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Tuesday, January 10, 2017

minor discrepancies, even if noticed, would not affect the prosecution case, if there is a sufficient independent evidence to sustain the conviction

Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL Nos. 658-659 OF 2010



Ram Chander & Ors.                           Appellant(s)



                             VERSUS



State of Haryana                        Respondent(s)



                               J U D G M E N T



Abhay Manohar Sapre, J.

1)    These appeals are filed against the common final  judgment  and  order
dated 12.08.2008  passed  by  the  High  Court  of  Punjab  and  Haryana  at
Chandigarh in Criminal Appeal Nos. 448-DB and 395-DB  of  1998  whereby  the
Division Bench of  the  High  Court  dismissed  the  appeals  filed  by  the
appellants  herein  and  upheld  the  judgments/orders  of  conviction   and
sentence rendered by the Trial Court.

2)    The case of the prosecution is as under:

 One Hari Singh (since dead) was married to Messo (deceased).  Out  of  this
wedlock, the couple was blessed with three daughters,  namely,  Dholi  alias
Krishna, Sumitra and Raj Bala. Raj Bala was aged around  15  years  and  the
youngest amongst the three daughters. Both Dholi and  Sumitra  were  married
at a place (village) called Kagdana whereas Rajbala was unmarried.

3)    Hari Singh has two brothers, namely, Sohan Lal (accused - since  dead)
and Bhoop Singh.  Sohan Lal has  four  sons,  namely,  Ram  Chander,  Ranbir
alias Randhir, Ram  Kumar  and  Om  Parkash  (accused-  appellants  herein).
Messo has one sister Guddi (PW- 9) who is married to Bhoop Singh.

4)    Messo and Raj Bala (mother and daughter) were living in one  house  at
village Arnianwali. Guddi  was  their  next-door  neighbour.  Messo  was  in
search of a boy for Raj Bala and had selected one boy from  a  place  called
Manak Dewan for which talks had been going on for the last one month  or  so
from the date of incident. The engagement  ceremony  was  accordingly  fixed
for 22.09.1996 at Arnianwali.  Dholi  alias  Krishna  (married  daughter  of
Messo)  had,  therefore,  come  to  her  mother’s  place  at  Arnianwali  on
19.09.1996 to help her mother and sister–Raj Bala for the ceremony.

5)    On 20.09.1996, around 3 p.m. Sohan  Lal  along  with  his  four  sons,
namely, Ranbir, Ram Chander, Ram Kumar and Om Parkash, came to the house  of
Messo and told her to desist from settling the marriage of Raj Bala  with  a
boy from Manak Dewan. Sohan Lal said that they could settle it according  to
their own choice. Sohan Lal, who was not happy with the  marriage  proposal,
expressed his total unhappiness and did not want the  marriage  proposal  to
fructify.  He then threatened Messo that in case she did not  agree  to  his
proposal then both (Messo and Raj Bala) would not see the sun the next  day.
After giving this threat, Sohan Lal along with his sons (appellants  herein)
left the place. Dholi and Guddi were present along with Messo and  Raj  Bala
when Sohan Lal and his four sons had come.

6)    Messo fearing with the threat of Sohan Lal asked  her  daughter  Dholi
to go immediately to her brother, Ram Sarup at village Dhigtania  which  was
around 20 KM away from her house and inform  him  about  happening  of  such
incident with her. Dholi, accordingly, went there and narrated the  incident
to Ram Sarup-her maternal uncle.  She then stayed overnight with Ram Sarup.

7)    On  21.09.1996,  in  the  early  hours,  when  Dholi  and   Ram  Sarup
accompanied by one Om Prakash-Sarpanch of Village Dhigtania reached  to  the
house of Messo, they found both,  Messo  and  Raj  Bala,  missing  from  the
house.  They, therefore, went to the house of Guddi (PW-9), who  was  living
next to the house of Messo. They noted that Guddi was  weeping  and  was  in
the state of shock.

