KALABHAI HAMIRBHAI KACHHOTversusSTATE OF GUJARAT

                         [2021] 4 S.C.R. 239                            239


               KALABHAI HAMIRBHAI KACHHOT                               A
                                  v.
                        STATE OF GUJARAT
                  (Criminal Appeal No. 216 of 2015)
                           APRIL 28, 2021
                                                                        B
     [ASHOK BHUSHAN AND R. SUBHASH REDDY,JJ.]
       Penal Code, 1860: s. 302 rw s. 34 – Murder – Previous
animosity between the parties – On the fateful day, accused persons
attacked the victim and two others with knives, resulting in victim’s
death, and injuries to other two - Conviction and sentence u/s. 302
rw s.34 and s. 135(1) of the Bombay Police Act – High Court while       C
upholding the conviction, extended benefit of s. 428 CrPC –
Interference with – Held: Not called for – On examination of entire
evidence of all the witnesses with reference to medical and other
evidence on record, it is clear that the prosecution proved the guilt
of the accused beyond reasonable doubt – All the accused committed      D
the offence with a common intention and all participated in
committing the crime – Role attributed to accused fully supported
by the injured witnesses as well as the deposition of investigation
officer – Testimony of the injured witness is natural and trustworthy
– Contradictions sought to be projected in the deposition of injured
witnesses are minor contradictions which cannot be the basis to         E
discard their evidence – Omissions like non-seizing of motorcycle
and gold chain of one of the victims, not a ground to discredit the
testimony of key witnesses who were consistent, natural and
trustworthy – Criminal trial – Evidence – Witnesses.
      Dismissing the appeals, the Court                                 F
      HELD: 1.1 The view taken by the trial court in recording
the conviction against the appellants, as confirmed by the High
Court is upheld. Therefore, no interference is called for with the
concurrent findings recorded against the appellants. It is also
clear that there was a quarrel between the deceased about six           G
months earlier to the incident and one accused regarding payment
of rent of tractor. Further it is brought on record that there was
animosity between them which is the motive for the crime. As
such, the prosecution has established, beyond reasonable doubt,
that all the accused have committed the offence with a common
                                                                        H
                                239
240            SUPREME COURT REPORTS                      [2021] 4 S.C.R.


A     intention and participated in committing the crime. The trial court
      as well as the High Court has not committed any error in law or
      on facts, as such, the order is upheld. [Para 21][256-C-E]
             The testimony of PWs-8 and 19 who were with the deceased
      on the day of occurrence and who were travelling on the same
B     motorcycle, is quite natural and trustworthy. Though it was
      submitted that as the incident happened in the month of
      November it was not possible to identify the assailants in the
      darkness, at the same time it is clear from the evidence on record
      that the headlight of the vehicle was ‘on’ and it is evident from
      the record and panchnama of the place of occurrence that there
C     was a light which was there on the Vadi. Furthermore, the accused
      as well as the witnesses are of the same village, which appears to
      be a small village and usually the persons residing in the village
      meet frequently, there would not be any difficulty in identifying
      the persons. Therefore, as far as the identification of the accused
D     is concerned, the same is well supported by the evidence on
      record. The prosecution also examined PW-1 who had deposed
      that he was on duty in the Hospital on 10.11.2006. On that day in
      the night, injured RM was brought to him by his nephew H, for
      treatment with the complaint and stated that VR attacked him
      and gave knife blow. The witness doctor issued injury certificate.
E     PW-2, is the doctor who performed postmortem of the deceased.
      [Para 17][249-C-F]
             The submission that there was no head injury, as deposed
      by PWs-18 and 19 on the deceased and also as per the postmortem
      report, as such the deposition of PWs- 18 and 19 is to be discarded,
F     cannot be accepted for the reason that the postmortem report
      indicates injury on the lower back side of the head. An attempt
      was made to assault the deceased with an axe. It cannot be
      expected that it has to be hit on the centre of the head. It has
      fallen on the lower back side of the head, same is evident from
G     the postmortem report. The attack was made on the deceased
      and injured, when they were moving on motor cycle. As such, it
      cannot be said that merely because there is no injury on the centre
      of the head, the testimony of PWs 18 and 19 is to be discarded.


