It is true that all 4 are related
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to the family of the deceased. Now, let us consider their
evidence and acceptability which was relied on by the trial
Court and affirmed by the High Court.
Evidence of relatives of complainant/deceased:
7) In view of the stand of the counsel for the appellants that
since PWs 1-4, eye-witnesses are closely related to the
deceased and complainant, conviction can not be based on
such evidence, let us state the law on the
admissibility/acceptability or otherwise of their evidence as
considered by this Court.
8) In Sarwan Singh and Others vs. State of Punjab,
(1976) 4 SCC 369, a three-Judge Bench of this Court, while
considering the evidence of interested witness held that it is
not the law that the evidence of an interested witness should
be equated with that of a tainted witness or that of an
approver so as to require corroboration as a matter of
necessity. The evidence of an interested witness does not
suffer from any infirmity as such, but the courts require as a
rule of prudence, not as a rule of law, that the evidence of
such witnesses should be scrutinized with a little care. Once
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that approach is made and the court is satisfied that the
evidence of the interested witness has a ring of truth such
evidence could be relied upon even without corroboration. The
fact of being a relative cannot by itself discredit the evidence.
In the said case, the witness relied on by the prosecution was
the brother of the wife of the deceased and was living with the
deceased for quite a few years. This Court held that “but that
by itself is not a ground to discredit the testimony of this
witness, if it is otherwise found to be consistent and true”.
9) In Balraje alias Trimbak vs. State of Maharashtra,
(2010) 6 SCC 673, this Court held that the mere fact that the
witnesses were related to the deceased cannot be a ground to
discard their evidence. It was further held that when the eye-
witnesses are stated to be interested and inimically disposed
towards the accused, it has to be noted that it would not be
proper to conclude that they would shield the real culprit and
rope in innocent persons. The truth or otherwise of the
evidence has to be weighed pragmatically and the court would
be required to analyze the evidence of related witnesses and
those witnesses who are inimically disposed towards the
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accused. After saying so, this Court held that if after careful
analysis and scrutiny of their evidence, the version given by
the witnesses appears to be clear, cogent and credible, there is
no reason to discard the same.
10) The same principles have been reiterated in Prahalad
Patel vs. State of Madhya Pradesh, (2011) 4 SCC 262. In
para 15, this Court held that “though PWs 2 and 7 are
brothers of the deceased, relationship is not a factor to affect
credibility of a witness. In a series of decisions this Court has
accepted the above principle (vide Israr vs. State of U.P.,
(2005) 9 SCC 616 and S. Sudershan Reddy vs. State of A.P.,
(2006) 10 SCC 163)
11) The above principles have been once again reiterated in
in State of U.P. vs. Naresh & Ors., (2011) 4 SCC 324. Here
again, this Court has emphasized that relationship cannot be
a factor to affect the credibility of an witness. The following
statement of law on this point is relevant:
“29. …. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives’ evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses
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carefully to find out whether it is cogent and credible. [Vide Jarnail Singh vs. State of Punjab (2009) 9 SCC 719, Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477; and Balraje @ Trimbak (supra)]”
12) It is clear that merely because the witnesses are related
to the complainant or the deceased, their evidence cannot be
thrown out. If their evidence is found to be consistent and
true, the fact of being a relative cannot by itself discredit their
evidence. In other words, the relationship is not a factor to
affect the credibility of a witness and the courts have to
scrutinize their evidence meticulously with a little care.
Evidence of PWs 1-4:
13) Kamalabai (PW-1), wife of Atmaram and mother of
Suresh has narrated how the incident took place one year
back after Diwali. According to her, at about 9.00 a.m., she
along with Kusumanbai, PW-2 and Pushpabai, PW-3 had gone
to her field. At about 12.00 noon Atmaram and Suresh kept
the ‘Dhan’ on threshing machine and they were coming back
to their house for meal. At that time, Goverdhan A1 was
standing on the road side and he told ‘Dhavare’ ‘Aalera’.
Goverdhan was holding Farsha and he gave its blow on the leg
of Suresh. Mahadeo was holding sword, he gave its blow on
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the leg of Suresh. Abhiman gave an axe blow on the back of
Suresh. Kalpana gave stick blow on the back of Suresh.