8)    When they inquired from her about the whereabouts  of  Messo  and  Raj
Bala, Guddi told them that Sohan Lal and his  four  sons  had  come  in  the
night and murdered Messo and Raj Bala,  burnt  their  bodies  in  house  and
carried the remains of the dead bodies and ashes in a  cart  driven  by  the
tractor from her house to an unknown place.

9)    This led to the registration of FIR  bearing  No.197  (Ex-PA-1)  dated
21.09.1996 by Dholi at Police Station Nathusari  Chopta  naming   Sohan  Lal
and his four sons (appellants herein) as accused persons for committing  the
murder of her mother-Messo and sister–Raj Bala. The police authorities  then
started investigation, visited the spot,  recorded  the  statements  of  the
witnesses, prepared the spot map, recovered several articles from  the  spot
and arrested the accused persons. On being interrogated,  the  accused  made
disclosure statements about the manner in  which  ashes/bones  of  both  the
deceased were disposed of in a nearby Canal known  as-Sheranwali  Canal  and
also disclosed the place  where  the  weapons  used  in  commission  of  the
offence and tractor with cart were kept. On such disclosure being made,  the
police made recoveries of the articles at the instance of the accused.

10)   After completion of the investigation, the case was committed  to  the
Court of Sessions and the accused persons were  charged  for  commission  of
the offences punishable under Sections 148, 302 read with  Section  149  and
201 of the Indian Penal Code,1860 (for short ‘IPC’).

11)   On 07.08.1997, Om Parkash-one  of  the  accused  escaped  from  police
custody from Civil Hospital Sirsa. Proceedings under Sections 82 and  83  of
the Criminal Procedure Code,1973  (for  short  ‘the  Code’)  were  initiated
against him. He was declared ‘Proclaimed  Offender’  and  proceedings  under
Section 299 of the Code were ordered to be taken up against him.  The  trial
of other accused, however, proceeded on merits.

12)   The prosecution, in support of  his  case,  examined  as  many  as  11
witnesses  whereas  the  defence  did  not  choose  to  lead  any  evidence.
Proceedings  under  Section  313  of  the  Code  were  carried  out.   After
completion of  the  trial,  the  Trial  Court  (Additional  Sessions  Judge,
Sirsa), vide judgment  dated  27.07.1998,  convicted  Sohan  Lal,  Ranbir  @
Randhir, Ram Chander  and  Ram  Kumar  for  the  offences  punishable  under
Sections 148,  302/149  and  201/149  IPC  and  sentenced  them  to  undergo
rigorous imprisonment for a period of one year each under Section  148  IPC.
Ram Chander and Ranbir @ Randhir to  undergo  imprisonment  for  life  under
Section 302 IPC and to pay a fine of Rs.5000/- each, in default of  payment,
further to undergo rigorous imprisonment for a  period  of  one  year  each.
Sohan Lal and Ram Kumar  were  sentenced  to  imprisonment  for  life  under
Section 302/149 IPC and to pay a fine  of  Rs.5000/-  each,  in  default  of
payment of fine, further to undergo rigorous imprisonment for  a  period  of
one year each. All the four  accused  were  sentenced  to  undergo  rigorous
imprisonment for a period of two years  each  for  the  offences  punishable
under  Section  201/149  IPC.  All  the  sentences  were  ordered   to   run
concurrently.

13)   After arrest of  Om  Parkash  on  22.02.1999,  a  separate  trial  was
conducted against him and after  its  completion,  the  Trial  Court,  by  a
separate  judgment  dated  7/8.08.2000,  convicted  him  for  the   offences
punishable under Sections 148, 302/149 and 201/149 IPC and sentenced him  to
undergo  rigorous  imprisonment  for  one  year  under   Section   148   IPC
imprisonment for life and  fine  of  Rs.5000/-  with  default  clause  under
Section 302/149 IPC and rigorous imprisonment for two  years  under  Section
201/149  IPC.  All  the  substantive   sentences   were   ordered   to   run
concurrently.

14)   Against the  judgment  of  conviction  and  order  of  sentence  dated
27.07.1998, Sohan Lal, Ram Chander, Ram Kumar and  Ranbir  @  Randhir  filed
Criminal Appeal No. 448-DB of 1998 before the High Court.

