Hansraj @ Hansu Shankar Gaud & Anr. Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No. 582 of 1992
Petitioner: Hansraj @ Hansu Shankar Gaud & Anr.
Respondent: State of Maharashtra
Apeal: Criminal Appeal No. 582 of 1992
Judges: DR. A.S.ANAND, CJI, R.C. LAHOTI & BRIJESH KUMAR, JJ.
Date of Judgment: Feb 15, 2001
Head Note:
CRIMINAL LAW
Evidence Act, 1872
a) Section 3 – Interested witness – Informant, a night watchman of a hotel, belonging to the deceased – Incident occurring at 6 a.m. – Various persons named – Some of the named accused acquit-ted by High Court. Held that would not make the witness untrust-worthy. “Falsus in uno, falsus in omnibus” is never accepted as an argument to discard the evidence.(Para 6)
b) Sections 3, 45 – Interested witness – Murder case – Informant eyewitness, a night watchman of a hotel, belonging to the deceased – Version contradicted by some observations in post mortem report – His statement, however, fully corroborated by other PWs. Held that post mortem report is not conclusive and cannot discredit the testimony.(Para 6)
PRACTICE AND PROCEDURE
Indian Penal Code, 1860
Sections 34,149 and 302 – Various accused charged under Section 302 read with Section 149 and in alternative under Section 302 read with Section 34 – Eight persons charged with the aid of Section 149, acquitted – If those convicted are entitled to acquittal. Held that they are not entitled as they were charged alternatively under Section 34 and evidence showed sharing of common intention. Dhanna’s case (JT 1996 (6) SC 652) referred. (Para 7)
Cases Reffered:
1. Dhanna etc. v. State of M.P. (JT 1996 (6) SC 652) (Para 7)
2. Amar Singh & Ors. v. State of Punjab (JT 1987 (1) SC 465) (Para 7)
2. Amar Singh & Ors. v. State of Punjab (JT 1987 (1) SC 465) (Para 7)
JUDGEMENT:
ORDER
1. For an occurrence which took place on 12th October, 1987 at about 6.00 a.m., in which Ramkishore died, 10 accused were sent up for trial. The trial court after perusing the investigation papers, framed charges against all the accused under Sections 144,148 and 302/149 IPC and in the alternative, a charge against all the accused under Section 302/34 IPC was also framed. After recording evidence the trial court convicted six of the accused persons namely, Hansraj Shankar Gaud (A-1), Prabhu Janu Urade (A-2), Prakash Bhiwa Paradhi (A-3), Amrut Shankar Gaud (A-8), Raju Shankar Gaud (A-9) and Navasha Shantaram Walvi (A-10). Rest of the accused were acquitted. The convicts challenged their conviction and sentence in the High Court through a criminal appeal and vide judgment dated 7-8 July, 1992, the High Court accepted the appeal of A-2, A-3, A-8 and A-10 and acquitted them of all the charges. Conviction and sentence of A-1 and A-9 were, however, upheld. They have through this appeal by special leave, challenged their conviction and sentence before us.
2. According to the prosecution case, on 12th October, 1987 at about 6.00 a.m. the accused party assaulted Ramkishore (deceased) owner of Madhu Vihar Hotel, Saki Vihar Lake near the hotel. At the time of assault, the night watchman of Madhu Vihar Hotel, Ahmed Sheikh, PW-2 was going to fetch milk for the hotel but on hearing shouts of ‘bachao bachao’ from the deceased, turned back and rushed towards the place of occurrence. He saw the appellants and others assaulting his master Ramkishore. The assailants also advanced towards him but PW-2 Ahmed Sheikh escaped and went to the hotel and informed Abhayraj PW-3, manager of the hotel. They both came to the spot where the deceased was found lying dead and the assailants had escaped. Both Ahmed Sheikh, PW-2 and Abhayraj, PW-3 proceeded towards the residence of the deceased to inform his family members and on the way met Amar Nath, PW-4, who owns a pan-patti shop and told him about the occurrence.
