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2001 DIGILAW 6 (SIK)

SANJAY LOHAR v. STATE OF SIKKIM

2001-03-19

ANUP DEB, RIPUSUDAN DAYAL

body2001
RIPUSUDAN DAYAL, C. J. ( 1 ) - This appeal is directed against the judgment and order of the learned Sessions Judge, East and North at Gangtok, convicting the appellant. Sanjay Lohar under Section 302 IPC for causing the murder of Hemraj Darnal at Chumba busty. Martam under Singtam Police Station on 3-9-1999 at about 2200 hours and sentencing him to rigorous imprisonment for life with a fine of Rs. 10. 000/- (ten thousand) or in default of payment of fine to undergo further rigorous imprisonment for six months with a further direction that, if fine is realized the same be paid to the kin of the deceased. ( 2 ) BOTH the deceased and the accused persons were neighbours residing in adjacent houses at Chumba busty and were also related to each other. On 3-9-1999, after the days work they came back home in an intoxicated condition having taken liquor. The appellant Sanjay Lohar first entered his house and kicked some utensils in the house and later went outside towards the house of the deceased. Hemraj Darnal and knocked at his door. Hemraj Darnal was also outside the door of the house at the time of the occurrence. The deceased Hemraj Darnal and the appellant Sanjay Lohar got into some argument which turned into a scuffle in the verandah and during the scuffle the appellant Sanjay Lohar managed to get hold of an iron metal roll lying in the verandah of Hemrajts house and thereby assaulted Hemraj on the temporal area causing his death on the spot. According to the prosecution only one eye witness namely. Renuka Bhutia who is the sister of the deceased witnessed the occurrence. She has deposed that after she and her husband had retired to bed the appellant came to their house and asked her to open the door giving several kicks on the door and when she opened the door the appellant fell down. Thereupon, her husband passing Bhutia went to call her parents who were living elsewhere near the house and at that time the deceased Hemraj Darnal was also outside the door. Thereupon, her husband passing Bhutia went to call her parents who were living elsewhere near the house and at that time the deceased Hemraj Darnal was also outside the door. According to her evidence both the appellant and the deceased were fighting and during the fight the appellant assaulted the deceased with an iron roll on the head as a result of which he fell down on the ground and when she went to sprinkle water from an aluminum pitcher, the accused snatched the same and threw it on the deceased. The appellant also threw a wooden seat and a grinding stone on the deceased. Thereafter, she left to call her parents but by the time she returned, she found that the appellant had already left. She has admitted in her cross examination that the appellant was friendly with the deceased. She also admitted that at the time, of the occurrence, the deceased was also a little tipsy, Rajendra Kami. PW-3 who is the elder brother of the appellant has deposed that at about 11 p. m. on 3-10-1989 he was awakened by the sound of some noise near his house and on enquiry he learned that the deceased had been assaulted to death by the appellant. Post-mortem examination was conducted by Dr. S. D. Sharma. (P. W. 4), who at the relevant time was Medico Legal Consultant at the STNM Hospital. He found the following injuries on the body of the deceased:1. Semicircular curved, laceration with 3 cms. diameter facing downwards over the left temporal region with depressed fracture of the left temporal bone along the line of the laceration and the resultant flap of scalp with underlying bones and muscles separated and embedded in the temporal lobe of the brain causing multiple laceration of the temporal lobe and brain tissue extruded out of the injury. 2. contested abrasion 5 x 1 cms. with dried exudate over the right deltoid region. 3. multiple small contusions over the right arm. 4. abrasion 5 x 5 cms. over the right wrist. 5. multiple small abrasion over the left hand dorsum. The doctor opined that the cause of death was cerebral shock following injuries to the brain caused by heavy force to the head by a blunt weapon. In the cross-examination, he has stated that except injury No. 1 the other injuries were simple in nature. over the right wrist. 5. multiple small abrasion over the left hand dorsum. The doctor opined that the cause of death was cerebral shock following injuries to the brain caused by heavy force to the head by a blunt weapon. In the cross-examination, he has stated that except injury No. 1 the other injuries were simple in nature. He also stated that there was only one injury over the head and such an injury can be produced when a person falls on a hard surface with a projection from a considerable height. Investigation was conducted by Sub-Inspector, S. Rai, (PW8), who was posted as Second 0/c. Singtam Police Station at the relevant time. According to his evidence, a W. T. message was received on 4-9-1999 at 1 a. m. from Incharge. Sang Out-post that one Hemraj Darnal had been assaulted to death by the appellant Sanjay Lohar at Chumbu Busty, Martam in the night of 3-9-1999. On receipt of this information the Officer incharge, Singtam Police Station directed him to conduct spot enquiry and after the spot enquiry he found that the deceased Hemraj Darnal had been assaulted to death by the appellant with an iron rod on the head during a fight. Accordingly, he lodged a written report on the basis of which S. P. S. Case No. 22 (9)00 dated 4-9-1999 under Section 302 IPC was registered and he conducted the investigation. He also stated that during investigation he seized one iron roll and one silver metal oval shaped jar from the verandah of the deceased. The iron roll has been marked Ext. 1 and the pitcher has been marked Ext. II. He further deposed that the seizures were made in the presence of Bishnu Gadaily. P. W. 5 and Harka Bahadur Lohar (P. W. 6) and after the seizures were made, he prepared the seizure memo Ext. P-4 which bears the signatures of both these witnesses. In the cross-examination he admitted that in the course of his investigation it transpired that the appellant had acted in the heat of scuffle causing death of the victim. Bishnu Gadaily. P. W. 5 and Hem Raj Darnal (P. W. 6) were not asked any question during their evidence about their signatures on the seizure memo. Ext. P-4. In the cross-examination he admitted that in the course of his investigation it transpired that the appellant had acted in the heat of scuffle causing death of the victim. Bishnu Gadaily. P. W. 5 and Hem Raj Darnal (P. W. 6) were not asked any question during their evidence about their signatures on the seizure