15)   Against the  judgment  of  conviction  and  order  of  sentence  dated
7/8.9.2000, Om Parkash filed separate Criminal Appeal  No.  395-DB  of  2000
before the High Court.

16)    The  appeals  were  heard  together.  By  impugned   judgment   dated
12.08.2008, the High Court dismissed both the appeals. During  the  pendency
of the appeals before the High Court,  Sohan  Lal  died,  therefore,  appeal
against him stood abated.

17)   Aggrieved by the said judgment,  all  the  accused  have  filed  these
appeals by special leave before this  Court  questioning  the  legality  and
correctness of their conviction and sentence.

18)    Heard  Mr.  Naresh  Kaushik,  learned  counsel  for  the   appellants
(accused) and Mr. Sanjay Kumar Visen learned  counsel  for  the  respondent-
State.  We also perused the written submissions  submitted  by  the  learned
counsel for the parties.

19)   Learned counsel for  the  appellants  (accused)  while  assailing  the
legality  and  correctness  of  the  impugned  order,  reiterated  the  same
submissions which were pressed  in  service  though  unsuccessfully  by  the
appellants before the two courts below resulting in their conviction.

20)   In substance, the submissions were that firstly, the  appellants  were
falsely implicated in the incident inasmuch as none of the  appellants  were
connected with the commission of the offence in question in any way so  also
their complicity in the commission of the offence could not  be  established
by the prosecution for want of evidence against any of them.

21)   The second submission was that neither the motive  for  commission  of
the offence and nor the presence of any of  the  appellants  either  jointly
and individually was proved at the time of the commission of the offence  by
the  prosecution  and  the  evidence  adduced  by  the  prosecution  is  not
sufficient to implicate the appellants for commission of the offence.

22)   The third submission was that the two Courts below  erred  in  placing
reliance on the  evidence  of  the  so-called  eye-witness-Guddi  (PW-9)  as
according to the learned counsel, her testimony, if scanned  properly  would
neither inspire confidence and nor will command  creditability  due  to  her
close relationship with the deceased family.

23)   The fourth submission was that apart from the evidence of  Guddi  (PW-
9),  no  independent  eye-witness  to  the  incident  was  examined  by  the
prosecution, therefore, it  is  not  safe  to  rely  on  the  uncorroborated
testimony of Guddi (PW-9) for sustaining the appellants’ conviction.

24)   The fifth submission was that when the  prosecution  claimed  that  on
the strength of disclosure statement of one accused, they recovered   “Ashes
and Bones" from the canal, this itself renders the case of  the  prosecution
wholly unacceptable because ashes could never be recovered from canal.

25)   The sixth submission was that it  looked  highly  improbable  that  no
villager could witness the incident except Guddi(PW-9). This,  according  to
learned counsel, is sufficient  to  hold  that  the  prosecution  failed  to
establish the complicity of the appellants in commission of the crime.

26)   The seventh submission was that no  expert  opinion  was  obtained  to
find out as to whether bones recovered were human bones or animal bones?

27)   It is basically  these  submissions,  which  were  elaborated  by  the
learned counsel for  the  appellants  with  reference  to  the  evidence  on
record.

28)   In reply, learned counsel for the respondent  supported  the  impugned
order  and  contended  that  since  both  the  Courts   below,   on   proper
appreciation of evidence, have held that the  appellants  were  involved  in
the commission of the offence in question and  committed  brutal  murder  of
two innocent ladies, mother and daughter, and further both the  Courts  have
given cogent reasons while  rejecting  their  submissions  and  hence  there
arises no reason to interfere in the impugned order.

29)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find no merit in the appeals.

30)   At the outset, we may take note of one  legal  principle  consistently
reiterated by this Court since inception that it  is  not  the  function  of
this Court to re-assess evidence and an argument on a point  of  fact  which
did not prevail with the Courts below cannot avail the  appellants  in  this
Court (see observation  of  learned  Judge  –  Saiyid  Fazl  Ali,  J.  while
speaking for the Bench in the case of Lachhman Singh  and  others  vs  State
(AIR 1952 SC 167).

