Rajesh @ Khanna S/O Devidas Choudhari Vs. State of Maharashtra - Court Judgment

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criminal - evidence - sections 3 and 8 of evidence act, 1872 - appeal against order convicting appellant guilty for offence of murder - factum of assault on victim with spear head as stated by witnesses gains corroboration by medical evidence - assault was so serious that victim died on spot - prosecution on basis of evidence on record established his case beyond reasonable doubt that appellant committed murder of victim - appeal dismissed. - - in the inquest panchanama exhibit 10, which is admitted by the defence, multiple injuries found on the body of the victim -ramchandra have been mentioned precisely. state of punjab, respondent, wherein it is held that absence of signature or thumb impression of the accused on the disclosure statement renders such statement unreliable. learned counsel further submitted that the prosecution has admittedly failed to establish motive for the appellant to commit the crime. in the absence of evidence of independent witnesses, when prosecution has failed to establish motive, evidence of witnesses -hari and gangubai be scrutinized very carefully as both the witnesses were closely related to the victim. on the point of motive and relevance thereof and also significance of failure to establish motive the learned counsel placed reliance on the decision of the apex court reported in (1993)3scc91 ,jarnail singh and anr. state of haryana,.the learned counsel also submitted that failure to establish motive is of significance when the evidence of eye witnesses regarding the commission of crime is found to be not acceptable. the prosecution has utterly failed to prove that the appellant was the assailant of the victim. the prosecution has failed to establish guilt of the appellant beyond reasonable doubt having regard to the probabilities in the matter. the apex court in 1995crilj3992 (supra) has held that -absence of the signatures or the thumb impression of an accused on the disclosure statement recorded renders such statement unreliable. therefore, there is no cogent reason to discard the prosecution case merely because prosecution has failed to establish the motive. 12. the apex court in 1995 supp (3) scc 91 (supra) observed that normally there is a motive behind every criminal act and that is why the investigating agency as well as the court while examining the complicity of an accused first try to ascertain as to what was driving force which compelled accused to commit crime in question. but if the court is satisfied that evidence adduced, oral or circumstantial, establishes the charge against the accused, the prosecution case cannot be rejected saying that there was no immediate impelling motive on the part of the accused persons to commit the crime. where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. in our considered opinion, these observations of the apex court are applicable to the facts of the case before hand when evidence of witnesses hari and gangubai is a positive evidence which is found to be cogent, consistent and reliable and therefore, even failure to establish motive would not affect the prosecution case. 13. we also do not agree with the submission of the learned counsel for the appellant that absence of recording statement of persons who were admittedly present at the time of occurrence and further failure on the part of the prosecution to examine those persons before the court, would impair the evidence of witnesses -hari and gangubai who are admittedly closely related to the deceased. as regards the evidence of witnesses who are related to the victim the apex court in the above referred decision has stated that mere fact that the witnesses were members of the family of the deceased by itself not sufficient to discard their otherwise reliable testimony. if it is found on close scrutiny that the evidence of witnesses is reliable, trustworthy and cogent and has stood the test of probability, there is no reason to discard their evidence merely because the prosecution did not adduce evidence of independent, witnesses who were present and gathered at the scene of offence when the victim was assaulted.p.s. brahme, j.1. heard mr. r. g. janbandhu, advocate for the appellant and mr. fulzele, a.p.p. for the respondent-state.2. the appellant-rajesh @ khanna s/o devidas choudhari was tried for murder of ramchandra mul under section 302 of indian penal code. at the trial prosecution examined in all 7 witnesses including - hari mul (p.w. 4), gangubai gajghate (p.w. 5) sister of deceased ramchandra, sumitra dhanvijay (p.w. 6) niece of deceased ramchandra, dr. praful chahande (p.w. 2) who was medical officer attached to rural hospital, umred, who examined the weapon i.e. blade of spear (article 3) and purushottam dubey (p.w. 7) who conducted investigation in the matter. the learned additional sessions judge found the appellant guilty for offence under section 302 of indian penal code and by his judgment and order dated 14th march, 1997 convicted him and sentenced to suffer imprisonment for life for said offence. the appellant has challenged the judgment of conviction and sentence passed against him in this appeal.3. the incident which gave rise to this prosecution against the appellant took place on 2-4-1995 at about 7.00 p.m. at village revati, taluka