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2010 DIGILAW 281 (CHH)

Chetanlal v. State of C. G.

2010-12-04

SUNIL KUMAR SINHA, T.P.SHARMA

body2010
JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 29-8-2001 passed by the 3rd Additional Sessions Judge, Durg in Sessions Trial No. 103/2001, whereby & whereunder learned Additional Sessions Judge after holding the Appellant guilty for commission of culpable homicide amounting to murder of Gendlal, convicted the Appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the Appellant and thereby committed illegality. 3. As per the case of the prosecution, Appellant Chetanlal and his brother Gendlal (since deceased) were residing in same house at village Kharra, Police Station Gunderdehi, Distt.Durg in different portions. Fifteen days prior to the date of incident, wife of the Appellant had left the house of the Appellant. The Appellant was having suspicion upon Gendlal that he had played active part in his family affairs. The Appellant had gone for search of his wife but she was not traceable. On the fateful day of 14-6-2000 he came back to his house and at about 5 a.m. while Gendlal was sleeping in his verandah and his sister-in-law Leela Bai (PW-2) was cleaning pots in the courtyard of same house, he took out a big size stone and overthrown it upon the head of Gendlal and caused fatal injuries. Wife of Gendlal namely Urmila Bai (PW-1) cried for help on which the Appellant fled away from the spot. Urmila Bai (PW-1) & Leela Bai (PW-2) narrated the incident to Sarpanch and other persons. Leela Bai (PW-2) went to the police station and lodged FIR vide Ex.P-1 on the same day within two hours of the incident. Bloodstained soil and plain soil were recovered from the spot along with bloodstained towel vide Ex.P-7. Spot map was prepared by the Investigating Officer vide Ex.P-8. Injured Gendlal was immediately shifted to Primary Health Centre, Gunderdehi for treatment, vide Ex.P-14. He was examined by the doctor, his condition was serious and he was shifted to District Hospital, Durg where he was examined by Dr. S.K. Fating (PW-6), vide Ex.P-10, who found one lacerated wound on left cheek 3 cm. below left eye of 2 1/2 cm. x 1/2 cm. x 1/2 cm. and bleeding from both ears. Injured Gendlal was complaining pain on both ears. S.K. Fating (PW-6), vide Ex.P-10, who found one lacerated wound on left cheek 3 cm. below left eye of 2 1/2 cm. x 1/2 cm. x 1/2 cm. and bleeding from both ears. Injured Gendlal was complaining pain on both ears. He was restless and was admitted in the surgical ward. During the course of investigation, the Appellant was taken into custody on 14-6-2000, he made discloser statement of bloodstained stone which he has left near the place of incident, vide Ex.P-5 and same was recovered at the instance of the Appellant vide Ex.P-6. Patwari prepared spot map vide Ex.P-2. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. During the course of treatment, Gendlal @ Genduram died on 5-8-2000. Merg was recorded vide Ex.P-12. Police Station Durg recorded merg vide Ex.P-22 on the basis of information sent by the doctor vide Ex.P-21. After summoning the witnesses vide Ex.P-3, inquest over the dead body of the deceased was prepared vide Ex.P-4. Dead body was sent for autopsy to District Hospital, Durg vide Ex.P-23. Dr. R.N. Pandey (PW-8) conducted autopsy vide Ex.P-13 and found following symptoms and injuries: Stitches were found over bone of scalp. Fracture of parietal, temporal, frontal and occipital bones of right side were found. Brain matter was coming out along with pus from the injury. Injuries were ante mortem in nature. Cause of death was shock and septicemia as a result of ante mortem head injury. Seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur, vide Ex.P-17 and presence of blood was confirmed on the stone recovered at the instance of the Appellant, vide Ex.P-18. 4. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Durg, who committed the case to the Court of Sessions, Durg, from where learned Additional Sessions Judge, received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as twelve witnesses. The accused was examined under Section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him and pleaded innocence & false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the Appellant as aforementioned. 7. The accused was examined under Section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him and pleaded innocence & false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the Appellant as aforementioned. 7. We have heard learned Counsel for the parties, perused the judgment and record of the trial Court. 