Naniya @ Nanuram and ors. Vs. State of Madhya Pradesh - Court Judgment

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- - 4. the contention of the learned counsel for the appellants is that pw 1 gulab, pw 2 badrilal and pw 3 kamdar like accomplice, their involvement in the offence was itself suspected and they are, therefore, got up witnesses. the only requirement is that their version should be corroborated from other reliable evidence. we would like to examine the evidence of pw 1 gulab, pw 2 badrilal and pw 3 kamdar first, as they were present on the spot from before the arrival of babulal, ramgopal and madan. it would no doubt has been prudent to hold identification parade with respect to witnesses who did not know the accused persons before occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in court. there is absolutely nothing in the cross-examination of this witness, which can render his evidence unreliable. 54, and submitted that police officer was interested in the success of the prosecution and he has done much padding in the case. we are in agreement with the observations made by division bench of this court that, the police are too often tempted to introduce padding in a case in their over-zealousness to establish a charge, which they believe to be true in support of which the evidence in their possession is weak and this practice has to be condemned. 13. learned counsel, thereafter, referred to a case reported in 1993 jlj 90 and submitted that the prosecution has failed to prove prompt compliance of section 157 of the criminal procedure code and, therefore, the same ought to be accepted to be antetimed. it is a matter of common experience that if parrot like story is not given, by the witnesses, the same is bound to have some discrepancies. under these circumstances, certain differences are bound to occur, but evidence of eye witness if it is otherwise reliable, cannot be rejected merely because of minor discrepancies, differences or contradictions. 18. now, so far as the objection as to the nature of offence and punishment for minor offence is concerned, in our opinion, a person charged for murder can be convicted under section 342 or 341 like offence under section 411, indian penal code when he is found in possession of some stolen property.r.d. shukla, j.1. the appeal is directed against the judgment and order dated 28th october 1986 of iiird additional sessions judge, dhar, passed in s.tno. 177/84, whereby the accused-appellants 1 to 4 have been convicted under sections 302/23, indian penal code for having committed murder of babulal s/o narottam, on 6-9-1984, in village chor baodi and sentenced them to undergo imprisonment for life each. accused naniya and gulab have been further convicted under sections 323/34 for having caused simple injuries to ramgopal and madan and sentenced them to undergo r.i. for 3 months each. appellant rajababu has been acquitted of the offence under sections 302/34 and 323/34, indian penal code, but has been convicted under section 341, indian penal code and sentenced to a fine of rs. 500/- each. in default of payment of fine he shall undergo r.i. for 7 days.2. brief history of the case is that deceased babulal, (pw 7) ramgopal and (pw 8) madan, who are residents of bachhanpur had gone to jungle (forest) for collecting teak leaves to be used for constructing huts. they were returning at about 3 p.m. they were crossing the rivulet, near village chor baodi, the 4 accused persons naniya, gulab, jamiya and rugga stopped them and asked them that they are being called by accused rajababu. madan and babulal were carrying the head load of thin sticks of teakwood (kimdis as it is called in the local dialect). ramgopal was carrying the bundle of leaves. all the three persons put off their head load. meanwhile 4 accused persons reached near them. they took out kimdis (thin sticks of teakwood) and began beating them. babulal fell down because of the beating and became serious, it is alleged that beating was done at the instance of accused-appellant rajababu. thereafter babulal was dragged near rajababu. ramgopal and madan have also sustained injuries. because of the beating, babulal had become unconscious. thereafter rajababu asked all the three injured persons to be released and asked them not to come to that area.babulal was brought to village bachhanpur on a cot and thereafter he was taken to police station, but he died on way.3. the matter was reported by ramgopal in police station nalchha. madan and ramgopal both were medically examined and doctor found 4 and 5 injuries respectively on their body. the autopsy on the body of babulal was conducted by pw 6 dr. b. c. puri. he found nearly 11 injuries on his body. there was dislocation of wind pipe and congestion over it; fracture of cervical vertebrae and fracture of 10th rib of the right side of sterno costal region. he further found fracture on the middle of left 10th rib. lung was also injured because of fracture of right rib. doctor further opined that the injuries could be caused by kimdis (thin sticks) which were seized during investigation and sent to medical officer.the police officer abrar ahemad (pw 10) prepared the spot map and