KALABHAI HAMIRBHAI KACHHOT versus STATE OF GUJARAT on 28 April 2021

[2021] 4 S.C.R. 239

KALABHAI HAMIRBHAI KACHHOT

v.

STATE OF GUJARAT

(Criminal Appeal No. 216 of 2015)

APRIL 28, 2021

[ASHOK BHUSHAN AND R. SUBHASH REDDY,JJ.]

Penal Code, 1860: s. 302 rw s. 34 – Murder – Previousanimosity between the parties – On the fateful day, accused personsattacked the victim and two others with knives, resulting in victim’sdeath, and injuries to other two - Conviction and sentence u/s. 302rw s.34 and s. 135(1) of the Bombay Police Act – High Court whileupholding the conviction, extended benefit of s. 428 CrPC –Interference with – Held: Not called for – On examination of entireevidence of all the witnesses with reference to medical and otherevidence on record, it is clear that the prosecution proved the guiltof the accused beyond reasonable doubt – All the accused committedthe offence with a common intention and all participated incommitting the crime – Role attributed to accused fully supportedby the injured witnesses as well as the deposition of investigationofficer – Testimony of the injured witness is natural and trustworthy– Contradictions sought to be projected in the deposition of injuredwitnesses are minor contradictions which cannot be the basis todiscard their evidence – Omissions like non-seizing of motorcycleand gold chain of one of the victims, not a ground to discredit thetestimony of key witnesses who were consistent, natural andtrustworthy – Criminal trial – Evidence – Witnesses.

Dismissing the appeals, the Court

HELD: 1.1 The view taken by the trial court in recordingthe conviction against the appellants, as confirmed by the HighCourt is upheld. Therefore, no interference is called for with theconcurrent findings recorded against the appellants. It is alsoclear that there was a quarrel between the deceased about sixmonths earlier to the incident and one accused regarding paymentof rent of tractor. Further it is brought on record that there wasanimosity between them which is the motive for the crime. Assuch, the prosecution has established, beyond reasonable doubt,that all the accused have committed the offence with a common

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Aintention and participated in committing the crime. The trial courtas well as the High Court has not committed any error in law oron facts, as such, the order is upheld. [Para 21][256-C-E]

The testimony of PWs-8 and 19 who were with the deceasedon the day of occurrence and who were travelling on the sameBmotorcycle, is quite natural and trustworthy. Though it wassubmitted that as the incident happened in the month ofNovember it was not possible to identify the assailants in thedarkness, at the same time it is clear from the evidence on recordthat the headlight of the vehicle was ‘on’ and it is evident fromthe record and panchnama of the place of occurrence that thereCwas a light which was there on the Vadi. Furthermore, the accusedas well as the witnesses are of the same village, which appears tobe a small village and usually the persons residing in the villagemeet frequently, there would not be any difficulty in identifyingthe persons. Therefore, as far as the identification of the accusedDis concerned, the same is well supported by the evidence onrecord. The prosecution also examined PW-1 who had deposedthat he was on duty in the Hospital on 10.11.2006. On that day inthe night, injured RM was brought to him by his nephew H, fortreatment with the complaint and stated that VR attacked himand gave knife blow. The witness doctor issued injury certificate.EPW-2, is the doctor who performed postmortem of the deceased.[Para 17][249-C-F]

The submission that there was no head injury, as deposedby PWs-18 and 19 on the deceased and also as per the postmortemreport, as such the deposition of PWs- 18 and 19 is to be discarded,Fcannot be accepted for the reason that the postmortem reportindicates injury on the lower back side of the head. An attemptwas made to assault the deceased with an axe. It cannot beexpected that it has to be hit on the centre of the head. It hasfallen on the lower back side of the head, same is evident fromGthe postmortem report. The attack was made on the deceasedand injured, when they were moving on motor cycle. As such, itcannot be said that merely because there is no injury on the centreof the head, the testimony of PWs 18 and 19 is to be discarded.

The doctor who has conducted the postmortem, has also clearlystated in his deposition that all injuries which were noticed onthe deceased were ante mortem. If the entire evidence of all thewitnesses is examined with reference to medical and otherevidence on record, it is clear that the prosecution has provedthe guilt of the accused beyond reasonable doubt. All the accusedhave committed the crime with a common intention. It is clearfrom the record that the role attributed to accused nos.1, 2 and 3is fully supported by the injured witnesses as well as the depositionof investigation officer. Though the key witness, were cross-examined at length, nothing adverse was elicited. If the testimonyof PW 20, is examined, same is fully supported by the evidenceof PW 18, 19 and 21. It is clear from the evidence on record thattheir testimony is natural and trustworthy and so far as PWs18and 19 are concerned it cannot be said that they are the chancewitnesses. Even the injuries sustained by PWs18 and 19 are notself-inflicted as per the opinion of the medical expert. Further, itis also clear from the opinion of the doctor who was examined,that all the injuries were possible with muddammal knife and axe.It is further to be noticed that serological report from which theblood group was found on the cloths of the deceased and that ofthe accused nos.1 and 2 is the same. Even with regard to thepresence of accused no.3, it is also clear considering the entireoral evidence on record that his presence on the spot is alsoproved beyond reasonable doubt. [Para 18][252-C-H; 253-A-B]