H
KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT                          241


The doctor who has conducted the postmortem, has also clearly           A
stated in his deposition that all injuries which were noticed on
the deceased were ante mortem. If the entire evidence of all the
witnesses is examined with reference to medical and other
evidence on record, it is clear that the prosecution has proved
the guilt of the accused beyond reasonable doubt. All the accused
                                                                        B
have committed the crime with a common intention. It is clear
from the record that the role attributed to accused nos.1, 2 and 3
is fully supported by the injured witnesses as well as the deposition
of investigation officer. Though the key witness, were cross-
examined at length, nothing adverse was elicited. If the testimony
of PW 20, is examined, same is fully supported by the evidence          C
of PW 18, 19 and 21. It is clear from the evidence on record that
their testimony is natural and trustworthy and so far as PWs18
and 19 are concerned it cannot be said that they are the chance
witnesses. Even the injuries sustained by PWs18 and 19 are not
self-inflicted as per the opinion of the medical expert. Further, it
                                                                        D
is 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 the
blood group was found on the cloths of the deceased and that of
the accused nos.1 and 2 is the same. Even with regard to the
presence of accused no.3, it is also clear considering the entire       E
oral evidence on record that his presence on the spot is also
proved beyond reasonable doubt. [Para 18][252-C-H; 253-A-B]
       It cannot be said that there are major contradictions in the
deposition of PWs 18 and 19. The contradictions which are sought
to be projected are minor contradictions which cannot be the            F
basis to discard their evidence. The prosecution has proved the
case against all the appellant-accused beyond reasonable doubt.
The omissions like not seizing the motorcycle and also not seizing
the gold chain of one of the victims, by itself, is no ground to
discredit the testimony of key witnesses who were examined on
behalf of the prosecution, whose say is consistent, natural and         G
trustworthy. [Para 19, 20][253-C-D; 256-B-C]




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242            SUPREME COURT REPORTS                      [2021] 4 S.C.R.


A           Mohar & Anr. v. State of U.P. (2002) 7 SCC 606; State
            of Uttar Pradesh v. Naresh & Ors. (2011) 4 SCC 324;
            Narayan Chetanram Chaudhary & Anr. v. State of
            Maharashtra (2000) 8 SCC 457 – relied on.
            Anand Ramachandra Chougule etc. v. Sidarai Laxman
B           Chougala & Ors. (2019) 8 SCC 50: [2019] 11 SCR
            14; Akula Veera Venkata Surya Prakash @ Babi v.
            Public Prosecutor, High Court of Andhra Pradesh
            (2009) 15 SCC 246 : [ 2009] 7 SCR 543; Mohinder
            Singh & Anr. v. State of Punjab & Ors. (2004) 12 SCC
            311 : [2011] 4 SCR 1176 – referred to
C
                            Case Law Reference
      [2019] 11 SCR 14                referred to            Para 10
      [ 2009] 7 SCR 543               referred to            Para 10

D     (2004) 12 SCC 311               referred to            Para 10
      (2002) 7 SCC 606                relied on              Para 19
      (2011) 4 SCC 324                relied on              Para 19
      (2000) 8 SCC 457                relied on              Para 20
E           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 216 of 2015.
            From the Judgment and Order dated 09.05.2014 of the High Court
      of Gujarat at Ahmedabad in Criminal Appeal No. 459 of 2010.
            With
F
            Criminal Appeal Nos. 453 Of 2021 and Criminal Appeal No. 290
      of 2018.
            Harin P. Raval, Sr. Adv., Anirudh Sharma, Awadesh Kumar,
      Kartikeya Kanojia, Sukanya Singh, Sameer Sawarn, Vaibhava Veer
      Shanker Nachiketa Joshi, Ms. Sucheta Joshi, Ms. Himadri Haksar, D.N.
G
      Ray, 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.
H
 KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT                             243
             [R. SUBHASH REDDY, J.]

