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2005 DIGILAW 230 (CHH)

Sukh Singh v. State of MP now CG.

2005-07-01

D.R.DESHMUKH, L.C.BHADOO

body2005
JUDGMENT Per Dilip R. Deshmukh 1. This appeal is directed against the Judgment dated15-10-1999 in Sessions Trial No. 30/1998 by Shri A.K. Samantray, Second Additional District & Sessions Judge, Raigarh whereby the appellant has been convicted under Section 302 of I.P.C. for committing murder of Ratu Ram and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for 2 years. 2. Briefly stated the prosecution story is that the wife of appellant had expired few days before the date of occurrence. The appellant suspected that death of his wife was due to witchcraft by his uncle Raturam (deceased) and his wife Dulkunwar (PW-17) and Panik ram (PW-3). The appellant used to blame these persons and used to say that he would kill all of them. 3. On 07-10-1997, the accused in a murderous rage first went to the house of Panik ram PW-3 and there was a scuffle during which Ramesh kumari PW-18 caught hold of the Tangi and saved Panik ram, thereafter, Panikram ran towards the forest. The appellant then proceeded to the house of Raturam and seeing his son Rohit PW-16 said that he will first kill his father and then kill him too and pushed Rohit inside the room and closed the chain from outside. When Rohit PW-16 somehow managed to come out from the roof he saw the appellant dragging his father and later, saw that his father was lying dead near the Harra Tree. The appellant after committing the murder of Raturam, went to the house of Kotwar Ramdas PW-1. Not finding him there, he told his wife Koshalaya Bai PW-15 that he had killed Raturam by an axe and had come to inform the Kotwar Ram das. On return of the Kotwar Ramdas PW-1, the accused/appellant went to him and told that he had killed Ratu Ram by an axe and the dead body was lying near the field of Hira Lal Painkra. 4. Kotwar Ramdas PW-1 lodged the F.I.R. (Ex.P-2) on 08-10-1997 at 12.30 P.M. at the Police Station-Dharamjaigarh. Shri T.C. Malakar PW- 19, Assistant Sub-Inspector reached the spot on 08- 10-1997 at 5.30 P.M. and prepared the spot map and panchnama Ex. P-10. At the place of occurrence, on the basis of memorandum (Ex. P-8) A.S.I. T.C. Malakar PW-19, Vide Ex. 4. Kotwar Ramdas PW-1 lodged the F.I.R. (Ex.P-2) on 08-10-1997 at 12.30 P.M. at the Police Station-Dharamjaigarh. Shri T.C. Malakar PW- 19, Assistant Sub-Inspector reached the spot on 08- 10-1997 at 5.30 P.M. and prepared the spot map and panchnama Ex. P-10. At the place of occurrence, on the basis of memorandum (Ex. P-8) A.S.I. T.C. Malakar PW-19, Vide Ex. P-5 seized one axe with a wooden handle containing blood like stains from the appellant. One pink coloured cotton Dhoti containing blood like stains was also seized vide Ex.P-6 from the accused/appellant. Blood stained soil and ordinary soil was seized vide Ex.P-7 on 09-10-1997. 5. On 09-10-1997, panchnama of the dead body of Ratu Ram was prepared vide Ex.P-10 and dead body was sent for postmortem. Dr. Anil Kumar PW-12, who conducted autopsy found the following injuries on the deceased Ratu ram: (i) Incised wound 5c.m.x3c.m.x2c.m, spindle shaped on Rt. Mandibular region running obliquely downwards & medially from tragus of Rt. Ear. Fracture rt. Ramus of mandible present with dislocation of Rt. Temporo mandibular jt. Clotted blood present in & around the injury. Edges swollen. (ii) Incised wound lt. cheek 7c.m.x2c.m.x1.8c.m. spindle shaped running transversely from the lower part of left ear lobule. Comminuted compd. Fracture of Lt. ramus of mandible. Edges Swollen. Clotted blood present in & around (sign of vital reaction). (iii) Incised wound nape of neck 7 cm. x 1.5 cm. x 6 cm. lying transverse beginning from just beside Rt. Ear, spindle shaped. Occipito vertebral jt. dislocated. Arteries & veins cut. Clotted blood present in & around the injury. Edges swollen, clear cut. (iv) Incised wound 7.5c.m.x3c.m.x6c.m. on lower part of neck right Lateral Side running obliquely upwards & laterally from 2.5 c.m. above midclavicular jt. spindle-shaped. Edges clear-cut & swollen. Clotted blood was in & around the injury. Rt. Common carotid art. & Jugular veins cut. (v) Incised wound 6 c.m.x3c.m.x5c.m. On lower part of neck left Lateral. aspect running obliquely upwards & medially from 3 c.m. above left midclavicular joint. Spindle shaped. Edges clean cut and swollen. Clotted blood was found in & around the injury. Left common carotid artery & Jugular veins cut. Trachea and oesophagus cut through. 