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2012 DIGILAW 287 (CHH)

SANTOSH SAHU v. STATE OF C. G.

2012-10-31

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Radhe Shyam Sharma, J. 1. This appeal is directed against judgment dated 30-11-2007 passed by Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth 'the Act, 1989') and Additional Sessions Judge, Durg in Special Case No. 37/2006. By the impugned judgment, accused/appellant Santosh Sahu has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 2,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. 2. Case of the prosecution, in brief, is as under: Deceased Rakesh was Mahaar by caste, belonged to Scheduled Caste. On 2-5-2006, Pardeshiram (PW-1) was going on a motorcycle along with Banti Sukhdeve (PW-2) and deceased Rakesh via Subhash Chowk to drop Banti Sukhdeve (PW-2) at Mogara Dafai. At about 10:30 P.M., when they reached near Mahua Tree situated at Purana Bazar, the appellant stopped them and said that he wanted to talk with deceased Rakesh lonely. The deceased stepped down from the motorcycle, whom the appellant took away at a distance of 5 steps. Pardeshiram (PW-1) and Banti Sukhdeve (PW-2) remained sitting on the motorcycle. The appellant said the deceased that the boys of Subhash Chowk were Chhakke, and assaulted the deceased with a knife. The appellant gave one blow on the stomach and two blows on the back of the deceased with the knife. Having smeared with blood, the deceased fell down. The appellant fled with the knife. At that time, Niru Sahu and Chandu Halba reached there. Pardeshiram (PW-1) told them that the appellant assaulted the deceased with the knife and fled. Pardeshiram (PW-1) and Banti Sukhdeve (PW-2) took the deceased to Dr. Mathai's Clinic situated at Subhash Chowk, from where the deceased was taken to B.S.P. Hospital, Rajhara for treatment, where Dr. Aniruddha Mene (PW-6) declared the deceased dead. Pardeshiram (PW-1) lodged Merg Intimation (Ex.P-1) in Police Station Rajhara, on the basis of which, First Information Report (Ex.P-2) was recorded in Police Station Rajhara. The Investigating Officer reached the place of occurrence, gave notice (Ex.P-13) to Panchas and prepared inquest (Ex.P-14) on the dead body of the deceased. The dead-body of the deceased was sent to Government Hospital, Rajhara for post mortem examination vide Ex.P-15, where, post mortem was conducted by Dr. Yashwantrao Tumade (PW-11), who gave his report (Ex.P-15A). The Investigating Officer reached the place of occurrence, gave notice (Ex.P-13) to Panchas and prepared inquest (Ex.P-14) on the dead body of the deceased. The dead-body of the deceased was sent to Government Hospital, Rajhara for post mortem examination vide Ex.P-15, where, post mortem was conducted by Dr. Yashwantrao Tumade (PW-11), who gave his report (Ex.P-15A). He found- (i) first punctured wound in hypogastric region, 4" X 2" in area (ii) second punctured wound on the left side back, 6 cms depth (iii) third stabbed wound on left scapula region, 3.5cms in depth. The left epical lobe of lung was punctured. He found 3 grievous punctured wounds caused by a knife, in which one was stab injury on the right side of hypogastric region. He opined that the cause of death of the deceased was the first injury and the death was homicidal in nature. In further investigation, memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.P-5 and at his instance, Chaku (knife) was seized vide Ex.P-6. Plain soil and blood stained soil were seized from the place of occurrence vide Ex.P-4. Blood stained T-Shirt, Full Pant, Barmuda and Chaddi of the deceased were seized vide Ex.P-7. Blood stained half-shirt of the appellant was also seized vide Ex.P-8. Caste certificate of the deceased was also seized vide Ex.P-10. The Investigating Officer prepared site map vide Ex.P-3. The seized articles were sent to Forensic Science Laboratory, Raipur vide Ex.P-17. Report (Ex.P-24) was received there from. 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 Special Judge under the Act, 1989 and Additional Sessions Judge, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Smt. Indira Tripathi, learned counsel for the appellant argued that there is no independent witness of the incident. Pardeshiram (PW-1) and Banti Sukhdeve (PW-2) are interested witnesses. Their evidence is not acceptable, therefore, the conviction of the appellant cannot be based on the evidence of Pardeshiram (PW-1) and Banti Sukhdeve (PW-2). 4. Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the leaned trial Court do not warrant any interference by this Court. 5. Their evidence is not acceptable, therefore, the conviction of the appellant cannot be based on the evidence of Pardeshiram (PW-1) and Banti Sukhdeve (PW-2). 4. Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the leaned trial Court do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have also perused the record of Special Case No. 37/2006. The conviction of the appellant is based on the evidence of Pardeshiram (PW-1) and Banti Sukhdeve (PW-2). Relative/Interested Witnesses: 6. In Dayal Singh and others Vs. State of Uttaranchal AIR 2012 SC 3046 , the Hon'ble Supreme Court observed as follows: "10. This Court has repeatedly held that an eyewitness version cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness....." 7. In Dharnidhar Vs. State of Uttar Pradesh and others (2010) 7 SCC 759 , the Hon'ble 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 Pondicherry, (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 comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24) “23. 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 comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24) “23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim." 8. In Brahm Swaroop and another Vs. State of U.P. AIR 2011 SC 280 , the Hon'ble 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, more so, a relation would not conceal the actual culprit 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. (Vide: Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364 ; Masalti v. State of U.P., AIR 1965 SC 202 ; Lehna v. State of Haryana, (2002) 3 SCC 76 ; and Rizan & Anr. v. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh, (2003) 2, SCC 661) : ( AIR 2003 SC 976 )." {See also Shaukat Vs. State of Uttaranchal (2010) 5 SCC 68 , (Paragraphs 35 and 36)} 9. In Waman and others Vs. State of Maharashtra (2011) 7 SCC 295 , the Hon'ble Supreme Court held as follows: "17. State of Uttaranchal (2010) 5 SCC 68 , (Paragraphs 35 and 36)} 9. In Waman and others Vs. State of Maharashtra (2011) 7 SCC 295 , the Hon'ble 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 eyewitnesses 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. After saying so, this Court held that: (SCC p. 679, para 30) "30. ........ if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 19. The above principles have been once again reiterated in State of U.P. v. Naresh, (2011) 4 SCC 324 . Here again, this Court has emphasized that relationship cannot be a factor to affect the credibility of a witness. The following statement of law on this point is relevant: (SCC p. 334, para 29) “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 relatives 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 , Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje, (2010) 6 SCC 673 .)" 10. In the instant case, Pardeshiram (PW-1) deposed that on 2-5-2006, between 10:15 P.M. to 10:30 P.M., he was standing near Subhash Chowk along with the deceased. (Vide Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 , Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje, (2010) 6 SCC 673 .)" 10. In the instant case, Pardeshiram (PW-1) deposed that on 2-5-2006, between 10:15 P.M. to 10:30 P.M., he was standing near Subhash Chowk along with the deceased. At that time, Banti Sukhdeve (PW-2) came there and asked to drop him at his home at Mogara Dafai Mohalla. He further deposed that he, Banti Sukhdeve (PW-2) and the deceased were going on a motorcycle to drop Banti Sukhdeve (PW-2) at his house. He further deposed that when they reached near Mahua Tree at Purana Bazar, the appellant met them, stopped them and said that he wanted to talk with the deceased lonely. The deceased stepped down from the motorcycle. The appellant took the deceased 5 steps away from the motorcycle. He further deposed that he and Banti Sukhdeve (PW-2) remained sitting on the motorcycle. He further deposed that the appellant assaulted the deceased with a knife. The appellant gave one blow on the umbilical region and two blows on the back of the deceased with the knife. The deceased shouted that the appellant was assaulting him with the knife. He further deposed that he tried to catch the appellant, but the appellant extricated himself and fled from there. 11. Banti Sukhdeve (PW-2) deposed that on 2-5-2006, at about 10:15 P.M. to 10:30 P.M., the deceased and Pardeshiram (PW-1) were standing at Subhash Chowk, Purana Bazar. He further deposed that he was going on a motorcycle along with Pardeshiram (PW-1) and the deceased. He further deposed that when they reached near Mahua Tree at Purana Bazar, the appellant met them, stopped them and said that he wanted to talk with the deceased lonely. The deceased stepped down from the motorcycle. The appellant took the deceased 5-7 steps away from the motorcycle. After some time, he heard noise of the deceased. He saw that the appellant was assaulting the deceased with a knife. The appellant gave blows on the stomach and back of the deceased with the knife. Blood was oozing out from both the stomach and the back of the deceased. 12. Pardeshiram (PW-1) deposed in his cross-examination that he took the deceased to Mathai Hospital and thereafter to BSP Hospital, Dalli Rajara. The appellant gave blows on the stomach and back of the deceased with the knife. Blood was oozing out from both the stomach and the back of the deceased. 12. Pardeshiram (PW-1) deposed in his cross-examination that he took the deceased to Mathai Hospital and thereafter to BSP Hospital, Dalli Rajara. In paragraph 8 of cross-examination, he deposed that the appellant gave two knife blows on the back of the deceased. 