It cannot be said that there are major contradictions in thedeposition of PWs 18 and 19. The contradictions which are soughtto be projected are minor contradictions which cannot be thebasis to discard their evidence. The prosecution has proved thecase against all the appellant-accused beyond reasonable doubt.The omissions like not seizing the motorcycle and also not seizingthe gold chain of one of the victims, by itself, is no ground todiscredit the testimony of key witnesses who were examined onbehalf of the prosecution, whose say is consistent, natural andtrustworthy. [Para 19, 20][253-C-D; 256-B-C]

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AMohar & Anr. v. State of U.P. (2002) 7 SCC 606; Stateof Uttar Pradesh v. Naresh & Ors. (2011) 4 SCC 324;Narayan Chetanram Chaudhary & Anr. v. State ofMaharashtra (2000) 8 SCC 457 – relied on.

Anand Ramachandra Chougule etc. v. Sidarai LaxmanBChougala & Ors. (2019) 8 SCC 50: [2019] 11 SCR14; Akula Veera Venkata Surya Prakash @ Babi v.Public Prosecutor, High Court of Andhra Pradesh(2009) 15 SCC 246 : [ 2009] 7 SCR 543; MohinderSingh & Anr. v. State of Punjab & Ors. (2004) 12 SCC311 : [2011] 4 SCR 1176 – referred toC

Case Law Reference

ECRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 216 of 2015.

From the Judgment and Order dated 09.05.2014 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal No. 459 of 2010.

WithF

Criminal Appeal Nos. 453 Of 2021 and Criminal Appeal No. 290of 2018.

Harin P. Raval, Sr. Adv., Anirudh Sharma, Awadesh Kumar,Kartikeya Kanojia, Sukanya Singh, Sameer Sawarn, Vaibhava VeerShanker Nachiketa Joshi, Ms. Sucheta Joshi, Ms. Himadri Haksar, D.N.GRay, Lokesh Kumar Chaudhary, Dillip Kumar Nayak, Ms. Disha Ray,Mrs. Sumita Ray , Advs. for the Appellants.

Ms. Vishakha, Ms. Deepanwita Priyanka, Anirudha P. Mayee,Advs. for the Respondent.

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KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT[R. SUBHASH REDDY, J.]

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

1. Leave granted in S.L.P.(Crl.) No. 3227 of 2015.

2. All these criminal appeals are filed against the common judgmentdated 09.05.2014 passed by the High Court of Gujarat at Ahmedabad inCriminal Appeal Nos.405 of 2010 and 459 of 2010, as such, they areheard together and disposed of by this common judgment.

3. Criminal Appeal No.290 of 2018 is filed by accused no.1 –Vajashibhai Ramshibhai Kachhot; Criminal Appeal arising out ofS.L.P.(Crl.)No.3227 of 2015 is filed by accused no.2 – MulubhaiMarkhibhai Nandaniya; and Criminal Appeal No.216 of 2015 is filed byaccused no.3 – Kalabhai Hamirbhai Kachhot. For the sake ofconvenience, the appellants in the above appeals shall be referred to asaccused nos.1 to 3 hereafter.

4. The aforesaid appellants were the accused in FIR no.I-215/2006 dated 11.11.2006 on the file of Keshod Police Station, which wasregistered for the offences punishable under Sections 302, 326, 324 and34 of Indian Penal Code (IPC) and Section 135 of the Bombay PoliceAct, in which chargesheet was filed on 07.02.2007 in the court of FirstClass Magistrate, Keshod. As much as the offences were triable bySessions Court, the case was committed to the Court of AdditionalSessions Judge, Junagadh and the accused were tried for the aforesaidoffences in Sessions Case No.14 of 2007. All the accused were convictedfor the offences under Section 302 read with 34, IPC and Section 135(1)of the Bombay Police Act. Accused no.1 – Vajashibhai RamshibhaiKachhot – was found guilty for offence punishable under Section 302read with 34, IPC and was sentenced to undergo life imprisonment andto pay fine of Rs.10,000/- and in default, to undergo further S.I. for 12months. He was also found guilty for offence punishable under Section324, IPC and was sentenced to pay fine of Rs.3000/- and in default, toundergo further S.I. for six months. He was also found guilty for theoffence punishable under Section 135(1) of the Bombay Police Act andwas sentenced to undergo S.I. for four months and to pay fine of Rs.100and in default, to undergo further S.I. for ten days. Accused no.2 –Mulubhai Markhibhai Nandaniya – was found guilty for offencepunishable under Section 302 read with 34, IPC and was sentenced toundergo R.I. for life and to pay fine of Rs.10000/- and in default, to A

