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2012 DIGILAW 111 (CHH)

Chaituram s/o Budhuram v. State of Chhattisgarh

2012-04-12

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT RADHE SHYAM SHARMA, J. : This appeal is directed against judgment dated 25-4-2008 passed by Session Judge, Jashpur in Session Trial No. 39/2007. By the impugned judgment, accused/appellant Chaituram has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: On 12-1-2007, at about 7 p.m., deceased Mahaveer Ram and his wife Budhobai (PW-7) were coming back to their house with their buffaloes. When they reached in front of the house of the appellant, the appellant came out of his house with an axe and assaulted on the head of the deceased with blunt portion of the axe. The deceased fell down. Thereafter, the appellant picked-up a stone, lying there, and threw the same on the deceased. The deceased died on the spot. Budhobai (PW-7) shouted. The appellant threatened her of life. Having heard the voice of Budhobai (PW-7), her son Narayan, her brother-in-law (Devar) Ranjit Ram (PW-8), Kalinder and Ramvriksha Gayar (PW-1) came there. Budhobai (PW-7) lodged report in Police Station, Jashpur. Merg Intimation No. 03/2007 (Ex. P-10) was recorded and First Information Report (Ex. P-11) was registered. Investigating Officer reached the place of occurrence and prepared inquest (Ex. P-1) on the dead body of the deceased. The dead body was sent for post-mortem examination to Community Health Centre, Duldula vide Ex. P-7A. Dr. Vipin Kumar Idwar (PW-4) conducted post-mortem examination on the dead body of the deceased. He gave his report (Ex. P-7) in which he mentioned that on opening skull, he found that there was a fracture in temporo mandibular bone of skull. There was rupture of left facial artery. There was profuse haemorrhage. He opined that cause of death was shock due to injury over vital organ (brain) and profuse haemorrhage and the death was homicidal in nature. In further investigation, memorandum statement of the appellant was recorded under Section 27 of the Indian Evidence Act vide Ex. P-2 and at his instance, iron axe, piece of wood and piece of stone were seized vide Ex. P-3. Plain soil and blood stained soil were also seized from the place of occurrence vide Ex. P-4. Spot Map was prepared vide Ex. P-5. The seized axe and stone were sent to Community Health Centre, Duldula for examination vide Ex. P-8A. Dr. Vipin Kumar Idwar (PW-4) gave his report (Ex. P-8). P-3. Plain soil and blood stained soil were also seized from the place of occurrence vide Ex. P-4. Spot Map was prepared vide Ex. P-5. The seized axe and stone were sent to Community Health Centre, Duldula for examination vide Ex. P-8A. Dr. Vipin Kumar Idwar (PW-4) gave his report (Ex. P-8). Assistant Sub-Inspector L. R. Kuldeep (PW-9) also prepared Spot Map vide Ex. P-12. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Jashpur, who, in turn, committed the case to Session Judge, Jashpur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri J. K. Shastri, learned counsel for the appellant argued that there is no independent eye-witness. Budhobai (PW-7) is widow of the deceased. She is a relative and highly interested witness. Her presence at the place of occurrence is suspicious. The FIR was lodged belatedly and no proper and plausible explanation is offered therefor. He further argued that there was an old enmity between the deceased and the appellant. On account of that enmity, the appellant has been falsely implicated by Budhobai (PW-7), therefore, her evidence is not acceptable without corroboration. The prosecution did not adduce any cogent and reliable evidence. Therefore, the conviction recorded by the learned trial Judge is not sustainable and the appellant deserves to be acquitted. He alternatively argued that even if the entire evidence is accepted, it would appear that there was no intention to commit murder of the deceased. 4. Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Session Judge do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the record of Session Trial No. 39/2007. The conviction of the appellant under Section 302, IPC is based on the evidence of Budhobai (PW-7). Delay in FIR 6. So far as the FIR is concerned, learned counsel for the appellant argued that the FIR (EX. P-11) was lodged belatedly and the prosecution did not offer any proper and plausible explanation therefor. This argument is not acceptable. 7. Ex. P-10 is Merg Intimation and Ex. P-11 is First Information Report. In the FIR (Ex. Delay in FIR 6. So far as the FIR is concerned, learned counsel for the appellant argued that the FIR (EX. P-11) was lodged belatedly and the prosecution did not offer any proper and plausible explanation therefor. This argument is not acceptable. 7. Ex. P-10 is Merg Intimation and Ex. P-11 is First Information Report. In the FIR (Ex. P-11), the date and time of incident is mentioned as 12-1-2007 at 7 p. m. and the FIR was lodged on 13-1-2007 at 12:10 p.m. The distance between Village Jhargaon and Police Station, Jashpur is nearabout 22 Kilometers. In the FIR (Ex. P-11), it is mentioned that the delay occurred in lodging of it because of time being night hours and long distance between the village and the police station. No question was put to this witness in cross-examination regarding the delay occurred in lodging the FIR (Ex. P-11). Even the Investigating Officer was also not questioned about the delay. The explanation offered by the prosecution regaridng the delay in lodging the FIR (Ex. P-11) is proper and plausible and this delay is not fatal to the case of the prosecution. Evidence of Relative and Interested Witness: 8. In the instant case, it is not disputed that Budhobai (PW-7) is widow of the deceased and, therefore, she is a relative witness. 