BHAGWATI PRASADversusSTATE OF M.P.

                   [2009] 16 (ADDL.) S.C.R. 126


A                      BHAGWATI PRASAD
                                 v.
                          STATE OF M.P.
                (Criminal Appeal No. 1368 of 2003)
                        DECEMBER 3, 2009
B
     [R.V. RAVEENDRAN, V.S. SIRPURKAR AND DEEPAK
                      VERMA, JJ.]
         Penal Code, 1860: s.304 (Part II) - Conviction undElr,
    based on evidence of eye-witnesses - Interference with -
c   Held: Case not made out for interference - Attack witnessi3d
    by eye-witnesses in broad daylight- Injuries on eye-witnesses
    not explained - Minor discrepancies would not affect the whole
    prosecution story - Conviction upheld - Sentence of five
    years not harsh.
D
      Prosecution case was that on the day of incident PW-
  2, PW-3 and deceased had gone to irrigate their field frcim
  the canal. When they op~ned the canal for irrigation,
  appellant and other accused persons came there, armed
E with spear and lathis and stopped them from opening the
  canal. As the complainant PW-2 insisted on taking water,
  A-1 gave lathi blow to him. Deceased intervened. A-6 gave
  a spear blow on his back and deceased fell down. The
  other accused persons A-2, A-3, A-5 also gave lathi blows
  on the deceased. Deceased succumbed to injuries on
F                                                                    ~
  way to hospital.

      The trial Court found irregularities in the prosecution
  version and acquitted the accused persons. High Court
  convicted the appellant under Section 304 (II) and A-1 and
G A-4 under Section 323 IPC. A-2, A-3 and A-5 were
  acquitted. Appellant was awarded 5 years rigornus
  imprisonment while A-1 and A-4 were sentenced to
  undergo simple imprisonment. Hence the present appoal.

H                                126
       BHAGWATI PRASAD v. STATE OF M.P.                 127


     Dismissing the appeal, the Court                         A

      HELD: 1. The witnesses specifically explained that
the main canal was on the Northern side of the two
adjacent fields of the complainant. Bamba, i.e., outlet of
canal is from that canal on the Northern side and the 8
water then comes in that small outlet, which feeds
Eastern side field of the complainant. Adjacent to that
field is another field of the complainant and naturally, in
order to draw water from Bamba, there has to be an
aqueduct, which would go up to the adjacent field of the C
deceased. It is at that spot that the incident must have
taken place. This situation was explained by PW-2. PW-3
specified that when water was opened from cool, then
mar-pit had taken place. The vocabulary and the terms
used by the villagers could always be confused by the
police when they recorded their statements. Much D
importance cannot be given to such minor discrepancies.
The broad features of the evidence were that the
complainant party wanted to irrigate their field and for
that they wanted to open the aqueduct for supplying
water to their field and it was at that spot that the incident E
took place. Once the evidence of the two eye-witnesses,
who themselves were injured eye-witnesses, was
accepted by High Court after the detailed consideration
and when they asserted that the incident took place in
the field of the complainant and when placement of the F
field of the complainant was fixed by the evidence, the
evidence becomes immediately acceptable and then such
minor discrepancy whether it was spot 'A' or spot 'B',
would be pushed to the background. Such minor
discrepancy cannot affect the whole prosecution story. G
It is only when the defence is able to establish that the
change of the spot was deliberate and such a change
was so substantial as would affect the whole prosecution
story, that such discrepancies assume importance. In the
                                                              H
    128 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A present case, it was clearly an open and shut case where      ~
  the two eye-witnesses in the broad day light witnessed
  the attack by the accused persons. There was absolutely
  no variance in the version of the two eye-witnesses to the
  effect that it was the appellant, who gave the spear blow
B on the back of the deceased. Both the witnesses, PW-2
  and PW-3 were injured and there was no explanation for
  their injuries. [Para 11] [137-A-D; 139-D-H; 140-A-C]

         Rachamreddi Chenna Reddy v. State of A.P. 1999 (3)     ,..
c   sec 97; Lilaram (Dead) through Duli Chand V. State of
    Haryana & Anr. 1999 (9) SCC 525; State of Rajasthan v.
    Hanuman 2001(1) SCC 337; Munshi Prasad & Ors. v. State
    of Bihar 2002(1) SCC 351; Shankar Mahto v. State of Bihar
    2002(6) sec 431 - referred to.