      The Judgment of the Court was delivered by                            A
      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 judgment
dated 09.05.2014 passed by the High Court of Gujarat at Ahmedabad in        B
Criminal Appeal Nos.405 of 2010 and 459 of 2010, as such, they are
heard 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 of
S.L.P.(Crl.)No.3227 of 2015 is filed by accused no.2 – Mulubhai             C
Markhibhai Nandaniya; and Criminal Appeal No.216 of 2015 is filed by
accused no.3 – Kalabhai Hamirbhai Kachhot. For the sake of
convenience, the appellants in the above appeals shall be referred to as
accused nos.1 to 3 hereafter.
       4. The aforesaid appellants were the accused in FIR no.I-215/        D
2006 dated 11.11.2006 on the file of Keshod Police Station, which was
registered for the offences punishable under Sections 302, 326, 324 and
34 of Indian Penal Code (IPC) and Section 135 of the Bombay Police
Act, in which chargesheet was filed on 07.02.2007 in the court of First
Class Magistrate, Keshod. As much as the offences were triable by
Sessions Court, the case was committed to the Court of Additional           E
Sessions Judge, Junagadh and the accused were tried for the aforesaid
offences in Sessions Case No.14 of 2007. All the accused were convicted
for the offences under Section 302 read with 34, IPC and Section 135(1)
of the Bombay Police Act. Accused no.1 – Vajashibhai Ramshibhai
Kachhot – was found guilty for offence punishable under Section 302         F
read with 34, IPC and was sentenced to undergo life imprisonment and
to pay fine of Rs.10,000/- and in default, to undergo further S.I. for 12
months. He was also found guilty for offence punishable under Section
324, IPC and was sentenced to pay fine of Rs.3000/- and in default, to
undergo further S.I. for six months. He was also found guilty for the
offence punishable under Section 135(1) of the Bombay Police Act and        G
was sentenced to undergo S.I. for four months and to pay fine of Rs.100
and in default, to undergo further S.I. for ten days. Accused no.2 –
Mulubhai Markhibhai Nandaniya – was found guilty for offence
punishable under Section 302 read with 34, IPC and was sentenced to
undergo R.I. for life and to pay fine of Rs.10000/- and in default, to
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244             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A     further undergo S.I. for 12 months. He was also found guilty for offence
      punishable under Section 135(1) of Bombay Police Act and was
      sentenced 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 punishable
      under Section 302 read with 34, IPC and was sentenced to undergo R.I.
B
      for life and to pay fine of Rs.10000/- and in default, to further undergo
      S.I. for 12 months. He was also found guilty for offence punishable
      under Section 135(1) of Bombay Police Act and was sentenced to
      undergo 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 has
C     acquitted the original accused nos.2 and 3 of the charges under Sections
      326 and 324 read with 34, IPC. Against the judgment and order of
      conviction passed by the learned Sessions Court, accused nos.1 and 3
      filed Criminal Appeal No.459 of 2010 and accused no.2 filed Criminal
      Appeal No.405 of 2010 before the High Court.
D             5. The High Court, by the impugned common judgment, while
      confirming the conviction, has partly allowed the appeals and ordered
      that all the sentences imposed against the accused shall run concurrently
      and, by extending the benefit of Section 428 of the Code of Criminal
      Procedure, also ordered that the period of detention of the accused as
      under-trial prisoners be set off against the sentence.
E
             6. On 10.11.2006, one Rajshibhai Maldebhai Karangiya, resident
      of Bamnasa Ghed, Taluka Keshod, gave complaint before the Sub-
      inspector ‘B’ Division, Junagadh stating that he lives at Bamnasa Ghed
      with his family and is engaged in agricultural work and lives in the orchard
      situated in sim of village Akha. In his complaint, he has stated that at
F     about 5:00 p.m. on 10.11.2006 Rajshibhai Maldebhai Karangiya; Mitesh
      Hardasbhai and Gokalbhai Karsanbhai went to Keshod for some work
      on Gokalbhai’s Hero Honda motorcycle. Gokalbhai was riding the
      motorcycle. While returning, when they reached near to orchard of
      Kalabhai at about 7:15 p.m., Vajashibhai Ramshibhai, Mulubhai
G     Markhibhai and Kalabhai Hamirbhai Kachhot were waiting with axe
      and knives. In order to stop Rajshibhai Maldebhai Karangiya, Mulubhai
      gave axe blow, which hit on Gokalbhai’s head, due to which Rajshibhai
      Maldebhai Karangiya, Miteshbhai Hardasbhai and Gokalbhai fell down
      from the motorcycle. Thereafter the three accused have attacked the
      deceased Gokalbhai with knives and when Rajshibhai Maldebhai
H
 KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT                                245
             [R. SUBHASH REDDY, J.]

