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2012 DIGILAW 141 (CHH)

SUMAN SINGH v. STATE OF C. G.

2012-05-09

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Radhe Shyam Sharma, J 1. This appeal is directed against judgment dated 28-12-2005 passed by Additional Session Judge, Balod, District Durg in Session Trial No.163/2005. By the impugned judgment, accused/appellant Suman Singh has been convicted and sentenced in the following manner: Conviction Sentence Under Section 302 IPC Imprisonment for life and to pay fine of Rs.2,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 year 2. Case of the prosecution, in brief, is as under: On 27-2-2005, in the morning, deceased Radheshyam had gone to his agricultural field at Renghani Khar along with his son Varun Kumar (PW-3) and another son for agricultural work. He irrigated the vegetables in his agricultural field through the water taken out from a bore. Thereafter, he started digging a pit in the agricultural field with a Sabbal. At that time, the appellant came to the bore, parked his bicycle there and began to brush his teeth. Thereafter, the appellant told the deceased that he was feeling ill. The deceased suggested the appellant to put his head down before Mahavir and on recovery of his health, to crack coconut in the temple of Goddess Bindeshwari Devi. On this, the appellant tried to snatch the Sabbal from the possession of the deceased. Having snatched the Sabbal, the appellant assaulted the deceased with it. When the appellant gave 2-3 Sabbal blows to the deceased, the deceased asked his both sons to flee from there or else the appellant will assault them also. Varun Kumar (PW-3) and his younger brother fled towards agricultural field and the appellant fled towards Village Renghani along with his bicycle. Chappal (slippers) of the deceased and the appellant were left at the agricultural field. A book of the appellant also fell down there. Varun Kumar (PW-3) and his younger brother came to their mother Metinbai (PW-6) and narrated the incident to her. Metinbai (PW-6) told the incident to Dinaram (PW-2) and other people and went towards the agricultural field. Varun Kumar (PW-3) also narrated the incident to the villagers at the place of occurrence that the appellant killed the deceased with the Sabbal. Kotwar Ghasudas (PW-l) went to Police Station Balod along with Keshav (PW-9) and lodged a report, on the basis of which First Information Report (Ex.P-1) was registered and Merg Intimation (Ex.P-2) was also recorded in Police Station Balod. Kotwar Ghasudas (PW-l) went to Police Station Balod along with Keshav (PW-9) and lodged a report, on the basis of which First Information Report (Ex.P-1) was registered and Merg Intimation (Ex.P-2) was also recorded in Police Station Balod. Investigating Officer Sub-Inspector D.D.Vaishnav (PW-12) reached the place of occurrence, gave notice (Ex.P-5) to Panchas and prepared inquest (Ex.P-6) on the dead body of the deceased. The dead body of the deceased was sent to Community Health Centre, Balod for post mortem examination. Dr. R.K.Gore (PW-11) conducted post mortem examination on the dead body of the deceased and gave report (Ex.P-14), in which, he found (i) incised lacerated wound, 4"x1" running antero-posterio right fronto temporal region 1" above right ear, (ii) himotoma seen at the back of the right occi-temporal region incised lacerated wound 1 "x1" which was placed 1" above injury No. (i). On opening the skull, he found depressed fracture in right frontal and occipital bone. He opined that the deceased died due to coma which occurred due to fatal injury caused on the skull and the death was homicidal in nature. In further investigation, spot-map was prepared vide (Ex.P-3). Blood stained soil, plain soil, hand-glove and Sabbal were seized from the place of occurrence vide Ex.P-7. Full-pant and full-shirt of the appellant were seized from him vide Ex.P-10. A pair of Chappal (slippers) of the deceased, another pair of Chappal (slippers) of the appellant and a book were seized from the agricultural field of the deceased vide Ex.P-19. The seized Sabbal was sent to Government Hospital, Balod for examination vide Ex.P-15A. Dr. R.K.Gore (PW -11) examined the Sabbal and gave report (Ex.P-15). The seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex.P-16. Report (Ex.P-21) was received therefrom vide Ex.P-20. In the FSL Report (Ex.P-21), it is mentioned that articles A - soil, B - soil, C - Sabbal, D - hand-glove of the deceased and El - Baniyan (vest) of the deceased were found stained with blood and articles E2 - full-pant of the deceased, E3 underwear of the deceased, Fl - full-pant of the appellant and F2 - shirt of the appellant were not found stained with blood. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Balod, who, in turn, committed the case to the Court of Session, Durg, from where it was received on transfer by Additional Session Judge, Balod, District Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri P.K.Patel, learned counsel for the appellant argued that Varun Kumar (PW -3) is a child witness aged about 11-12 years. He is son of the deceased. His conduct appears to be unnatural. He is interested and tutored witness. Therefore, the conviction based on his sole testimony cannot be sustained. 4. Shri Neeraj Kumar Mehta, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional 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. 163/2005. The conviction of the appellant under Section 302 IPC is based on the evidence of Varun Kumar (PW-3). It is not disputed that Varun Kumar (PW-3), being son of the deceased, is a nearest relative of the deceased. It is also not disputed that at the time of incident, he was aged about 11-12 years and as such he is a child witness. The case of the prosecution is based on the testimony of child witness Varun Kumar (PW-3). 6. Child witness is a competent witness. Basic innocence and truthfulness of a child witness is to be taken into consideration, however, possibility of tutoring is always present in the case of child witness and the same has to be ruled out. Therefore, a great caution is required while appreciating the evidence of a child witness, particularly, when the child witness is solitary eye witness of the incident. 7. In Nivrutti Pandurang Kokate and others Vs. State of Maharashtra (2008) 12 SCC 565, the Hon'ble Supreme court observed as follows: "10. "6...... The Evidence Act, 1872 (in short 'the Evidence Act') does not prescribe any particular age, as a determinative factor to treat a witness to be a competent one. 7. In Nivrutti Pandurang Kokate and others Vs. State of Maharashtra (2008) 12 SCC 565, the Hon'ble Supreme court observed as follows: "10. "6...... The Evidence Act, 1872 (in short 'the Evidence Act') does not prescribe any particular age, as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease- whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States, 40 L Ed 244. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Suryanarayana v. State of Karnataka, (2001) 9 SCC 129.) 7. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, it was held as follows: (See p. 343, para 5) '5. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.' The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose h s capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, thee is no obstacle in the way of accepting the evidence of a child witness." The above position was highlighted in Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64, SCC pp. 67-68, paras 6-7. Looked at from any angle the judgments of the trial court and the High Court do not suffer from any infirmity to warrant interference." 8. Varun Kumar (PW-3) deposed that on the date of incident, at about 8:30 - 9 A.M., he, his father (the deceased) and his younger brother Umashankar had gone to their agricultural field for agricultural work. When they were working in their agricultural field, the appellant came to the deceased and told him that he was suffering from head ache. Varun Kumar (PW-3) deposed that on the date of incident, at about 8:30 - 9 A.M., he, his father (the deceased) and his younger brother Umashankar had gone to their agricultural field for agricultural work. When they were working in their agricultural field, the appellant came to the deceased and told him that he was suffering from head ache. The deceased told the appellant that he should put garland in the neck of Lord Bajrang Bali and crack coconut before the lord. Thereafter, the appellant picked up the Sabbal and began to pierce it on the body of the deceased. The appellant pierced the Sabbal on the waist of the deceased. Thereafter, a scuffle took place between the deceased and the appellant in the agricultural field. Thereafter, the deceased, while fleeing, fell down. The appellant gave Sabbal blow on the head of the deceased. The appellant fled along with his bicycle towards the road. They went to the house of Shekhar. Thereafter, running, he went to his mother Metinbai (PW-6) and told her that the appellant killed the deceased. Metinbai (PW -6), running, went near the dead body of the deceased. 9. Varun Kumar (PW-3) deposed that while the deceased was snatching Sabbal from the appellant, at that time, the deceased had asked him and his younger brother to flee from there and go to home. It is wrong to say that they had gone to their mother Metinbai (PW-6) to inform her about the snatching. He further deposed that when the appellant had killed the deceased thereafter they had gone to their mother Metinbai (PW- 6) to inform her about the killing of the deceased. He further deposed that it is true that when the appellant had come to the deceased, at that time, he was not armed with Sabbal or any weapon. It is true that when the appellant had come, at the first moment he had told the deceased about his illness and talked to the deceased. At that time, no dispute had taken place between the appellant and the deceased. 