D      2. In the medical certificate, age of the injuries was
  mentioned as 24 hours. What was meant was that the
  injuries could have been caused within 24 hours from the
  time the witnesses wer& examined by the Doctor. In the
  post mortem report, the determination of precise duration
E of the injuries can be possible due to the internal
  examination of the injuries, whereas no such advantage
  is available to the Doctor when he examines the injuries
  in the nature of contusions. Therefore, normally the
  approximate duration is indicated in such certificates. The
F High Court was absolutely right in upsetting the judgment
  of acquittal passed by the trial Court and convicting the
  accused persons. The sentence of five years is not
  harsh, considering that a life is lost and that too without
  any justification. [Paras 12, 14 and 15] [140-C-F; 141-A-C]
G                   Case Law Reference :

        1999 (3) sec 97        referred to         Para 6

        1999 (9) sec 525       referred to         Para 6

H       2001(1) sec 337        referred to         Para 6
                   BHAGWATI PRASAD v. STATE OF MP.                      129

       .        2002(1) sec 351            referred to           Para 6        A

                2002(6) sec 431            referred to           Para 7

               CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
           No. 1368 of 2003.
                                                                               B
               From the Judgment & Order dated 13.12.2002 of the High
           Court of Judicature at Jabalpur Bench at Gwalior in Criminal
           Appeal No. 239 of 1986.

              S.K. Dubey, J.P. Pandey, Yogesh Tiwari (for Somnath
           Mukherjee) for the Appellant.
                                                                               c
                Vibha Datta Makhija, B.S. Banthia, for the Respondent.
 ...
                The Judgment of the Court was delivered by
                                                                               D
       ~        V.S. SIRPURKAR, J. 1. Appellant herein, who was original
           accused No. 6 (A-6) in the trial, has challenged the judgment
           of the High Court, allowing the State's Appeal and setting aside
           the judgment of acquittal passed by the Trial Court. All the
           accused persons were tried for the offences punishable under
           Sections 148 and 149 read with Section 302 of the Indian            E
           Penal Code (hereinafter called "IPC" or short), while the charge
           against the present appellant was substantively for the offence
           under Sections 148 and 302 IPC.
       ~
                 2. The allegation was that all the accused persons, six in    F
           number, formed an unlawful assembly and by way of a common
           object thereof, committed murder of one Ramgopal (deceased)
           on 18.2.1984 at about 7 A.M. As per the prosecution story, a
           report came to be lodged by one Kedar Prasad (PW-2) of
           Bansipura, the brother of Ramgopal (deceased) in Police             G
           Station Ambah to the effect that he alongwith the deceased and
 ,     ~   neighbour farmer Ramgopal (PW-3) S/o Tularam had gone to
..I        irrigate their field from the canal in Village Lahdaria situated
           at a distance of 12 K.M. When they opened the canal for
           irrigation, at that time, Bhagwati (appellant herein), armed with
                                                                               H
    130    SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A spear and the other accused persons armed with Lathi came            "
  there and stopped them from opening the canal. The said
  accused persons belonged to Village Lahdaria and they were
  staying nearby. There were arguments, as the accused
  persons objected to the complainant party taking water from
B the canal while the complainant insisted upon taking water, on
  which Baburam, original accused No. 1 (A- 1) gave Lathi blow
  upon Kedar Prasad (complainant/ PW-2). When Ramgopal
  (deceased) came to his rescue, Bhagwati (A-6) gave a spear
  blow on Ramgopal' back, as a result of which Ramgopal fell
c down. It was further stated that other accused persons, namely,
  Devi Prasad, original accused No. 5 (A-5), Hari Shankar,
  original accused No. 2 (A-2) and Radhacharan, original
  accused No. 3 (A-3) also gave Lathi blows on injured
  Ramgopal (deceased). Ramgopal was then taken to Ambah,
D
  but he died on the way.
                                                                      ...
       3. On receipt of the information, the usual investigation
  started. Inquest report was drawn and the body of Ramgopal
  (deceased) was sent for post mortem examination, which was
  conducted by Dr. K.S. Chauhan (PW-1). In the post mortem
E report, it was shown that the death was caused because of the
  piercing blow, due to which right lung was damaged by
  penetrating spear. After the registration of offence, Sambhu
  Singh, Sub-Inspector (PW-9) arrested all the accused persons,
  who were initially absconding. After their arrest, Bhagwati
F (appellant herein) agreed to discover the spear used in the
  crime from the wheat field, which was accordingly recovered
  from that place. So also, the other accused persons gave
  information leading to the recovery of their respective Lathis,
  which were used in commission of crime. The spear was sent
G to Forensic Science Laboratory, Sagar, M.P. and after
  completion of the investigation, the chargesheet was filed.