intervened, Vajashibhai gave knife blow on the head of Rajshibhai              A
Maldebhai Karangiya. It is also alleged that Vajshibhai hit knife blow on
the back side of head on ear and hit Mitesh on left shoulder. Gokalbhai
became unconscious. The three accused then ran away towards Akha
on Kalabhai’s motorcycle. Thereafter, relatives of the deceased and
injured were called and they were shifted to Government Hospital where
                                                                               B
Gokalbhai was declared dead and Rajshibhai Maldebhai and Miteshbhai
were given medical treatment. It is also stated that the reason behind
the incident is that six months earlier to the date of incident there was a
quarrel between Vajshibhai and Mulubhai with Gokalbhai. He has stated
in the complaint that the present incident is consequence of such rivalry
between the accused and the deceased.                                          C
       7. Based on the abovesaid complaint, crime was registered and
after necessary investigation, chargesheet was filed before the Addl.
Sessions Judge, Junagadh. Learned Sessions Judge framed charges
against the accused. When the accused pleaded not guilty to the charges
and claimed trial, they were tried for the offences alleged against them.      D
       8. To prove the charges framed against the accused, prosecution
has examined, in all, 32 witnesses and marked 61 documents and at the
end of the trial, after recording the statement of the accused under Section
313, Cr.PC and after hearing the arguments of prosecution and defence,
learned Additional Sessions Judge held appellant-accused were guilty           E
for the offences and awarded sentence, as narrated above. Aggrieved
by the judgment of conviction and sentence imposed on the appellant-
accused, the accused nos.1 and 3 have preferred Criminal Appeal No.459
of 2010 and original accused no.2 has preferred Criminal Appeal No.405
of 2010 before the High Court. The High Court, while confirming the
conviction, has extended the benefit of Section 428, Cr.PC and allowed         F
the appeals partly by common judgment, only to the extent indicated
above.
       9. We have heard Sri Harin P. Raval, learned senior counsel
appearing for the appellant in Criminal Appeal No.216 of 2015; Sri D.N.
Ray, learned counsel appearing for the appellant in Criminal Appeal            G
No.290 of 2018; and Sri Nachiketa Joshi, learned counsel appearing for
the appellant in Criminal Appeal arising out of S.L.P.(Crl.)No.3227 of
2015 and Ms. Vishakha, learned counsel appearing for the respondent-
State.
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246             SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A            10. Sri Harin Raval, learned senior counsel has contended that
      the conviction of the appellant-accused is mainly based on the testimony
      of PW-18 and PW-19, who are the injured eye witnesses. It is submitted
      that if their depositions are scrutinized closely, there are major
      contradictions. It is submitted that they are the chance witnesses and
      their evidence is not trustworthy to base the conviction of the appellant-
B
      accused. Further, it is submitted that there is no mention about the nature
      of injuries in the postmortem report and the motorcycle used in the crime
      was not recovered. It is further contended that though it is the case of
      the prosecution that there was a head injury caused by the accused on
      the deceased, there is no corresponding medical injury in the postmortem
C     Report of the deceased. It is submitted that the medical records including
      postmortem report are not reliable and the prosecution has failed to prove
      the case beyond reasonable doubt. He has thus requested to extend the
      benefit of doubt to the accused and set aside their conviction. In support
      of his arguments, learned counsel has relied on the judgments of this
      Court in the case of Anand Ramachandra Chougule etc. v. Sidarai
D
      Laxman Chougala & Ors.1; Akula Veera Venkata Surya Prakash
      @ Babi v. Public Prosecutor, High Court of Andhra Pradesh2; and
      Mohinder Singh & Anr. v. State of Punjab & Ors.3.
             11. Learned counsel Sri D.N. Ray appearing for the appellant in
      Criminal Appeal No.290 of 2018 has contended that though a fatal injury
E     was attributed on the deceased, caused by one of the appellants, there
      were no blood marks on PWs-18 and 19 who are stated to be injured
      witnesses and were travelling on the same motorcycle of the deceased.
      Further, it is submitted that the deceased and injured were taken in Maruti
      car but there were no traces of blood in the car. No blood was also
F     found on PWs-18 and 19 and injuries suffered by them are superficial. It
      is further submitted that the alleged incident happened at about 07:30
      p.m. in the month of November, as such, there was no possibility of
      identifying the accused in the darkness. Further it is submitted that no
      injury was found on the head of the deceased as per the doctor’s
      deposition. It is further submitted that the alleged motive, that an amount
G     of Rs.15000/- was payable to the deceased, was no basis to record the
      guilt of the accused as the said incident was about eight months earlier
      to the date of the incident.
      1
        (2019) 8 SCC 50
      2
        (2009) 15 SCC 246
      3
H       (2004) 12 SCC 311
    KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT                               247
                [R. SUBHASH REDDY, J.]

