Judgment:
P.N.S. Chouhan, J.
1. In this appeal the appellants challenge their conviction under Sections 148 and 302 read with Section 149 of the IPC and sentence of two years Rigorous Imprisonment on the charge of riot and imprisonment for life and fine of Rs. 2,000.00 each, in default Rigorous Imprisonment for six months on the charge of murder with direction for concurrent running of sentences recorded vide judgment dated 10-1-1987 passed in Sessions Trial No. 20/1986 of Hoshangabad Sessions Division.
2. The appellants and Harchand (PW-1) are residents of village Bhunnasa near Harda. Deceased Ramchand was Sarpanch of that village. On 5-9-1984 Ramchand had come to Harda to attend some Court work. After that he was going to Janpad office along with Harchand. At a short distance from the Janpad office the deceased requested Harchand to follow on foot, himself got on his bicycle and proceeded towards the Janpad office. No sooner he reached in front of Janpad office building he was assaulted by the appellants with sharp edged weapons. The appellants then made good their escape towards their village. Harchand, who had witnessed the assault from a short distance, came near the fallen victim and found him dead. This daring murder had taken place in broad-day-light at 1300 Hrs. in a busy locality with shops nearabout. Harchand lodged the First Information Report (Ex.P-8) in Harda Police Station within twenty minutes at 13.20 Hrs. Crime was registered. Station House Officer Shri P. N. Gupta (PW-8) reached the spot and held inquest vide Ex.P-13. He deputed police force to go in search of the miscreants. The dead body was sent for post-mortem examination. Dr. R. K. Garg (PW-7) vide autopsy report Ex. P-27 found twentyone injuries on the body, eleven of which were caused by sharp-edged weapon on vital parts which had involved both the lungs, the heart, the stomach, the intestines, the kidney and the liver. The head injury had resulted in fracture in the right parietal region where fragmented bones had caused subdural and extradural haematoma as shown in diagram in Ex. P-27. The cause of death, as per the Doctor, was syncope resulting from shock as a result of massive haemorrhage. The time of death was approximately within six hours from post-mortem examination which had taken place at 16.30 hrs. The injuries were held by the Doctor sufficient in the ordinary course of nature to cause death. The Doctor had found one blade of knife embedded in one of the injuries. He removed the same and also removed the clothes found on the body and sent them in a sealed packet to the police along with his autopsy report. Within a couple of hours from registration of the crime, the appellants were apprehended vide memorandums of arrest Ex. P-2 to P-6. During investigation, one Shirt and one Pajama (Articles E-l & E-2) were seized from appellant Shyam vide seizure memorandum Ex. P-7. One Shirt and one Pant (Articles F-1 & F-2) where seized from appellant Balram vide Ex. P-8. One Bush-shirt and one Pant (Articles D-1 & D-2) were seized from appellant Ramkishore vide Ex.P-9. One Shirt and one Pajama (Arts. G-1 & G-2) were seized vide Ex.P-10 from appellant Gulab Singh. One Pant and one Shirt (Articles C-1 & C-2) were seized from appellant Ramnarayan vide Ex.P-11. The clothes and knife blade removed from the dead body by the Doctor were produced in a sealed cover by Constable Jugal Kishore before the Investigating Officer, who seized the packet vide memorandum Ex. P-12. Confessional Memorandum of appellant Shyam being 'B' marked portion of Ex.P-17 was recorded at 17.30 hrs. on 5-9-1984 by the Investigating Officer which led to the recovery of an iron rod and seized vide Ex. P-22. Similar memorandum of appellant Balram being portion marked-B and C of Ex. P-18 was recorded at 09.05 hrs. On 6-9-1984 which led to the recovery of one Katar (Art. D) and seized vide Ex. P-23. Similar memorandum of appellant Ram Kishore being 'B' marked portion of Ex. P-19 was recorded at 08.20 hrs. on 6-9-84 which led to the recovery of one knife (Article E) and seized vide Ex. P-24. Similar memorandum of appellant Gulab Singh being portion marked-B and C of Ex. P-20 was recorded at 08.45 hrs. on 6-9-84 which led to the recovery of a brass handle of a knife sans blade (Art-A), seized vide Ex. P-25. Similar memorandum of appellant Ramnarayan being 'B' marked portion of Ex. P-21 was recorded at 08.30 hrs. on 6-9-84 which led to the recovery of a knife (Art. C), seized vide Ex. P-26. All these articles were after seizure duly sealed and along with some other material evidence, collected during investigation, sent for chemical examination to Forensic Science Laboratory, Sagar. The Chemical Examiner, vide his report Ex. P-31, confirmed presence of blood stains on all the above clothings and weapons seized from the appellants. He also confirmed presence of blood stains on the stained earth sample collected from the spot and the clothes found on the dead body. All these articles were after examination sent by the Chemical Examiner to Serologist, Govt. of India, Calcutta, whose report is Exs. P-33 and 34 which shows that the Pant seized from the appellant Ramkishore and the Shirt and Pant seized from appellant Balram, the iron rod recovered at the instance of appellant Shyam and the clothes removed from the dead body were stained with human blood. The origin of blood on remaining articles could not be determined either due to distintegration or its insufficiency for test. Spot map Ex. P-16 was prepared by R.P. Patware (PW-4), Patwari incharge Halka No. 25. Two of the accused, namely, Rambharos and Narayan were shown absconding in the charge-sheet. It appears out of them Rambharos subsequently became available for trial and was acquitted. Narayan is still absconding.