        4. The Trial Court acquitted all the accused persons of all
                                                                      lo
                                                                            ..
    the offences. The Trial Court held that there was no direct
    evidence for common object. It was also held that the two eye-
H
                      BHAGWATI PRASAD v. STATE OF- M.P.                     131
    ~
                            [V.S. SIRPURKAR, J.]
              witnesses, namely, Kedar Prasad (PW-2), being the brother of A
               Ramgopal (deceased) and Ramgopal (PW-3) S/o Tularam,
              being the cousin of the deceased could not be relied upon. After
              quoting from their evidence, the Trial Court found two
              irregularities, which according to the Trial Court were
              substantial. The first was relating to the spot of occurrence not B
               being properly identified. For this, the Trial Court found that there
        t     was contradiction in the version of the eye-witnesses and the

-              spot map (Exhibit P-4). The second irregularity, according to
               the Trial Court, was about the inquest panchnama (Exhibit P-
               12), which was found to be torn. According to the Trial Court, c
              the Police had failed to supply the carbon copy of the
              panchnama, though direction was given by the Court, which
              was not complied with by the Police. According to the Trial Court
              that panchnama was deliberately held back. By way of some
               other irregularities, the Trial Court found that there was D
        ..,    contradiction in the version of Kedar Prasad (PW-2) and
              Ramgopal (PW-3) about existence of the blood in the field and
              the spot on which the blood was found. One more contradiction
              was found in the evidence of Rall)gopal (PW-3) as to whether
              he was accompanying the complainant party or whether he had
                                                                                     E
              joined them some time later. On these grounds, the Trial Court
              came to the conclusion that the prosecution case was not
              proved.

                    5. This order was appealed against before the High Court.
              The High Court, in its well considered judgment, discussed all F
              the issues. The High Court firstly held that it had the full powers
              to review the evidence being the Court of Appeal. The High
              Court then examined the principles to be adopted in appeal
              against acquittal for appreciation of evidence. The High Court
              then went on to hold that the traumatic and homicidal death of G
              deceased was proved. After discussing the medical evidence,
              the High Court firstly dealt with the caustic remarks by the
              Sessions Judge against the Police. Those remarks are to be
              found in Paras 13 and 14 of the judgment of the Trial Court. It
              so happened that some portion of panchnama (Exhibit P-12) H
    132 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A was not to be found. The Trial Court held that that portion of
  the original panchnama was deliberately torn. It seems that the
  Sessions Judge had directed production of carbon copy of
  some documents and written some letters (Exhibits C-1 to C-
  4). However, it was pointed out by the Public Prosecutor that
B the originals of Case Diary and the documents were already
  there before the Court and, therefore, there was no question
  of producing the carbon copy of the record. This was not taken



c
  very well by the Sessions Judge and he observed in Para 13
  of his judgment that :-

         "13. ......... It is the matter of regret that police has treated
              this Court iLLst like defence and enemy. When the
                                                                               -
              police has such respect towards Court, then bad
              day of judiciary has come. It is said that till today
              people has faith upon judiciary. The people should               <·
D             be ready to bear bad result."

       Further, in Para 14, the Sessions Judge held that:-

         14.    Fact is not so simple, Chor-ke-dadhi-me-tinka's
               fact is materialized in this case. Carbon copy of
E
               case diary is intentionally concealed. Had the
               carbon copy produced, then purpose of tourning of
               bottom portion of panchnama of dead body (P-12)
               would have been clearly proved or the good-faith
               of prosecution have been proved ........................... .
F              From the activities of non-producing the carbon
               copy of diary into the Court, it can be easily said
               that this person Shri R.B. Sharma, S.P.O. (Police),
               Ambah is himself responsible for tourning (probably
               tearing) of panchnama of dead body to save his
G              under-working employee. He cannot take the risk
               of contempt of Court and hence, there is sign of
               second offence."

