R.B. Dixit, J.
1. Feeling aggrieved by Judgment and Order of conviction dated 27-8-1992, passed in Sessions Trial No. 192/86, by IIIrd Additional Judge to the Sessions Judge, Gwalior, whereby convicting the appellant under Section 302, IPC and sentencing him to imprisonment for life, the appellant has come up in appeal seeking redress praying for setting aside of the aforesaid conviction passed against him.
2. The prosecution case, in brief, is that on 26-5-1986 at about 9.30 p.m., when Ram Pal Singh (P. W. 6) had just come from his shop and was putting off his clothes in the court-yard, and his father was taking meals, at that time deceased Chhannu (Baua) came running inside the house shouting for help. The accused/appellant was following him with knife in his hand. He threw the deceased on the ground and started inflicting injuries with knife. The deceased, however, rose and tried to run away when he was caught again by accused and was thrown on a cot. Accused then mercilessly inflicted knife injuries on both of his shoulders, leg and neck. The accused then leaving the deceased mortally wounded, fled away from the place.
3. Ram Singh lodged first information reported (Ex. P-5) at PoliceStation, Madhoganj and the police agency arrived on the spot and prepared Panchanama of the dead-body (Ex. P-2). The dead-body was referred to for post-mortem and Doctor Vijay Kumar Diwan (P. W. 5) who conducted autopsy found the following injuries vide Ex. P-4 on the body of the deceased :--
(1) Incised wound posterior to lower part of the right ear 1 c.m. laterally to right ear lower part obliquely 5 c.m. x 1 c.m. downward and laterally over posterior part of the occipital region on neck bone deep.
(2) Incised wound over occipital region lower part obliquely to right side from mid line 4 cm x .5 cm downwards lateral right side bone deep.
(3) Incised wound over the upper part of the neck 13 cm in length transversely 2 cm wide in middle of the neck from the upper part of the thyroid cartilage up to chin bone deep vertibra 3rd cervical is cut transversely the upper part of the larynx and pharynx and all blood vessels from neck and muscles absent in 4 cm areas longitudinal. Laterally wound connecting up to medial femer ster-noclavicular on right side and on left side 1 cm proximale to sterno clavicular on right side from collateral end of wound another wound 3.5 cm x 1 cm superficial supercontunal deep in same fine transversely and lateral injury on left side 2.5 cm area is supervicial in same line.
(4) Incised wound cutting lobule of the left ear in size 1 cm x 1 cm.
(5) Incised wound in anterior axillary line left side under 12 cm axilla transversely placed 1 cm x .5 cm bone deep.
(6) Stab wound 10 cm below left sternoclavicular joint over left side chest 2.75 x 1.5 cm little oblique upward over lateral from midline of sternon going 6 cm deep on probing.
(7) Stab wound 4 cm below and incling to right nipple on right side chest downward and laterally to right side.
(8) Incised wound on sternum mid line from interior sternum 6 cm below oblique downward lateral to right from mid line 1 cm x 5 cm bone deep.
(9) Incised wound below right sternoclavicular joint 0.5 cm x 1 cm skin deep and another 2 cm below it 0.5 cm x 1 cm skin deep.
(10) Incised wound posterial, lateral longitudal over right elbow posterial 3.5 cm x 2 cm bone deep.
(11) Incised wound over right posterior intercompo of phalange of index 1 cm x 0.5 cm bone deep transversely.
(12) Incised wound over right wrist anterior obliquely 2.5 cm x 1 cm skin deep.
(13) Incised wound right middle finger middle phalange transversely 1.5 cm x 0.5 cm tender deep and over right ring finger proximalphalange transversely 2 cm x 0.5 cm tender deep and tip injury right little finger 1 cm x 0.5 cm skin deep.
(14) Abrasion over left knee laterly 1 cm x 1 cm.
(15) Incised wound gluteus laterally transversely 1.5 cm x 0.5 cm superficial skin deep.
(16) Abrasion over right back towards over the injury No. 11 cm x 1 cm. 2cm.
(17) Abrasion over right lumbar back transversely 2 cm x 0.5 cm.