3. PW-2 Ahmed Sheikh went to police station Saki Naka where on his statement F.I.R. was recorded at about 7.00 p.m. on the same day by P.S.I. Ramdas, PW-23. In the FIR, PW-2 Ahmed Sheikh named A-1, A-2, A-3, A-9 and A-10 as the assailants besides 2/3 others without giving their names. Investigation was taken in hand and the accused were arrested on different dates. So far as Hansraj @ Hanshu Shankar Gaud (A-1) and Raju Shankar Gaud (A-9), the ap-pellants before us, are concerned, they were arrested on 14.10.1987 and 22.10.1987 respectively.
4. The prosecution in order to connect the appellants with the crime relied upon the evidence of eye-witnesses PW-2 Ahmed Sheikh and PW-5 Ramachal Pande. It also relied upon the evidence of PW-3 Abhayraj and PW-4 Amar Nath who had been informed of the occur-rence soon after it took place. Medical evidence was also relied upon as also recovery of blood-stained clothes of the accused at the time of their arrest and weapons of offence at their instance on disclosure statements made by them under Section 27 of the Evidence Act.
5. Mr. Raja B. Thakare, learned Counsel appearing for the appell-ants, in the first instance, submitted that the evidence of PW-2 Ahmed Sheikh did not merit acceptance as not only being a servant of the deceased, he was an interested witness but his conduct was also unnatural. It was also submitted that since the High Court had disbelieved PW-5 Ramachal Pande and had not relied upon either the recovery of blood-stained clothes or the recovery of weapons of offence at the instance of the appellants, the appell-ants were entitled to benefit of doubt, keeping in view the medical evidence of Dr. Mohan, PW-21, who had performed post mortem on the dead body of Ramkishore.
6. Both the trial court and the High Court have minutely gone through the evidence of the witnesses led by the prosecution. The evidence has been appreciated by both the courts minutely and it appears to us that appreciation of evidence, insofar as the complicity of A-1 and A-9, the appellants before us, is con-cerned, is both proper and sound. Merely because the other ac-cused, who were named by PW-2, have been acquitted by giving them the benefit of doubt, would not make the evidence of PW-2 Ahmed Sheikh totally untrustworthy. “Falsus in Uno Falsus in omnibus” has never been accepted as an argument to discard the evidence of a witness. It only puts the court on its guard to carefully appreciate his evidence. With the acquittal of A-4, A-5, A-6 and A-7 recorded by the trial court, the High Court was put on guard to scrutinize the evidence of PW-2 Ahmed Sheikh, PW-3 Abhayraj and PW-4 Amar Nath more closely and carefully. High Court has appreciated the evidence carefully. With a view to satisfy our judicial conscience, that appreciation of evidence of PW-2 by the High Court is proper, we have ourselves examined the evidence of PW-2 Ahmed Sheikh and are of the opinion that the appreciation of evidence by the High Court is perfectly sound and justified. Nothing of any consequence has been elicited in his evidence which may discredit his testimony despite lengthy and searching cross-examination. The argument based on the post mortem report cannot take the case of the appellants any further either. Medi-cal evidence is only an opinion evidence. It is hardly decisive and more often inconclusive. In the instant case, the observation of Dr. Mohan PW-21 against column no. 12 of the post mortem report, do not discredit the testimony of PW-2 Ahmed Sheikh, who has been amply corroborated by PW-3 Abhayraj and PW-4 Amar Nath. In view of the findings recorded by the High Court, with which we agree, the complicity of A-1 Hansraj Shankar Gaud and A-9 Raju Shankar Gaud in committing the murder of Ramkishore on the fate-ful day of 12th October, 1987 has been established by the prose-cution beyond every reasonable doubt.
