# BALU SUDAM KHALDE & ANR v. THE STATE OF MAHARASHTRA

- **Citation:** [2023] 6 S.C.R. 851
- **Court:** Supreme Court of India
- **Decided:** 2023-03-29
- **Case number:** Criminal Appeal No. 1910 of 2010
- **Bench:** Sudhanshu Dhulia, J.B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balu-sudam-khalde-anr-v-the-state-of-maharashtra-37220
- **Pages:** 42

## Headnote

Penal Code, 1860:
ss. 302 r/w 34 - Prosecution case that verbal altercation
between the parties resulting in a fight wherein first informant
assaulted on the head and the deceased suffered severe assault
and succumbed to his injuries - Appellants convicted u/s 302 r/w
34, and sentenced to life imprisonment, however, acquittal of A-2
and A-4 - High Court upheld the order - Interference with - Held:
Not called for - Oral evidence of all the three eyewitnesses is
consistent and no good reason for the court to disbelieve the ocular
version as narrated by the three eyewitnesses - Courts below
recorded a concurrent finding that they are reliable witnesses -
Suggestions put by the defence counsel in the cross-examination of
the eyewitnesses establishes the presence of first informant at the
scene of offence and the factum of assault could also be said to
have been admitted - PW 3 could be termed as a res gestae witness
- ss. 6 and 7 of the 1872 Act, in so far as, the admissibility of a
statement of the PW-3 is concerned, would be attracted - Having
regard to the nature of the injuries, they were caused by dangerous
weapons which, were applied on the vital part of the body, it is a
case of s. 302 - Case would not fall within the exception 4 to s. 300
- Assuming that the incident had occurred in the heat of the moment
and fight was also sudden, the fact that the appellants inflicted as
many as nine blows with a dangerous weapon on the deceased who
was unarmed and was helpless should not be overlooked - Evidence
Act, 1872 - s.6 and 7.
Exception 4 to Section 300 - Applicability of - Held: To bring
a case within Exception 4 all the ingredients mentioned in it must be
found.
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Evidence:
Oral Evidence - Evidentiary value of - Held: Appreciation
of ocular evidence is a hard task - There is no fixed or straightjacket formula for appreciation of the ocular evidence - In assessing
the value of the evidence of the eyewitnesses, two principal
considerations are whether, in the circumstances of the case, it is
possible to believe their presence at the scene of occurrence or in
such situations as would make it possible for them to witness the
facts deposed to by them and secondly, whether there is anything
inherently improbable or unreliable in their evidence.
Cross-examination - Concession or admission of fact by
defence counsel - Nature - of - Held: Any concession or admission
of a fact by a defence counsel would definitely be binding on his
client, except the concession on the point of law - Thus, the
suggestion made by the defence counsel to a witness in the crossexamination if found to be incriminating in nature in any manner
would definitely bind the accused - Accused cannot get away on
the plea that his counsel had no implied authority to make suggestions
in the nature of admissions against his client.
Doctrines/Principles: Principle of Res Gestae - Rule of -
Held: Rule embodied in s. 6 is usually known as the rule of res
gestae - It means that a fact which, though not in issue, is so
connected with the fact in issue "as to form part of the same
transaction" becomes relevant by itself - Evidence Act, 1872 - ss.6
and 7.
Dismissing the appeal, the Court
HELD: 1.1 The appreciation of ocular evidence is a hard
task. There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. [Para 25][865-E]
1.2 In assessing the value of the evidence of the
eyewitnesses, two principal considerations are whether, in the
circumstances of the case, it is possible to believe their presence
at the scene of occurrence or in such situations as would make it
possible for them to witness the facts deposed to by them and
secondly, whether there is anything inherently improbable or
unreliable in their evidence. In respect of both these
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considerations, circumstances either elicited from those
witnesses themselves or established by other evidence tending
to improbabilise th

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[2023] 6 S.C.R. 851
851
BALU SUDAM KHALDE & ANR.
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 1910 of 2010)
MARCH 29, 2023
[SUDHANSHU DHULIA AND J.B. PARDIWALA, JJ.]