31)   Here is  a  case  where  the  Trial  Court  and  the  High  Court,  on
appreciating the  entire  oral  evidence,  recorded  categorical  concurrent
findings of fact against the appellants (accused) about their complicity  in
commission of crime in question which resulted in killing of mother and  her
unmarried daughter.

32)   Both the Courts below held that firstly, it were  the  appellants  who
had come to the house of Messo (mother) and threatened her that she  (Messo)
should not pursue her daughter, Raj Bala's marriage with the boy from  Manak
Diwan, otherwise both  will  not  see  the  sun  the  next  day.   Secondly,
noticing that both did not pay any heed to the threat, the  appellants  came
to Messo’s house in the midnight with a  pre-determined  mind  to  eliminate
Messo and Raj Bala. Thirdly,  the  appellants  accomplished  their  plan  by
mercilessly killing Messo and Raj Bala with the use  of  gandasa  when  both
were in fast asleep.  Fourthly,  the appellants first caught hold  of  Messo
and chopped her head with Gandasa and then did the  same  to  Raj  Bala  and
then put them on a cot and put mattresses and wood sticks over their  bodies
and poured kerosene/diesel and set  their  bodies  to  fire.   Fifthly,  the
appellants then removed the ashes and bones from the place of occurrence  in
a tractor and all this was witnessed by Guddi (PW-9) who was living as  next
door neighbour of the deceased.  Sixthly, Guddi (PW-9) was a  reliable  eye-
witness  whose  evidence  did  not  suffer  from  any   infirmities   or/and
inconsistencies.  Seventhly, the ashes, human bones, plastic  bags,  Gandasa
used in execution of the offence were recovered from the canal and house  at
the instance of the respective appellants  on  the  strength  of  individual
disclosure  statements  made  during  their  interrogation.  Eighthly,   the
defence did not adduce any evidence to demolish the case of the  prosecution
and nor statements of the accused made under Section 313  of  the  Code,  in
any manner, could  demolish the case of  the  prosecution  on  any  material
points.  Ninthly, the case set up by the prosecution  was  proved  with  the
aid of evidence adduced by witnesses, namely, PW-1 to PW-11.

33)   As observed supra,  the  aforementioned  nine  main  findings  of  the
Sessions Court were affirmed by the High Court after appreciating  the  oral
evidence. These findings of fact being  concurrent  in  nature  are  usually
binding on this Court.  This Court, being the last  Court  of  appeal,  does
not re-visit and re-appreciate the entire  oral  evidence  de  novo  in  its
jurisdiction under Article 136 of the Constitution unless there  are  strong
and prima facie reasons to do so pointing out  therein  any  apparent  legal
and jurisdictional error prejudicing any rights of the accused.

34)   However, since  this  Court  granted  leave  to  file  appeal  to  the
appellants against the impugned  order  of  the  High  Court  and  hence  we
considered it just and proper to have a re-look to the evidence of  material
witnesses with a view to find out whether the  concurrent  findings  of  the
two Courts below are based on proper appreciation  of  evidence  or  any  of
these findings call for any interference.

35)   As mentioned above, the only eye-witness to the incident  in  question
is Guddi (PW-9). Both the Courts below found her testimony  to  be  natural,
credible and consistent.

36)   Guddi (PW-9) is the real sister of the  deceased  Messo  and  she  was
living next to the house of Messo. She, in her evidence, narrated in  detail
her family tree and their inter se relations  including  her  relation  with
the accused family.

37)   She stated that Sohan Lal-one of the  accused  (since  dead)  was  her
husband's (Bhoop Singh’s) real elder brother and the accused are  Sohan  Lal
and his sons. She stated that Sohan Lal and his sons (appellants)  had  come
to Messo's house in the afternoon on the  date  of  incident  (incident  had
occurred in midnight the same day) and held out a  threat  to  her  and  Raj
Bala that marriage proposal of her daughter with the boy  from  Manak  Diwan
should not be materialized and if it is  not  cancelled  then  she  and  her
daughter will not see the sun the next day. She stated that Sohan  Lal  gave
this threat to Messo in her presence and in presence  of  Dholi  (PW-8)  who
had come to Messo to extend help for engagement ceremony of Raj Bala.