umred, within jurisdiction of police station, umred. deceased ramchandra was going for answering call of nature. his brother hari mul (p.w. 4) heard noise of his brother ramchandra and along with his sister gangubai (p.w. 5) when proceeded towards spot they saw that the appellant was assaulting victim -ramchandra with knife and after assaulting him he ran away. they found that the victim had sustained multiple injuries on his vital part of the body, as a result of which he died on the spot. so, complainant - hari rushed to the police station and lodged report exhibit 41. purushottam dubey who was then attached to the police station, umred on receiving the complaint - exhibit 41 registered the offence against the appellant under section 302 of indian pena! code vide crime no. 66/1995 and proceeded to the village. he drew spot panchanama (exhibit 9) and after drawing inquest (exhibit 10) on the dead body the same was sent to the primary health center for postmortem. during the course of investigation the appellant was arrested and his clothes were seized by making panchanama -exhibit 31. while in custody the appellant was interrogated and made a statement for recovery of the weapon namely the spear blade and also expressed his willingness to produce the same. accordingly, in pursuance of the memorandum the appellant produced the spear blade which came to be seized - exhibit 30 (article 10). after completion of the investigation and receiving the postmortem report - exhibit 15 the charge sheet came to be filed in the court of the judicial magistrate first class, umred who by passing appropriate committal order committed the case to the court of sessions.4. the appellant pleaded not guilty to the charge (exhibit 5) and claimed to be tried. his defence is that of total denial. he claimed that he has been involved in the case falsely. in the inquest panchanama exhibit 10, which is admitted by the defence, multiple injuries found on the body of the victim - ramchandra have been mentioned precisely. the medical officer who conducted the autopsy on the dead body, prepared postmortem report - exhibit 15 and mentioned external injuries, he found on the dead body in column no. 17. it is seen that inasmuch as there were 39 multiple injuries, on the body of the victim and the medical officer has opined that these external injuries were antemortem in nature, it is crystal clear from the location of the injuries that the injuries were on vital part of the body. in addition to this the medical officer has opined that all the external injuries, which were stab wounds could be caused by the sharp cutting object. besides that there was corresponding internal damage caused and internal injuries noted on dissection of the body have been specifically given in detail in column no. 20, 21 of the postmortem report. the medical officer has stated in the postmortem report that in his opinion the probable cause of death was due to hemorrhagic shock as a result of multiple stab injuries on chest and abdomen and multiple fractures on ribs and injuries to vital organs (lung, liver, stomach, oesophagus). having regard to this medical evidence coupled with the evidence of witness hari and gangubai, there is absolutely no manner of doubt that deceased ramchandra died homicidal death. it may be mentioned here that the appellant at the trial has not disputed the fact that the deceased ramchandra died homicidal death.5. we have heard mr. janbandhu, learned counsel appearing for the appellant and also mr. fulzele, learned a.p.p. for the respondent-state. with the assistance of the learned counsel for the parties we have gone through the evidence recorded so also the judgment of the trial court. as stated while narrating the prosecution case the witnesses - hari (p.w. 4) and gangubai (p. w. 5), have claimed to have witnessed the incident of assault on ramchandra by the appellant. as to the factum of recovery of the weapon i.e. spear blade (article -10) at the instance of the appellant in pursuance of the statement made by him, prosecution has relied upon the evidence of panch witnesses - krishnakumar gupta (p.w. 3) who was corroborated by evidence of investigating officer p.s.i. dubey (p. w. 7). the spear blade (article no. 10) was examined by doctor praful and he gave his opinion that the injuries sustained by victim could be possible by the said weapon and accordingly he issued certificate exhibit 36. as per the report of chemical analyser exhibit 46, human blood is detected on this spear blade (article - 10). it is pertinent to note that the witnesses who claimed to have witnessed the incident have identified the spear blade (article - 10) as the weapon of assault. however, all that they have said in their evidence about the weapon of assault was a knife and actually the defence has made much capital of this discrepancy about the nomenclature of the weapon of assault, and it is on the basis of this the learned counsel for the appellant strenuously contended that discrepancy goes to the root of the claim of these two witnesses, wherein they have claimed to have witnessed the incident. it is in this context, the learned counsel submitted that in spite of the fact that many persons of the locality had gathered at the place of occurrence, no attempt has been made by the investigating officer to record the statement of any of such person and none has been examined, as witness