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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