DINESH SAHU ALIAS DINNUversusTHE STATE OF MADHYA PRADESH

                  [2024] 8 S.C.R. 929 : 2024 INSC 740

                       Dinesh Sahu Alias Dinnu
                                   v.
                     The State of Madhya Pradesh
                    (Criminal Appeal No(s). 960 of 2021)
                                22 August 2024
           [Bela M. Trivedi* and Satish Chandra Sharma, JJ.]

                           Issue for Consideration
       Concurrent conviction of the appellant for the offence punishable
       under Section 302 read with Section 34 of the Penal Code, 1860,
       if justified. Whether the prosecution was able to prove the guilt of
       the appellant beyond reasonable doubt.

                                  Headnotes†
       Penal Code, 1860 – s.302 r/w s.34 – Concurrent conviction
       under – If to be interferred with:
       Held: No – Evidence of witnesses cannot be totally discarded
       merely because they turned hostile to the case of prosecution during
       the course of trial – One of the panch witnesses duly supported
       the case of the prosecution as regards the recovery of the alleged
       weapon/article, Khukri, from the house of the appellant – Merely
       because the said witness knew the deceased, it cannot be said
       that he was an interested witness or an unreliable witness – Doctor
       who carried the post-mortem of the deceased, also opined that
       the injuries on the body of the deceased were possible with the
       alleged weapon khukri – Futher, as per the FSL report, the blood
       group of the deceased was present on the khukri – Courts below
       discussed the evidence in detail and found the appellant guilty –
       Prosecution succeeded in proving the guilt of the appellant beyond
       reasonable doubt. [Paras 10, 13]

                                  List of Acts
       Penal Code, 1860.

                               List of Keywords
       Section 302 read with Section 34 of the Penal Code, 1860;
       Concurrent conviction; Guilt proved beyond reasonable doubt;
       Evidence; Witnesses; Hostile witnesses; Panch witnesses;
* Author
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       Recovery of the alleged weapon/article; Khukri; Interested
       witness; Unreliable witness; Material witnesses; Blood group of
       the deceased.

                             Case Arising From
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 960
       of 2021
       From the Judgment and Order dated 04.07.2019 of the High Court
       of M.P. Principal Seat at Jabalpur in CRA No. 1867 of 2007

                          Appearances for Parties
       Ms. Sangeeta Kumar, Adv. for the Appellant.
       Ms. Mrinal Gopal Elker, Adv. for the Respondent.

                  Judgment / Order of the Supreme Court

                                  Judgment
       Bela M. Trivedi, J.
1.     The instant appeal arises out of the impugned judgment and order
       dated 04.07.2019, passed by the High Court of Madhya Pradesh,
       Principal Seat at Jabalpur in Criminal Appeal No. 1867 of 2007,
       whereby the High Court has confirmed the judgment and order
       dated 16.08.2007, passed by the Court of 3rd Additional Sessions
       Judge, Bhopal in S.T. No.43 of 2007, convicting the present appellant
       Dinesh Sahu alias Dinnu and the co-accused Raju Sharma alias
       Awadhesh Sharma alias Naresh Sharma, for the offence punishable
       under Section 302 read with Section 34 of the Indian Penal Code
       and sentenced them to suffer Life Imprisonment along with a fine of
       Rs.3,000/-, in default thereof to undergo further rigorous imprisonment
       for six months.
2.     The case of the prosecution in a nutshell was that, one Vinod Sai
       (since deceased) was running a light refreshment stall under the
       name and style of Ajay Tea Stall Baba Board Chowraha. There was
       a previous enemity between the said Vinod Sai (since deceased)
       and Raju Sharma alias Awadhesh Sharma alias Naresh Sharma.
       On 10.09.2004, a quarrel took place between the above parties
       and both lodged reports against each other. Driven by the same,
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       Dinesh Sahu Alias Dinnu v. The State of Madhya Pradesh