Penal Code, 1860:
ss. 302 r/w 34 - Prosecution case that verbal altercation
between the parties resulting in a fight wherein first informant
assaulted on the head and the deceased suffered severe assault
and succumbed to his injuries - Appellants convicted u/s 302 r/w
34, and sentenced to life imprisonment, however, acquittal of A-2
and A-4 - High Court upheld the order - Interference with - Held:
Not called for - Oral evidence of all the three eyewitnesses is
consistent and no good reason for the court to disbelieve the ocular
version as narrated by the three eyewitnesses - Courts below
recorded a concurrent finding that they are reliable witnesses -
Suggestions put by the defence counsel in the cross-examination of
the eyewitnesses establishes the presence of first informant at the
scene of offence and the factum of assault could also be said to
have been admitted - PW 3 could be termed as a res gestae witness
- ss. 6 and 7 of the 1872 Act, in so far as, the admissibility of a
statement of the PW-3 is concerned, would be attracted - Having
regard to the nature of the injuries, they were caused by dangerous
weapons which, were applied on the vital part of the body, it is a
case of s. 302 - Case would not fall within the exception 4 to s. 300
- Assuming that the incident had occurred in the heat of the moment
and fight was also sudden, the fact that the appellants inflicted as
many as nine blows with a dangerous weapon on the deceased who
was unarmed and was helpless should not be overlooked - Evidence
Act, 1872 - s.6 and 7.
Exception 4 to Section 300 - Applicability of - Held: To bring
a case within Exception 4 all the ingredients mentioned in it must be
found.
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Evidence:
Oral Evidence - Evidentiary value of - Held: Appreciation
of ocular evidence is a hard task - There is no fixed or straightjacket formula for appreciation of the ocular evidence - In assessing
the value of the evidence of the eyewitnesses, two principal
considerations are whether, in the circumstances of the case, it is
possible to believe their presence at the scene of occurrence or in
such situations as would make it possible for them to witness the
facts deposed to by them and secondly, whether there is anything
inherently improbable or unreliable in their evidence.
Cross-examination - Concession or admission of fact by
defence counsel - Nature - of - Held: Any concession or admission
of a fact by a defence counsel would definitely be binding on his
client, except the concession on the point of law - Thus, the
suggestion made by the defence counsel to a witness in the crossexamination if found to be incriminating in nature in any manner
would definitely bind the accused - Accused cannot get away on
the plea that his counsel had no implied authority to make suggestions
in the nature of admissions against his client.
Doctrines/Principles: Principle of Res Gestae - Rule of -
Held: Rule embodied in s. 6 is usually known as the rule of res
gestae - It means that a fact which, though not in issue, is so
connected with the fact in issue "as to form part of the same
transaction" becomes relevant by itself - Evidence Act, 1872 - ss.6
and 7.
Dismissing the appeal, the Court
HELD: 1.1 The appreciation of ocular evidence is a hard
task. There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. [Para 25][865-E]
1.2 In assessing the value of the evidence of the
eyewitnesses, two principal considerations are whether, in the
circumstances of the case, it is possible to believe their presence
at the scene of occurrence or in such situations as would make it
possible for them to witness the facts deposed to by them and
secondly, whether there is anything inherently improbable or
unreliable in their evidence. In respect of both these
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considerations, circumstances either elicited from those
witnesses themselves or established by other evidence tending
to improbabilise their presence or to discredit the veracity of
their statements, will have a bearing upon the value which a Court
would attach to their evidence. Although in cases where the plea
of the accused is a mere denial, the evidence of the prosecution
witnesses has to be examined on its own merits, where the
accused raise a definite plea or put forward a positive case which
is inconsistent with that of the prosecution, the nature of such
plea or case and the probabilities in respect of it will also have to
be taken into account while assessing the value of the prosecution
evidence. [Para 27][868-C-E]
1.3 The oral evidence of all the three eyewitnesses PW 1,
2, 3 is consistent and there is no good reason for the Court to
disbelieve the ocular version as narrated by the three
eyewitnesses. The trial court as well as the High Court looked
into the oral evidence of all the three eyewitnesses closely and
have recorded a concurrent finding that they are reliable
witnesses. [Para 28][868-F-G]
1.4 In the exercise of the power under Article 136 of the
Constitution of India, this Court, normally would not interfere
with the concurrent findings of fact, except in very special
circumstances or in the case of a gross error committed by the
courts below. Only where the High Court ignores or overlooks
"crying circumstances" and "proven facts" or "violates and
misapplies well established principles of criminal jurisprudence"
or refuses to give benefit of doubt to the accused persons, etc.,
would this Court step in to correct the legally erroneous
decisions. Interferance is not only for the reason that this Court
may arrive at a different conclusion, unless, there are compelling
circumstances to tinker with conclusions drawn and that the
accused were innocent/guilty. There are limitations in interfering
with the findings of conviction, concurrent in nature. [Para
30][871-C-E]
1.5 The suggestion made by the defence counsel to a witness
in the cross-examination if found to be incriminating in nature in
any manner would definitely bind the accused and the accused
cannot get away on the plea that his counsel had no implied
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authority to make suggestions in the nature of admissions against
his client. Any concession or admission of a fact by a defence
counsel would definitely be binding on his client, except the
concession on the point of law. The submission that an answer by
a witness to a suggestion made by the defence counsel in the
cross-examination does not deserve any value or utility if it
incriminates the accused in any manner cannot be accepted. [Para
38, 39][873-B-D]
1.6 It is a cardinal principle of criminal jurisprudence that
the initial burden to establish the case against the accused beyond
reasonable doubt rests on the prosecution. It is also an elementary
principle of law that the prosecution has to prove its case on its
own legs and cannot derive advantage or benefit from the
weakness of the defence. This Court is not suggesting for a
moment that if prosecution is unable to prove its case on its own
legs then the Court can still convict an accused on the strength
of the evidence in the form of reply to the suggestions made by
the defence counsel to a witness. In the instant case, the
conclusion is reached that the evidence of the three eyewitnesses
inspires confidence and there is nothing in their evidence on the
basis of which it could be said that they are unreliable witnesses.
