(Dipankar Datta and Augustine George Masih, JJ.)
Anand and Another ____________________________ Appellant(s);
v.
State of Madhya Pradesh ________________________ Respondent.
Criminal Appeal No. 899 of 2012, decided on May 9, 2024
The Order of the court was delivered by
Order
1. The appellants – Anand and Shivaji – along with one Bholesh and one Nitin stood trial before the Sessions Court at Indore. While Bholesh was charged with commission of offences under sections 302/324/323 Indian Penal Code1, the appellants and Nitin were charged under sections 302/324/323/34, IPC. The Sessions Court found all four – Bholesh, Nitin, Anand and Shivaji – guilty of the charges levelled against each of them and, accordingly, sentenced them, inter alia, to life imprisonment.
2. The judgment of conviction and order on sentence were carried in appeal before the High Court of Madhya Pradesh, Bench at Indore by all the four convicts. During the pendency of the appeal, Nitin passed away. The appeal at his instance stood abated. By the impugned judgment and order dated 14.10.2011, the appeals preferred by Bholesh as well as Anand and Shivaji were dismissed.
3. While Bholesh accepted the judgment and order dated 14.10.2011, the appellants were aggrieved resulting in this criminal appeal questioning the legality and correctness of such judgment and order.
4. We have heard learned counsel appearing for the appellants and perused the materials on record.
5. At the outset, learned counsel submits that Bholesh has been granted premature release by the State of Madhya Pradesh; also, he submits that after being behind bars for more than 11 years, the appellants were granted bail by this Court on 10.12.2021.
6. The impugned judgment is sought to be assailed primarily on the ground that the appellants had not indulged in any criminal act in furtherance of their common intention; therefore, no conviction could have been recorded against them, inter alia, under Section 34 of the IPC.
7. For the purpose of deciding this appeal, we have considered it necessary to read the FIR lodged by PW 1 – Madhur, the evidence of the four eyewitnesses who are also injured witnesses – PWs 1 to 4 – as well as the evidence of PW 16-the autopsy surgeon.
8. There is no dispute that the victim – Yogesh (father of PW 1) suffered a homicidal death. The immediate cause of death is injuries sustained by him on his chest because of stabbing. According to PW 1, on the intervening night of 02.05.2004 and 03.05.2004, an altercation ensued between PW 1 and Bholesh regarding the whereabouts of one Pintu and the inability/refusal of PW 1 to share information in this behalf. This infuriated Bholesh, so much so that he brought out a knife and abused PW 1. The appellants and Nitin had accompanied Bholesh and their presence at the place of occurrence is undisputed. Having heard the altercation between Bholesh and PW-1, the victim (Yogesh) intervened to prevent any further quarrel and bring about peace. As per PW 1, the victim had enquired of Bholesh as to why he had brought out his knife. Bholesh, without any provocation, further abused the victim in the name of his mother. Then, the appellants and Nitin caught hold of the victim thereby facilitating Bholesh to inflict multiple blows on the chest of the victim resulting in his unfortunate death. While PW 1 attempted to save the victim, Bholesh stabbed PW 1 on his waist. Having heard the commotion, PWs 2, 3 and 4 sought to intervene but they too were stabbed by Bholesh whereafter the appellants, Bholesh and Nitin fled away. The testimony of PWs 2, 3 and 4 is also on similar lines, with minor discrepancies.
9. Learned counsel appearing for the appellants has sought to contend before us that the versions of the four eyewitnesses suffered from glaring inconsistencies and that the same affords a ground for this Court to interfere. Reliance in this connection is placed on the decision of a coordinate bench of this court in Ram Singh v. State of Uttar Pradesh2 where, according to him, this Court had interfered on the ground of glaring inconsistencies in the depositions of the witnesses and had set aside the conviction and sentence of the appellant.
10. No decision was required to be cited before us to drive home the point that glaring inconsistencies in the versions of the eye-witnesses, if demonstrated, could be sufficient to discredit a witness and be an enabling factor for the court to hold in favour of the accused.
