Holding

The convictions under Sections 302 r/w 149 and 148 IPC are upheld as the identification by witnesses was reliable, procedural irregularities were not fatal, and medical evidence corroborated the prosecution.

Summary

The Supreme Court examined the appeal of four accused convicted for the murder of Balmukund under Sections 302 read with 149 and 148 of the IPC. The prosecution relied on three eye‑witnesses who identified the accused despite the incident occurring at around 6 p.m., and on medical evidence showing axe‑type injuries. The appellants argued that the witnesses could not see the assailants due to insufficient light and that the recall and re‑examination of one witness, PW2, violated procedural law. The Court held that there was adequate illumination, the witnesses’ identification was reliable, and the procedural lapse did not prejudice the trial. It also found that the medical findings supported the eyewitness accounts, confirming the use of an axe. Consequently, the convictions and sentences were upheld and the appeal dismissed.

Issues considered

Whether the eye‑witnesses could reliably identify the accused despite the alleged paucity of light.
Whether the recall and re‑examination of PW2 contravened the procedural requirements for witness examination.
Whether the medical evidence conflicted with the eyewitness testimony regarding the weapon used.
Whether the convictions under Section 302 read with Section 149 and Section 148 IPC are sustainable.

Legislation cited

Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 49

Subjects

murderculpable homicideidentification of accusedwitness testimonyprocedural fairnessrecall of witnessmedical evidenceIPC Section 302IPC Section 149IPC Section 148

Judgment

/

MISHRILAL AND ORS. A
v.
STATE OF M.P. AND ORS.

MAY I I, 2005

[K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.] B

Penal Code, 1860-Sections j<J.? r/w j 49 & 148-Murder-On facts,
evidence of the eye-witnesses coupled whh the medical evidence satisfactorily
proved that the accused-appellants had committed the offence as alleged by C
the prosecution-Hence no reason to interfere with the conviction and sent~nce
of appellants as recorded by the courts below.

Criminal Trial:

Recalling of witness-Witness examined in-chief and cross-examined
fully, could not be recalled and re-examined to deny the evidence he had D
already given before the Court, even though he had given an inconsistent
statement before another Court subsequently.

Witness,givingfalse evidence-Courts should take serious action against
/ such witness.
E
According to the prosecut,ion, PWl, PW2 and father of PW3 were
grazing cattle in their fields,. when the four accused-appellants allegedly
came there atongwith their accomplices armed with various weapons such
as axe and lathi and attacked PW3's father and PW2, leading to the death
of the former. Sessions Court relying on the evidence of PWl to PW3 F
convicted the appellants under Section 302 r/w S_ection 149 IPC, and also
under Section 148 IPC. High Court too accepted the evidenc~ of.PWl to
PW3 and accordingly. affirmed the conviction and sentence of the
appellants. Hence the present appeal.

Dismissing the appeal, the Court G
HELD: 1. It cannot be accepted that due to paucity of light, the
witnesses had no opportunity to identify the assailants for the reason that
the incident is alleged to have happened at about 6 O'Clock in the evening
and the prosecution case is that deceased as well as PW 1 and PW 2 were
259 H
260 SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R.

A grazing the cattle in their field at that time and there would not have been
much darkness. Moreover, in the cross-examination of PW 1, there is not
even a suggestion that there was no light and they were unable to ~ee the
incident, though, of course, there was a suggestion to the effect that the
witnesses PW 1 and PW 2 must have been standing at a distance.
{261-H; 262-A, BJ
B
2. The procedure adopted by the Sessions Judge was not strictly in
accordance with law. Once the witness was examined in-chief and cross-
examined fully, such witness should not have been recalled and re-
examined to deny the evidence he had already given before the court, even
C though that witness had given an inconsistent staten:ient before any other
court or forum subsequently. A witness could be confronted only with a
previous statement made by him. At the time of earlier examination of
PW 2, there was no such previous statement and the defence counsel did
not confront him with any statement alleged to have been made previously.
This witness must have given some other version before the Juvenile Court
D for extraneous reasons and he should not have been given a further
opportunity at a later stage to completely efface the evidence already given
by him under oath. The courts have to follow the procedures strictly and
cannot allow a witness to escape the legai action for giving false evidence
before the court on mere explanation that he had given it under the
E press1fre of the police or some other n:ason. Whenever the witness speaks
falsehood in the court, and it is proved satisfactorily, the court should take
serious action against such witnesses. (262-F, G, H; 263-A)

3. The plea that there is no evidence to show that appellant no.I and
a co-appellant caused injuries with an axe and· that there is no
F corresponding incised injury on the head of the deceased and hence the
medical evidence is in conflict with the evidence of the eye-witnesses is
also not correct as the post-mortem certificate 'shows that there was an
injury on the head of the deceased which must have been caused by
appellant no.1. Injury nos. I and 3 are on the left fronto-temporo parietal
region and mid parietal region. The blunt edge of the axe must have been
G used to cause these injuries. {263-D-E]

4. The evidence of the three witnesses, namely PWsl to 3, coupled
with the medical evidence satisfactorily proved that the appellants had
committed the offence as alleged by the prosecution. There is, therefore,
no reason to interfere with the conviction and sentence entered against
H
MlSHRILALv. STATE OF M.P. [BALAKRISHNAN, J.] 261

the appellants. (263-F] A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 939
of 2004 .
•
>
From the Judgment and Order dated 5.8.2003 of the Madhya Pradesh
High Court in Crl. A. No. 255 of 1992. B
N.P. Midha, Ms. Rajshri Shivale and Ashok Mathur for the Appellants.

Ms. Vibha Datta Makhija for the Respondents.