in the court. the learned counsel also pointed out the discrepancy about the existence of sufficient light at the time of occurrence and it< is contended with emphasis that the discrepancy as to the description of the weapon was the result of absence of light and that impairs the claim of both the witnesses p.w. hart and p. w. gangubai. as regards recovery of weapon at the instance of the appellant, the learned counsel pointed out that the memorandum recorded by p.s.i. dubey does not bear the signature of the appellant. in the absence of that the factum of recovery at the instance of the appellant is rendered meaningless. learned counsel to support his contention has placed reliance on the decision of the apex court reported in : 1995crilj3992 jackaran singh, appellant v. state of punjab, respondent, wherein it is held that absence of signature or thumb impression of the accused on the disclosure statement renders such statement unreliable. learned counsel further submitted that the prosecution has admittedly failed to establish motive for the appellant to commit the crime. in the absence of evidence of independent witnesses, when prosecution has failed to establish motive, evidence of witnesses - hari and gangubai be scrutinized very carefully as both the witnesses were closely related to the victim. the learned counsel therefore, submitted that having regard to the facts and circumstances attending the case, evidence of both these witnesses does not inspire confidence and the trial court has committed an error in placing implicit reliance on their evidence i.e. much more so, according to the learned counsel when the prosecution though available, did not bring on record the independent evidence. on the point of motive and relevance thereof and also significance of failure to establish motive the learned counsel placed reliance on the decision of the apex court reported in : (1993)3scc91 , jarnail singh and anr., appellants v. state of haryana and mohini and anr., appellants v. state of haryana,. the learned counsel also submitted that failure to establish motive is of significance when the evidence of eye witnesses regarding the commission of crime is found to be not acceptable. he also placed reliance on the decision of the apex court in : 1995crilj3220 , satpal and ors., appellant v. state of punjab, respondent, wherein the apex court held that when the evidence of eye witness regarding the murder is found to be acceptable absence of proof of motive becomes immaterial. the learned counsel, contended that the evidence of eye witnesses hari and gangubai being not acceptable, absence of motive in the case at hand is of significance and that renders the prosecution case against the appellant doubtful. it is submitted that in such state of affairs, the defence of the appellant of false implication in the case stands probable. learned counsel, therefore, urged that the trial court has committed an error in appreciation and acceptance of oral evidence. the prosecution has utterly failed to prove that the appellant was the assailant of the victim. the prosecution has failed to establish guilt of the appellant beyond reasonable doubt having regard to the probabilities in the matter. he therefore, urged that the appeal be allowed and the appellant be acquitted.6. mr. fulzele, learned a.p.p. pointing out the consistent evidence of witness - hari (p.w. 4) and gangubai (p.w. 5) wherein they have given eye witness account of the incident which is also corroborated by medical evidence, submitted that the prosecution has succeeded in establishing that the death of deceased ramchandra was the result of assault by the appellant. he submitted that in view of the direct evidence showing involvement of the appellant in commission of murder of victim - ramchandra, absence of motive by itself is not of any consequence. that does not dislodge the prosecution case. he also submitted that in the background of eye witness account of witnesses - hari and gangubai, non-examination of independent witnesses by the prosecution, who had opportunity to witness the incident is per se not sufficient to reject the evidence of both the witnesses though they are related to the deceased. there is no rule of law that the evidence of related witnesses is to be ignored and discarded in the absence of evidence of independent witness. but at the same time, rule of prudence requires that the evidence of witnesses who are closely related to the victim is required to be scrutinized carefully with caution and circumspection. he therefore, urged that the trial court has rightly found the appellant guilty and as such the appeal merits no consideration.7. the spear head (article 10) is said to be the weapon of assault. both the witnesses - hari and gangubai, in their evidence before the court, have identified the spear head as the weapon of assault. in earlier part of the judgment it is pointed out by us on the report of c. a. (exhibit 46), human blood is detected on the spear head. it is true that the witnesses have referred the weapon of assault as the knife. having regard to the fact that the incident has taken place at about 7.00 p.m. it was likely that both the witnesses whose presence on the place of occurrence was not disputed must have had no opportunity to see the weapon properly and there was incorrect description of the weapon as knife. the spear head (article 