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Afurther undergo S.I. for 12 months. He was also found guilty for offencepunishable under Section 135(1) of Bombay Police Act and wassentenced to undergo S.I. for four months and to pay fine of Rs.100/-and in default, to further undergo S.I. for ten days. Accused no.3 –Kalabhai Hamirbhai Kachhot – was found guilty for offence punishableunder Section 302 read with 34, IPC and was sentenced to undergo R.I.Bfor life and to pay fine of Rs.10000/- and in default, to further undergoS.I. for 12 months. He was also found guilty for offence punishableunder Section 135(1) of Bombay Police Act and was sentenced toundergo S.I. for four months and to pay fine of Rs.100/- and in default,to further undergo S.I. for 10 days. The learned Sessions Judge hasCacquitted the original accused nos.2 and 3 of the charges under Sections326 and 324 read with 34, IPC. Against the judgment and order ofconviction passed by the learned Sessions Court, accused nos.1 and 3filed Criminal Appeal No.459 of 2010 and accused no.2 filed CriminalAppeal No.405 of 2010 before the High Court.

D5. The High Court, by the impugned common judgment, whileconfirming the conviction, has partly allowed the appeals and orderedthat all the sentences imposed against the accused shall run concurrentlyand, by extending the benefit of Section 428 of the Code of CriminalProcedure, also ordered that the period of detention of the accused asunder-trial prisoners be set off against the sentence.E

6. On 10.11.2006, one Rajshibhai Maldebhai Karangiya, residentof Bamnasa Ghed, Taluka Keshod, gave complaint before the Sub-inspector ‘B’ Division, Junagadh stating that he lives at Bamnasa Ghedwith his family and is engaged in agricultural work and lives in the orchardsituated in sim of village Akha. In his complaint, he has stated that atFabout 5:00 p.m. on 10.11.2006 Rajshibhai Maldebhai Karangiya; MiteshHardasbhai and Gokalbhai Karsanbhai went to Keshod for some workon Gokalbhai’s Hero Honda motorcycle. Gokalbhai was riding themotorcycle. While returning, when they reached near to orchard ofKalabhai at about 7:15 p.m., Vajashibhai Ramshibhai, MulubhaiGMarkhibhai and Kalabhai Hamirbhai Kachhot were waiting with axeand knives. In order to stop Rajshibhai Maldebhai Karangiya, Mulubhaigave axe blow, which hit on Gokalbhai’s head, due to which RajshibhaiMaldebhai Karangiya, Miteshbhai Hardasbhai and Gokalbhai fell downfrom the motorcycle. Thereafter the three accused have attacked thedeceased Gokalbhai with knives and when Rajshibhai MaldebhaiH

intervened, Vajashibhai gave knife blow on the head of RajshibhaiMaldebhai Karangiya. It is also alleged that Vajshibhai hit knife blow onthe back side of head on ear and hit Mitesh on left shoulder. Gokalbhaibecame unconscious. The three accused then ran away towards Akhaon Kalabhai’s motorcycle. Thereafter, relatives of the deceased andinjured were called and they were shifted to Government Hospital whereGokalbhai was declared dead and Rajshibhai Maldebhai and Miteshbhaiwere given medical treatment. It is also stated that the reason behindthe incident is that six months earlier to the date of incident there was aquarrel between Vajshibhai and Mulubhai with Gokalbhai. He has statedin the complaint that the present incident is consequence of such rivalrybetween the accused and the deceased.

7. Based on the abovesaid complaint, crime was registered andafter necessary investigation, chargesheet was filed before the Addl.Sessions Judge, Junagadh. Learned Sessions Judge framed chargesagainst the accused. When the accused pleaded not guilty to the chargesand claimed trial, they were tried for the offences alleged against them.

8. To prove the charges framed against the accused, prosecutionhas examined, in all, 32 witnesses and marked 61 documents and at theend of the trial, after recording the statement of the accused under Section313, Cr.PC and after hearing the arguments of prosecution and defence,learned Additional Sessions Judge held appellant-accused were guiltyfor the offences and awarded sentence, as narrated above. Aggrievedby the judgment of conviction and sentence imposed on the appellant-accused, the accused nos.1 and 3 have preferred Criminal Appeal No.459of 2010 and original accused no.2 has preferred Criminal Appeal No.405of 2010 before the High Court. The High Court, while confirming theconviction, has extended the benefit of Section 428, Cr.PC and allowedthe appeals partly by common judgment, only to the extent indicatedabove.