9. In Ranjit Singh and others v. State of Madhya Pradesh, AIR 2011 SC 255 : (2010 AIR SCW 6676), the Honble Supreme Court held as follows : “17. ......under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal Court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. 18. In Muthu Naicker and Ors. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. 18. In Muthu Naicker and Ors. v. State of Tamil Nadu, AIR 1978 SC 1647 , this Court explained the aforesaid judgment by stating that in a situation where a witness has been attacked by the members of an unlawful assembly composed of a large number of persons, the Court should carefully consider the question of the credibility of such a witness. Where the Court is of the view that the testimony of such a witness is in the facts and circumstances of the case not reliable, it should insist that such testimony be corroborated by one or more other witnesses before it can be accepted by the Court. 19. .......... “There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. All the same when the size of the unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident.” 10. In Takdir Samsuddin Sheikh v. State of Gujarat and another, AIR 2012 SC 37 : (2011 AIR SCW 6486), the Honble Supreme Court observed as follows : “10. ......... The submissions advanced in this respect had been that Shri Bharat Rajendraprasad Trivedi (PW-1) being a partner in the Firm would be beneficiary in the transaction of land involved herein in case one partner had been eliminated and other partner landed in jail. Such an argument is not acceptable for two reasons: (i) While appreciating the evidence of witness considering him as the interested witness, the Court must bear in mind that the term interested postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason. ...... Such an argument is not acceptable for two reasons: (i) While appreciating the evidence of witness considering him as the interested witness, the Court must bear in mind that the term interested postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason. ...... (ii) This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the Court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.” 11. In Namdeo v. State of Maharashtra, (2007) 14 SCC 150 : (2007 AIR SCW 1835), the Honble Supreme Court held that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. It is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be a particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. 12. In Dharnidhar v. State of Uttar Pradesh and others, (2010) 7 SCC 759 : (2010 AIR SCW 5685), the Honble Supreme Court held as follows : “12. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. 12. In Dharnidhar v. State of Uttar Pradesh and others, (2010) 7 SCC 759 : (2010 AIR SCW 5685), the Honble Supreme Court held as follows : “12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondichery, (2010) 1 SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it come from a person closely related to the victim.” ... 13. Similar view was taken by this Court in Ram Bharosey v. State of U. P., (2010) 1 SCC 722 : ( AIR 2010 SC 917 ), where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same. 13. In Brahm Swaroop and another v. State of U. P. ( AIR 2011 SC 280 ) : (2010 AIR SCW 6704), the Honble Supreme Court held as follows : “21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culpit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culpit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence.” 14. In Waman and others v. State of Maharashtra, (2011) 7 SCC 295 : ( AIR 2011 SC 3327 ), the Honble Supreme Court held as follows : “17. In Balraje v. State of Maharashtra, (2010) 6 SCC 673 , this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. ....... 19. ..... “29. .... The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relative evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : ( AIR 2010 SC 3699 ), Vishnu v. State of Rajasthan, (2009) 10 SCC 477 : (AIR 2009 SC (Supp) 2374) and Balraje, (2010) 6 SCC 673 ) : (2010 AIR SCW 3707).” 15. Now, in light of the above principles laid down by the Honble Supreme Court, we shall examine the evidence of Budhobai (PW-7). 16. Budhobai (PW-7) deposed that it was Friday. Now, in light of the above principles laid down by the Honble Supreme Court, we shall examine the evidence of Budhobai (PW-7). 16. Budhobai (PW-7) deposed that it was Friday. At about 6 p.m., she and her husband (the deceased) had gone to search their buffaloes. The appellant came out of his house with an axe and assaulted the deceased. The deceased sustained injuries on his head and hand and fell down. Thereafter, the appellant picked up a stone lying there and assaulted the deceased with the stone. Ranjit Ram (PW-8), Nam Narayan and Heera came there. The appellant, after assaulting the deceased, went inside his house. The deceased died on the spot. 17. Budhobai (PW-7) deposed that it is wrong to say that she could not see that with which weapon the appellant assaulted the deceased. Rather, the appellant had assaulted the deceased with the axe. 18. Ranjit Ram (PW-8) deposed that on hearing voice of Budhobai (PW-7), he had reached near the house of the appellant. He further deposed that the appellant assaulted the deceased near temporal region with a stone thrice. 