8. Learned Counsel for the Appellant vehemently argued that conviction of the Appellant is solely based on the evidence of relative and interested witnesses Urmila Bai (PW-1) & Leela Bai (PW-2) which does not inspire confidence, not trustworthy and not safe to rely in absence of further corroboration from independent sources. As per the case of the prosecution, the Appellant was not having any motive for commission of culpable homicide amounting to murder of his brother Gendlal. As per the case of the prosecution, the Appellant has caused injury on 14-6-2000, but Gendlal died on 5-8-2000 after lapse of one month twenty-five days which shows that the Appellant has not caused any injury with intent to cause the death of Gendlal. Learned Counsel placed reliance upon the judgment dated 7-9-2010 passed in Cr. A. No. 816/1992 Mantosh v. The State of Madhya Pradesh (now the State of Chhattisgarh in which this Court has held that in absence of motive for causing homicidal death, conviction of the Appellant under Section 302 of the IPC is not sustainable and appropriate conviction would be under Section 304 Part-II of the IPC. Learned Counsel further placed reliance upon the judgment dated 12-3-2008 passed in Cr.A. No. 919/2002 (Pandroo v. State of Chhattisgarh) and the judgment dated 15-7-2009 passed in Cr.A. No. 23/2005 (Leeladhar Yadav and Anr. v. State of Chhattisgarh) in which this Court has taken same view. 9. Learned Counsel further placed reliance upon the judgment dated 12-3-2008 passed in Cr.A. No. 919/2002 (Pandroo v. State of Chhattisgarh) and the judgment dated 15-7-2009 passed in Cr.A. No. 23/2005 (Leeladhar Yadav and Anr. v. State of Chhattisgarh) in which this Court has taken same view. 9. On the other hand, learned State counsel vehemently opposed the appeal and submitted that the Appellant was having definite motive for commission of culpable homicide amounting to murder of his brother, he was having suspicion upon the deceased that the deceased has played active part in his family matters and as a result of such part played by the deceased, wife of the Appellant has left the house of the Appellant and, therefore, while the deceased was sleeping and was in helpless position, the Appellant has overthrown a big size stone on his head which shows that the Appellant has caused fatal injuries of fracture of almost all major bones of head with intent to cause homicidal death of the deceased. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the Appellant. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death of deceased Gendlal as a result of fatal injuries found on his head has not been substantially disputed on behalf of the Appellant, otherwise also, it is established by the evidence of Dr. S.K. Fating (PW-6), medical examination report Ex.P-10, evidence of Dr. R.N. Pandey (PW-8) and autopsy report Ex.P-13 that the death of the deceased was homicidal in nature. 12. As regards complicity of the Appellant in the crime in question, conviction of the Appellant is substantially based on the evidence of Urmila Bai (PW-1), Leela Bai (PW-2) & Dwarika Prasad (PW-3). 13. R.N. Pandey (PW-8) and autopsy report Ex.P-13 that the death of the deceased was homicidal in nature. 12. As regards complicity of the Appellant in the crime in question, conviction of the Appellant is substantially based on the evidence of Urmila Bai (PW-1), Leela Bai (PW-2) & Dwarika Prasad (PW-3). 13. As per the evidence of Urmila Bai (PW-1) - wife of deceased Gendlal, wife of the Appellant has left the house of the Appellant; earlier the Appellant has gone for search of his wife along with deceased Gendlal @ Genduram & one Romanlal; on the date of incident at about 4 a.m. the Appellant, deceased Gendlal & Romanlal came back to their house; deceased Gendlal went to sleep in his verandah and was sleeping in his verandah; at about 7 a.m. she (this witness) was cleaning her pots in the courtyard of same house, Leela Bai (PW-2) & Dwarika Prasad (PW-3) were also present there; the Appellant came from his room, picked up a stone lying near the gate and overthrown it upon the head of Genduram i.e. her husband twice; thereafter, the Appellant fled away from the spot. She shouted for help along with her sister-in-law Leela Bai (PW-2) and after hearing her sound, Sarpanch and other persons came to the spot, they took Gendlal to the hospital and after some days finally, her husband died. Leela Bai (PW-2) - sister-in-law of deceased Gendlal & the Appellant, has substantially corroborated the evidence of Urmila Bai (PW-1). 14. Dwarika Prasad (PW-3) has deposed in his evidence that at the time of incident he was providing fodder to the cattle, at that time he heard the sound saying, "the Appellant has overthrown stone upon Gendlal and has fled away from the spot" on which he immediately came out from his house, the Appellant met him near Arjunda road, he (PW-3) caught hold of the Appellant and brought him to the village and handed over to the Sarpanch. 15. Definitely, Urmila Bai (PW-1), Leela Bai (PW-2) and probably Dwarika Prasad (PW-3) are not only relatives of deceased Gendlal @ Genduram, but they are also relatives of the Appellant. Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimony. 15. Definitely, Urmila Bai (PW-1), Leela Bai (PW-2) and probably Dwarika Prasad (PW-3) are not only relatives of deceased Gendlal @ Genduram, but they are also relatives of the Appellant. Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimony. On the other hand, they have substantially corroborated the factum of overthrowing stone by the Appellant upon the head of the deceased Gendlal. 16. FIR Ex.P-1 lodged by Urmila Bai (PW-1) reveals that the Appellant was having suspicion upon the deceased that the deceased has played active part in his family matter which shows that there were some strain relations between the parties, but only on account of strain relations or relationship, evidence of relative witnesses cannot be discarded straight away. 17. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the question of evidentiary value of the relative witnesses, the Supreme Court in the matter of Dalip Singh and Ors. v. The State of Punjab AIR 1953 SC 364 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under: 26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. 18. While dealing with same question, the Supreme Court in the matter of Ashok Kumar Chaudhary and Ors. v. State of Bihar AIR 2008 SCW 3739 has held thus, ...it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of creditworthiness of the evidence of relatives of the victim is concerned, it is well settled though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship perse does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive. 19. While dealing with same question, the Supreme Court in the matter of Hari v. State of Maharashtra 2009 AIR SCW 2250 has held that relationship by itself cannot be ground to discredit the evidence of eyewitnesses relatives of deceased, more so. when deceased was murdered by his cousin (relative). Paras 21,22 & 23 of the said judgment read thus, 21. It may be true that all the vital witnesses, namely, PW 1,2 and 8 are relations of the deceased but that by itself cannot discredit their evidence. It is a fight between the relations it has come on record that the Appellant is the cousin of the deceased. In such a case, the relations are likely to be the most appropriate witnesses. 22. It is a fight between the relations it has come on record that the Appellant is the cousin of the deceased. In such a case, the relations are likely to be the most appropriate witnesses. 22. Certain decisions have been cited at the Bar which need to be considered and explained. About appreciation of evidence of witnesses who are related to the deceased, learned Counsel for the Appellant relied on a decision of this Court in Avtar Singh v. State of Punjab (2006) 12 SCC 524. In that case the facts were totally different and it was opined by the learned Judges, in the peculiar facts of that case, that enmity and bad blood between the rival groups was established beyond doubt. In that case no report was lodged with the police regarding the occurrence and this Court looked into the evidence and opined that the story about making an effort to lodge a report earlier was not true. In that case the nambardar and the chowkidar who were alleged to have accompanied PW-1 to the police station were not examined and there was a categoric denial by PW6-Station House Officer about anyone reporting the incident to him before 4.12.1989. This Court found that the High Court has not at all noticed the facts. In the background of those facts, this Court held that proper caution was not exercised by the High Court in appreciating the highly partisan evidence adduced by the prosecution. 23. But in the instant case, the factual scenario is totally different. Here the occurrence took place within the house at the instance of the close relatives and in such a situation only relatives would be the witnesses. Of course, in the present case also there was some enmity in view of the land dispute but that by itself is not a ground to discard the evidence of the witnesses, who are relatives when their evidence is cogent and credible. Factually, the decision of this Court in Avtar Singh (supra) stands on a completely different footing. 20. In the matter of Mohabbat and Ors. v. State of M.P. AIR 2009 SCW 1486 the Supreme Court has held that relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads thus. 7. 20. In the matter of Mohabbat and Ors. v. State of M.P. AIR 2009 SCW 1486 the Supreme Court has held that relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads thus. 7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not anceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. 21. While dealing with the aforesaid question, the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 has held that close relatives of the victim have tendency to exaggerate or add facts, Court should examine their evidence with great care and caution. Para 48 of the judgment of the Apex Court in the above cited case reads thus. 48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. 22. Statements of the relative witnesses cannot be discarded only on the ground of their relationship. The Courts are required to scrutinize their evidence with great care and caution. 