recorded statements of the witnesses and after completion of the investigation filed challan against the accused persons, which was committed to the court of session in due course.the accused abjured the guilt and pleaded false implication. learned trial judge has convicted and sentenced them, as above. hence, this appeal.4. the contention of the learned counsel for the appellants is that pw 1 gulab, pw 2 badrilal and pw 3 kamdar like accomplice, their involvement in the offence was itself suspected and they are, therefore, got up witnesses.pw 7 ramgopal and pw 8 madan are though injured persons, but they did not know the accused persons from before and, therefore, identification by them of the accused persons is doubtful. since no identification parade was held and, therefore, the identification in dock carried no value.it has also been submitted that fir is antedated and there was no compliance of section 157 of the criminal procedure code and, therefore, the same cannot be read in evidence and cannot be taken in aid for basing the conviction.it has also been submitted that there was no charge of wrongful confinement or wrongful restraint and, therefore, rajababu could not be convicted under section 341 of the indian penal code as the same cannot be termed to be a minor offence of murder or assault.it has further been submitted that in the inquest report there is reference of beating by kick and fist blows and stones, but the eye-witnesses have not stated anything about the injuries having been caused by kick, fist blows and stones, and, therefore, their version cannot be accepted.5. as against it, learned counsel for the respondent-state has supported the case of the prosecution and submitted that even if pws 1, 2 and 3 are taken to be accomplice their evidence cannot be wholly discarded. the only requirement is that their version should be corroborated from other reliable evidence.ramgopal and madan have sustained injuries during the incident and, therefore, their presence on the spot cannot be doubted. the incident had happened at 3 p.m. and they are the residents of neighbouring village and, therefore, there was no possibility of mistaken identification.it has also been submitted by the learned counsel for the state that though there has been compliance of requirement of section 157, criminal procedure code and the same was not challenged during cross-examination of the witnesses, but even if it is taken that there was no compliance the whole prosecution case cannot be thrown over board, specially in view of the presence of eye-witnesses account by five persons in the case.6. the injuries found on the body of deceased babulal has not been disputed during the course of arguments. pw 1 gulab, pw 2 badrilal, pw 3 kamdar, pw 7 ramgopal and pw 8 madan have supported the story of prosecution. the credibility of these witnesses has been vehemently attacked by the learned counsel for the defence.we would like to examine the evidence of pw 1 gulab, pw 2 badrilal and pw 3 kamdar first, as they were present on the spot from before the arrival of babulal, ramgopal and madan. pw 1 gulab has stated that he was present in the hut of one jhitra and was roasting maize. he also stated about the presence of jhitra, nanuram and kamdar.meanwhile, babulal, gopal and madan came from jungle and were going to village bachhanpur. thereafter, rajababu asked all the four accused persons to catch hold of them and to bring them before him. he further states that all the three were brought. they were being beaten by kimdis. he, further, states that accused rugga @ rughnath and jamiya caused injuries to babu, thereafter, naniya and gulab also caused injuries. he further states that he asked him, kamdar and nanuram to go and save babulal or else he may be beaten to death. he went to babulal, he was in severe pain. he along with other persons tried to save him. babulal walked few steps and fell down. he has further stated that kamdar and nanuram took babulal to village bachhanpur on a cot. similar statements have been given by pw 2 badrilal and pw 3 kamdar. all the three witnesses have admitted that they were detained in the police station for few days and were released thereafter.on the basis of this admission, learned counsel for the defence has submitted that since they were themselves suspected as persons involved in the case they cannot be relied on for basing the conviction of the accused persons.6a. even if as these three witnesses, referred above, were suspected at one stage of investigation, as being persons involved in the incident, their evidence cannot be totally rejected. however, the same will have to be accepted with caution and shall have to be scrutinised closely and further corroboration in the matter may be sought.these three witnesses firstly stand corroborated from the medical evidence as 11 injuries were found on the body of deceased babulal and 4 to 5 injuries each were found on the body of pw 7 ramgopal and pw 8 madan.7. pw 7 ramgopal and pw 8 madan have also given similar story. they have stated that these 4 accused persons caused injuries to babulal and to them also. they were medically examined. four to five injuries were found on the body of