10) that was with the appellant at the time of assault, must have been incorrectly described as the knife by the witnesses. therefore, that incorrect description of the weapon by both the witnesses does not bring out any infirmity in the evidence, in view of the fact that spear head (article 10) was having stains of human blood which has been identified by both the witnesses, must have been the weapon of the assault.8. however, alleged recovery of the spear head (article 10) at the instance of the appellant in pursuance of the statement made by him cannot be accepted as incriminating a circumstance as admittedly the memorandum about the disclosure statement alleged to have been made by the appellant does not bear the signature of the appellant. in addition to that the evidence of investigating officer p.s.i. - dubey (p.w. 7) does not inspire confidence on the point of discovery of the spear head at the instance of the appellant. the apex court in : 1995crilj3992 (supra) has held that - absence of the signatures or the thumb impression of an accused on the disclosure statement recorded renders such statement unreliable. it is needless to say that if the memorandum of the disclosure statement alleged to have been made by the appellant is left out of consideration, mere recovery of the weapon is of no consequence at all. therefore, discovery of the spear head (article 10) alleged to have been recovered at the instance of the appellant cannot be accepted as an incriminating a circumstance in the instant case.9. the witness hari (p. w. 4) in his evidence before the court has categorically stated that while he was at his house, he heard noise of ramchandra and when he went there, he saw that the appellant was assaulting ramchandra with spear according to him the appellant has inflicted injuries on the person of ramchandra. he immediately went to the police station and lodged the report exhibit 41. his evidence is again corroborated by the evidence of witness gangubai (p.w. 5). in addition to that this witness has rushed to the police station and lodged the report exhibit 41, in which he has informed about the incident which was witnessed by him. his evidence is fully of consistent with what has been reported by him in the complaint exhibit 41. there was no dispute about the identification of the appellant by this witness. though this witness was cross examined at length by the defence, nothing has been elicited to make a dent in his testimony. it is found that on material particulars, this witness has not been cross examined by the defence. as such his evidence remains undisturbed. his presence on the spot is natural, so his evidence does inspire confidence and the trial court has rightly accepted the same.10. now coming to the evidence of witness - gangubai (p.w. 5) who is real sister of the deceased, she has stated that she saw accused assaulting her brother ramchandra with spear and running away. incident took place on the road. when she was at her house she heard cries of her brother ramchandra. she has stated about her brother witness hari, who also arrived at the scene. this witness was subjected to cross examination by defence, but nothing is brought in her testimony so as to discredit her evidence. the learned counsel for the appellant has made much of the fact of both the witnesses have not stated about the cause of quarrel and assault by the appellant. this witness gangubai had stated that there was no quarrel between accused and ramchandra. learned counsel strenuously submitted that motive on the part of the appellant to assault the victim is not at all established by the prosecution. the evidence of both the witnesses - hari and gangubai is silent on the point of motive. therefore, it is submitted that the evidence of both the witnesses does not inspire confidence. their claim, to have witnessed the incident does not stand probable and plausible. the learned counsel submitted that in absence of recording statement of persons who had gathered on the spot, the evidence of these witnesses who were closely related to the victim cannot be accepted and no reliance could be placed on their evidence. the settled position of law is clear that for appreciation of evidence it requires that the evidence of interested witnesses is to be assessed with caution.11. the apex court in : [1994]3scr866 (supra) has observed that when evidence of the eye witnesses regarding the murder is found to be acceptable, absence of proof of motive becomes immaterial. in the case before hand as we have found that the evidence of both the witnesses hari and gangubai, inspires confidence, absence of proof of motive becomes immaterial. it is pertinent to note that both the witnesses have claimed to have witnessed the incident. having regard to the probabilities in the matter, we have no hesitation in accepting the claim of both the witnesses that they had opportunity to witness the incident. their presence at the time of occurrence on hearing the cries of victim ramchandra sounds as probable and natural as it could be. therefore, merely because the witnesses have not stated anything about the motive on the part of the appellant to commit crime, that by itself is not sufficient to discard their claim. as observed by the apex court when the evidence of eye witnesses regarding the assault on the victim is found to be trustworthy and acceptable, absence of proof of