memo. Ext. P-4. Both of them have deposed that the inquest report P-2 bears their signatures but both of them said that the police did not read out the same to them. Absolutely, no question was put to Bishnu Gadaily about the seizure effected, Harka Bahadur Lohar PW-6, has stated in the cross-examination that no article was seized in his presence by the police. ( 3 ) THIS case primarily hinges on the testimony of the single eye witness namely, Renuka Bhutia, PW-1. As observed in Anil Phukan v. State of Assam AIR 1993 SC 1462 conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the Courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness in the sense that there are some circumstances which may show that he could have an interest in the prosecution then the Courts generally insist upon some independent corroboration of his testimony in material particulars before recording conviction. It is only when the Courts find that the single eye-witness is a wholly unreliable witness that his testimony is discarded into and no amount of corroboration can cure that defect. It is in the light of these settled principles that we have to consider whether the testimony of Renuka Bhutia should be relied upon. ( 4 ) RENUKA Bhutia, PW-1 is the younger sister of the deceased Hemraj Damal. There is nothing in her cross-examination or anything else on the record to doubt her presence at the time of the occurrence or to doubt that she witnessed the occurrence. She or any of her family members did not have any inimical or strained relation with the appellant or any of his family members. It is an admitted fact that the deceased and the appellant were friends. She or any of her family members did not have any inimical or strained relation with the appellant or any of his family members. It is an admitted fact that the deceased and the appellant were friends. Therefore, there was absolutely no reason for Renuka Bhutia to falsely implicate the appellant. It is true that she has stated that the appellant threw a wooden seat and a grinding stone on the deceased and the same were not seized by the police but that is not material because the main injury was caused by the iron roll which has been seized by the Investigating Officer. It is also a fact that the seizure memo has been proved only by the Investigating Officer and not by PW -5 and PW-6 who were the witnesses thereto. But this lapse on the part of the Public Prosecutor is not fatal in as much as the evidence of the Investigating Officer is credible and there is no reason for disbelieving the evidence of Renuka Bhutia in the light of the medical evidence that the main injury was caused by the iron roll by the appellant. Her statement that the appellant threw a wooden seat and a grinding stone on the deceased may not be true having regard to the medical evidence and also because the wooden seat and grinding stone were not seized by the police. Her statement that when she went to sprinkle water from an aluminum pitcher on the deceased the appellant snatched the same and threw it on the deceased may also be on account of exaggeration. But there is no reason to disbelieve the prosecution case that the appellant struck the deceased with the iron roll and the injury caused thereby was sufficient in the ordinary course of nature to cause death of the deceased. But there is no reason to disbelieve the prosecution case that the appellant struck the deceased with the iron roll and the injury caused thereby was sufficient in the ordinary course of nature to cause death of the deceased. ( 5 ) SHRI B. Sharma, learned counsel appearing on behalf of the appellant has submitted that the fact that only one of the injuries inflicted upon the deceased was sufficient in the ordinary course of nature to cause death shows that the appellant did not have the intention to cause the death or such bodily injuries as were sufficient in the ordinary course of nature to cause death though he might be attributed with the knowledge that the injuries caused were likely to cause death and so the case is covered neither under the first clause nor third clause of Section 300 IPC. He has also submitted that, in the circumstances, the case would be covered under Exception 4 to Section 300 IPC. As regards the first submission, we see no merit in the submission that since only one fatal injury was caused, the case would be covered under Section 304 part II IPC. We have no reason to doubt that the petitioner did not intend to cause the first injury. As the appellant inflicted that injury by the iron roll, it cannot be said that he did not intend to cause that injury. The fact that the injury was sufficient in the ordinary course of nature to cause the death is proved by medical evidence. That injury was not accidental or intentional. Once if is proved that the appellant intended to inflict that injury and that injury was sufficient in the ordinary course of nature to cause death then it is immaterial whether the appellant knew of its seriousness or intended serious consequences. So, the case is covered under third clause of Section 300 IPC. For this, we find support from the judgment of Vivian Bose, J. in Virsa Singh v. State of Punjab. However, we see merit in the submission of Shri Sharma that the case is covered by Exception 4 below Section 300 IPC. It is in evidence that the appellant and the deceased were friends. Both of them were at the time of the occurrence in a state of intoxication, having taken liquor. However, we see merit in the submission of Shri Sharma that the case is covered by Exception 4 below Section 300 IPC. It is in evidence that the appellant and the deceased were friends. Both of them were at the time of the occurrence in a state of intoxication, having taken liquor. There was no premeditation on the part of the appellant to cause injuries to the deceased. Something happened on the spur of the moment which resulted in the infliction of the injuries causing death of the deceased. The genesis of the quarrel resulting in the head injury is not known. From the facts proved, it would appear that the appellant did not take any undue advantage or acted in any cruel or unusual manner. We are, therefore, of the view that the case is covered under Exception 4 Section 300 IPC. ( 6 ) IN the result, we allow the appeal in part, set side the judgment and order of the learned trial Court and convict the appellant under Section 304 Part I of the I. P. C. , and sentence him to undergo rigorous imprisonment for a period of seven years. The period of detention undergone by the appellant during the investigation, enquiry or trial and also after the conviction of the appellant by the learned trial Court shall be set off against the term of the imprisonment imposed upon him. Appeal allowed partly. --- *** --- .