10. Metinbai (PW-6) deposed that on the date of incident, at about 8-8:30 A.M., she was working in her house. Her both sons Varun Kumar (PW-3) and Arun had gone to their agricultural field along with their father (the deceased). At that time, no dispute had taken place between the appellant and the deceased. 10. Metinbai (PW-6) deposed that on the date of incident, at about 8-8:30 A.M., she was working in her house. Her both sons Varun Kumar (PW-3) and Arun had gone to their agricultural field along with their father (the deceased). After sometime, both the children came back to the house and told her that the appellant killed the deceased in the field. She, crying and calling for the villagers, went to the field. Having seen the dead body of her husband (the deceased), she became unconscious. 11. Dinaram (PW-2) deposed that on the date of incident, in the morning, he had gone to canal for taking bath. Metinbai (PW-6), wife of the deceased came to him and told that the appellant was assaulting the deceased. He went towards the agricultural field of Metinbai (PW-6) along with her. He saw that dead body of the deceased was lying by the side of the road and blood was oozing out of his head. A Sabbal and a hand-glove were also lying there. Thereafter, he went to the agricultural field of the deceased and saw that Chappals (slippers) of the deceased and the appellant were stuck in mud of the agricultural field and a copy (note book) was also lying there. In cross-examination, he deposed that the Sabbal was lying near the dead body. He further deposed that the Sabbal was lying 8 Feet away from the dead body. 12. Arjun Singh (PW-5) deposed that on the date of incident, at about 8:30 A.M., Varun Kumar (PW-3) narrated him about the incident that the appellant has killed the deceased. He further deposed that Varun Kumar (PW-3) told him that the appellant came to the deceased and told him that he was not feeling well. The deceased suggested the appellant that he should present coconut before the Goddess Danteshwari Devi and wear a locket of the Lord Bajrang Bali in his neck. Thereafter, a scuffle took place between the appellant and the deceased. The appellant assaulted the deceased with a Sabbal. He further deposed that thereafter he went to the place of occurrence, where he saw that Chappal (slippers) of the deceased and the appellant were lying there and a Sabbal was also lying there. 13. Thereafter, a scuffle took place between the appellant and the deceased. The appellant assaulted the deceased with a Sabbal. He further deposed that thereafter he went to the place of occurrence, where he saw that Chappal (slippers) of the deceased and the appellant were lying there and a Sabbal was also lying there. 13. Varun Kumar (PW-3) specifically deposed that the appellant assaulted the deceased on the head with a Sabbal and he immediately narrated the incident to his mother Metinbai (PW-6) and Arjun Singh (PW-5). His evidence is also corroborated by Dinaram (PW-2). Dr. R.K.Gore (PW-11), who conducted the post mortem examination on the dead body of the deceased, found (i) incised lacerated wound, 4"x 1" running antero-posterio right fronto temporal region 1" above right ear, (ii) himotoma seen at the back of the right occi-temporal region incised lacerated wound 1 "x l" which was placed l" above injury No.(i). On opening the skull, he found depressed fracture in right frontal and occipital bone. He opined that the deceased died due to coma which occurred due to fatal injury caused on the skull and the death was homicidal in nature. 14. The date and the time of the incident were 27-2-2005 at about 8:30-9 A.M. and the FIR (Ex.P-1) was lodged on the same day at about 10:45 A.M., i.e., within about 2 ½ hours of the incident. In the FIR (Ex.P-1), the name of the appellant is mentioned as assailant. The statement of Varun Kumar (PW-3) was recorded under Section 161 Cr.P.C. on 27-2-2005, i.e., on the date of incident itself. Varun Kumar (PW-3) narrated the incident immediately to his mother Metinbai (PW-6) and Arjun Singh (PW-5). Metinbai (PW-6) narrated the incident to Dinaram (PW-2). Therefore, there is no possibility of tutoring of child witness Varun Kumar (PW-3). Evidence of Varun Kumar (PW-3) is duly corroborated by medical evidence. Therefore, his solitary testimony can be based for conviction of the appellant. From the evidence of Varun Kumar (PW-3) it is crystal clear that it was the appellant who assaulted the deceased with the Sabbal and the deceased died due to the injuries caused by him. Therefore, we do not find any infirmity in the finding recorded by the learned Additional Session Judge regarding involvement of the appellant in causing injuries to the deceased. 