Manoj gave axe blow on the head of Atmaram. Waman also
gave axe blow on the head of Atmaram. Dilip gave blow of iron
pipe to Atmaram. Jaipal gave axe blow to Atmaram. Kantabai
beat Atmaram by stick. Shantabai and Parvatabai gave blow
of scissors on the mouth of Atmaram. She deposed that this
incident took place in her field near D.P. of M.S.E.B. The
place of occurrence was shown by her to the police. Even in
the cross-examination, she reiterated the same. Though
certain discrepancies were pointed out in her statement under
Section 161 Cr.P.C. and her deposition before the Court, on
going through the same, we are satisfied that she witnessed
the occurrence and telling the truth.
14) Kusmanbai (PW-2), wife of Suresh Bohare and daughter-
in-law of PW-1 reiterated what PW-1 deposed before the Court.
She stated in her deposition that she noticed that Goverdhan
beat Suresh with Farsha. Mahadeo gave a blow of sword to
Suresh. Abhiman gave a blow of axe on the leg of Suresh.
Kalpana gave a blow of the spade on the back of Suresh.
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Pramila and Mangala gave stick blows to Suresh. Waman also
gave a blow of axe to Atmaram. Manoj gave an axe blow on
the head of Atmaram. Dilip also gave a blow of pipe on the
head of Atmaram. Jaipal gave an axe blow on the leg of
Atmaram. Parvatabai gave a blow of scissors on the mouth of
Atmaram. She asserted that she saw this incident from 30-40
feet and at that time she was cutting the crop in the field in
which her house was situated. She also stated that Atmaram
and Suresh were conscious till they were brought to their
house. Here again, certain omissions in the statement
recorded under Section 161 Cr.P.C. were pointed out. As
stated to the evidence of PW-1, there is no material difference
in the evidence of PW-2 merely because there is some omission
in the statement under Section 161 Cr.P.C. and her evidence
before the Court, there is no need to reject her testimony as
claimed by the appellants.
15) Pushpa Bohare (PW-3), daughter-in-law of Atmaram and
PW-1 also deposed in the same line as that of PWs 1 and 2.
She also implicated the appellants and the role played by them
as explained by PWs 1 and 2. She also specified various
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weapons used in the commission of offence and implicated all
the appellants including A12 who used iron pipe (Art.47). She
asserted that she did inform the police that Dilip (A-12) gave a
blow of iron pipe to Atmaram.
16) Sakhubai (PW-4), is sister-in-law of Pushpabai (PW-3).
She also narrated that the incident had occurred around 12
noon. At that time, she was going towards her field. She
heard a shout from the side of Goverment well as ‘Dhawa
Dhawa’. She noticed that fighting was going on in the field of
Atmaram. She saw accused Nos. 1 to 6 and 12 were beating
Suresh. Farsha and axes were used for the attack. Manoj (A-
5) gave an axe blow to Atmaram. She also reiterated that all
these persons beat Atmaram. She also affirmed that PW-1,
wife of Atmaram and PWs 2 & 3, daughters-in-law of PW-1
were also present at the scene of occurrence. She asserted
that she did inform the police that Manoj(A-5) beat Atmaram
by axe. She also informed the police that Pramilabai was
possessing spade and Manoj was possessing sword. Merely
because these statements were not noted by the police, her
deposition can not be rejected.
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17) It is true that there is some variance in the testimony
while describing particular weapon held by the persons and
injuries on the body of the deceased. However, as rightly
analyzed by the trial Court and accepted by the High Court,
the testimony of these witnesses is convincing and trustworthy
about the incident and there is no reason to disbelieve their
statements as claimed by the learned counsel for the
appellants.
18) Medical Evidence
It is important to note that the evidence of all these
witnesses i.e. PWs-1 to 4 is corroborated by medical evidence.