Having reached to such a conclusion, to fortify the view the
suggestions made by the defence counsel to the eyewitnesses
can be looked into, the reply to those establishing the presence
of the accused persons as well as the eyewitnesses in the night
hours. To put it in other words, suggestions by itself are not
sufficient to hold the accused guilty if they are incriminating in
any manner or are in the form of admission in the absence of any
other reliable evidence on record. It is true that a suggestion
has no evidentiary value but this proposition of law would not
hold good at all times and in a given case during the course of
cross-examination the defence counsel may put such a suggestion
the answer to which may directly go against the accused and this
is exactly what happened in the instant case. [Para 40][873-E-H;
874-A]
1.7 The principle of law that in a criminal case, a lawyer has
no implied authority to make admissions against his client during
the progress of the trial would hold good only in cases where
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dispensation of proof by the prosecution is not permissible in
law. It is obligatory on the part of the prosecution to prove the
post mortem report by examining the doctor. The accused cannot
admit the contents of the post mortem report thereby absolving
the prosecution from its duty to prove the contents of the same
in accordance with law by examining the doctor. This is so because
if the evidence per se is inadmissible in law then a defence counsel
has no authority to make it admissible with his consent. Therefore,
the suggestions made to the witness by the defence counsel and
the reply to such suggestions would definitely form part of the
evidence and can be relied upon by the Court along with other
evidence on record to determine the guilt of the accused. [Para
41, 42][874-B-D]
1.8 The main object of cross-examination is to find out the
truth on record and to help the Court in knowing the truth of the
case. It is a matter of common experience that many a times the
defence lawyers themselves get the discrepancies clarified arising
during the cross-examination in one paragraph and getting
themselves contradicted in the other paragraph. The line of crossexamination is always on the basis of the defence which the
counsel would keep in mind to defend the accused. [Para 43][874E]
1.9 During the course of cross-examination with a view to
discredit the witness or to establish the defence on
preponderance of probabilities suggestions are hurled on the
witness but if such suggestions, the answer to those incriminate
the accused in any manner then the same would definitely be
binding and could be taken into consideration along with other
evidence on record in support of the same. However, it would all
depend upon the nature of the suggestions and with what idea in
mind such suggestions are made to the witness. [Para 44, 45][875F-G]
1.10 In the cross-examination of the PW-3 a suggestion
was put to him that he had inquired with PW-1 as to what had
happened and PW-1 in turn narrated the incident to PW-3. This
suggestion put by the defence counsel to the PW-3 was answered
in the affirmative. This part of the evidence of the PW-3 is
corroborated by the evidence of the PW-1. The reason for
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referring to the said a piece of evidence is that the PW 3 could be
termed as a res gestae witness. This principle of res gestae is
embodied in Section 6 of the Act 1872. What it means is that a
fact which, though not in issue, is so connected with the fact in
issue "as to form part of the same transaction" becomes relevant
by itself. To form particular statement as part of the same
transaction utterances must be simultaneous with the incident
or substantial contemporaneous that is made either during or
immediately before or after its occurrence. Sections 6 and 7 of
the Act 1872 in the facts and circumstances of the case, in so far
as, the admissibility of a statement of the PW-3 coming to know
about incident, immediately from the PW-1 that AB had been
seriously assaulted and that PW-1 had also suffered injuries and
admitted by the PW-1 in his evidence would be attracted with all