     on 11.11.2006 at 07:00 p.m., when Kamal Sanwale (PW-6) and
     Vinod Sai (since deceased) were at the shop, the said Raju Sharma
     alias Awadhesh Sharma alias Naresh Sharma armed with sword
     and Dinesh Sahu alias Dinnu (the appellant herein) armed with a
     khukri, came on the spot. Both of them inflicted several blows on
     Vinod Sai. As a result, thereof, he fell down and died on the spot.
3.   According to the further case of the prosecution, on hearing the ruckus,
     Kamal, Kalim, Anil, Salman and Santosh rushed to the spot to save
     Vinod Sai but the appellant- Dinesh Sahu alias Dinnu threatened
     them by showing khukri, and thereafter both the accused, namely,
     Raju Sharma and Dinesh Sahu, fled away from the spot. At that
     time, Shashi Bai (PW-13), the mother of Vinod Sai was coming to
     the shop of her son to take charge of the shop and she witnessed
     the entire incident.
4.   At the instance of the informant Kamal Sanwale (PW-6), Dehati
     Nalisi (Ex.P/1) was prepared by Arvind Singh Raghuvanshi, who
     was the Investigating Officer of the case and a temporary Crime
     bearing No. 0/06 was registered for the offence punishable under
     Section 302 read with Section 34 of the Indian Penal Code. Dehati
     Nalisi was sent to the Police Station, Habibganj for registration, where
     it was registered as Crime No.1100/2006. After the completion of
     the investigation, charge-sheet was filed against both the accused.
5.   The Trial Court, after recording the evidence of the witnesses
     examined by the prosecution and on appreciating the evidence on
     record, convicted the accused, namely, Raju Sharma alias Awadhesh
     Sharma alias Naresh Sharma for the offence punishable under
     Section 302 of the IPC and Dinesh Sahu alias Dinnu, for the offence
     punishable under Section 302 read with Section 34 of the IPC.
6.   Being aggrieved by the said judgment and order of conviction and
     sentence, both the accused preferred the Criminal Appeal No.1867
     of 2007 before the High Court, which dismissed the appeal and
     confirmed the judgment and order passed by the Trial Court.
7.   The present appellant (Dinesh Sahu alias Dinnu), being aggrieved
     by the said judgment and order passed by the High Court, has
     preferred the instant appeal.
8.   The learned counsel, Ms. Sangeeta Kumar, appearing for the
     appellant, taking the Court to the record of the case, more
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       particularly, the evidence of the witnesses, strenuously urged that
       all the material witnesses had turned hostile including the informant
       Kamal Singh (PW-6). She further submitted that neither the evidence
       of Pratap Singh (PW-14), in whose presence the alleged recovery
       of khukri was made from the house of the appellant, was reliable
       nor the evidence of the mother of the deceased, Shashi Bai
       (PW-13), was reliable. According to her, even the very presence
       of Shashi Bai (PW-13) was doubtful inasmuch as, her statement
       was recorded three days after the alleged incident took place.
       She further submitted that the appellant has already undergone
       incarceration for a period of more than 11 years (as on the date)
       and that there being no evidence on record against the appellant
       to show that the appellant had shared the same intention as his
       co-accused-Raju Sharma to kill Vinod Sai, the appellant should be
       given benefit of doubt.
9.     However, the learned counsel Ms. Mrinal Gopal Elker, appearing
       for the respondent-State would vehemently submit that there being
       concurrent finding of facts recorded by the two Courts below, this
       Court in exercise of the powers under Article-136 of the Constitution
       of India, should not interfere with the same, more particularly, when
       the prosecution had proved the charges levelled against the present
       appellant beyond reasonable doubt. She has placed heavy reliance
       on the evidence of Dr. C.S. Jain (PW-17), who had carried out the
       post-mortem of the deceased, who had opined in his post-mortem
       report that the cause of death of the appellant was due to several
       injuries sustained by him and that such injuries are possible with
       the weapon recovered from the appellant-accused.
10. Having regard to the submissions made by the learned counsel
    for the parties, and to the evidence available on record, it appears
    that the guilt of the appellant was sought to be established by
    the prosecution by examining as many as seventeen witnesses,
    including the informant Kamal Singh and the other eye-witnesses, as
    also the Shashi Bai (PW-13), who was the mother of the deceased. It
    is true that except the two witnesses, namely, Pratap Singh (PW-14)
    and Shashi Bai (PW-13), the other material witnesses had turned
    hostile. Nonetheless, it is pertinent to note that the evidence of
    witnesses cannot be totally discarded, merely because they have
    turned hostile to the case of prosecution during the course of trial.
[2024] 8 S.C.R.                                                        933

       Dinesh Sahu Alias Dinnu v. The State of Madhya Pradesh


     The informant, Kamal Singh (PW-6), had admitted his signatures
     on the Dehati Nalisi (Ex.P/1), which was recorded immediately after
     the incident in question involving both the accused in the alleged
     incident. It is further required to be noted that one of the panch
     witnesses, namely, Pratap Singh (PW-14) has duly supported the
     case of the prosecution as regards the recovery of the alleged
     weapon, Khukri, from the house of the present appellant. Though
     the said witness was thoroughly cross-examined by the defense
     counsel, nothing significant adverse to the case of prosecution has
     come on record. Of course, the learned counsel for the appellant
     had tried to impeach the credibility of the said witness by submitting
     that he was an interested witness as he was known to the deceased
     Vinod Sai, and also since he had come to the Court in a drunken
     condition, the said fact was taken into consideration by the Trial
     Court at the time of recording his deposition by noting that though,
     the witness was drunk, he was perfectly in sound state of mind
     to understand the questions put to him and was able to give his
     deposition. Merely because the said witness knew the deceased, it
     cannot be said that he was an interested witness or an unreliable
     witness.
11. The mother of the deceased, Shashi Bai (PW-13), was also thoroughly
    cross-examined by the defense and nothing adverse to the case of
    prosecution had come on record, which would help the case of the
    appellant.
12. It is also pertinent to note that Dr. C.S. Jain (PW-17), who had carried
    the post-mortem of the deceased, had also opined that the injuries
    on the body of the deceased were possible with the alleged weapon/
    article khukri, which was recovered from the house of the present
    appellant. The said weapon khukri, seized/ recovered from the house
    of the appellant was also sent to Forensic Science Laboratory (FSL)
    and as per its report, the human blood of ‘Group B’ was present on
    it, which was the blood group of the deceased.
13. In view of the above evidence, we are of the opinion that the
    prosecution had succeeded in proving the guilt of the appellant
    beyond reasonable doubt. Even the two Courts below have also
    discussed the said evidence in detail and found him guilty of the
    charges levelled against him.
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14. We do not see any good ground to interfere with the said concurrent
    findings of facts recorded by the Courts below.
15. In that view of the matter, the present appeal is dismissed.
16. Pending application(s), if any, shall stand closed.

       Result of the case: Appeal dismissed.



       †
           Headnotes prepared by: Divya Pandey