We have already noted that in the said incident, both
Atmaram Bohare and Suresh Bohare died. Dr. Satish
Humane, PW-7, Medical Officer, KTS Hospital, Gondiya
conducted autopsy on the body of Suresh Bohare. He noted
the following injuries on the body of Suresh Bohare in Ext.67
“i) Deep incised wound – U/3rd (L) lateral side of thigh 4 ½” X 1” X MS. Deep (1/2”)
ii) Deep incised wound M/3rd (L) Leg. 4” X 1” X MS. Deep (1/2”)
iii) Deep incised wound L/3rd (L) Lateral side of leg. 5” X 1 ½” X MS Bone vs. deep i.e. Abs. with fracture
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BB L/3rd (L) Leg.
iv) Inprint contusion (R) scapular region 3” X1”.
v) Inprint contusion (R) intra scapular region 2” X 1”
vi) Abro-contusion (R) memory region ½” X ½”
vii) Abro contusion U/3rd (L) F.A. 1” X ½”
viii) Abrasion – (L) Elbow Jt. 1” X ½”
19) Dr. Satish Humane noted the following injuries on the
body of Atmaram Bohare in Ext. 68
“i) Incised wound – (R) Frontal region of Head 2 ½” X ¼” X bone deep.
ii) Incised wound – (1) Frontal region of Head 2” X ¼” X bone deep.
iii) Incised wound (L) parietal region of Head 2” X ¼” X scalp deep.
iv) Incised wound 1/3rd (R) thigh 4” X ½” X MS Deep
v) Incised wound L/3rd (L) thigh 4 ½” X ½” X MS Deep
vi) Incised wound M/3 (R) Leg 2” X ½” X MS Deep
vii) Incised wound – upper lip 2” X ½” X MS Deep
viii) Incised wound – (L) Eyebrow 1 ½” X ½” X MS Deep
ix) Contusion – (R) Parotid region 2 ½” X 2”.
x) Abrasions (B) Elbow Jt. 1 ½” X 1” each.
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xi) Fracture ® frontal & (L) frontal region of Head.”
20) About the nature of injuries sustained by Suresh Bohare,
Dr. Satish Humane (PW-7) has opined that he died due to
haemorrhage and shock as a result of multiple injuries. His
Post Mortem report is marked as Ext.67. Insofar as injuries of
Atmaram, PW-7 has deposed that there was fracture of right
frontal and left frontal region of the head. There were blood
clots under right and left frontal region and left parietal region
of head. There was a fracture of right and left frontal region
and left pareito temporal region of skull, intra cranial
haemorrhage present in brain, heart was empty, both lungs
and other organs were intact and pale. There was no food
material in the stomach. Injury Nos. 1 to 8 may be caused by
hard and sharp object and 9 & 10 may be caused by hard and
blunt object. In his opinion, the said injuries were caused
within 18-30 hours before Post Mortem examination and
according to him, Atmaram Bohare died due to haemorrhage
and shock as a result of head injury. His Post Mortem report
has been marked as Ext. 68. He also explained to the Court
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that injury on the head of Atmaram Bohare was fatal and
sufficient to cause instantaneous death. He further explained
that injury Nos. 1, 2 and 3 coupled with fracture on leg on the
person of Suresh Bohare were sufficient to cause
instantaneous death. Though an argument was advanced
from the side of the appellants that the deceased Suresh
Bohare had sustained injuries only on thighs and legs which
are not fatal parts of the body, Dr. Satish Humane (PW-7) has
explained before the Court during his cross-examination that
there was cutting of major vessels and those injuries were life
fatalling. He further deposed that after cutting of major blood
vessels, the person may die within 15 to 30 minutes. He also
reiterated and asserted that injury Nos. 1, 2 and 3 on person
of Suresh Bohare are collectively sufficient to cause death.
21) The analysis of the statements of PWs 1 to 4 and the
assertion of Dr. Satish Humane, PW-7 who conducted the
autopsy on the body of deceased Atmaram Bohare and Suresh
Bohare as well as his explanation as to the nature of injuries
with reference to the weapons used by the accused, we hold
that the prosecution has established its charge that both the
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deceased died due to the injuries sustained in the incident.
We accept the prosecution case and agree with the conclusion
arrived at by the trial Court as affirmed by the High Court.