its rigour. [Paras 46, 47, 49 and 50][876-E-G; 877-A; 878-D-F]
1.11 There is no dispute that the death of the deceased
occurred due to culpable homicide and not due to accident or
suicide. The sine qua non for the application of an Exception to
Section 300 always is that it is a case of murder but the accused
claims the benefit of the Exception to bring it out of that Section
and to make it a case of culpable homicide not amounting to
murder. Therefore, it is assumed that this would be a case of
murder and it is for the accused to show the applicability of the
Exception. [Para 57][890-E]
1.12 The extent of injuries suffered by the deceased is
noticed, as it appears from the deposition of the PW 7 who carried
out the post mortem. Having regard to the nature of the injuries
caused by dangerous weapons like sickle and sword which, were
applied on the vital part of the body, there is no escape from the
conclusion that it is a case of Section 302 IPC.[Para 60][891-BC]
1.13 The submission that the case would fall within the
Exception 4 to Section 300 IPC and such benefit be extended to
the accused cannot be accepted. Assuming for the moment that
the incident had occurred in the heat of the moment and fight
was also sudden, the fact that the appellants inflicted as many as
nine blows with a dangerous weapon on the deceased who was
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unarmed and was helpless should not be overlooked. For cases
to fall within clause (3) of Section 300 IPC, it is not necessary
that the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries sufficient to
cause death in the ordinary course of nature. Thus, no case is
made out by the appellants to interfere with the impugned
judgment and order of the High Court. [Para 61, 62][891-C-F]
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR
1983 SC 753 : [1983] 3 SCR 280; Leela Ram v. State
of Haryana AIR 1995 SC 3717; Tahsildar Singh v. State
of UP AIR 1959 SC 1012 : [1959] Suppl. SCR 875 -
relied on.
Rakesh Kumar alias Babli v. State of Haryana (1987) 2
SCC 34; Tarun Bora alias Alok Hazarika v. State of
Assam 2002 Cri. LJ 4076; Rajwant Singh v. State of
Kerala AIR 1966 SC 1874 : [1966] Suppl. SCR 230;
State of Andhra Pradesh v. Rayavarapu Punnayya and
Another (1976) 4 SCC 382 : [1977] 1 SCR 601; Sukhar
v. State of U.P. (1999) 9 SCC 507 : [1999] 3 Suppl.
SCR 314; Govind s/o Soneram v. State of M.P. (DB)
2005 Cri.LJ 1244; Parkash Chand v. State of Himachal
Pradesh (2004) 11 SCC 381 : [2004] 3 Suppl. SCR
389 - referred to.
Case Law Reference
[1983] 3 SCR 280
relied on
Para 25
AIR 1995 SC 3717
relied on
Para 25
[1959] Suppl. SCR 875
relied on
Para 25
(1987) 2 SCC 34
referred to
Para 37
[1999] 3 Suppl. SCR 314
referred to
Para 48
[1977] 1 SCR 601
referred to
Para 54
[2004] 3 Suppl. SCR 389
referred to
Para 56
[1966] Suppl. SCR 230
referred to
Para 61
BALU SUDAM KHALDE & ANR. v. THE STATE OF
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1910 of 2010.
From the Judgment and Order dated 02.03.2009 of the High Court
of Judicature at Bombay in CRLA No. 637 of 2003.
K. L. Janjani, Pankaj Kumar Singh, Dr. Vinod Kumar Tewari,
Kailash J. Kashyap, Advs. for the Appellants.
Abhikalp Pratap Singh, Siddharth Dharmadhikari, Aaditya
Aniruddha Pande, Bharat Bagla, Sourav Singh, Ms. Shreya Saxena, Ms.
Yamini Singh, Advs. for the Respondent.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. This appeal by special leave is at the instance of two convict
persons and is directed against the judgment and order dated 02.03.2009
passed by the High Court of Judicature at Bombay in Criminal Appeal
No. 637 of 2003 by which the High Court dismissed the criminal appeal
referred to above, and thereby affirmed the order of conviction and the
consequence sentence dated 12.03.2003 passed by the learned Additional
Sessions Judge, Pune dated 12.03.2003 in Sessions Case No. 323 of
2001, by convicting both the appellants herein for the offence under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (for
short, 'the IPC') and sentencing them to suffer life imprisonment and a
fine of Rs. 1000/- each with the stipulation that in default of payment of
the fine they would undergo rigorous imprisonment for further six months.