38)   She stated that Messo on hearing the threat asked  Dholi-her  daughter
to go to her maternal uncle (Ram Sarup) - who was  the  resident  of  nearby
village and bring him with her, if possible.

39)   She stated that Dholi immediately left to the house of Ram  Sarup  and
on reaching there she  told  him  about  the  incident.  Dholi  stayed  back
overnight with Ram Sarup.

40)   She then stated that during mid-night hours, she heard some  noise  in
the house of Messo. She, therefore, woke up and came out  to  find  out  the
cause of noice. She stated that between her house and the  house  of  Messo,
there is one common wall with sufficient  space,  which  enables  anyone  to
peep through easily in both the houses.

41)   She stated that she came near to the joint wall and through  space  in
the wall saw that Ram Chander (accused) and Randhir (accused)  were  holding
Gandasas  in  their  hands  whereas  Sohan  Lal  (accused)  and  Om  Prakash
(accused) had  caught  hold  of  Masso's  hand  and  legs  and  Ram  Chander
(accused) with his gandasa gave  blow  on  Messo's  neck,  which  completely
severed Messo's neck from her body.

42)   She stated that Ram Kumar (accused) then caught hold of Raj  Bala  who
was on a separate cot and Ranbir (accused) with his  gandasa  gave  blow  on
Raj Bala's throat due to which her neck  was  completely  severed  from  her
body. The accused persons then put both the bodies on  one  cot  along  with
their severed heads and put mattresses on the dead bodies.  Sohan  Lal  then
put some wood sticks by  the  side  of  the  cot  and  poured  two  tins  of
diesel/kerosene on the cot and set the cot ablaze with matchstick.

43)   She stated that Ranbir (accused) then came to her (Guddi‘s) house  and
took their tractor and camel cart to Messo's house. He dumped  ashes,  bones
and other burnt material in the tractor and proceeded with  the  tractor  to
an unknown place. She stated that before leaving, Ram Chander plastered  the
place of occurrence with mud and cow-dung and cleaned the place. She  stated
that she told about this incident to Bhoop Singh but on hearing it,  he  ran
away out of fear.

44)   She stated that next morning when Ram Sarup,  Dholi  and  Om  Prakash-
Sarpanch came, she narrated the entire incident to  them,  which  eventually
led to filing of FIR by Dholi immediately in  the  concerned  nearby  Police
Station naming therein the appellants as the culprits of commission  of  the
offence.

45)   Dholi (PW-8) corroborated the evidence of  Guddi  (PW-9)  on  material
points such as (1) all the accused visiting Messo's house and giving  threat
in her presence to Messo and Raj Bala,  (2)  Raj  Bala's  marriage  proposal
with a boy from Manik Dewan (3)  She having left to  her  uncle's  place  at
the request of her mother Messo to inform him about the  incident  (4)   her
family relations with the accused and with other family members and  lastly,
what Guddi (PW-9) told her about the  entire  incident  and  the  manner  in
which it was accomplished by the accused  on her  reaching  the  house  next
day morning with Ram Sarup and Om Prakash.

46)   Ram Sarup (PW-10) also corroborated the version of  Guddi  (PW-9)  and
Dholi (PW-8) on all material points. He  stated  that  when  he  along  with
Dholi and Om Prakash went to Guddi,  she  was  weeping  and  frightened.  On
being consoled, she narrated the entire incident (mentioned above) to them.

