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2011 DIGILAW 31 (CHH)

Bhuneshwar @ Aata v. State of C. G.

2011-01-28

R.L.JHANWAR, T.P.SHARMA

body2011
JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 7-9-2005 passed by the Sessions Judge, Surguja (Ambikapur) in Sessions Trial No. 2/2005, whereby & whereunder learned Sessions Judge after holding the Appellant guilty for commission of culpable homicide amounting to murder of Jawahar Kushwaha, convicted the Appellant under Section 302 of the IPC 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 case of the prosecution, on the fateful day of 1-11-2004 between 10 & 11 a.m. Jawahar Kushwaha (since deceased) was talking with children & wife of the Appellant who is his nephew, the Appellant came inside the room and repeatedly assaulted him by heavy wooden plank (geda) and caused fatal injuries as a result of which he became unconscious. Immediately, wife of the deceased namely Jagmania Bai (PW-4) present near the place of incident went to Police Station Darima along with her son Bhushan (PW-5) and lodged roznamcha vide Ex.P-7. Police came to the spot and took the injured to hospital for treatment. During the course of treatment at Ambikapur, Jawahar died on same day at about 9.30 p.m. Merg was intimated by District Hospital. Ambikapur to Police Station Ambikapur vide Exs.P-13 & P-14 same was recorded as Ex.P-15. Finally, merg was recorded vide Ex.P-16 by Police Station Darima and FIR was recorded vide Ex.P-19. After summoning the witnesses vide Ex.P-8. inquest over the dead body of the deceased was prepared vide Ex.P-9. Spot map was prepared by the Investigating Officer vide Ex.P-10. Patwari also prepared spot map vide Ex.P-11. Dead body of Jawahar was sent for autopsy to District Hospital. Ambikapur vide Ex.P-27. Dr. V.K. Shrivastava (PW-3) conducted autopsy vide Ex.P-5 and found following injuries: (1) Four linear abrasions 2" length at anterior aspect of neck. (2) One abrasion 1 cm. x 1/2 cm. oblique at right shoulder joint. (3) Six abrasions at back approximate size 3" x 1 (4) Two abrasions 1 cm. x 1 cm. at posterior aspect of left elbow joint. (5) Diffuse swelling and tenderness present at left foot, on dissection fracture of 2nd & 3rd metacarpal bone was found. (6) Multiple small abrasions at left arm and shoulder joint. oblique at right shoulder joint. (3) Six abrasions at back approximate size 3" x 1 (4) Two abrasions 1 cm. x 1 cm. at posterior aspect of left elbow joint. (5) Diffuse swelling and tenderness present at left foot, on dissection fracture of 2nd & 3rd metacarpal bone was found. (6) Multiple small abrasions at left arm and shoulder joint. (7) Multiple small abrasion, over lateral aspect of left lower limb. (8) One lacerated wound 2" x 1/2" x bone deep at posterior aspect of vault on dissection fracture of 2" length linear extended in both parietal bone was found. Clotted blood was present beneath bone. Subdural and intra cerebral haemorrhage was also present. (9) Diffuse swelling on left fore arm was found. Cause of death was as a result of head injury. Plain soil and bloodstained soil were recovered form the spot vide Ex.P-1. During the course of investigation, the accused was taken into custody. He made discloser statement of wooden geda vide Ex.P-3 and same was recovered at his instance vide Ex.P-2. Wooden plank geda was examined by the doctor vide Ex.P-6. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. Seized articles were sent for chemical examination vide Ex.P-23 and presence of blood on wooden geda was confirmed vide Ex.P-25. 4. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class. Ambikapur who committed the case to the Court of Sessions. Ambikapur, where the trial was conducted. 5. In order to prove the guilt of the Appellant, the prosecution has examined as many as thirteen witnesses. The accused was examined under Section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him, pleaded innocence and false implication. 6. After affording opportunity of hearing to the parties, learned 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. 6. After affording opportunity of hearing to the parties, learned 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 Senior Advocate appearing on behalf of the Appellant vehemently argued that conviction of the Appellant is solely based on the evidence of Jagmania Bai (PW-4) - wife of the deceased and Bhushan (PW-5) - son of the deceased who are interested and relative witnesses, their evidence does not inspire confidence, their evidence is not trustworthy, even they are not present at the time of incident and their evidence is contradictory to each other. On the basis of aforesaid evidence, conviction of the Appellant is not sustainable under the law. 9. On the other hand, learned State counsel opposed the appeal and submitted that conviction of the Appellant is based on the evidence of Jagmania Bai (PW-4) and Bhushan (PW-5), they are relatives of the deceased as also of the Appellant. The Appellant and the deceased were relatives, they were uncle & nephew. Conviction is also based on the extrajudicial confession made by the Appellant before Heeralal (PW-6). Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the Appellant has caused homicidal death of the deceased with intent to cause his death and the trial Court has rightly convicted and 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 Jawahar as a result of fatal injuries found on his person has not been substantially disputed on behalf of the Appellant, otherwise also it is established by the evidence of Dr. V.K. Shrivastava (PW-3) and autopsy report Ex.P-5 that death of the deceased is homicidal in nature. 12. As regards complicity of the Appellant in the crime in question, conviction is substantially based on the evidence of eyewitnesses Jagmania Bai (PW-4) & Bhushan (PW-5) and the extra judicial confession made by the Appellant before Heeralal (PW-6). 13. V.K. Shrivastava (PW-3) and autopsy report Ex.P-5 that death of the deceased is homicidal in nature. 12. As regards complicity of the Appellant in the crime in question, conviction is substantially based on the evidence of eyewitnesses Jagmania Bai (PW-4) & Bhushan (PW-5) and the extra judicial confession made by the Appellant before Heeralal (PW-6). 13. As per evidence of Jagmania Bai (PW-4) & Bhushan (PW-5), on the fateful day both the persons were working near the place of incident i.e. near the house of the Appellant, deceased Jawahar was present in the house of the Appellant, he was talking with daughter & wife of the Appellant and, therefore, the Appellant assaulted Jawahar by stick and caused repeated injuries. After hearing the sound of assault they reached near the place of incident and also heard the sound of Jawahar who was saying, "Don't beat". Thereafter, Jagmania Bai (PW-4) went to the police station and lodged roznamcha vide Ex.P-7 on which police came and took her husband who was badly injured, to the hospital where he died. Defence has cross-examined these witnesses at length in which they have specifically deposed that on the fateful day they were working near the place of incident and the Appellant assaulted Jawahar inside the room, then Jagmania (PW-4) went to the police station for lodging report. Bhushan (PW-5) has deposed in para 7 of his cross-examination that he has tried to intervene, but the Appellant threatened him also. Heeralal (PW-6) has deposed in paras 1, 2, 3 & 9 of his evidence that the Appellant made extrajudicial confession before him that he has assaulted his uncle Jawahar and has caused fracture of his hand. 14. Jagmania (PW-4) & Bhushan (PW-5) are relatives of the deceased namely, wife & son, respectively, but their evidence cannot be discarded only on the ground of their relationship with the deceased. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. 15. 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. 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. Each case must be limited to and be governed by its own facts. 16. Extrajudicial confession is also evidence and once if it is proved to be true, same can be made basis for conviction of the accused. While dealing with evidentiary value of extra-judicial confession made under Section 24 of the Evidence Act, the Supreme Court in the matter of Baldev Singh v. State of Punjab AIR 2009 SCW 3730 has held that extra-judicial confession is generally of weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 17. While dealing with same question, the Supreme Court in the matter of Mohd. Azad @ Samin v. State of West Bengal AIR 2009 SCW 752 has held that if extrajudicial confession made voluntarily and truth in a fit state of mind then it can be relied upon and confession will have to prove like in any other evidence. Para 22 of the said judgment reads as under: 22. Azad @ Samin v. State of West Bengal AIR 2009 SCW 752 has held that if extrajudicial confession made voluntarily and truth in a fit state of mind then it can be relied upon and confession will have to prove like in any other evidence. Para 22 of the said judgment reads as under: 22. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon the conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility. 18. In the present case, the trial Court has considered the evidence of eyewitness and extra judicial confession. Evidence of eyewitnesses and extra judicial confession inspire confidence, they are trustworthy and are safe to rely upon. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the Appellant has caused homicidal death of deceased Jawahar. 19. As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the Appellant has caused homicidal death of deceased Jawahar. 19. As regards the question of motive, 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. 20. In the present case, although the Appellant has caused injury to his uncle on the ground that he was talking with his wife and daughter, but the injuries found over the body of the deceased show that the Appellant has caused injuries mercilessly and has caused fracture of his left hand and also fracture of head. This shows brutal act of the Appellant which is sufficient for drawing inference that the Appellant has caused homicidal death of Jawahar with intent to cause his death. Conviction & sentence imposed upon the Appellant are based on credible and reliable evidence sustainable under the law. 21. On close scrutiny of evidence, we do not find any illegality in the judgment impugned. Consequently, the appeal is dismissed.