15. Therefore, we do not find any infirmity in the finding recorded by the learned Additional Session Judge regarding involvement of the appellant in causing injuries to the deceased. 15. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 of the Indian Penal Code. 16. Shri P.K.Patel, learned counsel for the appellant argued that the appellant went to the field of the deceased without any weapon. The appellant told the deceased about his ill health. Thereafter, some quarrel took place between them all of a sudden and the appellant gave Sabbal blow to the deceased. Therefore, the act of the appellant would not be punishable under Section 302 of the Indian Penal Code and he would be liable for punishment under Section 304 of the Indian Penal Code. 17. 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. 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. 18. In Jagtar Singh Vs. State of Punjab (1983) 2 SCC 342, the Hon'ble Supreme Court held as follows: "8. The next question is what offence the appellant is shown to have committed? In a trivial 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." 19. In Satish Narayan Sawant Vs. State of Goa (2009) 17 SCC 724, the Hon'ble 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. 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 I 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." 20. In a judgment of a Division Bench of this Court in Criminal Appeal No.625/2006 (Arjun Yadav Vs. State of Chhattisgarh), delivered on 18-11-2011, it is observed as follows: "16. In the present case, as per the case of prosecution, appellant was demanding liquor from PW/10-Kailash, son of deceased, and incident took place between them, thereafter, appellant abused deceased. Being asked he quarreled with deceased and rushed to the barber shop of PW/1-Ramesh Shrivas from where he took out scissors and caused single blow over the abdomen of deceased. These facts and circumstances show that he was not having weapon, he was quarreling after consuming liquor and during the course quarrel he suddenly rushed to the barber shop of PW/1-Ramesh Shrivas and after taking scissors he caused single blow otherwise there was no occasion for causing injury. These evidences are not sufficient to establish the fact that appellant has caused injury or homicidal death with intent to cause death of deceased but at the time of causing such injury he was having knowledge that by his act deceased may die. Evidence adduced on behalf of prosecution is not sufficient to prove the fact that appellant has committed homicidal death amount to murder of deceased but the act attributed to the appellant squarely falls within the ambit of Section 304 Part-I of the IPC. " 21. Dr. R.K.Gore (PW-11) deposed in cross-examination in paragraph 20 that he did not mention in the post mortem examination report (Ex.P-14) that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. 22. " 21. Dr. R.K.Gore (PW-11) deposed in cross-examination in paragraph 20 that he did not mention in the post mortem examination report (Ex.P-14) that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. 22. In the instant case, from the evidence of Varun Kumar (PW-3), it appears that the appellant had gone to the field of the deceased without any weapon. The appellant told the deceased that he was feeling ill. The deceased suggested the appellant to put his head down before Mahavir and on getting restored to health, to crack coconut in the temple of Goddess Bindeshwari Devi. On this, a quarrel started between the appellant and the deceased and a scuffle took place between them and all of a sudden, the appellant snatched the Sabbal from the deceased and assaulted him with it. According to the medical evidence, only one injury was found on the head of the deceased, which was a fracture. Other injuries were not grievous in nature. 23. Therefore, it is difficult for us to hold that the appellant gave the blow in question with the intention of causing murder of the deceased, however, requisite knowledge that the death would otherwise be the inevitable result can be gathered from the above act of the appellant. In such a situation, even or accepting the prosecution case, we hold that the appellant did not commit the offence punishable under Section 302 IPC, but his act was punishable under Part II of Section 304 IPC 24. For the foregoing reasons, the appeal is allowed in part. The conviction I and sentence awarded to the appellant under Section 302 IPC are set aside. Instead thereof, the appellant is convicted under Part II of Section 304 IPC and sentenced to undergo R.I. for 10 years. Appeal Partly Allowed.