9. We have heard Sri Harin P. Raval, learned senior counselappearing for the appellant in Criminal Appeal No.216 of 2015; Sri D.N.Ray, learned counsel appearing for the appellant in Criminal AppealNo.290 of 2018; and Sri Nachiketa Joshi, learned counsel appearing forthe appellant in Criminal Appeal arising out of S.L.P.(Crl.)No.3227 of2015 and Ms. Vishakha, learned counsel appearing for the respondent-State.

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A10. Sri Harin Raval, learned senior counsel has contended thatthe conviction of the appellant-accused is mainly based on the testimonyof PW-18 and PW-19, who are the injured eye witnesses. It is submittedthat if their depositions are scrutinized closely, there are majorcontradictions. It is submitted that they are the chance witnesses andtheir evidence is not trustworthy to base the conviction of the appellant-Baccused. Further, it is submitted that there is no mention about the natureof injuries in the postmortem report and the motorcycle used in the crimewas not recovered. It is further contended that though it is the case ofthe prosecution that there was a head injury caused by the accused onthe deceased, there is no corresponding medical injury in the postmortemCReport of the deceased. It is submitted that the medical records includingpostmortem report are not reliable and the prosecution has failed to provethe case beyond reasonable doubt. He has thus requested to extend thebenefit of doubt to the accused and set aside their conviction. In supportof his arguments, learned counsel has relied on the judgments of thisCourt in the case of Anand Ramachandra Chougule etc. v. SidaraiDLaxman Chougala & Ors.[1]; Akula Veera Venkata Surya Prakash@ Babi v. Public Prosecutor, High Court of Andhra Pradesh[2]; andMohinder Singh & Anr. v. State of Punjab & Ors.[3].

11. Learned counsel Sri D.N. Ray appearing for the appellant inCriminal Appeal No.290 of 2018 has contended that though a fatal injuryEwas attributed on the deceased, caused by one of the appellants, therewere no blood marks on PWs-18 and 19 who are stated to be injuredwitnesses and were travelling on the same motorcycle of the deceased.Further, it is submitted that the deceased and injured were taken in Maruticar but there were no traces of blood in the car. No blood was alsoFfound on PWs-18 and 19 and injuries suffered by them are superficial. Itis further submitted that the alleged incident happened at about 07:30p.m. in the month of November, as such, there was no possibility ofidentifying the accused in the darkness. Further it is submitted that noinjury was found on the head of the deceased as per the doctor’s deposition. It is further submitted that the alleged motive, that an amountGof Rs.15000/- was payable to the deceased, was no basis to record theguilt of the accused as the said incident was about eight months earlierto the date of the incident.

1 (2019) 8 SCC 502 (2009) 15 SCC 246H3 (2004) 12 SCC 311

12. Shri Nachiketa Joshi, learned counsel appearing for the appellantin the Criminal Appeal arising out of S.L.P.(Crl.)No.3227 of 2015, whileadopting the arguments of Sri Harin Raval and Sri D.N. Ray, hascontended that though there is no acceptable evidence on record, theappellant was convicted for the offences alleged. He has submitted thatif overall evidence is taken into consideration, the charges framed againstthe accused are not proved beyond reasonable doubt and even the HighCourt has not considered the grounds raised by the appellant-accused inproper perspective and dismissed the appeals.

13. Per contra, Ms. Vishakha, learned counsel appearing for therespondent-State has submitted that there are concurrent findings ofconviction against the appellants. It is submitted that the trial court itselfhas considered at length, the oral and documentary evidence on recordand has come to conclusion that the appellants were guilty for the offencesalleged and there are no grounds to interfere with the same. It is furthersubmitted that accused nos.1 and 3 were found with knives and accusedno.2 caused the injury on the deceased by hitting on his head with axewhen, all three were travelling on motorcycle. It is submitted that murderof the deceased was committed by injuring PWs-18 and 19 with thecommon intention, as such, they were rightly found guilty by the SessionsCourt. Further, learned counsel, by referring to the deposition of PW-21who was the person first to reach the place of occurrence, i.e., thebrother of the deceased, has submitted that postmortem report indicatesthe injury on the lower back side of the head. Further, submitting that theidentity of the accused cannot be questioned as all are known to eachother and are of the same village. She has further submitted that themedical and ocular evidence supports the case of the prosecution, toprove the case against the accused. The learned counsel has lastlycontended that discrepancies, if any, in the depositions are minor andsame will not affect the case of the prosecution. The learned counselplaced reliance on the judgments of this Court in the case of Mohar &Anr. v. State of U.P.[4] and State of Uttar Pradesh v. Naresh & Ors.[5].