47)   The evidence of the Investigating Officer Hardawari  Lal  (PW-11)  and
Kiran Kumar (PW-7)  who  was  the  Scientific  Assistant  (Forensic  Science
Laboratory) proved that the blood stains were found on the walls  and  earth
and also fresh mud and cow-dung was found on  the  walls  and  when  it  was
removed, blood stains were noticed on the bricks of the  wall.  Kiran  Kumar
(PW-7) also corroborated the existence of joint wall with  sufficient  space
available in the common wall as stated by Guddi (PW- 9).

48)    The  evidence  of  Investigating  Officer  (PW-11)  also  proved  the
recoveries of articles  on  the  basis  of  disclosure  statements  made  by
respective  appellants  (accused).  The  seized  articles  were  proved  and
exhibited.

49)   It is with this evidence, the question arises as to  whether  the  two
Courts below were justified in placing reliance on  the  evidence  of  Guddi
(PW-9) for resting the appellant's conviction?

50)   On scanning the aforementioned evidence,  we  are  of  the  considered
opinion that both the Courts below were justified in accepting the  evidence
of Guddi (PW-9) for resting the appellants’ conviction upon  it.  We,  while
concurring with the reasoning and the conclusion of both the  Courts  below,
give our reasons infra.  In our view, the following facts  are  proved  with
the aid of evidence.

51)   First, Guddi (PW-9) was next-door neighbour to the house of  both  the
deceased where the incident took place. Second, she was closely  related  to
the deceased family and the family of  the  accused.  Third,  she  knew  the
accused persons and the family members of the deceased very well much  prior
to the date of incident being a part of the same families. Fourth,  she  was
fully aware of the marriage issue of Raj Bala. Fifth,  she  was  present  at
the time of threat given by Sohan Lal  and  his  sons  (accused)  to  Messo.
Sixth, she was able to see the incident graphically due to sufficient  space
available in the common wall.  Seventh, Scientific  Assistant,  Kiran  Kumar
(PW-7) on inspection of the place of occurrence proved that the common  wall
has space. He said "there was open space between this wall  and  the  room".
Eighth, it also corroborates with the evidence of Hardawari  Lal(PW-11)  and
the spot map (EX-PU) of the place of incidence that the wall  and  the  open
space therein did exist; Ninth, Guddi's narration of entire incident  is  so
graphic that it looks natural. It also shows how confidently  she  was  able
to narrate the role of every accused in commission of the  offence.   Tenth,
the existence of blood stains on wall and earth coupled with fresh  mud  and
cow dung put on the walls/earth duly proved by Hardawari Lal,  Investigating
Officer(PW-11) and Kiran Kumar (PW-7) corroborates  Guddi's  statement  that
"Ram Chander - one of the accused before leaving  the  place  of  occurrence
cleaned the place with mud and cow-dung". Eleventh, it is  not  possible  to
give description of an incident in such graphic manner and  that  too  by  a
middle aged illiterate housewife unless she had actually seen such  incident
and why should  Guddi  (PW-9)  give  evidence  against  the  appellants  and
falsely implicate them when there is no evidence  to  prove  their  previous
animosity; Twelfth, motive to eliminate the  two  deceased  was   proved  by
Guddi against the appellants and lastly, nothing could  be  brought  out  to
shake her testimony in cross-examination.

52)   The submission of learned counsel for the appellants that since  Guddi
(PW-9) was in close relation with the deceased persons, she  should  not  be
believed for want of evidence of any independent  witness,  deserves  to  be
rejected in the light of the law laid down by this Court in Dalbir Kaur  and
Ors. vs. State of Punjab, (1976) 4 SCC 158, and Harbans Kaur  and  Anr.  vs.
State  of  Haryana,  (2005)  9  SCC  195,  which  lays  down  the  following
proposition:

“There is no proposition  in  law  that  relatives  are  to  be  treated  as
untruthful witnesses. On the contrary, reason has to be shown  when  a  plea
of partiality is raised to show that the  witnesses  had  reason  to  shield
actual culprit and falsely implicate the accused.”

