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CASE NO.: Appeal (crl.)  939 of 2004

PETITIONER: Mishrilal & Ors.

RESPONDENT: State of M.P. & Ors.

DATE OF JUDGMENT: 11/05/2005

BENCH: K.G. BALAKRISHNAN & B.N. SRIKRISHNA

JUDGMENT: J U D G M E N T

K.G. BALAKRISHNAN, J.

       The four appellants along with two others were found guilty of  the offence punishable under Section 302 read with Section 149 IPC.   They were also found guilty of the offence under Section 148 IPC.  The  appellants preferred an appeal before the High Court and the same  was dismissed.    Hence, they challenge their conviction  and  sentence  in this appeal.

       The incident giving rise to the present appeal happened on  22.7.1990 at about 6.00 p.m.  PW-1 Kammod, PW-2 Mokam Singh  and deceased Balmukund were grazing the cattle in their fields.  The  appellants along with their accomplices came there and attacked  Balmukund  and PW-2 Mokam Singh.   Appellants Mishrilal and Lallu @  Lalaram were armed with axe and A-3 Kamoda @ Kamod Singh was  armed with ’lathi’  while A-4 Narayan Singh was armed with a  ’Luhangi.’  The prosecution case is that all of them caused injuries to  deceased Balmukund.  PW 1 Kammod later went to the Police Station  at Bajranggarh and gave information about the incident.

       On the side of the prosecution, 8 witnesses were examined.   PWs 1 to 4 are eye witnesses.  The evidence of PW 4 Mathura Lal was  not accepted by the Sessions Judge as his name was not mentioned in  the F.I. Statement.  The Sessions Court relied on the evidence of PW 1  to PW 3.  The High Court also accepted the evidence of PW 1 to PW 3.

       We heard the learned Counsel for the appellants and learned  Counsel on behalf of the respondents.  The learned Counsel for the  appellants seriously contended before us that the incident happened  after the sunset and these witnesses could not have identified the  assailants.  It was pointed out that these witnesses were standing at a  distance and due to paucity of light, they had no opportunity to  identify the assailants.  We are not inclined to accept this contention,  for the reason that  the incident  is alleged to have happened at about  6’o Clock in the evening and the prosecution case is that  deceased  Balmukund as well as PW 1 and PW 2 were grazing the cattle in their  field at that time  and  there would not have been much darkness.   Moreover, in the cross-examination of PW 1, there is not even a  suggestion that there was no light and they were unable to see the  incident,  though, of course, there was a suggestion  to the effect that  the witnesses PW 1 and PW 2 must have been standing at a distance.

       The learned Counsel for the appellants seriously attacked the  evidence of PW 2 Mokam Singh.  This witness was examined by the  Sessions Judge on 6.2.1991 and  cross-examined on the same day by  the defence counsel.  Thereafter,  it seems,  that on behalf of the  accused persons an application was filed and PW 2 Mokam Singh was

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recalled.  PW-2 was again examined and cross-examined on  31.7.1991.  It may be noted that some of the persons who were  allegedly involved in this incident were minors and their case was tried  by the Juvenile Court.  PW 2 Mokam Singh was also  examined as a  witness in the  case before the Juvenile court.  In the Juvenile Court,  he gave evidence to the effect that he was not aware of the persons  who had attacked him and on hearing the voice of the assailants, he  assumed that they were some Banjaras.   Upon recalling,  PW-2  Mokam Singh  was confronted  with the evidence he had given later  before the Juvenile Court on the  basis of which the accused persons  were acquitted of the charge under Section 307 IPC for having made  an attempt on the life of this witness.  