2. It may not be out of place to state at this stage that in all four
persons were put to trial including the two appellants herein in the Court
of the Additional Sessions Judge, Pune for the offence punishable under
Sections 302 and 323 read with Section 34 of the IPC. The appellants
herein are original accused Nos. 1 and 3 resply. The original accused
No. 2 and 4 resply were acquitted by the Trial Court.
CASE OF THE PROSECUTION
3. The case of the prosecution as unfolded in the evidence of the
prosecution witnesses and also detailed in the first information report is
that on the fateful day of the incident i.e., on 01.04.2001 at about 11.15
p.m., the first informant PW 1, namely, Asgar Shaikh (Ex. 7) was chit
chatting with his friend Abbas Baig (deceased). At that time, while the
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appellant No. 2 herein accompanied by few other individuals was passing
by the side, he was accosted by the deceased Abbas. There was some
verbal altercation between the two. After sometime the appellant No. 2
herein accompanied by the appellant No. 1 herein and the other two coaccused who came to be acquitted by the Trial Court reached at the
spot. A fight ensued in which, the first informant PW 1 Asgar Shaikh
was assaulted on his head by means of weapons like sickle and sword.
This assault on the head of the first informant PW 1 is alleged to have
been laid by the appellant No. 1 herein. The first informant suffered a
bleeding injury on his head. Thereafter, a severe assault was laid on the
deceased Abbas Baig by means of a sickle and sword. It is the case of
the prosecution that the appellants herein had dangerous weapons in
their hands in the form of a sword and sickle. The deceased Abbas Baig
suffered serious injuries on his body and ultimately succumbed to such
injuries.
4. A first information report was lodged on 2.04.2002 by the PW
1 at around 2 a.m. i.e., just within three hours from the time of the
incident. The deceased Abbas Baig having suffered serious bleeding
injuries was taken to the hospital in a rickshaw owned by the PW 3,
namely, Nasir Khan. The deceased upon reaching the hospital was
declared dead.
5. The FIR Exh. 8 lodged by the PW 1 viz. Asgar Shaikh reads
thus:-
"I Ajgar Ibrahim Shaikh aged 22 years, Occupation Turner,
residing at 54 BP/251 Lohia Nagar, slum area, Pune. I hereby
lodge my complaint as under:
I am residing at the aforementioned address with my mother,
father and sister. I have been working as a turner past three
years in the workshop owned by Abdul Wahab Shaikh situated
at Guruwar Peth, Pune in the name of New Quality
Instruments. Yesterday, i.e., on 1.4.2001, I left my house at
9.00 AM for reporting at the workshop. I worked out at the
workshop for whole day and came back at 7.00 PM. I had
my dinner at 11.15 PM in the night and thereafter went outside
as I wanted to have paanmasala. When I reached somewhere
near the shop by name Shri Sai Car Auto Consultant, I met
my friend Abbas Baig (deceased) also a resident of
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Lohianagar, slum area, Pune. I started cheating with my friend
Abbas. At that point of time, Santosh Khalde and one another
boy were passing through the place where, we were talking.
My friend Abbas saw Santosh and told me that "Itni Raat Ko
Maa Chudane Ke Liye Kaha Ja Raha Hai? Tumhara plan
kya hai". Santosh replied that he had no plan and was
proceeding to answer nature's call. At around 11.45 PM, four
persons, namely, Balu Khalde, Ramesh Mohite, Raju Mohite
and Santosh Khalde assembled and started talking with us.
At that time, Balu khale told him "Bajula Haat". Abbas Baig
told Balu Khalde that "Usse kya baat kar raha hai?" talk to
me. At that time, I told them "Kaiko Lafda Kar Rahe Ho?"
Balu Khalde took out a weapon like Koita which he had
hidden in his waist and hit me on my head. Ramesh Mohite
caught hold of Abbas Baig and Balu Khalde stabbed him with
a small bladed sword. We started shouting. One Firoz
Babumian Shaikh residing in the neighbourhood came out of
his house and told Raju Mohite "What are you fighting about?"
Santosh Khalde abused Firoz Babumian. When people started
assembling at the place of the occurrence, all the four
assailants ran away. Abbas Baig was seriously injured and
he fell down. He had suffered injuries on his left paw, wrist,
right hand and right shoulder. He was bleeding profusely. I
picked up Abbas in an injured condition and took him nearby
chokadi. At that point of time, one Nasir a rickshaw driver
known to us also living in the same slum came over there. I
requested Nasir to keep a watch on Abbas Baig as he would
reach and call the police. Accordingly, I alongwith Firoz
Shaikh went to Lohianagar Police Station and informed about
the incidence to the police. The police arrived and immediately
shifted Abbas Baig to the nearby Sassoon Hospital. However,
Abbas Baig was declared dead by the doctor at the hospital."