       12. Shri Nachiketa Joshi, learned counsel appearing for the appellant     A
in the Criminal Appeal arising out of S.L.P.(Crl.)No.3227 of 2015, while
adopting the arguments of Sri Harin Raval and Sri D.N. Ray, has
contended that though there is no acceptable evidence on record, the
appellant was convicted for the offences alleged. He has submitted that
if overall evidence is taken into consideration, the charges framed against
                                                                                 B
the accused are not proved beyond reasonable doubt and even the High
Court has not considered the grounds raised by the appellant-accused in
proper perspective and dismissed the appeals.
       13. Per contra, Ms. Vishakha, learned counsel appearing for the
respondent-State has submitted that there are concurrent findings of
conviction against the appellants. It is submitted that the trial court itself   C
has considered at length, the oral and documentary evidence on record
and has come to conclusion that the appellants were guilty for the offences
alleged and there are no grounds to interfere with the same. It is further
submitted that accused nos.1 and 3 were found with knives and accused
no.2 caused the injury on the deceased by hitting on his head with axe           D
when, all three were travelling on motorcycle. It is submitted that murder
of the deceased was committed by injuring PWs-18 and 19 with the
common intention, as such, they were rightly found guilty by the Sessions
Court. Further, learned counsel, by referring to the deposition of PW-21
who was the person first to reach the place of occurrence, i.e., the
brother of the deceased, has submitted that postmortem report indicates          E
the injury on the lower back side of the head. Further, submitting that the
identity of the accused cannot be questioned as all are known to each
other and are of the same village. She has further submitted that the
medical and ocular evidence supports the case of the prosecution, to
prove the case against the accused. The learned counsel has lastly               F
contended that discrepancies, if any, in the depositions are minor and
same will not affect the case of the prosecution. The learned counsel
placed 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.        G
Ray, learned counsel appearing for the appellant-accused have submitted
that the alleged incident has occurred at about 07:30 p.m. on 10.11.2006
and even according to evidence, PWs-18 and 19 remained at the site of
4
    (2002) 7 SCC 606
5
    (2011) 4 SCC 324                                                             H
248             SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A     the occurrence for about 45 minutes, which is unusual. It is submitted
      that in a situation like this, PWs-18 and 19, who suffered injuries, should
      have made an attempt to shift the deceased to the nearest hospital
      immediately. Referring to the deposition of PWs-18 and 19 in cross-
      examination, it is submitted that such injuries suffered by PWs-18 and
      19, can be self-inflicted. Further reiterating that the discrepancies noticed
B
      in the depositions are major, hence, benefit of doubt has to go to the
      appellants and prayed for acquittal of the accused.
            15. Having heard the learned counsel on both sides, we have
      perused the judgment of the trial court as well as that of the High Court
      and other material placed on record.
C
             16. Upon close scrutiny of the evidence on record and the findings
      recorded by the trial court, as confirmed by the High Court, we do not
      find any merit in the submissions of the learned counsel for the appellant-
      accused, to interfere with the conviction recorded by the trial Court, as
      confirmed by the High Court.
D
              17. To prove the charges framed against the appellants, the
      prosecution has examined 32 witnesses and marked 61 documents as
      exhibits, during the trial. Among the other witnesses examined on behalf
      of the prosecution, Rajshibhai Maldebhai Karangiya, who was with the
      deceased at the time of incident, was examined as PW-18. In his deposition
E     he has stated that the incident occurred at about 07:30 in the evening on
      Bamnasa-Akha road on 10.11.2006. On that day, he, along with
      Miteshbhai and Gokalbhai (deceased), went to Keshod on Hero Honda
      motorcycle at about 05:00 O’clock in the evening. Gokalbhai was driving
      the motorcycle and thereafter at about 06:45 p.m. Gokalbhai’s brother
F     Vajshibhai made a phone call to Gokalbhai and stated that he wants
      motorcycle to go for some other work and requested him to come back
      if his work is completed. Therefore, they proceeded from Keshod to
      Village Bamnasa and when they reached near the farm of Kalabhai – a
      policeman, Vajshibhai Ramshibhai armed with knife, Mulubhai Markhibhai
      armed with axe and Kalabhai Hamirbhai armed with knife were standing
G     across 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 accused
      started giving blows with axe and knife to Gokalbhai haphazardly. Further
      it is also deposed that when he and Mitesh tried to interfere, they also
H     suffered injuries. Thereafter he made a phone call to Masaribhai at
 KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT                               249
             [R. SUBHASH REDDY, J.]

Bamnasa from his mobile and requested him to come to the place of             A
incident with vehicle. Therefore, after sometime, Rajubapu Bavaji came
with 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 the
altercation, between Gokalbhai and Vajashibhai with regard to rent of
Rs.15000/-, which occurred six months prior to the occurrence, of which
                                                                              B
complaint was lodged in Junagadh Police Station. Other person, who
was with the deceased on the day of occurrence was Mitesh Hardas
Kachhot – 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 the
day of occurrence and who were travelling on the same motorcycle, is
quite natural and trustworthy. Though it is the contention of the learned     C
counsel for the appellant-accused that as the incident happened in the
month of November it was not possible to identify the assailants in the
darkness, at the same time it is clear from the evidence on record that
the headlight of the vehicle was ‘on’ and it is evident from the record
and panchnama of the place of occurrence that there was a light which
                                                                              D
was there on the Vadi. It is further to be noticed that the accused as well
as the witnesses are of the same village, which appears to be a small
village and usually the persons residing in the village meet frequently,
there will not be any difficulty in identifying the persons. Therefore, as
far as the identification of the accused is concerned, the same is well
supported by the evidence on record. The prosecution also examined            E
Dr. Nikhilkumar Buch – PW-1 – who has deposed that he was on duty
in Civil Hospital, Junagadh on 10.11.2006. On that day at about 10:40
hrs. in the night, injured Rajshi Malde was brought to him by his nephew
Hitesh Hardas, for treatment with the complaint and stated that Vajshi
Ramshi attacked him and gave knife blow. The witness doctor has issued
                                                                              F
injury certificate which is exhibited as Exh.18. Dr. Prafulaben Mohanlal
Dhabariya was examined as PW-2, who has performed postmortem of
the deceased. The said witness has found the following injuries on the
person 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. It        G
             was elliptical in shape and 5 inch long, 1 and ½ inch wide
             and ¾ inch deep.
      ii)    There was cut incised wound over left chest, left 6th inter-
             coastal space starting from mid clavicular line and was
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250          SUPREME COURT REPORTS                        [2021] 4 S.C.R.