7. Learned Counsel for the appellants then made an attempt to urge by reference to Amar Singh & Ors. v. State of Punjab (JT 1987 (1) SC 465) that with the acquittal of the remaining 8 accused, charge with the aid of Section 149 IPC was not permissible, insofar as A-1 and A-9 are concerned and on that ground, they were also entitled to an order of acquittal. We cannot agree. Not only there was an alternative charge framed against all the accused under Section 302/34 IPC in this case, but from the evidence recorded by the trial court and the findings recorded by the High Court it stands amply established that the appellants shared common intention while assaulting deceased Ramkishore, who succumbed to those injuries. On that ground itself, the argument of learned Counsel for the appellants cannot come to the aid of the appellants. (See with advantage Dhanna etc. v. State of M.P. (JT 1996 (6) SC 652).
8. Thus, for what we have said above, we find that the conviction for the offence under Section 302/34 IPC and sentence of life imprisonment and fine of Rs.
1,000/- (in default of payment of fine further R.I. for six months) recorded against the appellants is well merited and suffers from no infirmity. This appeal there-fore fails and is, hereby, dismissed.
9. The appellants are on bail. Their bail bonds shall stand cancelled. They shall surrender to their sureties or be otherwise taken into custody to undergo the remaining part of their sentence.
1. For an occurrence which took place on 12th October, 1987 at about 6.00 a.m., in which Ramkishore died, 10 accused were sent up for trial. The trial court after perusing the investigation papers, framed charges against all the accused under Sections 144,148 and 302/149 IPC and in the alternative, a charge against all the accused under Section 302/34 IPC was also framed. After recording evidence the trial court convicted six of the accused persons namely, Hansraj Shankar Gaud (A-1), Prabhu Janu Urade (A-2), Prakash Bhiwa Paradhi (A-3), Amrut Shankar Gaud (A-8), Raju Shankar Gaud (A-9) and Navasha Shantaram Walvi (A-10). Rest of the accused were acquitted. The convicts challenged their conviction and sentence in the High Court through a criminal appeal and vide judgment dated 7-8 July, 1992, the High Court accepted the appeal of A-2, A-3, A-8 and A-10 and acquitted them of all the charges. Conviction and sentence of A-1 and A-9 were, however, upheld. They have through this appeal by special leave, challenged their conviction and sentence before us.
2. According to the prosecution case, on 12th October, 1987 at about 6.00 a.m. the accused party assaulted Ramkishore (deceased) owner of Madhu Vihar Hotel, Saki Vihar Lake near the hotel. At the time of assault, the night watchman of Madhu Vihar Hotel, Ahmed Sheikh, PW-2 was going to fetch milk for the hotel but on hearing shouts of ‘bachao bachao’ from the deceased, turned back and rushed towards the place of occurrence. He saw the appellants and others assaulting his master Ramkishore. The assailants also advanced towards him but PW-2 Ahmed Sheikh escaped and went to the hotel and informed Abhayraj PW-3, manager of the hotel. They both came to the spot where the deceased was found lying dead and the assailants had escaped. Both Ahmed Sheikh, PW-2 and Abhayraj, PW-3 proceeded towards the residence of the deceased to inform his family members and on the way met Amar Nath, PW-4, who owns a pan-patti shop and told him about the occurrence.
3. PW-2 Ahmed Sheikh went to police station Saki Naka where on his statement F.I.R. was recorded at about 7.00 p.m. on the same day by P.S.I. Ramdas, PW-23. In the FIR, PW-2 Ahmed Sheikh named A-1, A-2, A-3, A-9 and A-10 as the assailants besides 2/3 others without giving their names. Investigation was taken in hand and the accused were arrested on different dates. So far as Hansraj @ Hanshu Shankar Gaud (A-1) and Raju Shankar Gaud (A-9), the ap-pellants before us, are concerned, they were arrested on 14.10.1987 and 22.10.1987 respectively.
4. The prosecution in order to connect the appellants with the crime relied upon the evidence of eye-witnesses PW-2 Ahmed Sheikh and PW-5 Ramachal Pande. It also relied upon the evidence of PW-3 Abhayraj and PW-4 Amar Nath who had been informed of the occur-rence soon after it took place. Medical evidence was also relied upon as also recovery of blood-stained clothes of the accused at the time of their arrest and weapons of offence at their instance on disclosure statements made by them under Section 27 of the Evidence Act.