6. The inquest panchnama of the dead body of the deceased was
drawn at the hospital itself. As a part of the investigation, the scene of
offence panchnama was drawn. The clothes of the deceased stained
with blood were collected and sent to the forensic science laboratory for
chemical analysis. All the four accused were arrested by the police. The
clothes of all the accused were collected and sent to the FSL. The dead
body of the deceased was sent for post mortem. While the appellants
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herein were in police custody, they are said to have made statements on
their own free will and volition that they would show the place where
they had concealed the weapons of offence i.e. the sickle and the sword.
Ultimately, the discovery panchnamas were drawn in presence of the
panch witnesses. The statements of various other witnesses were
recorded by the police.
7. At the end of the investigation chargesheet was filed for the
offence punishable under Section 302 read with Section 34 of the IPC,
in the Court of the learned Magistrate. The learned Magistrate committed
the case to the Court of Sessions as the offence was exclusively triable
by the Court of Sessions.
8. The Trial Court framed the following charge vide Exh.8. The
translated version of the charges framed against the appellants are quoted
below:
"1. That you accused Nos. 1 to 4, on 01.04.2001, at about
11.45 P.M. or thereabout, at Plot No. 54/BP, Lohiyanagar,
Pune, in front of shop named as Shri Sai Car Auto Consultant,
either individually or in furtherance of your common
intention, did commit murder, by intentionally or knowingly
causing the death of Abbas Sanaulla Beg, and thereby
committed an offence punishable either under Section 302 of
the Indian Penal Code simpliciter or Section 302 read with
34 of the Indian Penal Code, and within my cognizance.
AND
2) That you accused Nos. 1 to 4, on the aforesaid day, date,
time and place and during the course of the same transaction,
either individually or in furtherance of your common
intention, voluntarily caused hurt to complainant Ajgar
Ibrahim Shaikh, and thereby committed an offence punishable
under Section 323 of the Indian Penal Code simplicetor or
Section 323 read with Section 34 of the Indian Penal Code,
and within my cognizance. "
AND
3) That you accused Nos. 1 to 4, on the aforesaid day, date,
time and place and during the course of the same transaction,
either individually or in furtherance of your common
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intention, voluntarily caused hurt to complainant Ajgar
Ibrahim Shaikh, by means of sickle and sword, which if used
as a weapon of offence, would likely to cause death of said
complainant, and thereby committed an offence punishable
under Section 324 of the Indian Penal Code simplicetor or
Section 324 read with Section 34 of the Indian Penal Code,
and within my cognizance.
AND
4) That you accused Nos. 1 to 4, on the aforesaid day, date,
time and place and during the course of the same transaction,
either individually or in furtherance of your common
intention, intentionally insulted and thereby gave protection
to the complainant Ajgar Ibrahim Shaikh, intending or
knowing it to be likely that such provocation will cause the
said complainant to commit breach of public peace, and
thereby committed an offence punishable under Section 504
of the Indian Penal Code simplicetor or Section 504 read
with Section 34 of the Indian Penal Code and within my
cognizance.
AND I hereby direct that you be tried by me on the aforesaid
charges."
9. The prosecution adduced the following oral evidence in support
of its case:
(1) PW 1
Asgar Shaikh -
Ex. 7
(2) PW 2
Firoj ShaikhEx. 9
(3) PW 3
Nasir Khan -
Ex. 10
(4) PW 4
Aslam KhanEx. 11
(5) PW 5
Mahesh Kumar JainEx. 14
(6) PW 6
Suhas KalaseEx. 15
(7) PW 7
Dr. Shrikant ChandekarEx. 18
(8) PW 8
Mubarak BaigEx. 21
(9) PW 9
Mahendr ArokadeEx. 22
(10) PW 10
Baba ShaikhEx. 38
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10. The following pieces of documentary evidence were adduced
by the prosecution:
(i)
Inquest Panchnama
(ii) Post mortem report
(iii) Spot Panchnama (scene of offence panchnama)
(iv) Arrest and Personal search
(v) Seizure of clothes of complainant
(vi) Seizure of clothes of deceased
11. After completion of the oral as well as the documentary
evidence of the prosecution, the statements of the appellants herein under
Section 313 of the Code, of Criminal Procedure (for short, 'the CrPC')
were recorded in which the appellants herein stated that the complaint
was a false one. They further stated in their written statement under
Section 313 of the CrPC that they were workers of one Hindi Ekta
Mandal. On 09.03.2001, tension mounted between the Hindus and the
Muslims as some people from the minority community damaged the idol
of Ganesh. A report with the police was lodged in that regard. In such
circumstances, the witnesses deposed falsely against them.
