“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1025 OF 2006

Munna @ Pooran Yadav …. Appellant (s)

Versus

State of Madhya Pradesh …. Respondent (s)

J U D G M E N T

V.S. SIRPURKAR, J.

1. The Appellant herein challenges his conviction for an offence

under Section 302 for having committed murder of one Chhota S/o

Gariba.   Initially  three accused persons  were tried for  the  offence

under Section 302 read with Section 34 IPC as also under Section

302 simpliciter.  They were Munna @ Puran Chamar (Yadav)  S/o

Khusali Chamar (A-1),  Barra @ Radhacharan S/o Kallu Chamar (A-

2) and Brijlal S/o Devicharan Chamar (A-3).  In addition to the above

charge under Section 302, Munna was also tried for an offence under

Sections 25 and 27 of Indian Arms Act. 1st Additional Sessions Judge

Chhattarpur,  M.P.  convicted  the  appellant  under  Section  302

Simpliciter  and sentenced him to suffer rigorous imprisonment for life

while acquitting him from the charges under Sections 25 and 27 of

Arms  Act  whereas  the  other  two  co-accused  were  convicted  for

offence under Section 302 read with Section 34 IPC.   

2. Two Criminal Appeals came to be filed before the High Court of

Madhya Pradesh; one being by the appellant Munna (Accused No. 1)

and Brijlal (Accused No.3) while another appeal came to be filed by

Barra @ Radhacharan (Accused No. 2).  The High Court allowed the

appeal  in  the  case  of  Accused  No.  2  and  Accused  No.  3  and

acquitted them of the charge under Section 302 read with Section 34

IPC.  However, the appeal of the present appellant Munna (Accused

No.1) was dismissed confirming his conviction for an offence under

Section 302 IPC.  It is this judgment which is in challenge before us.

3. The prosecution story is based on the First Information Report

(Ex. P-11)  lodged by Gariba (P.W.4),  the father of  the deceased

Chhota  on  01.02.1997  to  the  effect  that  in  the  morning,  three

accused  persons  came  to  his  house  when  his  son  Chhota  was

sleeping.   The  appellant  then  entered  the  house  and  took  away

Chhota to  a  nearby place  -  Chamrola   (the  platform used by the

villagers for  chit- chatting etc.).  It was further alleged that while the

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two acquitted accused  caught hold of  Chhota  by his hands, the

appellant Munna fired at Chhota due to which he fell down and died

on the spot.   On that  basis  the investigation started and after  the

completion of the investigation, all the accused  were tried before the

1st  Additional Sessions Judge, Chattarpur.  On their conviction, all

the accused filed appeals before the High Court which resulted in the

conviction of the appellant being confirmed.

4. Shri  S.K.  Gambhir,  learned  Senior  Counsel  appearing  on

behalf of the appellant firstly contended that the High Court was not

justified  in  relying  upon  the  evidence  of  sole  eye  witness  Gariba

(P.W.4) on account of his interest and secondly as his evidence was

disbelieved insofar as it related to the original accused no. 2- Barra

and accused no.  3 -  Brijlal.   He further  pointed  out  that  the First

Information Report in this case was obviously incorrect as the timings

of  the  First  Information  Report  could  not  match  with  the  oral

testimony  of  Gariba  (P.W.4),   in  that,  he  submitted  that  had  the

incident taken place at about 7 O’clock in the morning and the police

station  at  Jujharnagar  being  six  kilometres  away,  the  First

Information Report could not have been lodged at 8.05 O’clock as in

fact  much  time  was  spent  in  contacting  the  other  persons  who,

admittedly,  attended  the  Police  Station  alongwith  P.W.4  -  Gariba.

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The  learned  senior  counsel,  therefore,  says  that  the  whole

prosecution story itself becomes  suspect.

5. The learned senior counsel next contended that Chhota himself

was a dreaded criminal and, therefore, a number of persons in and

around the village were his enemies.  The learned counsel argued

that it may be that Chhota was found dead outside his house and not

knowing  as  to  who  had  killed  Chhota,  his  father  had  falsely

implicated  the three accused persons who had no reason,  atleast

visible  reason  to  commit  murder  of  Chhota.   The  learned  senior

counsel also took us through the post mortem report to suggest that

the death had occurred much earlier to the time indicated in the post

mortem report.  We were taken through the medical evidence more

particularly of  Dr.  S.S. Chourasia (P.W.  2).   Lastly,  learned senior

counsel  suggested  that  the  evidences  of  other  witnesses  like

Ambika Prasad (P.W.1) as also of Sunderlal Vishwakarma (P.W.3),

Mstt. Munni Bai (P.W.5) and Rahmat (P.W.8) could not be believed

and according to the learned senior counsel both the  courts below

erred in accepting that evidence.