23. In the light of the law propounded by the Supreme Court, only minute scrutiny of the evidence of relative witnesses is required. On close scrutiny of the evidence of Urmila Bai (PW-1), Leela Bai (PW-2) and Dwarika Prasad (PW-3), we do not find anything in their evidence which makes their evidence unreliable. 24. In the present case, the prosecution has also adduced evidence relating to recovery of stone at the instance of the Appellant. As per the case of the prosecution, the accused/Appellant has made discloser statement of stone vide Ex.P-5 and same was recovered at the instance of the Appellant vide Ex.P-6. Without going into the merits of the case and evidence, these two documents (Exs. P-5 & P-6) clearly reveal that the stone was lying near the place of incident where the injured body of Gendlal was lying, it was not in hidden position and same was within the knowledge of all persons, even these facts have been mentioned in Ex.P-1, the FIR. After overthrowing the stone, the Appellant fled away from the spot. This shows that the Appellant has not made any discloser statement of stone which was only within his knowledge or was not within the knowledge of other persons including the Investigating Officer who has inspected the spot and prepared the map Ex.P-8. Therefore, we are not impressed by such evidence of discloser of facts. 25. This shows that the Appellant has not made any discloser statement of stone which was only within his knowledge or was not within the knowledge of other persons including the Investigating Officer who has inspected the spot and prepared the map Ex.P-8. Therefore, we are not impressed by such evidence of discloser of facts. 25. Evidence of Urmila Bai (PW-1), Leela Bai (PW-2) and Dwarika Prasad (PW-3) is sufficient for drawing inference that the Appellant has caused fatal injuries to the deceased resulting in his death. Their evidence is sufficient for drawing inference that the Appellant has caused homicidal death of the deceased. 26. As regards motive behind the offence, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 27. In the matters of Mantosh, Pandroo and Leeladhar Yadav (supra), relied upon by learned Counsel for the Appellant, this Court has held that in absence of motive for commission of offence but knowledge of the result of the act, conviction of the accused is not sustainable under Section 302 of the IPC, however, the act of the accused falls under Exception 4 to Section 300 of the IPC and in these circumstances, the accused would be liable for punishment under Part-II of Section 304 of the IPC. 28. In the present case, as per the evidence of Urmila Bai (PW-1), the Appellant had gone in search of his wife along with the deceased & one Romanlal, though the Appellant was having suspicion upon the deceased, both were brothers and they were residing in same premises in different portions. Both the Appellant & the deceased came back to their house at 4 a.m. on the fateful day and thereafter, within 1 1/2 hours the Appellant assaulted the deceased by overthrowing stone upon him. This shows that when the Appellant came after making search of his wife and when he did not find her, on the basis of suspicion upon the deceased and under frustration, the Appellant has overthrown stone upon the head of deceased Gendlal who was sleeping in verandah. Medical evidence reveals that there was one injury, though in case of repeated assaults at one place only single injury would be visible at the time of examination. Medical evidence reveals that there was one injury, though in case of repeated assaults at one place only single injury would be visible at the time of examination. Injuries were fatal in nature, but immediate medical treatment was provided to the deceased and he was alive for one month twenty-five days. These facts show that the Appellant has not caused injury to the deceased with intent to cause his death, but at the time of causing such injury the Appellant was having knowledge that by his act, deceased Gendlal may die. The circumstances in which the Appellant has caused injury show that he was under frustration and was having suspicion that the deceased has played active part in his family matter. The Appellant has caused such injury' without premeditation and he has not taken undue advantage or has not acted in cruel or unusual manner. In these circumstances, the act of the Appellant would not travel beyond the scope of Section 304 Part-II of the IPC. 29. While convicting the Appellant under Section 302 of the IPC, the trial Coun has not considered the circumstances in which the Appellant has committed she offence and thereby committed illegality. 30. Future Foregoing reasons. the appeal is partly allowed. Conviction of the Appellant under Section 302 of the IPC is set aside and instead thereof he is convicted under Section 304 Part-II of the IPC. The Appellant is in custody since 15-6-2000 and has completed more than ten years of jail sentence. He is hereby sentenced to imprisonment for the period already undergone by him i.e. about ten years five months. He be released forthwith, if not required in any other case.