12. At the conclusion of the trial, the learned Trial Judge convicted
the appellants herein for the offence punishable under Section 302 read
with Section 34 IPC and sentenced both as stated hereinbefore. The
original accused Nos. 2 and 4 were ordered to be acquitted of all the
charges.
13. In such circumstances referred to above, the two appellants
are here before this Court with the present appeal.
SUBMISSIONS ON BEHALF FOF THE APPELLANTS
14. The learned counsel appearing for the appellants vehemently
submitted that the High Court committed a serious error in dismissing
the appeal filed by the two appellants herein against the judgment and
order of conviction passed by the Trial Court. According to the learned
counsel, the High Court failed to appreciate that no reliance could have
been placed on the evidence of the so called eyewitnesses. According
to the learned counsel, the ocular version on record does not inspire any
confidence and deserves to be discarded.
BALU SUDAM KHALDE & ANR. v. THE STATE OF
MAHARASHTRA [J. B. PARDIWALA, J.]
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15. The learned counsel further submitted that the very presence
of the first informant PW 1 Asgar Shaikh is doubtful because although
he claims to have suffered an injury on his head during the assault yet no
medical treatment was taken by him and there is no medical certificate
on record that he had suffered any injury on his head. In such
circumstances, according to the learned counsel, the entire first
information report, at the instance of the PW 1 is unreliable.
16. The learned counsel further submitted that the discovery of
the weapons under Section 27 of the Indian Evidence Act, 1872 (for
short, 'the Act 1872') could also not have been relied upon as the panch
witnesses failed to support the case of the prosecution or rather failed to
prove the contents of the panchnama.
17. In the last, the learned counsel appearing for the appellants
vehemently submitted that even if the entire case of the prosecution is
believed to be true, the case at the most would be one of culpable homicide
not amounting to murder. According to the learned counsel, the case
falls within the purview of Exception 4 to Section 300 of the IPC.
18. In such circumstances referred to above, the learned counsel
prays that there being merit in his appeal, the same may be allowed and
the appellants be acquitted of all the charges. In the alternative, he prayed
that the conviction may be altered from one under Section 302 of the
IPC to Section 304 Part 1 of the IPC by giving benefit of Exception 4 to
the Section 300 of the IPC.
SUBMISSIONS ON BEHALF OF THE STATE
19. Mr. Abhikalp Pratap Singh, the learned counsel appearing for
the State of Maharashtra, on the other hand has vehemently opposed
this appeal submitting that no error not to speak of any error of law can
be said to have been committed by the High Court in dismissing the
appeal thereby affirming the order of conviction and the consequence
sentence passed by the Trial Court.
20. He would submit that there is no good reason to doubt the
ocular version of the eyewitnesses, which has come on record. He further
submitted that was no good reason for the eyewitnesses to falsely
implicate the appellants herein in the alleged crime.
21. The learned counsel submitted that no case is made out to
bring the case within the ambit of Exception 4 to Section 300 of the IPC.
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He vehemently submitted that as many as nine injuries were inflicted on
the body of the deceased by dangerous weapons like sickle and sword.
The appellants herein can be said to have taken undue advantage and
acted in a cruel manner.
22. In the last, the learned counsel appearing for the State submitted
that the discovery of the weapons points towards the conduct of the
accused persons and such conduct is a relevant fact under Section 8 of
the Act 1872 which taken together with the ocular version supports the
case of the prosecution in toto.
23.In such circumstances referred to above, the learned counsel
appearing for the State prayed that there being no merit in the present
appeal, the same may be dismissed.
ANALYSIS
24. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgment and order.
APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a hard task. There is
no fixed or straight-jacket formula for appreciation of the ocular evidence.
The judicially evolved principles for appreciation of ocular evidence in a
criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a whole
appears to have a ring of truth. Once that impression is formed, it
is undoubtedly necessary for the Court to scrutinize the evidence
more particularly keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and evaluate
them to find out whether it is against the general tenor of the
evidence given by the witness and whether the earlier evaluation
of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the
opportunity to form the opinion about the general tenor of evidence
given by the witness, the appellate court which had not this benefit
will have to attach due weight to the appreciation of evidence by
the trial court and unless there are reasons weighty and formidable
BALU SUDAM KHALDE & ANR. v. THE STATE OF
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it would not be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible
for him to make some discrepancies. But courts should bear in
mind that it is only when discrepancies in the evidence of a witness
are so incompatible with the credibility of his version that the court
is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core
of the case, hyper technical approach by taking sentences torn
out of context here or there from the evidence, attaching
importance to some technical error committed by the investigating
officer not going to the root of the matter would not ordinarily
permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in
the narration of an incident (either as between the evidence of
two witnesses or as between two statements of the same witness)
is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is
not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so
often has an element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person.