motive becomes immaterial. therefore, there is no cogent reason to discard the prosecution case merely because prosecution has failed to establish the motive.12. the apex court in 1995 supp (3) scc 91 (supra) observed that normally there is a motive behind every criminal act and that is why the investigating agency as well as the court while examining the complicity of an accused first try to ascertain as to what was driving force which compelled accused to commit crime in question. motive behind the crime is relevant fact and normally the prosecution is expected to adduce evidence in respect thereof. experience shows that one or other motive moves the culprit to a certain course of action. in cases where prosecution is not able to establish a motive behind the alleged crime it assumes importance especially in cases where the prosecution rests on circumstantial evidence or on witnesses who have an inimical background. but with complex growth of society and which has also produced complex characters, the actions and reactions of persons either on the accused side or on the prosecution side are not very easy to ascertain and judge. even a small or trifle incident has a different reaction on different persons. that is why it is not always easy for the court to weigh and judge as to whether under the circumstances brought on record by the prosecution, in normal course the accused concerned could have acted as alleged by the prosecution. proof of motive on the part of the accused persons to commit an offence satisfies the judicial mind about the likelihood of the authorship but in its absence it is only proper on the part of the court to have a deeper search. but if the court is satisfied that evidence adduced, oral or circumstantial, establishes the charge against the accused, the prosecution case cannot be rejected saying that there was no immediate impelling motive on the part of the accused persons to commit the crime. where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. in our considered opinion, these observations of the apex court are applicable to the facts of the case before hand when evidence of witnesses hari and gangubai is a positive evidence which is found to be cogent, consistent and reliable and therefore, even failure to establish motive would not affect the prosecution case.13. we also do not agree with the submission of the learned counsel for the appellant that absence of recording statement of persons who were admittedly present at the time of occurrence and further failure on the part of the prosecution to examine those persons before the court, would impair the evidence of witnesses - hari and gangubai who are admittedly closely related to the deceased. as regards the evidence of witnesses who are related to the victim the apex court in the above referred decision has stated that mere fact that the witnesses were members of the family of the deceased by itself not sufficient to discard their otherwise reliable testimony. testimony of eye witnesses if found to be trustworthy cannot be discarded merely because they are closely related to the deceased. it is needless to say that in case the independent witnesses are not examined by the prosecution or their statements are not recorded in the course of investigation, it is imperative on the part of the court to scrutinize the evidence of such closely related witness with caution and circumspection. if it is found on close scrutiny that the evidence of witnesses is reliable, trustworthy and cogent and has stood the test of probability, there is no reason to discard their evidence merely because the prosecution did not adduce evidence of independent, witnesses who were present and gathered at the scene of offence when the victim was assaulted. in the case before hand though both the witnesses have stated in their evidence that some persons in the locality had collected on the spot when occurrence took place, the prosecution did not examine any of the such persons nor their statements have been recorded in the course of investigation, that itself is not sufficient to discard the prosecution witnesses. we are therefore, of the considered opinion that the trial court has committed no error in accepting the evidence of witnesses - hari and gangubai.14. the factum of assault on the victim with the spear head as stated by both the witnesses gains corroboration by the medical evidence. in earlier part of the judgment we have referred to the medical evidence. it is crystal clear from the medical evidence that the multiple injuries as many as 39 have been caused as a result of assault with the spear head. the medical officer has certified that said injuries could have been caused by the spear head (article 10). it is significant to note that the assault was so serious that the victim died on the spot. therefore, this circumstance is itself so telling that the complicity of the appellant in committing the murder of the victim is self eloquent as also undoubted. the prosecution has, on the evidence on the record has clinchingly established that the appellant committed murder of the victim. the trial court has committed no error in holding the appellant guilty for committing murder of victim. we do not find that there is any merit and substance in this appeal. no interference is called for. the appeal deserves to be dismissed. hence the order :orderthe appeal is dismissed.