53)   In Namdeo?Vs.?State of  Maharashtra,  (2007)  14  SCC150,  this  Court
further held:

“38. ………. it is clear that a close relative cannot be  characterised  as  an
“interested” witness. He is a  “natural”  witness.  His  evidence,  however,
must be scrutinised carefully. If on such scrutiny, his  evidence  is  found
to be intrinsically reliable, inherently probable  and  wholly  trustworthy,
conviction can be based on the  “sole”  testimony  of  such  witness.  Close
relationship of witness with the deceased or victim is no ground  to  reject
his evidence.  On  the  contrary,  close  relative  of  the  deceased  would
normally be most reluctant to spare the real culprit and  falsely  implicate
an innocent one.”



54)   We follow and apply this well settled principle of law  for  rejecting
the submissions of learned counsel for the appellants.

55)   In the light of aforementioned twelve reasons,  we  are  of  the  view
that Guddi (PW-9) was rightly held to be an eye-witness and the  two  Courts
rightly relied upon her  sworn  testimony  for  sustaining  the  appellants’
conviction.

56)   This takes us  to  the  next  argument  of  learned  counsel  for  the
appellants. It was urged that  the  alleged  recovery  of  articles  on  the
strength of disclosure statement  of  the  accused  and  in  particular  the
"ashes and the bones" from the canal is not possible. We do not agree.

57)   In our view, there is no evidence to prove the fact as to whether  the
canal from where the recovery of ashes and bones  was  made  had  any  water
therein or not at the relevant time. We do not find that  any  question  was
put to any witness on this issue and secondly, no independent  evidence  was
brought on record to prove as to whether the canal was full of water or  had
no water therein. In any event,  one  could  not  dispute  that  bones  were
recovered from the canal. In  the  absence  of  any  evidence,  which  could
otherwise be led in any form, this submission at this stage  is,  therefore,
not acceptable.

58)   This takes us  to  the  next  argument  of  learned  counsel  for  the
appellants. Learned Counsel urged that why the prosecution did  not  examine
any independent witness from the village other then Guddi (PW-9).

59)   We find no merit in this submission for more than one  reason.  First,
no such argument was advanced before  the  two  courts  below.  Second,  the
incident had taken place during midnight when all the  villagers  were  fast
asleep. Third, no evidence was adduced to  prove  that  near  the  place  of
incident, there were many houses and lastly, had the injury been  caused  by
the Gun Shot, it would have created some noise in the  nearby  locality  and
attract the attention of the villagers. Such  was,  however,  not  the  case
because the weapon used in commission of the offence was ‘Gandasa’.

60)   In our considered opinion,  the  disclosure  statements  made  by  the
accused during their interrogation on the basis of which the  recoveries  of
articles were made such as - gandasa, bones,  ashes,  blood  stained  bricks
and earth, tractor with cart, two plastic cans smelling  diesel  oil,  which
were duly proved by the Investigating Officer are sufficient to sustain  the
conviction when it is examined in  the  context  of  oral  evidence.  Merely
because no expert  opinion  was  obtained  to  prove  as  to  whether  bones
recovered were human or animal bones, in our  view,  would  not  weaken  the
case of prosecution in the  light  of  overwhelming  evidence  available  on
record to prove the complicity of the appellants.

61)   It is the consistent view of  this  Court  that  minor  discrepancies,
even if noticed, would not affect  the  prosecution  case,  if  there  is  a
sufficient independent evidence to sustain the conviction. (See  –  Vijay  @
Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, Paras 23  &  23).   In
this case,  the  evidence  adduced  was  found  sufficient  to  sustain  the
conviction and we find no good ground to take a different view from the  one
taken by the two Courts below and concur with their findings  and  views  by
giving our own reasons mentioned supra.

62)   In view of foregoing discussion, the appeals are found  to  be  devoid
of any merit. The appeals thus fail and are accordingly dismissed.  In  case
if any of the appellants is on bail, his bail bond stands cancelled  and  he
is directed to be taken into custody forthwith to undergo  remaining  period
of sentence awarded to him by the Sessions Court.

                                     ………..................................J.
  [A.K. SIKRI]


                                    .……...................................J.
                [ABHAY MANOHAR SAPRE]
      New Delhi,
      January 02, 2017
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