A              going downwards and laterally. It is 2 and ½ inch long, ¾
               inch wide and penetrates the cavity. The wound track is
               tapering 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 over
B              the neck posteriorly measuring 3 inch long starting from ½
               inch from the midline on the left and extending transversely
               to 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 below
C              above injury laterally measuring 1 x ½ x ½ inch long x wide
               x deep.
      v)       There was incised wound parallel to above ½” below it
               measuring 1" x ½” x ½”.
      vi)      There was incised wound just above right scapula at base
D              of neck starting 1" lateral to the vertebral margin and
               extending laterally and transversely and upwards. It is 2"
               long, 1" wide and penetrates the chest cavity. The wound is
               tapering upwards. It penetrates the right upper lung lobe.
      vii)     There was incised wound over right scapula region medially
E              measuring 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 about
               centrally and transversely measuring 1½” x 1" x ½”.
      ix)      There was incised wound over right chest just below right
F
               scapula vertically and at border of scapular measuring 1
               ½” x 1" x ½” cutting through skin and muscle.
      x)       There was incised wound lateral to above wound, also
               parallel to above wound, 2" distant from it and measuring 1
               ½ “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 through
               skin and muscle.
      xii)     There was incised wound over right back, 10th intercostal
H              space transverse, measuring 2"x1" x ½”.
 KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT                                 251
             [R. SUBHASH REDDY, J.]

      xiii)   There was incised wound over left scapula, at the base,           A
              vertical wound measuring 2" x 1" x ½” deep cutting through
              skin and muscle.
      xiv)    Incised wound at level of T12, transverse wound measuring
              3 ½ “x 1” and cutting through skin, muscles and grazing
              bone.                                                             B
      xv)     Incised wound at level of L2, transverse wound measuring
              1 ½ “x 1” x ½” cutting through skin and muscle.
      xvi)    Incised wound at level of L5-S1 transverse wound
              measuring 3" x ½” and cutting through skin, muscles and
              grazing bone.                                                     C

      xvii) Incised wound over sacral region, vertical, midline measuring
            1" x1/2" x ½”, muscle deep.
      xviii) Incised wound over sacral region, vertical, midline measuring
             1"x ½” x ½”, 2" below above wound muscle deep.                     D
      xix)    Incised incised wound about 1" below injury no 16, lateral
              to it measuring 1" x ½ “x 1/2”.”
       In his deposition, with reference to abovesaid injuries, he has also
opined that all the injuries are ante-mortem. The injuries which are referred
to, are stated to have been enclosed in the postmortem note. Sri                E
Jagdishbhai Sarmanbhai Kamaliya, who was the panch witness of the
panchmana of the dead body, was examined as PW-5. Sri Hardasbhai
Bhikhabhai Bhetariya was examined as PW-6 who was panch witness
to the scene of offence. The prosecution has also examined Masharibhai
Govindbhai Karangiya as PW-20. In his deposition he has stated that on
                                                                                F
the date of incident when he was at his field, he received a phone call of
Rajshi Malde at about 07:30 in the evening stating the incident and assault
on them and he was informed to come with Maruti van of Rajubapu and
thereafter he has gone to village on his motorcycle. As he could not
meet Rajubapu, he contacted Rajubapu on phone and requested him to
come with his Maruti van to the field of Kalabhai immediately which is          G
situated on the road of Aakha. He has clearly stated in his deposition
that when he reached the spot, he has noticed the injuries on Miteshbhai
and Rajashi Malde and Gokalbhai was lying in bleeding condition. He
has also stated that there was a lamp in the field of Kalabhai, light of
which was falling on the road. The brother of the deceased was examined
                                                                                H
252             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A     as PW-21. In his deposition he has also stated that as Gokalbhai has
      taken the Hero Honda motorcycle and as the same was required by him
      to go out of station on the motorcycle, he made a phone call to Rajashi
      on his mobile no.9825921960 through the coin drop box phone from the
      shop of Nathubhai in the village. Even this witness has stated that the
      reason for the incident is that Gokalbhai unloaded the soil in the field of
B
      Vajashibhai Ramshi through his tractor and the amount of Rs.15000/-
      towards rent thereof was outstanding from him. It is stated that as there
      was discord in this regard, the incident has occurred, which resulted in
      the murder of Gokalbhai. Sri Rajeshbhai Jethabhai Parmar who has
      investigated the crime, was examined as PW-31. He also clearly stated
C     in detail in his deposition regarding the incident.
             18. The submission of the learned counsels, that there was no
      head injury, as deposed by PWs-18 and 19 on the deceased and also as
      per the postmortem report, as such the deposition of PWs-18 and 19 is
      to be discarded, cannot be accepted for the reason that the postmortem
D     report indicates injury on the lower back side of the head. An attempt
      was made to assault the deceased with an axe. We cannot expect that it
      has to be hit on the centre of the head. It has fallen on the lower back
      side of the head, same is evident from the postmortem report. At this
      stage, it is to be noted, that the attack was made on the deceased and
      injured, when they were moving on motor cycle. As such, it cannot be
E     said that merely because there is no injury on the centre of the head, the
      testimony of PWs-18 and 19 is to be discarded. The doctor who has
      conducted the postmortem, has also clearly stated in his deposition that
      all injuries which were noticed on the deceased were ante mortem. If
      the entire evidence of all the witnesses is examined with reference to
F     medical and other evidence on record, it is clear that the prosecution has
      proved the guilt of the accused beyond reasonable doubt. All the accused
      have committed the crime with a common intention. It is clear from the
      record that the role attributed to accused nos.1, 2 and 3 is fully supported
      by the injured witnesses as well as the deposition of investigation officer.
      Though the key witness, were cross-examined at length, nothing adverse
G     was 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 clear
      from the evidence on record that their testimony is natural and trustworthy
      and so far as PWs-18 and 19 are concerned it cannot be said that they
      are the chance witnesses. Even the injuries sustained by PWs-18 and
H
 KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT                                253
             [R. SUBHASH REDDY, J.]