(18) Incised wound over upper back went inclining to cutting border of right scapula 4 cm lateral from mid line transversely 1 cm x .5 cm bone deep.
(19) Incised wound to left scapula middle 4.5 cm posterior to scapula 1.5 cm x 1 cm bone deep longitudinal placed.
(20) Abrasion 0.5 cm x 0.5 cm over left lumber part.
(21) Incised wound over lumbar spine/region upper 0.5 cm x 0.5 cm bone deep.
4. On internal examination, 3rd and 4th cervical bone was cut. Injury No. 6 was going deep between 3 and 4 rib and injury No. 7 penetrating deep on the chest between 5th and 6th rib. Left side of the heart was panctured and right diaphragm was found cut. Right kidney was also cut. The cause of death was carido respiratory failure due to multiple injuries and haemorrage.
5. The accused was apprehended. His blood stained pant and shirt were seized and at his instance a knife from his house was also recovered.
6. The defence of the accused was one of complete denial and false implication.
7. The learned Trial Court after recording evidence of the prosecution and examining the accused under Section 313, Criminal Procedure Code found the prosecution witnesses reliable and accordingly convicted the appellant as stated hereinabove.
The learned counsel for the appellant has submitted before us that the so called eye-witnesses were detained for about two days at the police station and they were pressurised to be eye-witnesses of the incident as the dead body was found within the premises of their house. The assailant, in the circumstances, was an unknown person, however, the learned Trial Court has given no opportunity for further cross-examination by recalling the witnesses regarding an affidavit sworn in by alleged eye-witnesses in support of the defence story. Learned Government Advocate, on the other hand, has supported the findings of the learned Trial Court.
8. We have anxiously considered the arguments of the learned counsel for the parties and have carefully perused the evidence on record.
9. Ram Singh (P.W. 1) has stated that at about 9.30 in the night when he was taking meals in side Pator (Room) and his son Ram Pal was putting off his clothes and another son Keshav was sleeping in the house, the deceased atonce rushed inside the house shouting BACHAO - BACHAO and accused had followed him having a knife in his hand. Accused caught hold of the deceased and assaulted him with the knife on his shoulders, back and chest. He threw the deceased on the ground and then cut his neck. Deceased then fell on the cot, however, accused dragged him up to the lane and then left the place of the incident. This statement was found fully corroborated by the evidence of his son Keshav Singh (P.W. 3) and Ram Pal Singh (P.W. 6) who had also accompanied him to the Police Station and lodged first information report.
10. The learned counsel for the appellant has invited our attention towards some of the discrepancies occurring in the statement of the aforesaid witnesses regarding presence of other members of the family who it is said had gone to attend some marriage in relations. The learned Govt. Advocate on the other hand, has contended that the statement of the witnesses were recorded after about a year from the occurrence and in the circumstances, it is not possible to all the witnesses to have remembered as to which of the lady members were present at the time of occurrence or had gone to attend marriage in the relation. Similarly none recording of the statement of these witnesses in the night, itself, is also not fatal as the police became busy in completing other formalities regarding panchanama of the dead-body and lifing of the dead-body for post-mortem. Since the statements were recorded next day, thus the delay in recording the statement of the witnesses, is not a ground for any suspicion regarding their authenticity.
11. Shivcharan (P.W, 4) and Jakki Rehman (P.W. 7) had noticed the accused coming out of the house of Ram Singh after the occurrence and was also holding a blood stained knife in his hand. Thereafter these witnesses had also visited the place of occurrence and found the deceased there lying dead. Accused was known to all the above eye-witnesses and in the circumstances there can be no difficulty in his being identified by the witnesses.
12. According to the witness Sambhaji Rao (P.W. 8) and Vilasrao (P.W. 9), deceased had taken Rs. 45/- as loan from the accused and had failed to return the same, which was perhaps the reason of motive behind the incident. However, where the direct evidence regarding assault on deceased is available it is not always necessary to prove the motive behind the matter. Although, there are minor discrepancies in the statements of the aforesaid prosecution witnesses, however, they are not material, so as to treat them as contradicting. Such discrepancies are natural and not going to case any doubt on testimony of the said witnesses.