6. As  against  this,  Shri  Siddhartha  Dave,  learned  counsel

appearing  on  behalf  of  the  State  supported  the  conviction  and

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pointed out that there was no reason for Gariba (P.W.4) to falsely

implicate the accused.  He pointed out that it was quite possible for

Gariba to reach the police station at about 8 O’clock in the morning

and to  lodge the First Information Report.  He also pointed out that

the medical evidence as well as the post mortem report itself showed

that  the  death  had  taken  place  at  the  time  as  indicated  in  post

mortem report and thus supports the evidence of the doctor.  Lastly,

the learned counsel pointed out that the other witnesses were rightly

believed  by  the  Sessions  Court  as  well  as  the  High  Court  as

corroborative evidence of Gariba (P.W. 4)

7. It is on this backdrop that we have to consider the correctness

of the judgment.

8. The first and the foremost thing is that the homicidal death of

Chhota  by firing is not disputed.  There is practically no challenge to

the evidence of the Dr. S.S. Chaurasia (P.W.2) who asserted that the

deceased had died due to the bullet wound which was slightly below

the back  side of  the neck and the  bullet  turned towards the right

rupturing  internal  organs  and  breaking  bones  of  right  side  ribs

stopped below the skin.   In para 9 of his examination in chief,  he

opined  that  the death of the deceased was caused due to shock

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suffered  due to  firearm injury to  him.    There is  hardly any cross

examination of the witness except a feeble suggestion that the injury

could not be sustained if the bullet is fired from the sides.  One other

suggestion  was regarding the  timing  of  injury in  which the  doctor

affirmed that there could be difference of 2-3 hours in the period of

injury.   The  learned  counsel  for  defence  argued  that  in  the  post

mortem report,  it  was indicated that the timing of injury and death

could be about 24 hours to 36 hours earlier from the time of post

mortem.  The post mortem was conducted on 02.02.1997, i.e.  the

next day at 9.00 a.m.  From this, the learned counsel argued that if

36 hours have to be counted backwards from 9.00 a.m. on 2.2.1997,

then the death of  Chhota could not have occurred in the morning but

it must be somewhere at night between 01.02.1997 and 02.02.1997.

It  was on this  basis  that  the learned counsel  tried to  develop his

theory of false implication as also the wrong timing of filing of F.I.R.  

9. This basic premise about the hour of death is wholly incorrect.

The post mortem clearly suggests that the death must have occurred

between 24 hours to 36 hours.  Therefore, if the death is 24 hours

prior  to  the  post  mortem with  a  difference  of  about  2-3  hours  as

admitted by the doctor in his cross examination then it is obvious that

the death might have occurred in the morning of 01.02.1997 which

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completely matches the testimony of Gariba (P.W.4).  It is nowhere

tried to be brought out in the cross-examination that the death had

not occurred 24 hours prior to the post mortem examination or that it

had occurred much before that; i.e. about 36 hours.  No suggestion

was put to the doctor nor was the post mortem report assailed in the

cross  examination  on  that  particular  aspect.   The  learned  senior

counsel argued that it  was the duty of the prosecution to establish

the timing of injury and the death and that it had failed to establish

the exact hour.  We do not agree with this contention in as-much-as

the  post  mortem  report  specifically  states  that  the  death  had

occurred 24 hours prior  to the post  mortem was conducted.   We,

therefore, reject the contention of the learned senior counsel that the

death must have occurred much more than 24 hours earlier to the

hour of the post mortem  near about 36 hours.

10. Once this basic argument is rejected, the rest of the arguments

based on this very aspect  predominantly  must fall and the argument

that  Chhota was already dead at  night  and only was found to  be

shown  in the morning has to be rejected.