3. The case then went to trial. The defence consisted of total denial of all allegations. Majju Singh (PW-5) in whose presence the confessional memorandums were recorded and resultant seizures were made, was declared hostile. The learned trial Judge found the eye-witness account of Harchand (PW-I) reliable and convicted and sentenced the appellants on its basis.
4. During trial, evidence of Harchand (PW-I) was recorded on 25-3-86. Thereafter an application was made under Section 311 of the Code of Criminal Procedure to recall the said witness for further cross-examination in the light of an inland letter produced by the defence to show that the said letter was written by the said witness wherein he admitted ignorance about this murder. On 31-3-86, the learned trial Judge after hearing passed the following order rejecting this applications:
^^cpko i{k ds izkFkZuki= varxZr /kkjk 311 naMlafgrk dk mRrj i{k dh vksj ls izLrqr fd;k x;k A bl izkFkZuk i= ij nksuksa i{kksadks lquk ,oa fopkj fd;k x;k A bl izkFkZuk i= esa tks varZns'kh; i= lk{kh gjpan }kjkfy[kk gksuk n'kkZ;k x;k gS og gjpan }kjk gh fy[kk x;k gS ,slk fdlh vU; rF; lsizdV ugha gksrk gS A ;k i= 27&3&86 dks ,d O;fDr jkenhu }kjk vfHk;qDr ';keds pkpk jkenhu iVsy dks nsuk izkFkZuk i= esas fy[kk gqvk gS A ;g i=27&3&86 dks gh jkenhu us gjpan dks fn;k bldk Hkh dksbZ izek.k ugha fn;kx;k gS A ;g i= blh vijk/k ds laca/k esa fy[kk x;k gS ,slk Hkh i= dks ns[kus lsizdV ugha gksrk gS a lk+{kh gjpan ls foLr`r :i ls izfrijh[k.k vfHk;qDr x.k dsrhuksa vfHkHkk'kdx.k us fd;k gSa A ,slh fLFkfr esa ;g izkFkZuk i= ln~HkkoukiwoZd fn;k x;k gS A ,slk izdV ugha gksrk gS A vkSj dsoy ;gh izdV gksrk gS fdizdj.k es dsoy foyac dh n`f'V ls ;g izkFkZuk i= fn;k x;k gS A vr% fLFkfr ij;g izkFkZuk i= Lohdkj fd;k tkuk U;k;ksfpr izrhr ugha gksrk gS A blfy;s ;gizkFkZuk i= vLohdkj fd;k tkrk gS A**
Subsequently Narayan (DW-3) was examined who proved the purported signature of Harchand Bada on the said inland letter which was marked Ex.D-10. It was vehemently argued that the rejection of defence application for recalling the said Harchand (PW-1) for further cross-examination in the light of Ex.D-10 was patently erroneous. The prosecution case was not closed by that time and, therefore, the reasons assigned for rejection of the said application that it was intended to delay the trial is on the fact of it untenable. This important letter reflected that the said Harchand had not seen the incident personally and his claim to be an eye witness in this case was false. Thus the order passed by the learned trial Judge in this behalf has materially prejudiced the case of the defence and resulted in miscarriage of justice. It was urged that if the defence is afforded opportunity even at this stage to confront the said witness with contents of Ex. D-10, his falsity will be exposed.