19 are not self-inflicted as per the opinion of the medical expert. Further,   A
it is 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 the blood group was
found on the cloths of the deceased and that of the accused nos.1 and 2
is the same. Even with regard to the presence of accused no.3, it is also
                                                                               B
clear considering the entire oral evidence on record that his presence on
the spot is also proved beyond reasonable doubt.
       19. We also do not find any substance in the argument of the
learned counsel that there are major contradictions in the deposition of
PWs-18 and 19. The contradictions which are sought to be projected
are minor contradictions which cannot be the basis to discard their            C
evidence. The judgment of this Court in the case of Mohar4 relied on by
the learned counsel for the respondent-State supports the case of the
prosecution. In the aforesaid judgment, this Court has held that convincing
evidence is required, to discredit an injured witness. Para 11 of the
judgment reads as under :                                                      D
      “11. The testimony of an injured witness has its own efficacy
      and relevancy. The fact that the witness sustained injuries on his
      body would show that he was present at the place of occurrence
      and has seen the occurrence by himself. Convincing evidence
      would be required to discredit an injured witness. Similarly, every      E
      discrepancy in the statement of a witness cannot be treated as
      fatal. A discrepancy which does not affect the prosecution case
      materially cannot create any infirmity. In the instant case the
      discrepancy in the name of PW 4 appearing in the FIR and the
      cross-examination of PW 1 has been amply clarified. In cross-
      examination PW 1 had clarified that his brother Ram Awadh had            F
      three 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 the
      son of Ram Awadh, Jagjit @ Jagarjit was milching a cow and he
      was also called as Jagdish. Balli (PW 3) mentioned his name as           G
      Jagjit and Jagdish. PW 4 also gave his name as Jagdish.”
     Learned counsel for the respondent-State has also relied on the
judgment of this Court in the case of Naresh & Ors.5. In the aforesaid
judgment, this Court has held that the evidence of injured witnesses
                                                                               H
254            SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A     cannot be brushed aside without assigning cogent reasons. Paragraphs
      27 and 30 of the judgment which are relevant, read as under :
            “27. The evidence of an injured witness must be given due
            weightage being a stamped witness, thus, his presence cannot be
            doubted. His statement is generally considered to be very reliable
B           and it is unlikely that he has spared the actual assailant in order to
            falsely implicate someone else. The testimony of an injured witness
            has its own relevancy and efficacy as he has sustained injuries at
            the time and place of occurrence and this lends support to his
            testimony that he was present during the occurrence. Thus, the
            testimony of an injured witness is accorded a special status in
C           law. The witness would not like or want to let his actual assailant
            go unpunished merely to implicate a third person falsely for the
            commission of the offence. Thus, the evidence of the injured
            witness should be relied upon unless there are grounds for the
            rejection of his evidence on the basis of major contradictions and
D           discrepancies therein. (Vide Jarnail Singh v. State of
            Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107]
            , Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3
            SCC (Cri) 211] and Abdul Sayeed v. State of M.P. [(2010) 10
            SCC 259 : (2010) 3 SCC (Cri) 1262] )
E           …………
            …………
            30. In all criminal cases, normal discrepancies are bound to occur
            in the depositions of witnesses due to normal errors of observation,
            namely, errors of memory due to lapse of time or due to mental
F           disposition such as shock and horror at the time of occurrence.
            Where the omissions amount to a contradiction, creating a serious
            doubt about the truthfulness of the witness and other witnesses
            also make material improvement while deposing in the court, such
            evidence cannot be safe to rely upon. However, minor
G           contradictions, inconsistencies, embellishments or improvements
            on trivial matters which do not affect the core of the prosecution
            case, should not be made a ground on which the evidence can be
            rejected in its entirety. The court has to form its opinion about the
            credibility of the witness and record a finding as to whether his
            deposition inspires confidence.
H
    KALABHAI HAMIRBHAI KACHHOT v. STATE OF GUJARAT                                 255
                [R. SUBHASH REDDY, J.]