5. Mr. Raja B. Thakare, learned Counsel appearing for the appell-ants, in the first instance, submitted that the evidence of PW-2 Ahmed Sheikh did not merit acceptance as not only being a servant of the deceased, he was an interested witness but his conduct was also unnatural. It was also submitted that since the High Court had disbelieved PW-5 Ramachal Pande and had not relied upon either the recovery of blood-stained clothes or the recovery of weapons of offence at the instance of the appellants, the appell-ants were entitled to benefit of doubt, keeping in view the medical evidence of Dr. Mohan, PW-21, who had performed post mortem on the dead body of Ramkishore.
6. Both the trial court and the High Court have minutely gone through the evidence of the witnesses led by the prosecution. The evidence has been appreciated by both the courts minutely and it appears to us that appreciation of evidence, insofar as the complicity of A-1 and A-9, the appellants before us, is con-cerned, is both proper and sound. Merely because the other ac-cused, who were named by PW-2, have been acquitted by giving them the benefit of doubt, would not make the evidence of PW-2 Ahmed Sheikh totally untrustworthy. “Falsus in Uno Falsus in omnibus” has never been accepted as an argument to discard the evidence of a witness. It only puts the court on its guard to carefully appreciate his evidence. With the acquittal of A-4, A-5, A-6 and A-7 recorded by the trial court, the High Court was put on guard to scrutinize the evidence of PW-2 Ahmed Sheikh, PW-3 Abhayraj and PW-4 Amar Nath more closely and carefully. High Court has appreciated the evidence carefully. With a view to satisfy our judicial conscience, that appreciation of evidence of PW-2 by the High Court is proper, we have ourselves examined the evidence of PW-2 Ahmed Sheikh and are of the opinion that the appreciation of evidence by the High Court is perfectly sound and justified. Nothing of any consequence has been elicited in his evidence which may discredit his testimony despite lengthy and searching cross-examination. The argument based on the post mortem report cannot take the case of the appellants any further either. Medi-cal evidence is only an opinion evidence. It is hardly decisive and more often inconclusive. In the instant case, the observation of Dr. Mohan PW-21 against column no. 12 of the post mortem report, do not discredit the testimony of PW-2 Ahmed Sheikh, who has been amply corroborated by PW-3 Abhayraj and PW-4 Amar Nath. In view of the findings recorded by the High Court, with which we agree, the complicity of A-1 Hansraj Shankar Gaud and A-9 Raju Shankar Gaud in committing the murder of Ramkishore on the fate-ful day of 12th October, 1987 has been established by the prose-cution beyond every reasonable doubt.
7. Learned Counsel for the appellants then made an attempt to urge by reference to Amar Singh & Ors. v. State of Punjab (JT 1987 (1) SC 465) that with the acquittal of the remaining 8 accused, charge with the aid of Section 149 IPC was not permissible, insofar as A-1 and A-9 are concerned and on that ground, they were also entitled to an order of acquittal. We cannot agree. Not only there was an alternative charge framed against all the accused under Section 302/34 IPC in this case, but from the evidence recorded by the trial court and the findings recorded by the High Court it stands amply established that the appellants shared common intention while assaulting deceased Ramkishore, who succumbed to those injuries. On that ground itself, the argument of learned Counsel for the appellants cannot come to the aid of the appellants. (See with advantage Dhanna etc. v. State of M.P. (JT 1996 (6) SC 652).
8. Thus, for what we have said above, we find that the conviction for the offence under Section 302/34 IPC and sentence of life imprisonment and fine of Rs.
1,000/- (in default of payment of fine further R.I. for six months) recorded against the appellants is well merited and suffers from no infirmity. This appeal there-fore fails and is, hereby, dismissed.
9. The appellants are on bail. Their bail bonds shall stand cancelled. They shall surrender to their sureties or be otherwise taken into custody to undergo the remaining part of their sentence.