5. The burden of proof of any fact or fact in issue is the same on prosecution and defence alike. The best evidence rule applies to both with equal rigour. The difference lies in the cumulative effect of facts proved. In case of prosecution this cumulative effect-must result in proving the charge which implies all the ingredients that go to make it beyond reasonable doubt. The defence may succeed merely by creating a reasonable doubt as to the commission of the offence or implication of the accused if its commission stands proved. In case of alleged murder if the defence is able to prove that the death might have been accidental or suicidal, the charge must fail. Similarly if homicidal death is proved, the defence may be entitled to claim acquittal if it satisfies the Court that participation of the accused in the crime is subject to reasonable suspicion, but so far as the mechanism of proof of fact is concerned, it remains the same for prosecution as also defence. Let us now examine Ex. B-10 and its implications. It does not contain any expressed reference to the case in hand. It mentions so many facts which are not quite intelligible for want of reference material. In the fag end it refers to some case under Section 302, IPC of which the author says he had no personal knowledge, but was forced in it by force of circumstances. The letter is addressed to Shri Ramdeen Patel. It will be reasonable to infer that this Ramdeen is not other than the Ramdeen Patel, uncle of appellant Shyam mentioned in the application under Section 311 of the Cr. P.C. There is no evidence that the addressee is not alive. In all probability he is closely related with one of the appellants. Yet he is not coming to the fore. The letter been proved by one Narayan (DW-3), maternal uncle of appellant Shyam, who claims to the fore acquainted with the handwriting of Harchand Beda, the purported author. The best evidence to prove the fact that it was Harchand (PW-1) who wrote the said letter admitting lack of personal knowledge of the perpetrators of the crime would be the evidence of the addressee, who is alive and related as uncle with appellant Shyam, but for whose warm sympathy for the cause of the defence this letter would not have seen the light of the day. Thus the proof of Ex. D-10 by Narayan who is unable to throw any light on the context in which Ex. D-10 was written, violates the principle of best evidence. This was done to evade the addressee of Ex. D10 facing the test of unsavoury cross-examination on the probable terror mechanism and undue influence exercised on Harchand which is reflected in the contents of Ex. D-10 and would have rendered it fully intelligible. The defence is free to adopt its strategy. But if the same is found violative of any rule of evidence, the Court must take note of it. Section 311 of the Cr. P.C. is quoted below:
'311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.'
The plenary power which this provision vests in the Court is to ensure justice. Justice is truth in its dynamic form. That is why dispensation of justice is not a game of hide and seek, but a serious business of finding out the truth. Therefore, non-production of the addressee of Ex. D-10 by the defence to prove this document implied breach of the best evidence rule and was impregnated with a risk of veiling the truth by keeping the background circumstances of undue influence in which Ex. D-10 was written uncovered. Proof of Ex.D-10 by secondary evidence of Narayan was designed not to advance the cause of truth. But to create a smoke screen to blind the visions of justice. We accordingly hold that even if the prayer made in the application u/S. 311, Cr. P.C. was not intended to delay the trial, it certainly lacked bona fides and its rejection by the learned trial Judge was just and proper. We see no justification to grant the prayer at this stage.
6. It was next argued that the trial Judge has himself found Harchand (PW-1) partly reliable. Therefore, some corroboration of his testimony was necessary to convict the appellants, reliance was placed on State v. Tularam, : AIR1960All585 wherein relying on Vadivelu Thevar v. State of Madras, : 1957CriLJ1000 it has been held :-
'(15) In Vadivelu Thevar v. State of Madras their Lordships of the Supreme Court classified witnesses into three categories, namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly un-reliable. Under the first category of proof, the court should not have any difficulty in coining to its conclusion either way. It may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subordination.
xx xx xx xx xx xx
Again, there is no difficulty in the second category of proof and the statement of a witness wholly unreliable must be rejected for all purposes. It is in the third category of proof, namely, where the witness is neither wholly reliable nor wholly unreliable that the difficulty arises. And in such cases the court seeks corroboration from some independent evidence or from circumstances. As has been observed by the Supreme Court in this decision, as a general rule, a court can and may act on the testimony of a single witness though uncorroborated, one credible witness outweighs the testimony of a number of other witnesses of indifferent character.
Where the nature of the testimony of a witness who is not wholly reliable requires corroboration courts, as a rule of prudence, insist on corroboration from independent evidence. There can be no corroboration of a false or doubtful witness by another witness of the same character.'