What one may notice, another may not. An object or movement
might emboss its image on one person's mind whereas it might go
unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation
and reproduce the very words used by them or heard by them.
They can only recall the main purport of the conversation. It is
unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of
an occurrence, usually, people make their estimates by guess work
on the spur of the moment at the time of interrogation. And one
cannot expect people to make very precise or reliable estimates
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in such matters. Again, it depends on the time-sense of individuals
which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately
the sequence of events which take place in rapid succession or in
a short time span. A witness is liable to get confused, or mixed up
when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by
the court atmosphere and the piercing cross examination by counsel
and out of nervousness mix up facts, get confused regarding
sequence of events, or fill up details from imagination on the spur
of the moment. The sub-conscious mind of the witness sometimes
so operates on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and honest
account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the
evidence need not necessarily be sufficient to amount to
contradiction. Unless the former statement has the potency to
discredit the later statement, even if the later statement is at
variance with the former to some extent it would not be helpful to
contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983
Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana
AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR
1959 SC 1012)]
26. When the evidence of an injured eye-witness is to be
appreciated, the under-noted legal principles enunciated by the Courts
are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place
of the occurrence cannot be doubted unless there are material
contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be
believed that an injured witness would not allow the real culprits
to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value
and unless compelling reasons exist, their statements are not to
be discarded lightly.
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(d) The evidence of injured witness cannot be doubted on account
of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in
the evidence of an injured witness, then such contradiction,
exaggeration or embellishment should be discarded from the
evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken
into consideration and discrepancies which normally creep due to
loss of memory with passage of time should be discarded.
27. In assessing the value of the evidence of the eyewitnesses,
two principal considerations are whether, in the circumstances of the
case, it is possible to believe their presence at the scene of occurrence
or in such situations as would make it possible for them to witness the
facts deposed to by them and secondly, whether there is anything
inherently improbable or unreliable in their evidence. In respect of both
these considerations, circumstances either elicited from those witnesses
themselves or established by other evidence tending to improbabilise
their presence or to discredit the veracity of their statements, will have a
bearing upon the value which a Court would attach to their evidence.
Although in cases where the plea of the accused is a mere denial, the
evidence of the prosecution witnesses has to be examined on its own
merits, where the accused raise a definite plea or put forward a positive
case which is inconsistent with that of the prosecution, the nature of
such plea or case and the probabilities in respect of it will also have to be
taken into account while assessing the value of the prosecution evidence.
28. Keeping the aforesaid principles of law in mind, we looked
into the oral evidence of all the three important witnesses i.e., PW 1
Asgar Shaikh (Exh. 7), PW 2 Firoz Babumiyan Shaikh (Exh. 9) and PW
3 Nasir Khan (Exh. 10). The oral evidence of all the three eyewitnesses
is consistent and there is no good reason for us to disbelieve the ocular
version as narrated by the three eyewitnesses. The Trial Court as well
as the High Court looked into the oral evidence of all the three
eyewitnesses referred to above closely and have recorded a concurrent
finding that they are reliable witnesses.
29. The High Court in its impugned judgment observed in paras 9
and 10 resply as under:
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"9. First, it is argued on behalf of the Appellants the learned
Counsel that the substantive evidence of P.W. Nos. 1 and 2,
alleged eyewitnesses cannot be taken as trustworthy, in as
much as they are interested and related witnesses to the
deceased Abbas Baig. Secondly, it is argued that there was
no immediate disclosure of the names of the accused persons
when the injured Abbas was brought to Lohiyanagar Police
Chowki and when said Abbas and both the injured P.W. Nos.
1 and 2 were sent to Sasoon Hospital for medical treatment
no history of assault was given. Thirdly, it is argued that P.W.
1, complainant had improved on his story by mentioning that
Abbas had sustained injuries on his head and it was not so
mentioned by him while giving his complaint. Fourthly, it is
argued that the main vital injury was in the normal course of
events, sufficient to cause the death of Abbas is injury No.9
as per the Post Mortem report was attributed to only accused
No.3 i.e.