14. In reply, Sri Harin Raval, learned senior counsel and Sri D.N.Ray, learned counsel appearing for the appellant-accused have submittedthat the alleged incident has occurred at about 07:30 p.m. on 10.11.2006and even according to evidence, PWs-18 and 19 remained at the site of 4 (2002) 7 SCC 606

5 (2011) 4 SCC 324

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Athe occurrence for about 45 minutes, which is unusual. It is submittedthat in a situation like this, PWs-18 and 19, who suffered injuries, shouldhave made an attempt to shift the deceased to the nearest hospitalimmediately. Referring to the deposition of PWs-18 and 19 in cross-examination, it is submitted that such injuries suffered by PWs-18 and19, can be self-inflicted. Further reiterating that the discrepancies noticedBin the depositions are major, hence, benefit of doubt has to go to theappellants and prayed for acquittal of the accused.

15. Having heard the learned counsel on both sides, we haveperused the judgment of the trial court as well as that of the High Courtand other material placed on record.C

16. Upon close scrutiny of the evidence on record and the findingsrecorded by the trial court, as confirmed by the High Court, we do notfind any merit in the submissions of the learned counsel for the appellant-accused, to interfere with the conviction recorded by the trial Court, asconfirmed by the High Court.D17. To prove the charges framed against the appellants, theprosecution has examined 32 witnesses and marked 61 documents asexhibits, during the trial. Among the other witnesses examined on behalfof the prosecution, Rajshibhai Maldebhai Karangiya, who was with thedeceased at the time of incident, was examined as PW-18. In his depositionEhe has stated that the incident occurred at about 07:30 in the evening onBamnasa-Akha road on 10.11.2006. On that day, he, along withMiteshbhai and Gokalbhai (deceased), went to Keshod on Hero Hondamotorcycle at about 05:00 O’clock in the evening. Gokalbhai was drivingthe motorcycle and thereafter at about 06:45 p.m. Gokalbhai’s brotherFVajshibhai made a phone call to Gokalbhai and stated that he wantsmotorcycle to go for some other work and requested him to come backif his work is completed. Therefore, they proceeded from Keshod toVillage Bamnasa and when they reached near the farm of Kalabhai – apoliceman, Vajshibhai Ramshibhai armed with knife, Mulubhai Markhibhaiarmed with axe and Kalabhai Hamirbhai armed with knife were standingGacross the road to stop them. When Gokalbhai slowed down the vehicle,Mulubhai Markhibhai gave axe blow on the head of Gokalbhai and,therefore, they fell down from the motorcycle and thereupon the accusedstarted giving blows with axe and knife to Gokalbhai haphazardly. Furtherit is also deposed that when he and Mitesh tried to interfere, they alsoHsuffered injuries. Thereafter he made a phone call to Masaribhai at

Bamnasa from his mobile and requested him to come to the place ofincident with vehicle. Therefore, after sometime, Rajubapu Bavaji camewith Maruti van and Samat Govind and Vajsi Karsan were with Rajubapu.Even as per the say of this witness the reason for the incident is thealtercation, between Gokalbhai and Vajashibhai with regard to rent ofRs.15000/-, which occurred six months prior to the occurrence, of whichcomplaint was lodged in Junagadh Police Station. Other person, whowas with the deceased on the day of occurrence was Mitesh HardasKachhot – PW-19, has also deposed on similar lines as that of PW-18.The testimony of PWs-18 and 19 who were with the deceased on theday of occurrence and who were travelling on the same motorcycle, isquite natural and trustworthy. Though it is the contention of the learnedcounsel for the appellant-accused that as the incident happened in themonth of November it was not possible to identify the assailants in thedarkness, at the same time it is clear from the evidence on record thatthe headlight of the vehicle was ‘on’ and it is evident from the recordand panchnama of the place of occurrence that there was a light whichwas there on the Vadi. It is further to be noticed that the accused as wellas the witnesses are of the same village, which appears to be a smallvillage and usually the persons residing in the village meet frequently,there will not be any difficulty in identifying the persons. Therefore, asfar as the identification of the accused is concerned, the same is wellsupported by the evidence on record. The prosecution also examinedDr. Nikhilkumar Buch – PW-1 – who has deposed that he was on dutyin Civil Hospital, Junagadh on 10.11.2006. On that day at about 10:40hrs. in the night, injured Rajshi Malde was brought to him by his nephewHitesh Hardas, for treatment with the complaint and stated that VajshiRamshi attacked him and gave knife blow. The witness doctor has issuedinjury certificate which is exhibited as Exh.18. Dr. Prafulaben MohanlalDhabariya was examined as PW-2, who has performed postmortem ofthe deceased. The said witness has found the following injuries on theperson of the deceased :