Shivkaran Singh Bhadoriya (P.W. 12) Town Inspector, Ramesh Kumar (P.W. 10) and Bharosi Lal (P.W. 11) are witnesses of recovery of the blood stained clothes and seizure of knife from the accused. The learned counsel for the appellant has stated that the click of the knife was not in operation as admitted by the Investigating Officer. However, in our opinion, this in itself is not a ground to suggest that the knife can not be used while theclick was not in operation. In chemical examination of the seized articles the presence of the blood was confirmed on the articles and in the circumstances, the evidence of recovery can not be disbelieved.
13. The learned counsel for the appellant has laid stress on the fact that the witness Ram Singh had admitted in para 10 of his examination that the intimation of the incident was sent by some constable, residing in the neighbourhood, through telephonic message however, that information was not made available to the Court, which could be counted to be the first information report. Thus, the first information report, was concealed from the Court. However, this fact was not put in cross-examination to the investigating officer Shivkaran Singh Bhadoria. Even, if the details of the said information are not available, then it cannot be presumed to be the first information report in the eyes of law. The Hon'ble Supreme Court in the case of State of Uttar Pradesh v. PA. Madhu, reported in AIR 1984 SC 1523, has held that where a telephonic message did not disclose particulars of the offence, then such cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report. The mere fact that this does not by itself clothe it with the character of first information report.
14. It has been pointed out by the Apex Court in the case of Ram Singh Bhavaji Jadeja v. State of Gujarat, reported in 1994 AIR SCW 2042, that every telephonic information about commission of a cognizable offence irrespective of nature and details of such information cannot be treated as first information report. In Division Bench decision of this Court in the case of State of M.P. v. Shriram, reported in 2000(3) M.P.H.T. 78, it was observed that where a Rojnamcha report was recorded on a wireless message, which informed the Police that some quarrel had taken place, between the parties, resulting in murder, which does not say anything about the details of the offence, would not be a first information report.
14-A. The Hon'ble Supreme Court, however, in its recent pronouncement in its decision in the case of T.T. Antony v. State of Kerala, reported in 2001 AIR SCW 2001 = AIR 2001 SC 2637, has veered to the view that apart from a vague information by a phone call or cryptic telegram, the information first entered in the Station house diary kept for this purpose, by a police officer in charge of a police station is the First Information Report. First Information Report postulated by Section 154 of Cr.PC. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.PC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr.PC. The scheme of the Cr.PC is that an officer incharge of a police station has to commence investigation as provided in Sections 156 and 157 of Cr.PC on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.PC, as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.PC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR. In the circumstances, it is held that there can be no second first information report in respect of some cognizable offence of same incident or occurrence. However, in our opinion, it is to be noticed that in the present case, where no details of telephonic message are available, it cannot be treated to be the first information report even though, coming in first point of time.
15. The learned counsel for the appellant has invited our attention to some of the portions of statements of so called eye-witnessess regarding place from where, they had witnessed the incident and argued that the presence of these witnesses is doubtful as in the spot map, their presence has not been marked. We are not satisfied with this line of argument as it is not obligatory on the part of the investigating officer to mention the place in the spot map from where, the witnesses had seen the occurrence.
16. Learned counsel for the appellant next contended that the motive behind the crime, about non-payment of a meagre amount of Rs. 45/- by the deceased said to have been advanced to him by the accused, does not seem to be probable as nobody would like to commit such a ghastly murder for such a meagre amount of money. In our opinion, the dispute over money might have been a starting point of dispute, between the parties, however, if the real motive behind the murder is not known, that by itself is not a ground to discard the prosecution evidence as false or suspicious.
17. The Hon'ble Supreme Court in its decision in the case of State of Gujarat v. Animddha Singh and another, reported in AIR 1997 SC 2780, has pointed out that where the possibility of false implication is ruled out, the motive if proved would supply a chain of links but absence thereof, is not a ground to reject the prosecution case. In another decision in the case of Asha v. State of Rajasthan, reported in AIR 1997 SC 2828, where some minor inter-se contradictions in the evidence of eye-witnesses were found, it was observed that some trivial contradictions in nature, are to be ignored.