Another authority cited is Mangilal v. State of Madhya Pradesh, 1990 II SVLR (CR) 75, wherein the Court has held :
'Where the case rests on the testimony of the sole eye-witness, the same must be wholly reliable. In this case except the evidence of PW-1, an interested witness, we do not find any other evidence which atleast gives some assurance, on this kind of evidence which, we think it is highly dangerous to convict as many as nine persons when there are strong circumstances to show that so many of them would not have participated.'
The promptly lodged FIR medical evidence of autopsy Surgeon, the prompt apprehension of the appellants after the commission of the crime and the presence of human blood vide Serologist's report on the iron rod recovered at the instance of appellant Shyam and presence of blood on the Knives recovered at the instance of Ram Kishore, Ramnarayan and Balram by the chemical Examiner vide his report Ex.P-31 lend corroboration to the evidence of PW-1. It may be mentioned that recovery of the handle of the knife sans blade at the instance of appellant Gulab Singh which was found to contain stains of blood by the chemical Examiner and the presence of a blade of knife without handle in the dead body which was sent by the autopsy Surgeon to the police and was later found by the chemical Examiner to be stained with blood all over further corroborate the evidence of PW-1. The defence, therefore, does not seem to get any advantage from the aforesaid two citations.
7. It was next argued that the murder was committed in broad-day-light in a busy locality where there are rows of shops. Therefore, it can be presumed that a large number of independent persons must have witnessed it. Still the prosecution did not produce a single independent eye-witness of the locality. The apathy of the common man to the cause of justice for various reasons including the failure of the establishment to guarantee protection against physical harm to the witnesses of heinous offences is too well known and has been highlighted by Supreme Court in Appabhai v. State of Gujarat, : 1988CriLJ848 in these words (para 11):-
'It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed in their presence. They withdraw both from the victim and the vigilance. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there every where whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused.'
Therefore, if no independent witness of the locality came forward to testify in favour of the prosecution, there is no justification to infer that the prosecution deliberately suppressed such evidence nor is the evidence of Harchand (PW-1) liable to be discarded on this ground.
8. The next submission was that Harchand did not disclose in the FIR that appellant Shyam was armed with a rod and first struck with it on the head of the deceased. Whereas in his evidence before the Court, he added this fact to bring his statement in conformity with the finding of the autopsy Surgeon. Such a conscious improvement on his part renders his evidence unworthy of eredence. Reliance was placed on Badri v. State of Rajasthan, : 1976CriLJ496 . The facts of the present case arc distinguishable. The evidence shows that immediately after the registration of the crime force was deputed to apprehend the miscreants who had fled in the direction of village Bhunnasa and the appellants were arrested within a couple of hours. Immediately after arrest confessional memorandum of appellant Shyam was recorded which led to the seizure of the iron rod at his instance which was subsequently found to be stained with human blood. In view of this circumstance, the omission of use of rod during assault in the FIR is liable to be ascribed to the agitated state of mind of Harchand soon after witnessing the gruesome murder. The fact that subsequently when he gave his evidence in the trial he has mentioned the opening assault on Ramchand by one of the assailants with a rod will not imply that he is trying to make conscious improvement in the light of the subsequent autopsy report. It is not the requirement of law that the evidence of an eye-witness, who has lodged the FIR must not travel beyond the contents of the FIR even in matters of details. After going through the evidence of Harchand, we conclude that the above inconsistency between his evidence in the Court and the FIR is due to the fact that when he gave his statement in the Court he was not under shock and could better recollect the details of the assault. Had he been a got up witness; as has been suggested; he could well have said that it was appellant Shyam who opened the assault with his rod. but he has not named the person who dealt the rod blow. We agree with the learned trial Judge that inability on the part of Harchand (PW-1) to state specifically the particular weapon used by each assailant is indicative of his being an honest witness otherwise had he been an interested or tutored witness, he would not have hesitated in giving all these details.
9. It was argued that Harchand had informed R.P. Patware (PW-4), who prepared the spot sketch of the scene of occurrence, that Radheshyam, cousin of the deceased, was present at the spot, shown at No. 3 in Ex. P-16, at a short distance from the scene of occurrence. During his evidence Harchand has denied the presence of Radheshyam on or near the scene of occurrence. He has denied the fact that he informed the Patwari of the presence of Radheshyam near the scene of occurrence. From all this, it ought to have been inferred that Harchand is a liar who had tried during the investigation to show that Radheshyam was also one of the eye-witnesses. A person who tries to falsely project some one as eye-witness who was not present at or near the scene of occurrence must be held to be unreliable. It is a fact that Radheshyam was cited as a witness, but was given up. There is no reason to doubt the evidence of the Patwari that he had prepared the spot sketch on the basis of information received from Harchand. His evidence shows that presence of Radheshyam at point No. 3 is indicated in the spot sketch. The evidence of Harchand that Radheshyam was no where near the scene of occurrence may be due to loss or confusion of memory, In the facts and circumstances of this case, we are not prepared to accept the submission that Harchand is telling a conscious lie in asserting that he did not see Radheshyam in or near the scene of occurrence. It is not that Radheshyam was examined and denied his presence near the spot.