     The High Court noted this and found that all these
H comments were completely unwarranted, irrelevant and
                   BHAGWATI PRASAD v. STATE OF M.P.                      133
                         [V.S. SIRPURKAR, J.]

           unnecessary for the decision of the case. It was further observed    A
           that no explanation of the Reader, who keeps the record, was
           taken on 22.8.1985, when one R.N. Sharma (PW-6), who
           prepared the inquest panchnama, was examined and no
           question was put to him. The High Court thus found that at least
           till that date, inquest panchnama was intact. It further expressed   8
           that perhaps it was torn or mutilated while handling the file. The
           High Court further found that copy of the panchnama was
      ~    supplied to the defence and the Trial Court either should have
           taken such copy from defence or could have written a suitable
           memo to the S.P. for sending carbon copy of the same,                c
           explaining the situation. The High Court also observed that
...        sending the APP for obtaining the carbon copy and insisting
           upon his personally talking to S.P. was an unnecessary
           exercise. The High Court also observed that drawing of any
           adverse inference therefrom was unwarranted.                         D
      ~
                 6. High Court then discussed the evidence of two eye-
           witnesses being Kedar Prasad (PW-2) and Ramgopal (PW-
           3) in details and came to the conclusion that their evidence was
           credible and unshakable. For this, the High Court also relied
           on the medical evidence of Dr. K.S. Chauhan (PW-1) and the           E
           further fact that even Kedar Prasad (PW-2) and Ramgopal
           (PW-3) had sustained injuries in the same occurrence. The
           High Court rejected the claim of the defence that these two
      -+   witnesses were relations and, therefore, their evidence was
           liable to be rejected. For this proposition, the High Court relied   F
           on the decisions in Rachamreddi Chenna Reddy Vs. State of
           A.P. [1999 (3) SCC 97], Li/aram (Dead) through Du/i Chand
           Vs. State of Haryana & Anr. [1999 (9) SCC 525], State of
           Rajasthan Vs. Hanuman [2001 (1) SCC 337] and Munshi
           Prasad & Ors. Vs. State of Bihar [2002(1) SCC 351].                  G

                7. The High Court also discussed the evidence of Amar
           Singh (DW-1), Omprakash (DW-2), who were the relatives of
           the accused persons, as also Gopinath (DW-3), brother-in-law
           of the sister of Bhagwati Prasad (appellant herein). Gopinath
                                                                                H
    134 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A (DW-3) was examined to prove the alibi of Bhagwati Prasad
  (appellant herein), however, the High Court rejected that claim.
  The High Court also refused to draw adverse inference for not
  examining some other witnesses like Ramdayal and Bansi,
  since they had come to the place of occurrence, only after the
B incident. The High Court, in Para 18 of its judgment, has
  discussed the topography of the place of occurrence and
  critically examined the evidence of Vishram Palia (PW-8), Head
  Constable and Jamna Prasad (PW-7), Patwari, who had drawn
  the spot map. It also examined the placement of Canal, Bamba
c and aqueduct. The claim of the defence that there was a serious
  discrepancy in respect of the place of occurrence was rejected
  by the High Court and concluded that the Trial Court had over-
  emphasized on this issue. The High Court then recorded that
                                                                     ...
  the defence had no alternative case to suggest that event had
  happened anywhere else. The defence had merely suggested
0
  that someone had murdered Ramgopal (deceased) in the night
  by the side of outlet of canal (Bamba) and a false case had
  been framed against the accused. The High Court, therefore,
  came to the conclusion that the actual spot of dispute was of
  no consequence and the two injured eye- witnesses, name!y,
E Kedar Prasad (PW-2) and Ramgopal (PW-3) had clearly
  supported the prosecution case and, therefore, in keeping with
  the law laid down by this Court in Shankar Mahto Vs. State of
  Bihar [2002(6) SCC 431), the minor discrepancies, if at all,
  were not sufficient to disbelieve the evidence of two eye-
F witnesses. It was pointed out that there was no previous enmity
  between the parties and the incident arose on account of
  opening of the aqueduct for irrigation.