both these witnesses. since these two persons were also assaulted and sustained injuries during incident, therefore, their presence on the spot cannot be doubted.thus, these three witnesses referred above, stand corroborated fully from the evidence of these two witnesses.8. learned counsel for the defence has then submitted that even if the presence of these two witnesses ramgopal and madan at the place of incident is accepted, they cannot be relied as they did not know the accused persons from before.learned counsel has tried to support his arguments on the basis of admissions made by pw 1 gulab in para-6 of his statement that ramgopal and madan had inquired from him in village bachhanpur as to whether he knows and can identify the assailants and the same was answered in the affirmative by him (pw 1 gulab). the assailants are residents of neighbouring village and, therefore, it cannot be said that they were totally unknown to these witnesses i.e., madan and ramgopal. secondly, the incident has happened during day time at about 3 p.m. in the sun light and, therefore, there was no possibility of mistaken identification.9. even if the contentions of learned counsel are accepted for the sake of arguments that ramgopal and madan were not knowing these accused persons but they fully stand identified from the three witnesses referred above i.e., pw 1 gulab, pw 2 badrilal and pw 3 kamdar. since these three witnesses stand corroborated from the evidence of these two injured persons, that further fortifies their contention. it would no doubt has been prudent to hold identification parade with respect to witnesses who did not know the accused persons before occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in court. the weight to be attached to such identification would be a matter, of course, of fact. (air 1958 sc 350)in this case pws 1, 2 and 3 undisputedly knew all the accused persons from before. even if they are termed to be accomplished their testimony would only require independent corroboration and cannot be rejected wholly. presence of prosecution witnesses (pw 7 ramgopal and pw 8 madan), they being injured persons cannot be doubted and as referred above these three witnesses (pw 1, pw 2 and pw 3) stand fully corroborated from the evidence of pw 7 and pw 8. the names of these accused persons find place in the fir ex. p/9 also, which has been lodged by ramgopal pw 7.since these accused persons have been named in the fir, test identification parade was not required to be conducted. (dharamveer v. state of m. p., 1974(4) scc 150)thus, pw 1, pw 2 and pw 3 stand corroborated not only from the evidence of pw 7 ramgopal and pw 8 madan, but from the fir (ex. p/9), post mortem report (ex. p/14) and statement of dr. b. l. puri (pw 6). the injuries found on the body of pw 7 ramgopal and pw 8 madan have been proved by dr. j. s. awasiya (pw 5) vide exs. p/12 and p/ll respectively. jhitra pw 4 is also eye-witness of the incident. he has also stated that under the directions of accused rajababu all the 4 accused persons caught hold of ramgopal, madan and babu. they were carrying head load of kimdis. he has also stated that all the four caused injuries to madan, ramgopal and babulal.there is absolutely nothing in the cross-examination of this witness, which can render his evidence unreliable. thus, along with the five eye-witnesses referred above the eye witness account of pw 4 jhitra is also available in this case. this all goes to prove that the accused persons caused injuries to ramgopal and madan and further caused fatal injuries to babulal, in pursuance of common intention of their all.10. learned defence counsel, thereafter, submitted that, it has not been proved as to whether the information of fir was sent to the magistrate under section 157, criminal procedure code and, therefore, the fir (ex. p/9) would not be admissible in evidence.though, it is the requirement of law that the report of the offence, if any, be immediately sent to the magistrate having jurisdiction, but any irregularity in that will not be sufficient to throw the case of the prosecution over board. what is required is that the evidence should be closely scrutinized and the possibility as to whether fir has been antedated should also be examined.11. in this case, there is eye witness account of six witnesses. it is not the case of the defence that they are in any way on inimical terms with the accused persons and, therefore, the entire testimony of all the six eye-witnesses cannot be rejected merely because the fact of information being sent to magistrate under section 157, criminal procedure code, has not been proved.even otherwise, it appears that the same was not challenged at the earlier stage and now this point has been raised at appellate stage.12. learned counsel has referred to a case reported in 1958 mplj 65 = air 1958 m. p. 54, and submitted that police officer was interested in the success of the prosecution and he has done much padding in the case.we are in agreement with the observations made by division bench of this court that, the police are too often tempted to introduce padding in a case in their over-zealousness to establish a charge, which they believe to