“i)There was one cut, incised wound which was transverse,in mid way of left thigh. It was upto skin and muscle. Itwas elliptical in shape and 5 inch long, 1 and ½ inch wideand ¾ inch deep.

ii)There was cut incised wound over left chest, left 6th inter-coastal space starting from mid clavicular line and was A

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250SUPREME COURT REPORTS

Agoing downwards and laterally. It is 2 and ½ inch long, ¾inch wide and penetrates the cavity. The wound track istapering and infiltrated with blood. There is no exit wound.It penetrates the rear and left ventricular wall.

iii)There was incised wound at the level of the hair line overBthe neck posteriorly measuring 3 inch long starting from ½inch from the midline on the left and extending transverselyto the right. The wound is ½ inch wide, cuts through skin,muscles and grazes the cervical vertebra. Bleeding noted.

iv)There was was incised wound over right side of neck belowCabove injury laterally measuring 1 x ½ x ½ inch long x widex deep.

v)There was incised wound parallel to above ½” below itmeasuring 1" x ½” x ½”.

vi)There was incised wound just above right scapula at baseDof neck starting 1" lateral to the vertebral margin andextending laterally and transversely and upwards. It is 2"long, 1" wide and penetrates the chest cavity. The wound istapering upwards. It penetrates the right upper lung lobe.

vii)There was incised wound over right scapula region mediallyEmeasuring 1"x 1/2" x 1/2" cutting through skin and muscle,next to vertebral margin, transverse.

viii)There was incised wound over right scapula region aboutcentrally and transversely measuring 1½” x 1" x ½”.

ix)There was incised wound over right chest just below rightFscapula vertically and at border of scapular measuring 1½” x 1" x ½” cutting through skin and muscle.

x)There was incised wound lateral to above wound, alsoparallel to above wound, 2" distant from it and measuring 1½ “x 1” x ½” cutting through skin and muscle.G

xi)There was incised wound and lateral and parallel to above,2" distant from it, measuring 1 ½ “x 1”x 1/2" cutting throughskin and muscle.

xii)There was incised wound over right back, 10th intercostalHspace transverse, measuring 2"x1" x ½”.

KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT[R. SUBHASH REDDY, J.]

xiii)There was incised wound over left scapula, at the base,Avertical wound measuring 2" x 1" x ½” deep cutting throughskin and muscle.

xiv)Incised wound at level of T12, transverse wound measuring3 ½ “x 1” and cutting through skin, muscles and grazingbone.

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xv)Incised wound at level of L2, transverse wound measuring1 ½ “x 1” x ½” cutting through skin and muscle.

xvi)Incised wound at level of L5-S1 transverse woundmeasuring 3" x ½” and cutting through skin, muscles andgrazing bone.

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xvii)Incised wound over sacral region, vertical, midline measuring1" x1/2" x ½”, muscle deep.

xviii) Incised wound over sacral region, vertical, midline measuring1"x ½” x ½”, 2" below above wound muscle deep.

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xix)Incised incised wound about 1" below injury no 16, lateralto it measuring 1" x ½ “x 1/2”.”

In his deposition, with reference to abovesaid injuries, he has alsoopined that all the injuries are ante-mortem. The injuries which are referredto, are stated to have been enclosed in the postmortem note. SriJagdishbhai Sarmanbhai Kamaliya, who was the panch witness of thepanchmana of the dead body, was examined as PW-5. Sri HardasbhaiBhikhabhai Bhetariya was examined as PW-6 who was panch witnessto the scene of offence. The prosecution has also examined MasharibhaiGovindbhai Karangiya as PW-20. In his deposition he has stated that onthe date of incident when he was at his field, he received a phone call ofRajshi Malde at about 07:30 in the evening stating the incident and assaulton them and he was informed to come with Maruti van of Rajubapu andthereafter he has gone to village on his motorcycle. As he could notmeet Rajubapu, he contacted Rajubapu on phone and requested him tocome with his Maruti van to the field of Kalabhai immediately which issituated on the road of Aakha. He has clearly stated in his depositionthat when he reached the spot, he has noticed the injuries on Miteshbhaiand Rajashi Malde and Gokalbhai was lying in bleeding condition. Hehas also stated that there was a lamp in the field of Kalabhai, light ofwhich was falling on the road. The brother of the deceased was examined E

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Aas PW-21. In his deposition he has also stated that as Gokalbhai hastaken the Hero Honda motorcycle and as the same was required by himto go out of station on the motorcycle, he made a phone call to Rajashion his mobile no.[REDACTED] through the coin drop box phone from theshop of Nathubhai in the village. Even this witness has stated that thereason for the incident is that Gokalbhai unloaded the soil in the field ofBVajashibhai Ramshi through his tractor and the amount of Rs.15000/-towards rent thereof was outstanding from him. It is stated that as therewas discord in this regard, the incident has occurred, which resulted inthe murder of Gokalbhai. Sri Rajeshbhai Jethabhai Parmar who hasinvestigated the crime, was examined as PW-31. He also clearly statedCin detail in his deposition regarding the incident.