       8. The High Court further found that participation of Devi
G Prasad (A-5), Hari Shankar (A-2) and Radhacharan (A-3) was
  not proved beyond doubt and proceeded to acquit them. It was
  also held that the participation of five persons was not proved
  and there could not be the common intention also of Baburam
  (A-1) and Bhagirath, original accused No. 4 (A-4) to cause
H death of the deceased. Uitimateiy, in Para 20 of its judgment,
             BHAGWATI PRASAD v. STATE OF M.P.                    135
                   [VS. SIRPURKAR, J.]

'"   the High Court pointed out that the offence on the part of the     A
     present appellant could not be that under Section 302 IPC and
     it was only covered under Section 304Part11 IPC, while Babula!
     (A-1) and Bhagirath (A-4) were held guilty for the offences
     punishable under Section 323 IPC. In that view, the appellant
     was awarded 5 years' rigorous imprisonment, while Babula! (A-      B
     1) and Bhagirath (A-4) were sentenced to undergo simple
     imprisonment till rising of the Court and to pay a fine of
i    Rs.1,000/-, in default of payment of which, to undergo rigorous
     imprisonment for 3 months.

          9. Shri S.K. Dubey, Learned Senior Counsel appearing          C
    on behalf of the appellant led great stress on the spot, where
    the incident allegedly had occurred. He also took us through
    the evidence of the eye-witnesses and urged that the High Court
    had erred in setting aside the well considered verdict of
    acquittal by the Trial Court. Shri Dubey firstly urged that the     D
.i change of spot of occurrence was apparent as the place where
    the incident allegedly took place, did not have any blood, though
    according to the witnesses, Ramgopal (deceased) had fallen
   down on that place. It is to be noted that Kedar Prasad (PW-
   2) had not referred to any spot of blood in the field of the         E
   complainant, while as per the evidence of Ramgopal (PW-3),
   there was blood at one spot. Ramgopal (PW-3) went on to
   depose that he had shown the spot where there was presence
-t of blood and Vishram Palia (PW-8), Investigating Officer had
   also seized the blood-stained earth from the place of incident.      F
   In Para 9 of his deposition, Ramgopal (PW-3) had deposed
   that the place where Ramgopal (deceased) had fallen, there
   was presence of blood on that spot in the field. When we see
   the evidence of Vishram Palia (PW-8), Investigating Officer, he
   asserted that there was no blood found in the field. The Learned     G
   Senior Counsel for the appellant, therefore, argued that the
 ~ whole prosecution claim is contradictory as according to Kedar
   Prasad (PW-2), incident took place near the canal. There was
   no blood to be found at that spot or even at the spot where the
   aqueduct was sought to be opened by the deceased. In                 H
    136 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A comparison to this, on the claim of Ramgopal (PW-3) that there
  was blood somewhere in the field and it is at that spot that
                                                                       •
  Ramgopal (deceased) was assaulted, the Learned Senior
  Counsel contended that this only suggested that both the eye-
  witnesses were lying completely and the whole incident was
B imaginary.
         10. We cannot accept this contention. The version of
    Ramgopal (PW-3) that he showed the blood spot to Vishram
    Palia (PW-8), Investigation Officer and that there was blood,      <)"