be true in support of which the evidence in their possession is weak and this practice has to be condemned. we do not find that padding. in this case, all the six eye-witnesses referred above, with no inimical terms with accused are not likely to speak falsely against them and, therefore, the case referred does not help the accused persons in any way.13. learned counsel, thereafter, referred to a case reported in 1993 jlj 90 and submitted that the prosecution has failed to prove prompt compliance of section 157 of the criminal procedure code and, therefore, the same ought to be accepted to be antetimed. we do not agree with this contention of the learned counsel as the observation in that case was made in view of the special facts of that case. here is the case in which the prosecution rests on eye-witness account given by 6 eye-witnesses.14. learned counsel, thereafter, tried to show minor inconsistencies in the statement of these eye-witnesses. in our opinion the eye-witnesses' account of the witnesses cannot be rejected because of minor inconsistencies in their statements. it is a matter of common experience that if parrot like story is not given, by the witnesses, the same is bound to have some discrepancies. every person who witnesses an offence tries to describe it from his own angle and according to his own perception. under these circumstances, certain differences are bound to occur, but evidence of eye witness if it is otherwise reliable, cannot be rejected merely because of minor discrepancies, differences or contradictions.in our opinion, therefore, it has rightly been found that' accused persons i.e., appellants nos. 1 to 4 have caused injuries to ramgopal, madan and babulal and babulal died in consequence of injuries caused by them.learned trial judge has found them guilty for murder, but looking to the size of sticks used for beating we do not believe that they really wanted to commit murder of babulal. however, injuries were caused on vital part of the body and, therefore, it cannot be assumed that they had knowledge of likelihood of murder. in our opinion, therefore, the accused persons cannot be taken to be guilty of murder under section 302, indian penal code, but they shall definitely be held responsible for culpable homicide not amounting to murder i.e., causing injuries with a knowledge of likelihood of death, which is punishable under section 304(ii) of the indian penal code.15. learned counsel for the defence has submitted that rajababu (accused-appellant no. 5) has been acquitted of the offence of murder, but has been convicted under section 341 of the indian penal code and since there was no charge of wrongful confinement and wrongful restraint he cannot be convicted for the same.accused rajababu was also charged under section 302, indian penal code. it has been proved beyond reasonable doubt that the two injured persons ramgopal and madan and deceased babulal were brought by force by accused appellants nos. 1 to 4 under orders of rajababu.16. asking a person to go to a particular direction would amount to a wrongful confinement. the wrongful restraint would be an offence when a person is prevented from proceeding towards a particular direction. here the injured and deceased were forced to walk to a particular direction under duress and because of fear and, therefore, the offence would amount to wrongful confinement. rajababu has been convicted for a lesser offence.17. from the evidence above, it appears that the whole incident happened under the orders and directions of rajababu (appellant no. 5) and his acquittal in the case does not appear to be justified, but there is no appeal against him by the state and, therefore, we refrain to express further opinion in the matter.18. now, so far as the objection as to the nature of offence and punishment for minor offence is concerned, in our opinion, a person charged for murder can be convicted under section 342 or 341 like offence under section 411, indian penal code when he is found in possession of some stolen property.19. as a result, the appeal filed by rajababu, appellant no. 5 fails and is dismissed. the appeals of accused appellants nos. 1 to 4 viz. naniya @ nanuram, gulab s/o gopiya, jamiya @ jamsingh and rugga @ rughnath are partly accepted. they are acquitted of the offence punishable under section 302, indian penal code i.e., for committing murder of babulal. however, they are convicted under section 304(ii), indian penal code for culpable homicide not amounting to murder and sentenced to imprisonment for 7 years each, with a fine of rs. 2000/- each; in default of payment of fine they shall further undergo r.i. for ten months. the fine, if recovered, rs. 5,000/- be paid to the heirs of deceased babulal, as compensation.so far as the appeal of naniya and gulab against their conviction under section 323 read with section 34, indian penal code for causing injuries to ramgopal and madan is concerned the same is dismissed and the sentences imposed are also affirmed. sentences shall run concurrently.the accused-appellants are on bail, they shall surrender before the c.j.m., dhar on or before 5-12-1994 for serving out the remaining part of the sentences, as awarded.