6. Dr. Anil Kumar opined that the injuries sustained by deceased Raturam were ante mortem injuries and were caused by sharp edged hard object. Spindle shaped. Edges clean cut and swollen. Clotted blood was found in & around the injury. Left common carotid artery & Jugular veins cut. Trachea and oesophagus cut through. 6. Dr. Anil Kumar opined that the injuries sustained by deceased Raturam were ante mortem injuries and were caused by sharp edged hard object. Death of Raturam was due to combined effect of asphyxia, syncope and coma as a result of severance of trachea, hemorrhage and compression of spinal cord (By dislocation of vertebro-occipital joint) and was homicidal in nature. 7. The Tangia and the Cotton Dhoti seized from the accused/appellant were sent for chemical examination to the Forensic Science Laboratory, Raipur, which confirmed the presence of blood on Tangia as well as Dhoti which was seized from the accused/appellant. These articles were sent to the Serologist & Chemical Examiner to the Govt. of India, who opined vide report Ex.P-18 that the Tangia and Dhoti seized from the appellant had contained human blood but blood group could not be determined due to insufficiency. After completion of investigation, the appellant was brought to trial. The accused/appellant abjured his guilt and took the plea of false implication due to land dispute. No evidence in defence was adduced. 8. The prosecution examined as many as 21 witnesses to bring home the guilt of the appellant. Kotwar Ram Das PW-1 and Koshalaya Bai PW-15, Gautam PW-2 were examined to prove the extra judicial confession by the accused/appellant. Rohit PW-16 was examined to prove that the accused/appellant had threatened to kill his father and pushing him inside the house had closed the chain from outside and that he saw the accused/appellant pulling away his father Raturam (deceased) and that the accused/appellant was holding an axe in his hand. Dulkunwar PW-17 was examined to prove that the accused in a murderous rage, was searching for her husband Raturam. Ramesh Kumar PW-18 was examined to prove that the accused/appellant had assaulted Panikram by Tangia, which was prevented by her by holding the Tangia and there was a scuffle. Investigating Officer Shri T.C. Malakar PW-19 deposed about the recovery of an axe and Dhoti from the accused. Dr. Anil Kumar was examined to prove the postmortem report Ex.P-15. 9. Ramesh Kumar PW-18 was examined to prove that the accused/appellant had assaulted Panikram by Tangia, which was prevented by her by holding the Tangia and there was a scuffle. Investigating Officer Shri T.C. Malakar PW-19 deposed about the recovery of an axe and Dhoti from the accused. Dr. Anil Kumar was examined to prove the postmortem report Ex.P-15. 9. The trial Court found the prosecution evidence reliable and convicted the appellant on the basis of medical evidence, the evidence relating to extra judicial confession, the presence of strong motive and the testimony of Rohit Kumar PW-16 as well as the report of F.S.L. and Serologist which had confirmed the presence of human blood on the articles seized from the accused. 10. Learned Counsel for the appellant has mainly relied upon certain omissions in the testimony of Ramdas PW-1, Gautam PW-2 and Koshalaya Bai, PW-15 to contend that these witnesses are not reliable. He next contended that the prosecution has not been able to establish the blood group found on the Dhoti and Axe seized from the accused/appellant. He has further argued that the testimony of Panik Ram PW-3 and his wife Ramesh Kumari PW-18 also was not reliable. 11. On the other hand, learned Panel Lawyer for the state contended that the accused/appellant had strong motive to commit murder of Ratu ram. The Medical evidence had established beyond doubt that death of Raturam was homicidal. The presence of as many as 6 incised wounds on vital parts established this beyond doubt. The omissions pointed out were not material. The prosecution evidence brought home the guilt of the appellant beyond doubt. 