13. Dr. Anirudhha Mene (PW-6) deposed that on 2-5-2006, at about 11:15 P.M., deceased Rakesh Gajbhiye was taken to the hospital by his friend. He further deposed that he admitted the deceased in the hospital, examined him and found (i) stabbed wound, 1 X 10 cms on the umbilical region and (ii) stabbed wound, 1 X 10cms on left side of 8-9 ribs of scapular region. Dr. Yashwantrao Tumade (PW-11) deposed that he conducted the post mortem examination on the dead body of the deceased and found 3 grievous punctured wounds caused by a knife, in which one was stab injury on the right side of hypogastric region. He opined that the cause of death of the deceased was the first injury and the death was homicidal in nature. 14. The date and time of the incident was 2-5-2006, at about 10:30 P.M. Merg Intimation (Ex.P-1) and the FIR (Ex.P-2) were lodged on the same day at about 11:25 P.M. and 11:30 P.M., respectively. The FIR (Ex.P-2) contains name of the appellant as assailant. In the FIR (Ex.P-2), it is mentioned that the appellant assaulted the deceased with the knife and gave knife blows on his abdomen and back. It is also mentioned in the FIR (Ex.P-2) that Pardeshiram (PW-1), Banti Sukhdeve (PW-2) and the deceased were going to the house of Banti Sukhdeve (PW-2) to drop Banti Sukhdeve (PW-2). It is also mentioned in the FIR (Ex.P-2) that the appellant met and stopped them and said that he wanted to talk with the deceased lonely. Thereafter, the appellant assaulted the deceased with the knife. 15. Therefore, the evidence of Pardeshiram (PW-1) and Banti Sukhdeve (PW-2) is cogent, reliable and trustworthy. Their evidence is corroborated by the FIR (Ex.P-2) and the medical evidence. 16. We have carefully perused the evidence of Pardeshiram (PW-1) and Banti Sukhdeve (PW-2). They categorically deposed that on the fateful night, the appellant assaulted the deceased. 15. Therefore, the evidence of Pardeshiram (PW-1) and Banti Sukhdeve (PW-2) is cogent, reliable and trustworthy. Their evidence is corroborated by the FIR (Ex.P-2) and the medical evidence. 16. We have carefully perused the evidence of Pardeshiram (PW-1) and Banti Sukhdeve (PW-2). They categorically deposed that on the fateful night, the appellant assaulted the deceased. Their evidence is duly corroborated by the FIR (Ex.P-2) and the medical evidence. From the medical evidence, we find that the death was result of 3 grievous injures and was homicidal in nature. 17. Learned counsel for the appellant has argued that the injuries sustained by the deceased were on the abdomen and the back and not on any vital part and the injuries caused to the deceased were not intended. Therefore, the offence under Section 302 IPC would not be made out. Looking to the evidence of Dr. Aniruddha Mene (PW-6) and Dr. Yashwantrao Tumade (PW-11), it appears that the deceased sustained one punctured wound in hypogastric region and other punctured wounds were present on the back of the deceased. 18. In Harjinder Singh Vs. Delhi Administration AIR 1968 SC 867 , following injuries were found on the person of the deceased and the doctor opined in the following manner, we quote: 1. A stab wound l" x ¼” x ?(sic) on left thigh upper and below the inguinal ligament 2. Abrasion 1” xlinear on back of left fore-arms middle. He described the other features of the injuries as follows: "The direction of the stab wound was oblique and was going medially. Sartorius muscle was cut underneath along with femoral artery and vein. Cut over major part of their diameter. There was effusion of blood in the muscles and around the track over left thigh upper end......." He deposed that death was due to shock and haemorrhage from injury to femoral vessels by stab wound of the thigh. He further stated: "It is correct that femoral artery and vein are important main vessels of the body. The cutting of these vessels would result in great loss of blood. The cutting injuries of these vessels could result in immediate death or after short duration." Applying the principles of Virsa Singh Vs. He further stated: "It is correct that femoral artery and vein are important main vessels of the body. The cutting of these vessels would result in great loss of blood. The cutting injuries of these vessels could result in immediate death or after short duration." Applying the principles of Virsa Singh Vs. State of Punjab AIR 1958 SC 465 , the Hon'ble Supreme Court held that in the facts and circumstances of the above case, an offence under Section 302 IPC would not be made out and it was altered to Section 304 Part I IPC. 19. In the instant case, the knife blows were given on the umbilical region and back of the deceased and the fatal injury to the left lung does not appear to be intended by the appellant. Applying the above principles, we are of the opinion that the conviction of the appellant under Section 302 IPC cannot be sustained and in the above facts and circumstances of the case, the appellant would be liable for punishment under Section 304 Part I IPC. 20. For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set aside. Instead thereof, he is convicted under Section 304 Part I IPC and sentenced to undergo rigorous imprisonment for 10 years. He is in jail. He is entitled for set off the period already undergone by him. Appeal Partly Allowed.