KHUJJIALIASSURENDRA TIWARI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal by special leave is preferred by the appellant Khujji alias Surender Tiwari who has been convicted by both the courts below under S. 302, IPC, for the murder of one Gulab. The facts leading to this appeal, briefly stated, are that on the evening of May 20, 1978 the deceased Gulab and his companion PW 4 Ramesh Chander hired a Rickshaw to go to the dispensary of Dr. Mukherjee. PW 3 Kishan Lal pulled the Rickshaw and while he was passing through Suji Mohalla near Panchsheel Talkies the appellant and his companions surrounded the Rickshaw and launched an attack on the deceased and his companion. PW4 was the first to receive an injury by a cycle chain. Sensing trouble both Gulab and PW 4 jumped out of the Rickshaw and ran in different ,directions. Gulab ran towards Suji Mohalla whereas PW 4 ran towards Panchsheel Talkies. They were chased by the assaillants who formed themselves into two groups. PW4 was fortunate enough to escape with not too serious an injury but his companion Gulab received stab wounds to which he succumbed on the spot. The evidence of PW 12 Dr. Nagpal shows that the deceased had received three injuries, namely, (i) a penetrating stab wound with a second injury on the intercostal space on right side rib of the size of 3 cms x 5 cms x 1 cm, (ii) a piercing stab wound 8 cms below the scapular bone and 8 cms outside the vertibral column of the size of 2.5 cms x 1.5 cms. x 3 cms., and (iii) an incised wound on the frontal auxiliary line 2.5 cms x 1.5 cms x 2 cms deep on the left hipocardium region. This witness, who performed the postmortem, deposed that injury No. 1 which had injured the heart was sufficient in the ordinary course of nature to cause death. He further stated that all the three injuries were collectively sufficient to cause death in ordinary course of nature. The three articles, namely, the knife, the chhuri and the chhura which were attached in the course of investigation were shown to this witness and he stated that the three injuries were possible by the aforesaid articles. It is clear from this evidence that Gulab died a homicidal death.

(2.) To bring home the guilt against the appellant the prosecution placed reliance on the evidence of three eye-witnesses, namely, PW 1 Komal Chand (an on-looker), PW 3 Kishan Lal (the Rickshaw Puller) and PW 4 Ramesh (the companion of the deceased) besides the find of human blood on the weapon discovered at the instance of the appellant and on the Pant which he was wearing at the time of his arrest.

(3.) The First Information Report, Exh. P-3, was lodged by PW 4 Ramesh immediately after the incident and the same was recorded by the Investigating Officer PW 13 Ramjisingh at about 9.15 p.m. In the said first information report PW4 gave the details regarding the incident and furnished the names of all the six assailants. Soon after the first information report was lodged the Investigating Officer visited the scene of occurrence and drew up the Panchnama on the basis of which a sketch plan Exh.P-20A was prepared in due course. The appellant and some of his companions could not be traced till May 22, 1978. After they were traced, they were interrogated and on their expressing willingness to discover the weapons used in the commission of the crime, the Investigating Officer summoned two witnesses, namely, PW 5 Panna Lal and Rajinder to act as Panch witnesses. The prosecution case is that in the presence of these witnesses the appellant and his companions made certain confessional statements under S. 27 of Evidence Act which led to the discovery of the weapons used in the commission of the crime. According to the prosecution the appellant Khujji discovered a chhura (knife) from his garage and the same was attached under the Panchnama Exh.P-9. Since this weapon had blood-like stains, it was sent to the Chemical Analyser and Serologist for examination and report. The report indicates that it was stained with human blood but the blood group could not be determined. The other two companions of the appellant, namely, Parsu and Guddu, also discovered a knife, Exh.P-7, and a chhura, Exh. P-13, which were attached under Panchnamas Exh.P-6 and P-12, respectively. As stated earlier the shirt and pant of Khujji were also attached as blood-like stains were noticed thereon. Both these articles were sent to the Chemical Analyser and Serologist. So far as the shirt is concerned, since the blood stains were disintegrated it was not possible to determine the origin thereof. But so far as the pant is concerned, the report states that the stains were of human blood but the blood group could not be determined as the result of the test was inconclusive. On the basis of the first information report, the statements of three witnesses recorded in the course of investigation as well as the evidence regarding discovery and the find of human blood on the incriminating articles, the appellant and five others were charge-sheeted for the murder of Gulab. The trial Court acquitted all except the appellant. Before the trial Court PW 4 Ramesh, who had lodged the first information report, tried to disown it. He was declared hostile as he expressed his inability to identify the accused persons as the assailants of the deceased Gulab. PW 3, the Rickshaw Puller, while narrating the incident expressed a similar inability and he too was treated as hostile and cross-examined by the Public Prosecutor. The third eye-witness PW 1 Komal Chand, however, supported the prosecution case in his examination-in-chief but in his cross-examination he expressed some doubt regarding the identity of the appellant and Guddu stating that he had seen their backs only. The trial Court came to the conclusion that not only was this witness a chance witness but his presence at the scene of occurrence was extremely doubtful as it was difficult to believe that he had come out at that hour to purchase vegetables. Thus the trial Court refused to place reliance on the evidence of the three eye-witnesses. The trial Court, however, came to the conclusion that the appellant was absconding and that he had discovered the weapon which was found to be stained with human blood. It also relied on the factum of find of human blood on the pant worn by the appellant at the time of his arrest. On the basis of this evidence the trial Court convicted the appellant under S. 302, I.P.C. and sentenced him to life imprisonment. Khujji preferred an appeal against the said conviction. The High Court while ignoring the evidence of PW 3 Kishan Lal and PW 4 Ramesh relied on the evidence of PW 1 Komal Chand and came to the conclusion that his evidence clearly established the presence of the appellant as one of the assailants notwithstanding his effort in cross-examination to wriggle out of his statement in examination-in-chief in regard to the identity of the appellant. The High Court noticed that the examination-in-chief of this witness was recorded on November 16, 1976 whereas his cross-examination commenced on December 15, 1976 i.e. after a month and in between he seemed to have been won over or had succumbed to threat. This inference was drawn on the basis of PW 3's statement that he was severely beaten on the night previous to his appearance in Court as a witness. The high Court, therefore, took the view that the subsequent attempt of PW 1 Komal Chand to create a doubt regarding the identity of the appellant was of no consequence since there was intrinsic material in his evidence to establish the presence of the appellant amongst the assailants of deceased Gulab. Relying further on the discovery evidence as well as the find of human blood on the weapon found from the garage of the appellant and on his pant which he was wearing at the time of his arrest, the High Court came to the conclusion that his conviction was well founded and dismissed his appeal. It may here be mentioned that the State did not prefer an appeal against the five companions of the appellant who came to be acquitted by the trial Court. It is in these circumstances that the appellant has invoked this Court's jurisdiction under Art. 136 of the Constitution.