12. We have considered the rival submissions and have gone through the evidence on record. The testimony of Dr. Anil Kumar PW-12 regarding the injuries sustained by Raturam (deceased) leaves no doubt that Raturam had sustained these injuries by sharp edged object and his death was homicidal. The incised wounds sustained by Raturam which have been mentioned in details in para 5 (supra) --establish beyond doubt that these injuries were inflicted on Raturam with full deliberation and intention to cause his death. It is thus established that the deceased Raturam had died a homicidal death. 13. Dul Kunwar P.W.17 is the wife of the deceased Raturam. The incised wounds sustained by Raturam which have been mentioned in details in para 5 (supra) --establish beyond doubt that these injuries were inflicted on Raturam with full deliberation and intention to cause his death. It is thus established that the deceased Raturam had died a homicidal death. 13. Dul Kunwar P.W.17 is the wife of the deceased Raturam. In paragraph 2 of her testimony she has stated that wife of the appellant Sukhsingh had died due to illness after giving birth to a child. Sukh Singh-appellant used to call her a witch and blamed her for doing witchcraft for killing his wife. She has narrated that on the date of occurrence the accused appellant armed with Tangia was looking for her and saying that he was in search of Raturam and said that he would kill him. She has also deposed that she has seen the dead body of her husband near the Harra Tree in the evening. Since the above statement made by this witness before the trial Court finds place in the statement under Section 161 Cr.P.C., we are unable to accept the arguments of the learned counsel for the appellant that there are vital omissions in her cross-examination regarding her statement under Section 161 Cr.P.C. It is thus fully established that the appellant in a rage to kill Raturam was looking for Raturam on the date of occurrence and was also armed with Tangia. 14. Panik Ram PW-3 has stated that after the death of his wife Sukh singh used to blame him for causing the death of his wife by witchcraft and had come to his house with an axe to kill him. When, the appellant was about to kill him with an axe, his wife held the axe whereupon the appellant started beating him with his hands and said that he would kill his brother Ratu ram and went away in search of Raturam. Ramesh kumari PW-18 has also corroborated the testimony of Panik Ram PW-3 that the appellant had come to their house with an intention to kill her husband Panikram whereupon she had saved him by holding the Tangia. The accused was alleging that they had caused the death of his wife by doing witchcraft and therefore he would spare none and kill all of them. The accused was alleging that they had caused the death of his wife by doing witchcraft and therefore he would spare none and kill all of them. The fact that the appellant had gone to the house of Panikram (P.W.3) to kill him by Tangia whereupon Panikram ran away to the forest also finds place in the F.I.R. Ex.P.2 lodged by Kotwar Ramdas P.W.1 Panchram (P.W.6) also fully corroborates the version of Panikram. We have gone through the testimony of Ramesh Kumari (P.W.18) and Panikram (P.W.3) and find that it is trustworthy and establishes strong motive for the appellant to commit murder of Raturam. 15. Rohit Kumar PW-16 son of the deceased has deposed that the appellant had come to his house with a Tangia searching for his father Raturam and said that he would kill his father and thereafter he would set him ablaze after setting fire to his house. In Para-2, he has stated that the appellant had shut him inside the house, but, he somehow managed to come out from the roof. Thereafter, he went towards the Basti and he saw that the appellant was dragging his father Raturam, when he reached there he saw that his father was lying dead near the Harra Tree. 16. In cross-examination Rohit Kumar P.W.16 has admitted that he had not seen the appellant cause the death of his father. So far as the testimony of this witness that the appellant had shut him inside the house whereupon he managed to come out from the roof, it is trustworthy since this portion of his testimony has not been confronted