In the case of Betulla v. State of Uttar Pradesh, reported in AIR 1997 SC 3946, where occurrence had taken place in broad day light and spoken to by eye witness, supported by medical evidence, it was held that it will not be necessary to investigate the motive behind commission of offence.
18. In the case of State of Haryana v. Tek Singh, reported in 1999 SCC (Cr.) 622, it was made clear that even with regard to the interested witness, it is the duty of the Court to separate the truth from falsehood and the chaff from the grain. In view of the close relationship, witnesses naturally would have atendency to exaggerated facts are to be ignored unless it affects the substratum of the prosecution story. While appreciating the evidence of a witness, the approach must be whether, the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether, the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a hypertechnical approach in perusal of the evidence, should be avoided. In a promptly lodged first information report, where the accused was known to the witnesses and his name was disclosed immediately, the presence of accused on the scene of occurrence, established. In the circumstances, from the statements on record, and background of the case, it would be difficult to hold that there was no motive on the part of the accused.
19. And in the last, the learned counsel of the appellant has vehementlycriticised the procedure adopted by the learned Trial Court in rejecting theapplication for recalling the eye-witnesses for cross-examination regardingfiling of two contradictory affidavits, as in earlier affidavit, the witnesses hadstated that they were not present on the spot and had not seen anything. While,by subsequent affidavit, supported their statements in favour of the prosecution. This rejection of the application, according to the learned counsel for theapplicant, has caused prejudice to the accused and clearly caused injusticewhich resulted in his conviction by the Trial Court.
20. From the perusal of the record of the Trial Court, we find that the evidence of eye-witness Ram Singh was recorded on 12-10-1987 and 14-10-1987, while that of Ram Pal Singh was recorded on 1-2-1988 and 2-2-1988. After closing of the prosecution evidence when the case was fixed for defence evidence, after about three years from recording evidence of the aforesaid eye-witnesses, that an application under Section 311 of Cr.PC was moved on 16-5-1991, on behalf of the appellant for recalling the eye-witnesses. It was on 4-4-1991, that an affidavit was filed on behalf of prosecution witnesses Ram Singh and Ram Pal Singh, stating that on 27-5-1986, they were kept in custody by the police, in connection with the murder of the deceased and they were pressurised to become eye-witnesses as the dead body was found in their house. However, no explanation is forthcoming regarding filing of the affidavit, after about five years, from the alleged mishandling of the witnesses by the police. It is to be noticed that the statements of witnesses were recorded after about one year from the date of incident and at that time, there was no fear of any compulsion in the mind of the witnesses for proving the prosecution case. The learned Trial Court, therefore, rightly held that this affidavit was an outcome of pressurised tactics on the part of accused, as by that time, he had been allowed release on bail. However, since by a subsequent affidavit, filed on 1-12-92, by the witnesses it was made clear that the previous affidavit was theresult of threats meted out by the accused, who got the advantage of being released on bail. From the subsequent affidavit, therefore, it had become quite clear that the statement of witnesses as recorded in the Court, cannot be treated to be false, without knowledge of the witnesses or result of any pressurization from the Police Agency. The learned Trial Court in the circumstances, had rightly rejected the application to recall the witnesses for contradicting or otherwise of their earlier affidavit.