The Judgment of the Court was delivered by c
K.G. BALAKRISHNAN, J. The four appellants along with two others
were found guilty of the offence punishable under Section 302 read with
Section 149 IPC. They were also found guilty of the offence under Section
148 IPC. The appellants preferred an appeal before the High Court and the
same was dismissed. Hence, they challenge their conviction and sentence in D
this appeal. ·

The incident giving rise to the present appeal happened on 22.7.1990
at about 6.00 p.m. PW-1 Kammod, .PW-2 Mokam Singh and deceased
Balmukund were grazing the cattle in their fields. The appellants along with
their acc'omplices came there and attacked Balmukund and Pw-·2 Mokam E
Singh. Appellants Mishrilal and Lallu @ Lalaram were armed with axe and
A-3 Kamoda @ Kamod Singh was armed with 'lathi' while A-4 Narayan
Singh was armed with a 'Luhangi.' The prosecution case is that all of them
caused injuries to deceased Balmukund. PW I Kammod later went to the
Police Station at Bajranggarh and gave information about the incident. F
On the side of the prosecution, 8 witnesses were examined. PWs I to
4 are eye witnesses. The evidence of PW 4 Mathura Lal was not accepted by
the Sessions Judge as his name was not mentioned in the F.I. Statement. The
Sessions Court relied on the evidence of PW I to PW 3. The High Court also
accepted the evidence of PW 1 to PW 3. G
We heard the learned Counsel for the appellants and learned Counsel
on behalf of the respondents. The learned Counsel for the appellants seriously
contended before us that the incident happened after the sunset and these
witnesses could not have identified the assailants. It was pointed out that
these witnesses were standing at a distance and due to paucity of light, they H
262 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A had no opportunity to identify the assailants. We are not inclined to accept
this contention, for the reason that the incident is alleged to have happened
at about 6'o Clock in the evening and the prosecution case is that deceased
Balmukund as well as PW l and PW 2 were grazing the cattle in their field
at that.time and there would not have been much darkness .. Moreover, in the
cross-examination of PW I, there is not even a suggestion that there was no
B light and they were unable to see the incident, though, of course, there was
a suggestion to the effect that the witnesses PW l and PW 2 must have been
standing at a distance.

The learned Counsel for the appellants seriously attacked the evidence
c of PW 2 Mokam Singh. This witness was examined by the Sessions Judge
on 6.2.1991 and cross-examined on the same day by the defence counsel.
. '
Thereafter, it seer,ns, that on behalf of the accused persons an application was
filed and PW 2 Mokam Singh was recalled. PW-2 was again examined and
cross-examined on 31. 7.1991. It may be noted. that some of the persons who
were allegedly involved in this incident were, minors and their case was tried
/
/•
D by the Juvenile Court. PW 2 Mokam Singh was also examined as a witness
in the case before the Juvenile court. In the Juvenile Court, he gave evidence
to the effect that he was not aware of the persons who had attacked him and
on hearing the voice of the assailants, he assumed that they were some
Banjaras. Upon recalling, PW-2 Mokam, Singh '"'.as confronted with the
evidence he had given later before the Juvenile Cou.rt on the basis of which
E the accused persons were acquitted of the charge under Section 307 IPC for
having made an attempt on the life of this witness;

In our opinion, the procedure adopted by the Sessions Judge was not
strictly in accordance with law. Once the witness was examined in-chief and
F cross-examined fully, such witness should not have been recalled and re·
examined to deny the evidence he had already given before the court, even
though that witness had given an inconsistent statement before any other
court or forum subsequently. A witness could be confronted only with a
previous statement made by him. At the time of examination of PW 2 Mokam
Singh on 6.2.1991, there was no such previous statement and the defence
G counsel did not confront him with any statement alleged to have been made
previously. This witness must have given some other version before the
Juvenile Court for extraneous reasons and .he should not have been given a
further opportunity at a later stage to completely efface the evidence already .
given by him under oath. The courts have to follow the procedures strictly (
and cannot allow a witness to escape the legal action for giving false evidence •
H "
MISHRILAL v. ST ATE OF M.P. [BALAKRISHNAN, J.) 263
before the court on mere explanation that he had given it under the pressure A
·~·of the police or some other reason. Whenever the witness speaks falsehood
in the court, and it is proved satisfactorily, the court should take a serious
action against such witnesses.

PW 2 Mokam Singh, when examined on 6-2-1991, gave evidence to
the effect that he and deceased Balmukund.were attacked by the appellants B
herein. PW-3 is the daughter of the deceased Balmukund. She had also given
evidence to the effect that these four appellants came to the place of incident
and caused injuries to her father Balmukund and PW 2 Mokam Singh. She
also deposed that the accused persons were carrying axe, farsa, lathis and
some other weapons. c
The medical evidence in this case shows that deceased Balmukund had
_ sustained as many as 8 injuries. Except one injury, all others were lacerated
injuries. The learned Counsel for the appellants submitted that there is no
evidence to show that appellants Mishrilal and Lallu @ Lalaram caused
injuries with an axe and that there is no corresponding incised injury on the D
head of the deceased and hence the medical evidence is in conflict with the
·evidence of the eye-witnesses. That plea also is not correct as the post-
mortem certificate shows that there was an injury on the head of the deceased
which must have been caused by the appellant Mishrilal. Injury nos. 1 and ...
3 are on the left fronto-temporo parietal region and mid parietal region. The
blunt edge of the axe must have been used to cause these injuries. E
The evidence of the three witnesses, namely PW-1 to PW-3, coupled
with the medical evidence satisfactorily proved that the appellants had
committed the offence as alleged by the prosecution. There is, thert:fore, no
reason to interfere with the convfotion and sentence entered against the F
appellants. The appeal is without any merits and is dismissed accordingly.

B.B.B. Appeal dismissed.