with his statement to police under Section 161 Cr.P.C. in cross- examination. Similarly, his testimony that he saw the dead body of his father Raturam under the Harra Tree has also not been confronted with his earlier statement under Section 161 Cr.P.C. in cross examination. However, his testimony that he saw the appellant dragging his father fails to inspire confidence as the same does not find place in his statement Ex.D.6 under Section 161 Cr.P.C. We, however, find that the testimony of Rohit Kumar P.W.16 that the appellant went to his house with an axe looking for Raturam and had shut him inside the house and later he saw the dead body of Raturam under the Harra Tree is reliable. 17. 17. Koshalaya Bai PW-15 who is the wife of Kotwar Ram das PW-1 has stated that the accused/appellant came to her house, asking for her husband. The appellant was holding a blood stained axe and told her that he had killed his uncle Raturam whereupon she had told her son Gautam about the incidence. However, in cross-examination she has taken a somersault and said that the appellant did not tell her about killing of Raturam. In cross-examination she has further stated that the appellant did not tell her that he had killed Raturam. She has also stated in cross-examination that she was inside the house and therefore she could no see the Tangia. She has also stated that she did not ask the appellant as to who was killed by him. She has further stated that her son Goutam was also not present at the house on that moment. Thus, her testimony is rendered wholly unreliable since she has changed her entire version in cross-examination. 18. Kotwar Ramdas PW-1 has stated that when he returned from the Police Station, the appellant had revisited his house and said that he had killed his uncle Ratu Ram. This statement also finds place in the F.I.R. lodged by Ramdas on 8.10.1997 that the appellant had on coming to his house made an extra- judicial confession that on the suspicion that his wife had died due to witchcraft, he had killed his uncle Raturam by a Tangia on the road near the field of Hiralal Paikra. We have considered the testimony of Ramdas P.W.1 relating to extra-judicial confession made by the appellant before him and find his testimony to that effect is reliable since it has stood the test of cross-examination and also since nothing has been elicited to show that he bears any grudge against the appellant. 19. In Gura Singh vs. State of Rajasthan, reported in (2001) 2 SCC 205 it has been held that extra- judicial confession made by the accused-appellant, if voluntary, being not obtained by coercion, inducement or promise of favour can form the sole basis of conviction and corroboration would be required only by way of abundant caution. 20. 19. In Gura Singh vs. State of Rajasthan, reported in (2001) 2 SCC 205 it has been held that extra- judicial confession made by the accused-appellant, if voluntary, being not obtained by coercion, inducement or promise of favour can form the sole basis of conviction and corroboration would be required only by way of abundant caution. 20. So far as the testimony of Gautam Das (PW-2) relating to extra judicial confession made by the appellant is concerned, it fails to inspire confidence since this part of the testimony does not find place in his statement Ex.D-2 under Section-161 of Cr.P.C. On being confronted with his earlier statement he has also not offered any explanation. However, Gautam Das, PW-2 is also a witness to the seizure of Tangia from the accused appellant vide Ex.P-5. His testimony that upon being interrogated by the Police the accused had produced a Tangia from his house is fully trustworthy. A.S.I. T.C.Malakar, PW-19 has also stated that he had recorded the memorandum of appellant vide Ex.P-8 and had seized the Tangia containing blood like stains Ex.P-5 from the accused appellant. Seizure of Tangi containing blood like stains at the instance of the accused appellant is thus fully established. 