10. It was next argued that some of the appellants had injuries which were not explained by Harchand. In fact, these injuries were found by the Doctor to whom the said appellants were sent for examination immediately after their arrest. The medical report in this behalf was available with the prosecution. Still the same was not proved and the defence had to prove some of them. Thus the prosecution's conduct in this behalf was unfair. The emphasis is that non-explanation of the injuries on the appellants renders the testimony of Harchand doubtful. The Investigating Officer in para 24 of his statement admitted in cross-examination that the appellants were sent for medical examination vide requisition Ex. D-2 to D-6. Thus evidence only proves the fact that these persons were on arrest found to have certain bodily injuries and were sent for medical examination. Doctor M.M. Nanda, who examined the appellants, was not examined. It was not explained as to why the said Doctor was not called in evidence by the defence particularly when three Doctors were examined as defence witnesses to prove part of this material. The Investigating Officer has clarified in para 24 of his statement that when the appellants were produced before him by his men he was informed that the appellants had tried to run away and in that process had sustained the injuries as a result of fall. That is why they were referred for medical examination. Therefore, it is not correct to say that the prosecution acted unfairly in not getting the medical reports of these appellants proved. Because in view of the aforesaid explanation of the circumstances in which they sustained injuries it was not necessary for the prosecution to have proved the said medical reports. It is significant that none of the appellants has in his statement under Section 313, Cr. P.C. alleged that he sustained injuries in the course of the same transaction in which Ramchand was done to death. Since they denied the evidence of the Investigating Officer that such injuries were caused as a result of fall when the appellants tried to evade arrest, it was necessary for them to have disclosed the circumstances in which they had sustained injuries because this fact was in their personal knowledge and they alone could have thrown light on it when they denied the truth of the explanation tendered by the Investigating Officer in this behalf. From the evidence of Dr. N. Hasan (PW-1), Radiolgist Mahadev Rao (DW-2), Dr. Narendra Pandey (DW-4) and Dr. H. G. Kalyani (DW-5), it stands proved that appellant Balram was admitted in District Hospital, Hoshangabad at the instance of Dr. Hasan and was treated by Dr. Pandey and Dr. Kalyani as an indoor patient from 11-9-1984 to 29-9-84 which is reflected in the bed head ticket Ex. D-11. The details of treatment are mentioned in his bed head ticket (Ex.D-11), proved by Dr. Pandey. Before admission his left hand was X-rayed the skiagram being Ex. D-9. He had sustained fracture of 4th matacarpal bone and multiple radio-opaque shadows of metalic density were seen in the skiagram indicating presence of foreign bodies like pellets discharged from a fire-arm. From the evidence of I.O., it is clear that after arrest Balram was remanded to judicial custody and, therefore, he must have been produced before the Magistrate, but he did not make any complaint in this behalf. In such circumstances, it is not possible to hold that the injuries sustained by the appellants were caused in the course of the transaction which claimed the life of Ramchand. We are, therefore, of view that the defence evidence on this aspect of the case in no way renders the testimony of Harchand(PE-l) doubtful.
11. Lastly it was argued that Harchand in his evidence implicated the acquitted accused Rambharos equally with the appellants, but the trial Court found that his evidence was insufficient to convict Rambharos. Therefore, the same evidence could not have been reliable and sufficient for conviction of the present appellants. In para 22 of the judgment, the learned Judge has discussed this aspect of the case. Rambharos was acquitted because his name does not find mention in the FIR and also in the case-diary statement of Harchand. There was no other incriminating evidence against him save the evidence of Harchand and, therefore, he was acquitted on benefit of doubt. As already observed above there are corroborative circumstances available in relation to the appellants to lend support to the evidence of harchand on the point of appellants involvement in the crime and, therefore, their con- viction was proper.
12. In result, we find that appellant's impugned conviction and sentences call for no interference. This appeal is accordingly dismissed.