18. The submission of the learned counsels, that there was nohead injury, as deposed by PWs-18 and 19 on the deceased and also asper the postmortem report, as such the deposition of PWs-18 and 19 isto be discarded, cannot be accepted for the reason that the postmortemDreport indicates injury on the lower back side of the head. An attemptwas made to assault the deceased with an axe. We cannot expect that ithas to be hit on the centre of the head. It has fallen on the lower backside of the head, same is evident from the postmortem report. At thisstage, it is to be noted, that the attack was made on the deceased andinjured, when they were moving on motor cycle. As such, it cannot beEsaid that merely because there is no injury on the centre of the head, thetestimony of PWs-18 and 19 is to be discarded. The doctor who hasconducted the postmortem, has also clearly stated in his deposition thatall injuries which were noticed on the deceased were ante mortem. Ifthe entire evidence of all the witnesses is examined with reference to Fmedical and other evidence on record, it is clear that the prosecution hasproved the guilt of the accused beyond reasonable doubt. All the accusedhave committed the crime with a common intention. It is clear from therecord that the role attributed to accused nos.1, 2 and 3 is fully supportedby the injured witnesses as well as the deposition of investigation officer.

Though the key witness, were cross-examined at length, nothing adverseGwas elicited. If the testimony of PW-20, i.e., Masharibhai is examined,same is fully supported by the evidence of PW-18, 19 and 21. It is clearfrom the evidence on record that their testimony is natural and trustworthyand so far as PWs-18 and 19 are concerned it cannot be said that theyare the chance witnesses. Even the injuries sustained by PWs-18 andH

19 are not self-inflicted as per the opinion of the medical expert. Further,it is also clear from the opinion of the doctor who was examined, that allthe injuries were possible with muddammal knife and axe. It is furtherto be noticed that serological report from which the blood group wasfound on the cloths of the deceased and that of the accused nos.1 and 2is the same. Even with regard to the presence of accused no.3, it is alsoclear considering the entire oral evidence on record that his presence onthe spot is also proved beyond reasonable doubt.

19. We also do not find any substance in the argument of thelearned counsel that there are major contradictions in the deposition ofPWs-18 and 19. The contradictions which are sought to be projectedare minor contradictions which cannot be the basis to discard theirevidence. The judgment of this Court in the case of Mohar[4] relied on bythe learned counsel for the respondent-State supports the case of theprosecution. In the aforesaid judgment, this Court has held that convincingevidence is required, to discredit an injured witness. Para 11 of thejudgment reads as under :

“11. The testimony of an injured witness has its own efficacyand relevancy. The fact that the witness sustained injuries on hisbody would show that he was present at the place of occurrenceand has seen the occurrence by himself. Convincing evidencewould be required to discredit an injured witness. Similarly, everydiscrepancy in the statement of a witness cannot be treated asfatal. A discrepancy which does not affect the prosecution casematerially cannot create any infirmity. In the instant case thediscrepancy in the name of PW 4 appearing in the FIR and thecross-examination of PW 1 has been amply clarified. In cross-examination PW 1 had clarified that his brother Ram Awadh hadthree sons: (1) Jagdish, PW 4, (2) Jagarnath, and (3) Suresh.This witness, however, stated that Jagarjit had only one name.PW 2 Vibhuti, however, stated that at the time of occurrence theson of Ram Awadh, Jagjit @ Jagarjit was milching a cow and hewas also called as Jagdish. Balli (PW 3) mentioned his name asJagjit and Jagdish. PW 4 also gave his name as Jagdish.”

Learned counsel for the respondent-State has also relied on thejudgment of this Court in the case of Naresh & Ors.[5]. In the aforesaidjudgment, this Court has held that the evidence of injured witnesses A

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Acannot be brushed aside without assigning cogent reasons. Paragraphs27 and 30 of the judgment which are relevant, read as under :

“27. The evidence of an injured witness must be given dueweightage being a stamped witness, thus, his presence cannot bedoubted. His statement is generally considered to be very reliableBand it is unlikely that he has spared the actual assailant in order tofalsely implicate someone else. The testimony of an injured witnesshas its own relevancy and efficacy as he has sustained injuries atthe time and place of occurrence and this lends support to histestimony that he was present during the occurrence. Thus, thetestimony of an injured witness is accorded a special status inClaw. The witness would not like or want to let his actual assailantgo unpunished merely to implicate a third person falsely for thecommission of the offence. Thus, the evidence of the injuredwitness should be relied upon unless there are grounds for therejection of his evidence on the basis of major contradictions andDdiscrepancies therein. (Vide Jarnail Singh v. State ofPunjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107], Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3SCC (Cri) 211] and Abdul Sayeed v. State of M.P. [(2010) 10SCC 259 : (2010) 3 SCC (Cri) 1262] )