19. Learned trial Judge, in paragraph 22 of the impugned judgment, held that the evidence of Ranjit Ram (PW-8) is unreliable, but he relied on the evidence of Budhobai (PW-7). 20. Budhobai (PW-7) specifically deposed that the appellant assaulted the deceased with the axe. In Merg Intimation (Ex. P-10) and FIR (Ex. P-11), it is specifically mentioned that the appellant assaulted the deceased with blunt portion (Pasa) of the axe. Dr. Vipin Kumar Idwar (PW-4) also found fracture on skull bone. The evidence of Budhobai (PW-7) is corroborated by the F. I. R. and medical evidence. Therefore, her evidence is cogent and reliable. 21. Dr. Vipin Kumar Idwar (PW-4) deposed that he conducted post-mortem on the dead body of the deceased and gave his report (Ex. P-7). He further deposed that on opening skull, he found that there was a fracture in temporo mandibular bone. There was rupture of left facial artery. There was profuse haemorrhage. He further deposed that cause of death was shock due to injury over vital organ (brain) and profuse haemorrhage and the death was homicidal in nature. 22. We have carefully perused the evidence of Budhobai (PW-7). She has categorically deposed that on the fateful day, the appellant assaulted the deceased with blunt portion (Pasa) of the axe. He further deposed that cause of death was shock due to injury over vital organ (brain) and profuse haemorrhage and the death was homicidal in nature. 22. We have carefully perused the evidence of Budhobai (PW-7). She has categorically deposed that on the fateful day, the appellant assaulted the deceased with blunt portion (Pasa) of the axe. Her evidence is duly corroborated by the F.I.R. and medical evidence. From medical evidence, we find that cause of death was shock due to injury over vital organ (brain) and profuse haemorrhage and the death was homicidal in nature. Therefore, we do not find any infirmity in the finding recorded by the learned Session Judge that it was the appellant who caused injuries on the person of the deceased with the blunt portion of the axe and the deceased died on account of the injuries caused by the appellant. 23. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 of the Indian Penal Code. 24. Shri Shastri, learned counsel for the appellant argued that the appellant was provoked by the deceased. They abused each other. The appellant used blunt portion of the axe. Therefore, the act of the appellant would not be punishable under Section 302 of the Indian Penal Code and he would be guilty of the offence punishable under Section 304 of the Indian Penal Code. 25. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 26. In Jagtar Singh v. State of Punjab, (1983) 2 SCC 342 , the Honble Supreme Court held as follows : “8. The next question is what offence the appellant is shown to have committed? In a trival quarrel, the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence under Section 304, Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice. 27. In Satish Narayan Sawant v. State of Goa, (2009) 17 SCC 724 , the Honble Supreme Court held as follows: “40. Therefore, the appellant is shown to have committed an offence under Section 304, Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice. 27. In Satish Narayan Sawant v. State of Goa, (2009) 17 SCC 724 , the Honble Supreme Court held as follows: “40. That being the well settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. Initially, the appellant-accused also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. PW-7 in his cross-examination has categorically stated that death due to stab injury was in consequence of injury 1 and all other injuries were superficial in nature. So, it was only injury 1 which was fatal in nature. Factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness. 28. In the instant case, the appellant used blunt portion of the axe for assaulting the deceased. Budhobai (PW-7) deposed that the appellant was in drunken state. A. S. I. L. R. Kuldeep (PW-9) deposed that it is true that there was some land dispute between the deceased and the appellant. According to the medical evidence, a fracture in temporo mandibular bone was found. It appears that the appellant did not use sharp portion of the axe for assaulting the deceased. He did not repeat the axe blow. It is evident from the medical evidence that the appellant did not give axe blow with full force from sharp portion of the axe. It appears that the appellant did not use sharp portion of the axe for assaulting the deceased. He did not repeat the axe blow. It is evident from the medical evidence that the appellant did not give axe blow with full force from sharp portion of the axe. In the above facts and circumstances of the case, we are of the view that the appellant had no intention to commit murder of the deceased and the act of the appellant would fall within the Exception to Section 300 of the Indian Penal Code and he would liable for punishment under Part II of the Section 304 of the Indian Penal Code. 29. For the foregoing reasons, the appeal is allowed in part. The conviction and sentence awarded to the appellant under Section 302 of the Indian Penal Code are set aside. Instead thereof, the appellant is convicted under Section 304, Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. Appeal partly allowed.