11. However, having read the oral testimony of PWs 1 to 4 in between the lines, we do not find any inconsistency, much less glaring inconsistency. All the witnesses have given more or less a consistent account of what they saw. Although, there are minor discrepancies in their testimony as to which part of the body of the victim was caught hold of by either Anand or Shivaji or Nitin, that is not of much relevance. The presence of the appellants and the active role that they played in holding the victim to facilitate his stabbing by Bholesh have been spoken to by PWs 1 to 4, without any ambiguity and quite clearly. Such minor discrepancies are insignificant and cannot afford a ground for holding that the prosecution was unable to pinpoint the specific overt acts of the appellants. So long the prosecution version of the presence of the appellants at the place of occurrence and their acts of holding the victim stands firm, without being dislodged even after extensive cross-examination of PWs 1 to 4 by the appellants, we are left with no other option but to agree with the findings of the Sessions Court, since affirmed by the High Court, that the appellants are guilty. Besides, it cannot be ignored that all these eye-witnesses also received stab injuries inflicted by Bholesh and no evidence whatsoever has been led, worthy of consideration, to the effect that the appellants while accompanying Bholesh to the spot and being present thereat made any attempt to dissuade Bholesh from indulging in any criminal act.
12. We may in this connection profitably refer to a decision of this Court in State of H.P. v. Lekh Raj3. Paragraph 7 of such decision reads:
“7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution’s case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential (sic) to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala4 held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P.5 this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki6 held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.”
13. It is axiomatic that perhaps an untrue witness, who is well tutored, can successfully make his testimony totally non-discrepant. There is no reason to disbelieve PWs 1 to 4 and the contention, thus, stands rejected.
14. Reliance has been placed by learned counsel for the appellants on another coordinate bench decision of this Court in Jasdeep Singh @ Jassu v. State of Punjab7 on the essence and scope of Section 34, IPC. Although paragraph 27 has been relied upon, we have read the other relevant paragraphs also.
15. As has been observed above, the appellants’ presence at the place of occurrence is undisputed and they did not dissuade Bholesh from committing the crime of stabbing the victim; on the contrary, the oral evidence is clear as to the exact role that was attributed to each of the appellants by PWs 1 – 4.
16. It has been held in Jasdeep Singh (supra) that the word “furtherance” forming part of the phrase “in furtherance of common intention” indicates the existence of aid or assistance in producing an effect in future. That the appellants aided and assisted Bholesh by holding the victim speak of their criminality with adequacy of knowledge of the existing fact, necessary for commission of the offence. Thus, we have no hesitation to hold that the said decision does not aid the appellants at all.
17. Above apart, we have also noticed that Anand had sought to set up a plea of alibi. This plea was not raised before us, as learned counsel for the appellants did not deny their presence at the site of the occurrence. It was suggested to PWs 1 to 4 that on 02.05.2004 around 11:50 PM, Anand was in the lockup of a particular police station. PWs 1 and 2 denied such suggestion and, in fact, PW 2 went a step ahead to state that it was wrong to suggest that Anand was in the lockup. Except for such suggestion, no other reliable evidence was led by Anand to discharge the burden of proving his plea of alibi. This is an additional adverse circumstance that the Trial Court had borne in mind while appreciating the contention advanced on behalf of Anand and convicting him. We are ad idem with the Trial Court.
18. Having considered all the contentions raised on behalf of the appellants with due care and attention, we find no reason to interfere with the impugned judgment and order passed by the High Court upholding the decision of the Trial Court.
19. The criminal appeal stands dismissed.
20. Since the appellants are on bail, they shall surrender before the Sessions Court, Indore within a period of four weeks from date. Should the appellants not surrender within the time indicated above, the police administration shall be at liberty to secure their arrest so as to facilitate serving of the remainder of the term of imprisonment by them.
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1 IPC
2 2024 Cri. L.J. 1296
3 (2000) 1 SCC 247
4 (1974) 3 SCC 767
5 1981 Supp. SCC 40
6 (1981) 2 SCC 752
7 (2022) 2 SCC 545