Contradictions in the evidence of PWs
22) Let us consider the argument of the appellants as to
contradictions in the evidence of prosecution witnesses.
According to the counsel for the appellants, the prosecution
witnesses were not consistent with the statements as to the
weapons used by the accused persons. He also pointed out
that after the statements were recorded under Section 161
Cr.P.C. before the police, they improved their version before
the court. On these grounds, the counsel for the appellants
submitted that no reliance need be given to those witnesses
and courts below have committed an error in considering this
aspect. We have already adverted to the statements of PWs.,
particularly, eye-witnesses PWs. 1-4 as to the narration of the
incident, overt act of each of the accused persons, weapons
handled, injuries sustained by both the deceased Suresh
Bohare and Atmaram Bohare as well as medical evidence by
Dr. Satish Humane (PW-7) and post-mortem reports marked
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as Exs. 67 and 68. In fact, the very same objection was raised
before the trial Court and the High Court and while
considering the said objection both the courts analysed their
evidence in detail. We also verified and considered their
statements with reference to the objection raised by the
counsel for the appellants. First of all, the contradictions are
minor in nature and not related to the major overt act
attributed to each accused. It is relevant to point out that
these persons made statements to the police immediately after
the occurrence, i.e., on 29.10.2000 and their evidence was
recorded before the court in the month of December 2001
nearly after 1 year. Even otherwise, the prosecution witnesses
all are hailing from agricultural family and are villagers, we
cannot expect minute details as stated in their earlier
statements and before the court. In this regard, it is useful to
refer various decisions rendered by this Court as to the minor
contradictions in the statements of prosecution witnesses and
the admissibility of the same.
23) In Gurbachan Singh vs. Satpal Singh & Ors. (1990) 1
SCC 445, this Court has held that despite minor
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contradictions in the statements of prosecution witnesses, the
prosecution case therein has not shaken and ultimately
accepting their statement set aside the order of acquittal
passed by the High Court and restored the sentence imposed
upon them by the trial Court.
24) In Sohrab s/o Beli Nayata and Anr. vs. The State of
Madhya Pradesh (1972) 3 SCC 751 about minor
contradictions in the statements of prosecution witnesses,
Their Lordships have held in paragraph 8 as under:
“…..It appears to us that merely because there have been discrepancies and contradictions in the evidence of some or all of the witnesses does not mean that the entire evidence of the prosecution has to be discarded. It is only after exercising caution and care and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvement, the Court comes to the conclusion that what can be accepted implicates the appellants it will convict them. This Court has held that falseus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though where the substratum of the prosecution case or material part of the evidence is disbelievable it will not be permissible for the Court to reconstruct a story of its own out of the rest…..”
25) It is clear that not all contradictions have to be thrown out
from consideration but only those which go to the route of the
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matter are to be avoided or ignored. In the case on hand, as
observed earlier, merely on the basis of minor contradictions
about the use and nature of weapons, injuries, their
statements cannot be ignored in toto. On the other hand, we
agree with the conclusion of the trial Court as affirmed by the
High Court about the acceptability of those witnesses,
accordingly, we reject the claim of the appellants as to the
same.
26) Ordinarily, the prosecution is not obliged to explain each
injury on an accused even though the injuries might have
been caused in the course of occurrence, if the injuries are
minor in nature, however, if the prosecution fails to explain a
grievous injury on one of the accused persons which is
established to have been caused in the course of the same
occurrence then certainly the court looks at the prosecution
case with a little suspicion on the ground that the prosecution
has suppressed the true version of the incident. However, if
the evidence is clear, cogent and creditworthy then non-
explanation of certain injuries sustained by the deceased or
injury on the accused ipso facto cannot be the basis to discard
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the entire prosecution case. In the earlier part of our order,
we have adverted to the statement of Dr. Satish Humane who
was examined as PW-7. He highlighted ante-mortem injuries
suffered by Atmaram Bohare and Suresh Bohare. From his
evidence, it is clear that there was fracture of right and left
frontal region of the head of Atmaram Bohare. There were
blood clots under right and left frontal region and left parietal
region of the head. There was a fracture of right and left
frontal region and left temporal region of skull. In the case of
Suresh though it was argued that inasmuch as he sustained
injuries on thighs and legs which are not vital parts of the
body, the post-mortem doctor (PW-7) has explained before the
court that there was cutting of the major vessels and
expressed that those injuries were fatal to life. He further
explained that after cutting of the major blood vessels a person
may die within 15 to 30 minutes. In view of the same, we are
unable to accept the statements relating to evidence pertaining
to injuries caused by the accused persons.