         “9. Exaggerations per se do not render the evidence brittle. But it       A
         can be one of the factors to test credibility of the prosecution
         version, when the entire evidence is put in a crucible for being
         tested on the touchstone of credibility.” [Ed.: As observed in Bihari
         Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192,
         para 9.]
                                                                                   B
         Therefore, mere marginal variations in the statements of a witness
         cannot be dubbed as improvements as the same may be elaborations
         of the statement made by the witness earlier. The omissions which
         amount to contradictions in material particulars i.e. go to the root of
         the case/materially affect the trial or core of the prosecution’s case,
         render the testimony of the witness liable to be discredited.             C
         [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 Pratap
         Singh v. State of U.P. [(2009) 11 SCC 334 : (2009) 3 SCC (Cri)
         1352] and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of                 D
         Maharashtra [(2010) 13 SCC 657 : JT (2010) 12 SC 287] .”
       Further, in the case of Narayan Chetanram Chaudhary & Anr.
v. State of Maharashtra6, this Court has considered the effect of the
minor contradictions in the depositions of witnesses while appreciating
the evidence in criminal trial. In the aforesaid judgment it is held that          E
only contradictions in material particulars and not minor contradictions
can be a ground to discredit the testimony of the witnesses. Relevant
portion of Para 42 of the judgment reads as under:
         “42. Only such omissions which amount to contradiction in material
         particulars can be used to discredit the testimony of the witness.        F
         The omission in the police statement by itself would not necessarily
         render the testimony of witness unreliable. When the version given
         by the witness in the court is different in material particulars from
         that disclosed in his earlier statements, the case of the prosecution
         becomes doubtful and not otherwise. Minor contradictions are
         bound to appear in the statements of truthful witnesses as memory         G
         sometimes plays false and the sense of observation differ from
         person to person. The omissions in the earlier statement if found
         to be of trivial details, as in the present case, the same would not
         cause any dent in the testimony of PW 2. Even if there is
6
    (2000) 8 SCC 457                                                               H
256                SUPREME COURT REPORTS                        [2021] 4 S.C.R.


A             contradiction of statement of a witness on any material point, that
              is no ground to reject the whole of the testimony of such witness.
              … … …”
             20. By applying the aforesaid ratio, as laid down by this Court
      coupled with the evidence on record, we are clearly of the view that the
B     prosecution has proved the case against all the appellant-accused beyond
      reasonable doubt. The omissions like not seizing the motorcycle and also
      not seizing the gold chain of one of the victims, by itself, is no ground to
      discredit the testimony of key witnesses who were examined on behalf
      of the prosecution, whose say is consistent, natural and trustworthy.
C             21. In that view of the matter, we are fully in agreement with the
      view taken by the trial court in recording the conviction against the
      appellants, as confirmed by the High Court. Therefore, no interference
      is called for with the concurrent findings recorded against the appellants.
      As discussed earlier it is also clear that there was a quarrel between the
D     deceased about six months earlier to the incident and one accused
      regarding payment of rent of tractor. Further it is brought on record that
      there was animosity between them which is the motive for the crime.
      As such, the prosecution has established, beyond reasonable doubt, that
      all the accused have committed the offence with a common intention
      and participated in committing the crime. The trial court as well as the
E     High Court has not committed any error in law or on facts, as such, the
      same are required to be upheld by this Court. As far as the judgments
      relied on by the learned counsel for the appellants are concerned, having
      regard to the facts of the case and the evidence on record, we are of the
      view that the abovesaid judgments would not render any assistance to
F     support the case of the appellants.
            22. For the aforesaid reasons, we do not find any merit in these
      appeals, same are accordingly dismissed.

      Nidhi Jain                                                  Appeals dismissed.
G




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