    has to be rejected as exaggeration. Instead of relying on the
c   evidence of a villager regarding the blood spot, we would chose
    to accept the evidence of Vishram Palia (PW-8), Investigation
    Officer, who very specifically asserted that there was no blood
    anywhere in the field. The Learned Senior Counsel argued that
    it was impossible that the blood would not come out of the
D   body, however, the Learned Counsel appearing on behalf of
    the State pointed out that it is not necessary that the blood
                                                                       ~
    would flow like tap-water from a single wound, even if the said
    wound proved fatal, as has been asserted by Dr. K.S. Chauhan
    (PW-1). It must be borne in mind that the deceased, at that
E   time, was wearing a vest and a shirt above and even if the
    blood came out, it could be soaked in the clothes worn by the
    deceased at that time. Therefore, the Learned Counsel for the
    appellant urged that the evidence of Vishram Palia (PW-8),
    Investigation Officer would be more acceptable and
                                                                       ' I-
F   appropriate. The Learned Senior Counsel is undoubtedly right.
    Further, there is no evidence that any artery of the deceased
    was cut. This is apart from the fact that there was no i:ioss-
    examination of Kedar Prasad (PW-2) on this issue. The
    Learned Counsel for the State rightly pointed out that in the
G   spot-map or in the observation panchnama, there is no place
    shown as blood-stained and had the blood been present there,
    there was no reason for the prosecution to hide that spot or to     .    ,
    avoid stating about that. In our opinion, the exisience of blood
    or absence thereof would by itself not be such a fact as would
H   completely wipe out the evidence of two eye-witnesses.
           BHAGWATI PRASAD v. STATE OF M.P.                      137
                 [V.S. SIRPURKAR, J.)
         11. In fact, much confusion was caused on account of the        A
    use of three words, namely, canal, Bamba and cool. The
    witnesses have specifically explained that the main canal was
    on the Northern side of the two adjacent fields of the
    complainant. Bamba, i.e., outlet of canal is from that canal on
    the Northern side and the water then comes in that small outlet,     B
    which feeds Eastern side field of the complainant. Adjacent to
    that field is another field of the complainant and naturally, in
-t
    order to draw water from Bamba, there has to be an aqueduct,
    which would go up to the adjacent field of the deceased. It is
    at that spot that the incident must have taken place. This           c
    situation is explained by Kedar Prasad (PW-2). He says in
    Para 15 of his deposition that on the earlier day of the incident,
    water from the canal was released in his field; the water was
    released firstly in the canal and they (complainant party) went
    in the morning to open the water in his field. He was specific       0
 1 that before that, water was not flowing in the canal. He was
    obviously referring to the Northern side main canal. Much was
    made by the learned defence Counsel that the word used is
    "canal" in the First Information Report and, therefore, urged that
    the spot of occurrence must be near the canal in the Northern        E
    side. This is obviously impossible for the simple reason that
    both the eye-witnesses are unanimous on the point that the
    incident took place in the field of complainant, which was not
 ,. adjacent to the main canal flowing East-West on the Northern
    side. The witness Kedar Prasad (PW-2) has specifically
    deposed:-                                                            F

      "When water is opened from canal, it comes to bomba and
      thereafter when bomba opens then comes to cool and
      when cool is opened, it comes to field."
                                                                         G
     As regards the spot of occurrence, the witness said in para
'18 of his deposition that:

      "Murder took place in the field situated near Lahdaria
      village. Murder was not taken place in the field situated
      near road named Ambah Used Ghat."                                  H
    138     SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A       The witness was very specific in his answer when he was          ..
    asked whether Investigation Officer collected the blood from the
    place of incident. He deposed:-

          "I do not know whether 1.0. had collected blood at the time
          of preparation of spot map. I do not know whether blood
B
          was present on the place of incident."

          Ramgopal (PW-3) also asserted that:-
                                                                        ,..
          "Quarrel had taken place on the issue of water. Kedar was
c         releasing water in his field. He was releasing water from
          the cool."

        Ramgopal (PW-3) was very specific that the murder took
  place in the field of Kedar Prasad (PW-2). In his cross-
  examination, he stated that he was not called by Ramgopal
D (deceased) or Kedar Prasad (PW-2) to irrigate the field and
  that he was going to his own field alongwith them. The Learned        t
  Senior Counsel for the appellant found fault with this and
  according to the Learned Senior Counsel, since the version
  was that he was going for irrigating his field and since the
E version of Kedar Prasad (PW-2) was that this witness was
  going with them to their field, this witness was lying. The
  argument is correct. What was the purpose of this witness in
  going was not material. Whether the witness was there or not
  at the time of assault on Ramgopal is the material fact. It was       +
F obvious that he may have gone to the spot either for irrigating
  or for collecting grass from his own field. The purpose is
  irrelevant. Therefore, the contention of the Learned Senior
  Counsel is not right.

G        As regards the incident and topography, Ramgopal (PW-
    3) says that:-

          "It is true that water is first released from canal to the
          Bomba and when released from Bomba then it comes to
          cool and when it released from cool then it comes to
H
                  BHAGWATI PRASAD v. STATE OF M.P.                      139
                        [V.S. SIRPURKAR, J.]
               Baraha and when it is released from Baraha then it comes         A
               to field. No quarrel had taken place when water was
               opened from canal. Bomba from the canal came upto
               Lahdaria Village and take a turn therefrom. I do not know
               the distance between the place of murder and the place
               of cool where from water released for Baraha. Even I             B
               cannot say the distance in yard, hand, fields, steps etc."