       In our opinion, the procedure adopted by the Sessions Judge  was not strictly in accordance with law.  Once the  witness was  examined in-chief and cross-examined  fully, such witness should not  have been recalled and re-examined to deny the evidence he had  already given before the court,   even though that witness had given  an inconsistent statement before any other court or forum  subsequently.  A witness could be confronted only with  a previous  statement made by him.  At  the time of examination of PW 2 Mokam  Singh on 6.2.1991, there was no such previous statement and the  defence counsel did not confront  him with any  statement alleged to  have been made previously.   This witness must have given some  other version before the Juvenile Court for extraneous reasons and he  should not have been given a further opportunity at a later stage to  completely efface the evidence already given by him under oath.   The  courts have to  follow the procedures strictly and cannot allow a  witness to escape  the legal  action for giving false evidence before the  court on mere explanation that he had given it under the pressure of  the police or some other reason.  Whenever the witness speaks  falsehood in the court,  and  it is proved satisfactorily,  the court  should take a serious action against such  witnesses.

       PW 2 Mokam Singh, when examined on 6-2-1991,  gave  evidence to the effect that he and deceased Balmukund were attacked  by the appellants herein.  PW-3 is the daughter of the deceased  Balmukund.  She had also given evidence to the effect that these four  appellants came  to the place of  incident and caused injuries to her  father Balmukund and PW 2 Mokam Singh.  She also deposed that the  accused persons were carrying axe, farsa, lathis and some other  weapons.

       The medical evidence in this case shows that deceased  Balmukund had sustained as many as 8 injuries. Except one injury, all  others were lacerated injuries.  The learned Counsel for the appellants  submitted that there is no evidence to show that appellants Mishrilal  and  Lallu @ Lalaram caused injuries with an axe  and  that there is no  corresponding incised injury on the head of the deceased and hence  the medical evidence is in conflict with the evidence of the eye- witnesses.      That plea also is not correct as the post-mortem certificate  shows that there was an injury on the head  of the deceased which  must have been caused by the appellant Mishrilal.  Injury nos. 1 and 3  are on the left fronto-temporo parietal region and mid parietal region.   The blunt edge of the axe must have been used to cause these  injuries.

       The evidence of the three witnesses, namely PW-1 to PW-3,  coupled with the medical evidence satisfactorily proved that the  appellants had committed  the offence as alleged by the prosecution.   There is, therefore, no reason to interfere with the conviction and   sentence  entered against the appellants.  The appeal is without any  merits and is dismissed accordingly.

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                                                       \005\005....\005\005\005\005\005\005 \005\005\005\005J.                                                         (K.G. BALAKRISHNAN)

                                                       \005\005\005\005\005\005\005\005\005 \005\005\005\005.J.                                                         (B.N. SRIKRISHNA)

New Delhi May 11.   2005.   

                       IN THE SUPREME COURT OF INDIA                         CRIMINAL APPELLATE JURISDICTION                         CRIMINAL APPEAL NO. 939 OF 2004

Mishrilal & Ors.                                                        \005..Appellants                 Versus State of M.P. & Ors.                                                    \005..Respondents

                                       J U D G M E N T K.G. Balakrishnan, J.

       The four appellants along with two others were found guilty for the offence  punishable under Section 302 read with Section 149 IPC.  They were also found  guilty of the offence under Section 148 IPC.  The appellants had preferred an  appeal before the High Court and the same was dismissed. Hence, they  challenge their conviction sentence.

       The incident happened on 22.7.1990 at about 6.00 p.m.  PW 1 Kammod,  PW 2 Mokam Singh and deceased Balmukund were grazing the cattle in their  fields.  The appellants alongwith others came there and attacked Balmukund and  PW 2 Mokam Singh.  The appellants Mishrilal and Lallu @ Lalaram were armed  with axe and A-3 Kamoda @ Kamod Singh was armed with lathi and A-4  Narayan Singh was armed with Luhangi.  The prosecution case is that all of them  caused injuries to deceased Balmukund.  PW 1 Kammod later went to the Police  Station at Bajranggarh and gave information about the incident.

       On the side of the prosecution, 8 witnesses were examined.  PWs 1 to 4  are eye witnesses.  The evidence of PW 4 Mathura Lal was not accepted by the  Sessions Judge as his name was not mentioned in the FI Statement.  The  Sessions Court relied on the evidence of PW 1 to PW 3.  The High Court also  accepted the evidence of PW 1 to PW 3.