27) It is true that the disclosure of the weapons by the
accused persons were not duly proved as panchas turned
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hostile. As rightly discussed by the trial Court and the High
Court that the accused persons are cultivators and generally
they carry with them axes, farshas, sticks, spears etc. In such
circumstances if we consider the entire evidence together, the
defence plea is liable to be rejected.
Special reference to Dilip, A-12
28) Learned counsel for the appellants finally submitted that
in the absence of recovery of any weapon from Dilip A-12 and
evidence relating to him is similar to female accused who were
all acquitted, in fairness the courts could have acquitted A-12
also. On going through the materials placed, we are unable to
accept the said contention. It is true that no weapon was
recovered from A-12 but prosecution witnesses implicated him
for causing fatal injuries along with the other accused
persons. Considering the evidence of PWs. 1-4, weapons
seized from various accused, incised wounds on different body
parts coupled with medical evidence clearly implicate A-12
also in the commission of murder. It is not the case of solitary
blow but number of blows by various accused hence the
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intention and knowledge to cause death has been amply
demonstrated and proved.
29) Even otherwise, A-12 was also charged under Section 149
IPC as a member of unlawful assembly with the requisite
common object and knowledge. Inasmuch as the prosecution
evidence insofar as women accused are not cogent, their
acquittal cannot be applied to A-12 who was in the company of
A-1 to A-6. As mentioned above, apart from conviction under
Section 302 Dilip A-12 was convicted under Section 149.
Section 149 creates a specific offence and deals with
punishment of the offence. Only thing whenever the court
convicts any person or persons of any offence with the aid of
Section 149, a clear finding regarding the common object of
the assembly must be given and the evidence disclosed must
show not only the nature of the common object but also that
the object was unlawful. In order to attract Section 149 it
must be shown that the incriminating act was done to
accomplish the common object of unlawful assembly. It must
be within the knowledge of the other members as one likely to
be committed in prosecution of common object. If members of
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the assembly knew or were aware of the likelihood of a
particular offence being committed in prosecution of a
common object, they would be liable for the same under
Section 149. The trial Judge on thorough analysis held that
the prosecution has made out a case against the accused-
appellants not only under Section 302 read with Section 149,
the prosecution has very well established offences punishable
under Section 147, 148 and the accused A-1 to A-6 including
A-12 used force and violence being members of unlawful
assembly in prosecution of common object of causing death of
Suresh Bohare and Atmaram Bohare. The deadly weapons in
their hands were axes, farshas, sticks, iron pipe etc. Though
there is no recovery of weapon from Dilip A-12 but weapons
have been recovered from other accused and prosecution
witnesses have asserted that Dilip A-12 gave blow of iron pipe
on Atmaram. The said iron pipe was recovered from the house
of Mahadeo which also proved that A-12 had participated in
the offence with such weapon and therefore he was rightly
punished along with other accused Nos. 1-6 under Section
148 for committing offence of rioting armed with deadly
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weapons.
30) We are satisfied that the prosecution has established long
standing land and water dispute among the deceased and the
accused, the evidence of eye-witnesses PWs.1-4 are
acceptable, contradictions are trivial in nature and medical
evidence corroborate the assertion of prosecution witnesses.
All those materials were correctly analysed and accepted by
the trial Court and affirmed by the High Court. On perusal of
all the above said materials, we agree with the said conclusion.
In those circumstances, interference by this Court under
Article 136 is not warranted. We do not find any error or
infirmity or valid legal ground for interference in the order
passed by the courts below, consequently, the appeal fails and
the same is dismissed.
...…………….…………………………J. (P. SATHASIVAM)
….…....…………………………………J. (A.K. PATNAIK)
NEW DELHI; JUNE 29, 2011.
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