11. Further,  learned senior  counsel  had developed an argument

that the three accused had never come to the house of the deceased

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nor did the appellant enter the house of the deceased. On seeing the

evidence of Gariba (P.W.4), Munni Bai (P.W.5) and Rahmat (P.W.8),

there  is  nothing  to  disbelieve   their  evidences.   Gariba  (P.W.4)

specifically deposed that the three accused had come and appellant

had  actually  entered  the  house.   It  was  tried  to  suggest  by  the

learned senior counsel that this was not possible since the appellant

had never earlier entered the house of Gariba.  In our opinion, such a

plea is  not  possible.   True,  it  is  that  Gariba (P.W.4)  is  a  relation

witness and as such requires a closer scrutiny keeping that factor in

mind.  When we see the judgment of the High Court, it is clear that

the High Court was quite alive to the fact that it was the evidence of a

near  relation  and  therefore  court  had  to  use  caution.   We  are

satisfied that  such caution  was exercised by the High Court  while

appreciating the evidence of Gariba (P.W.4) and the High Court was

right in accepting the evidence of Gariba.  The rule of appreciation of

a  relation  witness  is  now  well-settled.  The  court  should  not  only

exercise  the  caution  while  appreciating  such  evidence,  but  also  it

should be seen from the judgment.  We do find that the courts below

have not  only exercised  caution   but  it  is  also  apparent  from the

judgments that such caution is in fact exercised.   

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12. The defence counsel tried to suggest that Gariba (P.W.4) had

falsely implicated Barra (A-2) and Brijlal (A-3) and that the High Court

had in fact disbelieved the evidence of the witness in so far as those

two  accused  are  concerned  and  hence  his  evidence  should  be

disbelieved even as  regards  the  appellant,  we do not  agree.  The

High Court has only exercised a cautious approach in partly rejecting

Gariba’s  evidence.   The  High  Court  realised  the  fact  that  when

Gariba (P.W.4) related the incident to other witnesses, he had not

mentioned the names of Brijlal (A-3)  and  Barra (A-2) nor had he

suggested that they had caught hold of the deceased and thereafter

Munna (A-1) had shot fire from the fire arm.  The High Court also had

realized that  Gariba (P.W.4) was a  sole eye-witness to  the incident

and as he has not attributed any role to accused nos. 2 and 3, those

accused should get the benefit of doubt.   We do not attach much

importance  to  this  kind  of  rejection  of  the  evidence  of  the  eye-

witness.  It is not as if Gariba (P.W.4) was totally disbelieved nor was

a finding recorded by the courts below that he had falsely implicated

the two accused persons.  The High Court merely gave the benefit of

doubt  to those two accused considering that  immediately after  the

incident,  the witness had not stated the above story regarding the

role played by the two accused  persons to Munni Bai (P.W.5) and

Rahmat (P.W.8).  It is one thing to disbelieve the witness and to give

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benefit of doubt to the accused on the basis of that evidence and it is

quite another  to hold that the witness had deliberately and falsely

implicated the two other accused.  That did not happen in this case.

A criticism would have been justified had the finding been that Gariba

(P.W.4)  deliberately and falsely implicated the two accused in this

case.  However, that did not happen.  The High Court merely gave

the benefit of doubt to accused nos. 2 and 3 and, therefore, it was

quite  justifiable  to  believe  the  testimony  as  against  the  appellant

while granting benefit of doubt to accused nos. 2 and 3.  Obviously

the theory of falsus in  uno, falsus omnibus has long back ceased to

apply  in  our  criminal  jurisprudence.   We,  therefore,  do  not  see

anything wrong in the High Court accepting the evidence of P.W.4

against the appellant which evidence was well corroborated by the

evidence of Munni Bai (P.W.5) and Rahmat (P.W.8).  They were the

witnesses  who  were  informed  about  the  role  of  Munna  almost

immediately after the incident.

13. Much was tried to be suggested about the time of F.I.R.  We

have seen  the  original  Hindi  First  Information  Report  as  also  the

original Hindi evidence of the witness.  The witness has specifically

stated that the time was the day-break time, sun was about to rise

(Din Nikalne me thaa).  Considering that the witness was not a literate

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witness and did not know how to read the watch, the mention of 7

O’clock  as  the  time  of  incident  in  the  First  Information  Report

appears to be the handiwork of the person who recorded the First

Information  Report.   Much   importance  cannot  be  given  to  such

insignificant  factors.   Much  was  tried  to  be  suggested  from  the

evidence of  Gariba (P.W.4)  that  immediately after  the incident,  he

went to the neighbours, like Ambika Prasad (P.W.1) and Sunderlal

Vishwakarma (P.W.3) and substantial time was spent and, therefore,

he  could  not  have  reached  alongwith  all  those  persons  to

Jujharnagar  police  station  at  about  8  O’clock  which  was  six

kilometers away.  In our considered opinion, such criticism has no

merits.  Nothing has come in the evidence as to how these persons

reached the police station.  There is no cross examination to any of

these  witnesses  regarding  the  time  taken  from  the  village  to  the

police station.  If that is so, it would not be possible to reject the First

Information Report on that flimsy ground alone.  Again the distance

between the  village  and  the  police  station  which is  given  in  First

Information  Report  is  six  kilometers  approximately.   That  in  our

opinion is not such a distance which would not be covered within an

hour or so.  Giving overall consideration to this aspect, we are of the

opinion that  the First  Information Report  was a genuine document

and was correctly recorded at the time when it was given and there is

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nothing  unusual  in  the  timings  of  First  Information  Report.   We,

therefore, reject the argument of the defence on that ground.