    ;-         He, however, refuted the suggestion that the quarrel has
          taken place where the water was released from the canal. He
          further asserted that:-
                                                                                c
               "It is also not a fact that when water open from canal then
               accused persons came with lathi and Ballam and started
               qurreling and mar-pit. "

                Now, such suggestion, in our opinion, was a suicidal            D
    ,,,   suggestion. It merely established the presence of the accused
          persons with weapons, which they handled. The witness further
          specified that when water was opened from cool, then mar-pit
          had taken place. It must be realized that vocabulary and the
          terms used by the villagers could always be confused by the
                                                                                E
          police when they recorded their statements. Much importance
          cannot be given to such minor discrepancies. The broad
          features of the evidence were that the complainant party wanted
          to irrigate their field and for that they wanted to open the
i
          aqueduct for supplying water to their field and it was at that spot
                                                                                F
          that the incident took place. Once the evidence of the two eye-
          witnesses, who themselves were injured eye-witnesses, was
          accepted by the High Court after the detailed consideration and
          when they asserted that the incident took place in the field of
          the complainant and when placement of the field of the
          complainant was fixed by the evidence, the evidence becomes           G
          immediately acceptable and then such minor discrepancy
          whether it was spot 'A' or spot 'B', would be pushed to the
          background. Such minor discrepancy cannot affect the whole
          prosecution story. It is only when the defence is able to establish
          that the change of the spot was deliberate and such a change          H
     140 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


.A was so substantial as would affect the whole prosecution story,
   that such discrepancies assume importance. In the present
   case, it was clearly an open and shut case where the two eye-
   witnesses in the broad day light witnessed the attack by the
   accused persons. There was absolutely no variance in the
 B version of the two eye-witnesses to the effect that it was the
   present appellant, who gave the spear blow on the back of the
   deceased. It must be seen immediately that both the
   witnesses, i.e., Kedar Prasad (PW-2) and Ramgopal (PW-3)
                                                                      t
   were injured and there was no explanation for their injuries.
 c      12. Shri S.K. Dubey, Learned Senior Counsel for the
   appellant tried to suggest that in the medical certificate, age
   of the injuries was mentioned as 24 hours. Now, it is obvious
   that the maximum duration of the injuries was stated in the
   medical certificate. What was meant was that the injuries could
 D have been caused within 24 hours from the time the witnesses
   were examined by the Doctor. Shri Dubey again pointed out
                                                                      ~
   that in the post mortem report, the age of the injuries of the
   deceased was mentioned as 6 hours. It must be borne in mind
   that in the post mortem report, the determination of precise
 E duration of the injuries can be possible due to the internal
   examination of the injuries, whereas no such advantage is
   available to the Doctor when he examines the injuries in the
   nature of contusions. Therefore, normally the approximate
   duration is indicated in such certificates. We are not impressed
 F by the argument of the defence on this aspect and reject the
   same.
        13. It was also tried to be argued by the Learned Senior
   Counsel for the appellant that there were certain discrepancies
   in the First Information Report (FIR), like from the FIR, it was
 G suggested as if the incident had taken place near the canal.
   We have already considered this contention that the use of the
   word "canal" may be because of the impression of the
   Constable, who wrote the report in vernacular. That, however,
   will not take the spot of occurrence near the canal on the
 H Northern side.
        BHAGWATI PRASAD v. STATE OF M.P.                        141
              [V.S. SIRPURKAR, J.]
    14. We are, therefore, of the clear opinion that the High           A
Court was absolutely right in upsetting the judgment of acquittal
passed by the Trial Court and convicting the accused persons.

     15. Shri S.K. Dubey, Learned Senior Counsel for the
appellant then contended that the sentence of five years is too         8
harsh, considering the fact that the prosecution is pending for
so many years. We do not think that the sentence of five years
is unduly harsh, considering that a life is lost and that too without
any justification. In the result, the appeal fails and is dismissed.

CRL. M.P. NO. 18556 OF 2009                                             c
    In view of the order passed in the main appeal, this
application has become infructuous and is accordingly
dismissed.
                                                                        D
D.G.                                           Appeal dismissed.