21. Similarly, the testimony of Asstt. Sub- Inspector T.C.Malakar PW-19 also establishes that he had seized one pink coloured cotton Dhoti containing blood like stains from the accused appellant vide seizure memo Ex.P-6. He has also proved that the Tangia and pink coloured cotton Dhoti were sent for chemical analysis to the Forensic Science Laboratory, Raipur which had given the report Ex.P- 18 confirming the presence of blood in the Tangia. The report of Serologist & Chemical Examiner to the Govt. of India Ex. P-18 by which the presence of human blood on the Tangia and pink coloured cotton Dhoti seized from the accused appellant has also been confirmed has been proved by the prosecution. Although, the blood group of the stains could not be determined as they were not sufficient for test. Thus, the fact that blood stained Tangia and pink coloured cotton Dhoti were seized from the accused appellant on 12-10-1997 and further that both these articles had contained human blood provides a very important established link in the chain of circumstantial evidence against the appellant. 22. Thus, the fact that blood stained Tangia and pink coloured cotton Dhoti were seized from the accused appellant on 12-10-1997 and further that both these articles had contained human blood provides a very important established link in the chain of circumstantial evidence against the appellant. 22. Learned Counsel for the accused appellant submitted that as the origin of the blood could not be determined and the appellant was entitled to be acquitted as according to him, the prosecution had failed to connect the accused with the commission of crime. We are unable to agree with the above submission. In State of Rajsthan Vs. Teja Ram (1999) 3, SCC 507, it was held that: "Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to hematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far- fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objective, no benefit can be claimed by the accused." This was also relied on in the case of Gura Singh Vs. State of Rajsthan (Supra) 23. Having considered the rival submissions and on the basis of above discussion we find that the following links in the chain of circumstantial evidence have been fully established : (i) That the accused appellant armed with an axe, and in a rage to kill was looking for Raturam, Panikram and Rameshkumari on the suspicion that Raturam had killed his wife by practicing witchcraft. (ii) That the accused appellant armed with a Tangia had gone to the house of Panik Ram PW-3 to kill him whereupon Rameshkumari PW-18 had held the Tangia and saved her husband. Thereafter the accusd appellant went in search of Raturam. (ii) That the accused appellant armed with a Tangia had gone to the house of Panik Ram PW-3 to kill him whereupon Rameshkumari PW-18 had held the Tangia and saved her husband. Thereafter the accusd appellant went in search of Raturam. (iii) The accused appellant went to the house of Raturam and threatened Rohit Kumar PW-16 that he would kill his father Raturam and pushed him inside the house and closed the chain from outside. Later Rohit Kumar saw the dead body of his father Raturam near the Harra Tree. (iv) An axe and pink coloured cotton Dhoti containing blood like stains was seized from the accused appellant, which was sent for chemical examination. The Serologist & Chemical Examiner to the Govt. of India confirmed the presence of human blood on both these articles. (v) That death of Raturam was homicidal due to ante mortem injuries caused by the sharp edged hard object like Tangia. (vi) That the Tangia and a cotton Dhoti were seized from the appellant which had contained human blood. (vii) That the accused appellant had made an extra judicial confession before Ramdas (P.W.1) of having killed Raturam by Tangia. 24. The law relating to appreciation of circumstantial evidence is well settled. In case of Bodhraj alias Bodha vs. State of Jammu & Kashmir reported in 2002 (Volume-8) SCC-45 it has been held by the Supreme Court that: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 25. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 25. Applying the abovementioned principles, the links, as mentioned above, which have been fully established, are wholly consistent with the hypothesis of the guilt of the accused appellant and wholly inconsistent with his innocence. Therefore, we are of the considered opinion that the trial Court has rightly convicted the accused appellant under section 302 of IPC. We, therefore, find no substance in this appeal, which is accordingly dismissed.