14. Learned  counsel  relied  on  a  reported  decision  in  Akhil  Ali

Jehangir Ali Sayyed vs. State of Maharashtra {(2003) 2 SCC 708}

in  support  of  his  contention,  that  if  the  two  other  accused  were

acquitted on the similar kind of evidence, the appellant  should not

have  been  convicted.   The  learned  senior  counsel  invited  our

attention to para 6 which is to the following effect :

“6…… As the second accused Jabbar was placed in the same situation as the appellant in this case (if not lesser), Article 21 of the Constitution

would not permit us to deny the same benefit to the second accused,

notwithstanding the fact that the SLP and the review application filed by

him have been dismissed by this Court….”

We do not think that this court has laid down any such law that

when the two other accused persons are acquitted (by giving benefit

of  doubt),  the third one must  be given the same benefit  of  doubt.

Such is not a law laid down.  We cannot apply the principle of parity

in this case where it is specifically proved that it was the appellant

alone who whipped out the gun and fired at the deceased killing him

instantly.  Such evidence was not available against the two acquitted

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accused.  We, therefore, reject the argument that by reason of parity,

the appellant should also be acquitted.  

15. The learned counsel also relied on another judgment reported

in  Bhagirath vs.  State of Madhya Pradesh { (1976) 1 SCC 20}

and more particularly the observations in  para 18 which are to the

following effect :

“18...  when  the  substratum  of  the  evidence  given  by  the

eyewitnesses examined by the prosecution was found to be false, the only

prudent course, in the circumstances of this case, left to the court was to

throw out by the prosecution case in its entirety against all the accused”

Whereas  in  the  present  case  case,  the  substratum  of  the

evidence of P.W. 4 has not been found to be false.  On the other

hand,  both  the  courts  below  have  rightly  chosen  and  relied  on

prosecution evidence.

16. Lastly,  almost  by way of  a  desperate  argument,  the  learned

senior counsel tried to argue on the nature of the offence.  It was the

contention of  the learned counsel  that  doctor  had opined that  the

death had been caused by shock, and since  the said shock had not

been caused by the appellant,  the offence could  not  be  the one

under  Section  302 IPC but  would  be a  minor  offence.   We have

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recorded this contention only for being rejected.  The doctor has very

clearly  opined  that  the  shock  was  the  result  of  the  firing  by  the

appellant.  In that view, the argument is rejected.

17. Learned  senior  counsel  also  argued  that  since  there  was

solitary   eye-witness, his evidence should have been rejected.

18. Learned counsel appearing on behalf of the State relied on the

decision reported in  Kunju Alias Balachandran vs. State of Tamil

Nadu {(2008)  2  SCC  151} which  deals  with  the  subject  of  the

appreciation of the single eye-witness.  This Court following the oftly

quoted decision in  Vadivelu Thevar vs. State of Madras [ AIR 1957

SC 614] and accepting that decision came to the conclusion that this

court  can  and  may  convict  relying  on  the  testimony  of  a   single

witness provided he is wholly reliable and that  there was no legal

impediment in convicting a person on the sole testimony of a single

witness.  In the present case,  not only was the evidence of PW-4

Gariba  acceptable  but  it  was  also  corroborated  by his  immediate

disclosure to P.W.5 and P.W.8.  It was, therefore, rightly   accepted

and   acted   upon. The contentions of     the      learned     senior

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counsel    for   the      defence    must be rejected.  In short, we do

not find any merit in the present appeal and it is dismissed.

19. It is reported that the appellant was released on bail during the

pendency of his appeal.   The State shall  take immediate steps to

arrest him by issuing Non-bailable warrants against him and arrest

him for undergoing the rest of the sentence.

………………………………..J. ( D.K. Jain )

………………………………..J. (V.S. Sirpurkar)

New Delhi; November  4, 2008.

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