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30. In all criminal cases, normal discrepancies are bound to occurin the depositions of witnesses due to normal errors of observation,namely, errors of memory due to lapse of time or due to mentaldisposition such as shock and horror at the time of occurrence.Where the omissions amount to a contradiction, creating a seriousdoubt about the truthfulness of the witness and other witnessesalso make material improvement while deposing in the court, suchevidence cannot be safe to rely upon. However, minorcontradictions, inconsistencies, embellishments or improvementson trivial matters which do not affect the core of the prosecutioncase, should not be made a ground on which the evidence can berejected in its entirety. The court has to form its opinion about thecredibility of the witness and record a finding as to whether hisdeposition inspires confidence.

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“9. Exaggerations per se do not render the evidence brittle. But itcan be one of the factors to test credibility of the prosecutionversion, when the entire evidence is put in a crucible for beingtested on the touchstone of credibility.” [Ed.: As observed in BihariNath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192,para 9.]

Therefore, mere marginal variations in the statements of a witnesscannot be dubbed as improvements as the same may be elaborationsof the statement made by the witness earlier. The omissions whichamount to contradictions in material particulars i.e. go to the root ofthe case/materially affect the trial or core of the prosecution’s case,render the testimony of the witness liable to be discredited.[Vide State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri)580 : AIR 2009 SC 152], Arumugam v. State [(2008) 15 SCC 590: (2009) 3 SCC (Cri) 1130 : AIR 2009 SC 331] , Mahendra PratapSingh v. State of U.P. [(2009) 11 SCC 334 : (2009) 3 SCC (Cri)1352] and Sunil Kumar Sambhudayal Gupta (Dr.) v. State ofMaharashtra [(2010) 13 SCC 657 : JT (2010) 12 SC 287] .”

Further, in the case of Narayan Chetanram Chaudhary & Anr.v. State of Maharashtra[6], this Court has considered the effect of theminor contradictions in the depositions of witnesses while appreciatingthe evidence in criminal trial. In the aforesaid judgment it is held thatonly contradictions in material particulars and not minor contradictionscan be a ground to discredit the testimony of the witnesses. Relevantportion of Para 42 of the judgment reads as under:

“42. Only such omissions which amount to contradiction in materialparticulars can be used to discredit the testimony of the witness.The omission in the police statement by itself would not necessarilyrender the testimony of witness unreliable. When the version givenby the witness in the court is different in material particulars fromthat disclosed in his earlier statements, the case of the prosecutionbecomes doubtful and not otherwise. Minor contradictions arebound to appear in the statements of truthful witnesses as memorysometimes plays false and the sense of observation differ fromperson to person. The omissions in the earlier statement if foundto be of trivial details, as in the present case, the same would notcause any dent in the testimony of PW 2. Even if there is 6 (2000) 8 SCC 457

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256SUPREME COURT REPORTS

Acontradiction of statement of a witness on any material point, thatis no ground to reject the whole of the testimony of such witness.

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20. By applying the aforesaid ratio, as laid down by this Courtcoupled with the evidence on record, we are clearly of the view that theBprosecution has proved the case against all the appellant-accused beyondreasonable doubt. The omissions like not seizing the motorcycle and alsonot seizing the gold chain of one of the victims, by itself, is no ground todiscredit the testimony of key witnesses who were examined on behalfof the prosecution, whose say is consistent, natural and trustworthy.

C21. In that view of the matter, we are fully in agreement with theview taken by the trial court in recording the conviction against theappellants, as confirmed by the High Court. Therefore, no interferenceis called for with the concurrent findings recorded against the appellants.As discussed earlier it is also clear that there was a quarrel between thedeceased about six months earlier to the incident and one accusedDregarding payment of rent of tractor. Further it is brought on record thatthere was animosity between them which is the motive for the crime.As such, the prosecution has established, beyond reasonable doubt, thatall the accused have committed the offence with a common intentionand participated in committing the crime. The trial court as well as theEHigh Court has not committed any error in law or on facts, as such, thesame are required to be upheld by this Court. As far as the judgmentsrelied on by the learned counsel for the appellants are concerned, havingregard to the facts of the case and the evidence on record, we are of theview that the abovesaid judgments would not render any assistance toFsupport the case of the appellants.

22. For the aforesaid reasons, we do not find any merit in theseappeals, same are accordingly dismissed.

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Nidhi Jain

Appeals dismissed.

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