       We heard the learned Counsel for the appellants and learned Counsel on  behalf of the respondents.  The learned Counsel for the appellants seriously  contended before us that the incident happened after the sunset and these  witnesses could not have identified the assailants.  It was pointed out that these  witnesses were standing at a distance and due to paucity of light, they had no  opportunity to identify them.  We are not inclined to accept this contention for the  reason that the incident happened at about 6’o Clock in the evening.  Moreover,  the prosecution case is that the deceased Balmukund as well as PW 1 and PW 2  were grazing the cattle in their field and at that time there would not have been  much darkness.  Moreover, in the cross-examination of PW 1, there is not even a  suggestion that there was no light and they were unable to see the incident.  Of

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course, the suggestion was to the effect that the witnesses PW 1 and PW 2 must  have been standing at a distance.

       The learned Counsel for the appellants seriously attacked the evidence of  PW 2 Mokam Singh.  This witness was examined by the Sessions Judge on  6.2.1991 and he was cross-examined on the same day by the defence Counsel  and thereafter it seems that on behalf of the accused persons, an application was  filed to recall these witnesses and PW 2 Mokam Singh was recalled and  examined on 31.7.1991 for further cross-examination.  It may be noted that some  of the persons who were allegedly involved in this incident were minors and their  case was tried by the Juvenile Court.  PW 2 Mokam Singh was examined as a  witness in the Juvenile court.  In the Juvenile Court, he gave evidence to the  effect that he was not aware of the persons who had attacked him and on  hearing the voice of the assailants, he assumed that they were some Banjaras.   After recalling PW 2 Mokam Singh the evidence he had given later before the  Juvenile Court was confronted to the witnesses and based on that, the accused  persons were acquitted of the charge under Section 307 IPC for having made an  attempt on the life of this witness.  

       The procedure adopted by the Sessions Judge was not strictly in  accordance with law.  When once the witness was examined in-chief and cross- examined in full, and even if the witness had given any statement thereafter  before any other court or forum, such witnesses shall not be recalled and  examined to deny the evidence he had already given before the Court.  A  witness could be confronted only with previous statement made by him.  At the  time of examination of PW 2 Mokam Singh, there was no such previous  statement and the defence Counsel did not confront any statement made by him  previously.  The witness must have given some other version before the Juvenile  Court for extraneous reasons and he should not have been given a further  opportunity at a later stage to completely efface the evidence already given by  him under oath.  The courts have to view these things seriously, and the  witnesses often escape from any action for giving false evidence before the  Court on mere explanation that they had been giving it under the pressure of the  police or some other reason.  Whenever the witness speaks falsehood in court  and if it is proved satisfactorily, the court should take a serious action against  such persons.

       PW 2 Mokam Singh when examined on 6-2-1991 and gave evidence to  the effect that he and deceased Balmukund were attacked by the appellants  herein.  PW 3 is the daughter of the deceased Balmukund.  She had also given  evidence to the effect that these four appellants came there and caused injury to  her father Balmukund and PW 2 Mokam Singh.  She also deposed that the  accused persons were carrying axe, farsa, lathis and some other weapons.

       The medical evidence in this case shows that deceased Balmukund had  sustained as many as 8 injuries. Except one injury, all others were lacerated  injuries.  The learned Counsel for the appellants submitted that there is no  evidence to show that the appellant Mishrilal and appellant Lallu @ Lalaram  caused injury with an axe on the head and there is no corresponding incised  injury on the head and hence the medical evidence is in conflict with the  evidence of the eye-witnesses. That plea also is not correct as the post mortem  certificate shows that there was injury on his head which must have been caused  by the appellant Mishrilal.  Injury no. 1 and 3 are on the left fronto-temporo- parietal region and mid parietal region.  The blunt edge of the axe must have  been used to cause these injuries.

       The evidence of these three witnesses coupled with the medical evidence  satisfactorily proved that the appellants had committed an offence as alleged by  the prosecution.  There is no reason to interfere with the conviction sentence and  the appeal is without any merits and is accordingly dismissed.