21. In the decision of the Apex Court in the case of State of Punjab v. Ramjidass, reported in 1977 Cr.LJ 705 = AIR 1977 SC 1085, rendered by a three Judge Bench where on the very next day of his statement in the Trial Court, Gurbachan Singh made an application in which he resiled from it, their Lordships observed that we do not however, feel persuaded to disbelieve the statement of Gurbachan Singh for any such reason because the fact that he made the application on the next day of his statement shows that as in the case of the affidavit, he was apparently prevailed upon by someone to do so. However, in case of Sukkhan and Anr. v. State of U.P., reported in 1988 (1) Crimes 245, as relied upon by learned counsel of the appellant, it was held that an affidavit purporting to have been sworn by the same first informant denying having seen the occurrence and hence his status as that of an eye witness, an application of the accused persons requesting the resummoning of that first informant for further cross-examination and confrontation with this affidavit, is in our opinion, is not applicable to the facts and circumstances of the present case, where the witnesses by their subsequent affidavit had already denied the contents of their earlier affidavit. Similarly, although, the full facts of the case, are not available, with regard to a short note, cited by the learned counsel for the appellant, in the case of Man Singh v. State of M.P., reported in 1999 (2) MPWN 199, where it is alleged that the prosecutrix had filed an affidavit challenging her first information report as untrue, was required to be recalled for further examination and cross-examination in a revision filed before the learned Single Judge of this Court. However, in our opinion, where the witnesses themselves had filed an affidavit indicating the pressure behind filing previous affidavit, in our opinion in the present case, is a sufficient ground to reject the application under Section 311 of Cr.PC to recall the witnesses for further cross-examination.
22. In case of Mohammad Hussain Umar v. Dalipsinghji, reported in AIR 1970 SC 45, where after examination and cross-examination of prosecution witnesses, the defence applied for recalling the witnesses for cross-examination, on the ground that the witnesses wanted to say that they have given false evidence, it was observed that no ground was made out for recalling the witnesses, as there was no material indicating that his testimony was incorrect in any material particular. No doubt, the Court has inherent power to recall a witness, if it is satisfied that he is prepared to give evidence which is materially different from what he had given at the trial. However, where there was no material upon which, the Court could be so satisfied, the learned Court, therefore, rightly disallowed the prayer for recalling the witnesses.
23. In a decision of this Court in the case of Dillipat v. State of M.P.,reported in 1991 (1) MPWN 227, it was held that when the accused persons enters, on his defence, and adduces any evidence that he may have in support, can only lead evidence in defence, but such right for recalling any prosecution witness for further cross-examination is not contemplated, under Section 233 of Cr.PC. A bare reading of Section 311 of Cr.PC postulates that it is divided in two parts - in first part the word 'may' and in second part the word 'shall' occur. Therefore, to some extent it is also discretionary and mandatory as well, which issues injunction upon the Court to comply with this provision, to do complete justice provided the Court is satisfied that a witness if recalled for re-examination or cross-examination may depose material different from what he had deposed at the earlier stage, with this safeguard that under the garb of seeking complete justice or just decision, parties may not be allowed to fill up the lacuna by recalling, re-examining or cross-examining the witnesses. Thus, it being a residuary provision, the main object is to shift the grain from the chaff so as to avoid abuse of process of the Court and only for reaching a just decision, provisions of Section 311 of Cr.PC may be resorted to and the limit of Court's jurisdiction is dictated only by the exigency of situation.
24. Although the Hon'ble Supreme Court in the case of Selvi J. Jayalalitha v. State, reported in (2000) 9 SCC 754, allowed the appellant to examine defence witnesses, in the interest of justice, however, on principle, rejected the prayer for permitting to recall some of the prosecution witnesses already examined under Section 311 of Cr.PC after prosecution was closed and questioning of accused under Section 312 of Cr.PC was complete.
25. After taking into consideration the ratio of decision in the case of State of Punjab (supra) we arc satisfied that the first affidavit in this case, by the prosecution witnesses was the result of pressurization by the appellant who was unfortunately, released by the Court after recording of the evidence of the aforesaid witnesses and apparently prevailed upon the witnesses to do so, it has further been revealed from the subsequent affidavit of the same witnesses that no satisfactory ground has been made out for recalling the witnesses for cross- examination merely to waste the time of the Court and in the circumstances, the application was rightly rejected by the learned Trial Court which has neither resulted in causing any prejudice or failure of justice in the present case.
26. From the facts and circumstances and the evidence discussed hereinabove, together with implications arising under the various decisions of the Apex Court, referred to hereinabove, we are of the considered opinion that the prosecution has successfully proved the offence under Section 302 of IPC against appellant.
The appeal in our opinion therefore, has no merit, and is dismissed accordingly.
27. Criminal Appeal dismissed.