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2012 DIGILAW 46 (MP)

Chandrashekhar v. State of M. P.

2012-01-11

A.K.SHRIVASTAVA, S.R.WAGHMARE

body2012
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 12.1.2010 passed by learned Second Additional Sessions Judge, Mhow District Indore, in Sessions Trial No.806/2008 convicting appellant under section 302 IPC and thereby sentencing him to suffer life imprisonment and fine of Rs.1,000/-, in default further RI of one year, this appeal has been filed by appellant under section 374(2) of the Criminal Procedure Code, 1973. 2. In brief, the case of prosecution is that Radhesingh (hereinafter referred to as the deceased) was a retired employee of the Police Department. He used to offer pooja (prayer) during the dawn hours. On the fateful day i.e. 28.8.2008 during the dawn hours at 5:45 after taking his bath the deceased was offering pooja nearby the tree of pipal at that juncture, appellant who is the neighbour of the deceased armed with an iron rod came and dealt one blow on the head of the deceased as a result of which, he had died. 3. The FIR was lodged by son of the deceased Mohansingh (PW2) on the basis of which a criminal case was registered under section 302 IPC against the appellant. The investigating agency after completion of the investigation, submitted a charge-sheet in the committal Court which committed the case to the Court of Session and from where it was received by the trial Court for trial. The learned trial Judge on the basis of record came to hold that offence is punishable under section 302 IPC which appellant denied and requested for the trial. The prosecution thereafter examined its witnesses and also proved some documents. The defence of the appellant is of false implication and the same defence he setforth in his statement recorded under section 313 of CrPC. However, he did not choose to examine any witness in support of his defence. 4. The learned trial Judge on the basis of evidence placed on record came to hold that charge under section 302 IPC has been proved against the appellant and eventually convicted and passed the sentence to suffer imprisonment and fine of Rs.1,000/- in default further RI of one year. 5. In this manner this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 6. 5. In this manner this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 6. Shri Yashpal Rathore, learned counsel for the appellant submits that looking to the testimony of sole eye-witness Jeewani Devi (PW5) it cannot be said that appellant has dealt the blow of iron rod on the head of the deceased resulting into his death. Learned counsel further submits that this witness is the wife of the deceased and, therefore, her evidence should not be relied upon. 7. An alternative submission has also been put forth by him that if this Court comes to the conclusion that on account of giving the blow of iron rod on the head of the deceased he had died, since there is no previous enmity and because the deceased happens to blow conch shell (shankh) in high tone in his house during the dawn hours which was not being liked by the appellant, if he had given the single blow of iron rod at the most the case would rest within the sphere of section 304 Part-I IPC. 8. On the other hand, Shri Yadav, learned Public Prosecutor argued in support of the impugned judgment and submitted that looking to the unimpeachable testimony of the wife of the deceased, coupled with the injury which was sustained by the deceased, learned trial Court has rightly convicted the appellant under section 302 IPC and, therefore, this appeal sans substance and same be dismissed. 9. Having heard learned counsel for the parties we are of the considered view that this appeal deserves to be allowed in part. 10. In the present case the FIR Ex.P-2 has been lodged by the son of the deceased namely Mohansingh (PW2) but he is not an eye-witness and he was informed on phone about the incident by his mother Jeewani Devi (PW5) who had seen the incident and without wasting any time rang to this witness to come immediately at the spot as a result of which, this witness arrived at the spot and found that his father is dead having injury on his head. Thereafter this witness went to lodge the report and has also proved the FIR Ex.P-2 lodged by him. Thereafter this witness went to lodge the report and has also proved the FIR Ex.P-2 lodged by him. According to this witness, the cause of committing injury to the deceased was that while offering the pooja (prayer) the deceased happens to blow the conch shell (shankh) which made annoyance to the appellant. According to us although this witness is not an eye-witness but his testimony is relevant piece of evidence and is admissible under section 157 of the Evidence Act because soon after the incident immediately the eye-witness Jeewani Devi (PW5) telephonically informed this witness about the incident and immediately thereafter he rushed to the place of occurrence. The ambit and scope of section 157 of the Evidence Act has been taken into account by the Supreme Court in some decisions. They are Smt. Chander Kala v. Ram Kishan [ AIR 1985 SC 1268 , para 9], and State of Tamil Nadu v. Suresh [1998 Cri.LJ 1416]. In the case of Smt. Chander Kala the Supreme Court held as under : “9. In our view the reasoning and appreciation suffer from a legal error and almost sound perverse. Assuming that the complainant’s conduct in narrating all that transpired on 10th March to three of her colleagues is not res gestea and hence inadmissible under section 6 of the Evidence Act, the same when corroborated by the three witnesses is clearly admissible under section 157 of the Evidence Act and therefore ignoring such crucial and relevant evidence has led the Court to give undue importance to the so-called delay in lodging the report with the police. In fact it could not be regarded as a case of any delayed report, for, it should have been appreciated that it was the second incident when the accused actually assaulted the complainant by catching hold of her arm and tried to outrage her modesty that the culminating point was reached and immediately the same evening (of 18th March) she lodged her complaint with the police. It is surprising that the High Court without paying any attention to this legal error implied confirmed the Sessions Court’s view about the inadmissibility of that evidence. It is surprising that the High Court without paying any attention to this legal error implied confirmed the Sessions Court’s view about the inadmissibility of that evidence. It is thus clear that such subsequent conduct on the part of the complainant in narrating all that transpired at the accused’s residence to three of her colleagues on the following day (supported as it was by the three witnesses) lent ample corroboration to her story. Similarly in Suresh (supra), in para 28 the Supreme Court has held as under : 28. We think that the expression “at or about the time when the fact took place” in section 157 of the Evidence Act should be understood in the context according to the facts and circumstances of each case. The mere fact that there was an intervening period of a few days, in a given case, may not be sufficient to exclude the statement from the use envisaged in section 157 of the Act. The test to be adopted, therefore, is this : Did the witness have the opportunity to concoct or to have been tutored? In this context the observation of Vivian Bose, J. in Rameshwar v. State of Rajasthan [ AIR 1952 SC 54 ], is apposite: “There can be no hard and fast rule about the ‘at or about the’ condition; in section 157. The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction.” (Emphasis supplied) 11. Yet there is another decision of the Supreme Court Rameshwar s/o Kalyan Singh v. The State of Rajasthan [ AIR 1952 SC 54 ], which has been relied by the apex Court in Suresh (supra). In this decision the Supreme Court has held while placing reliance on this type of witness the Court should first ascertain that did the witness have opportunity to concoct or to have been tutored? These three decisions have been relied upon by the Division Bench of this Court in Chander Singh Chamar v. State of M.P. [ 2007(III) MPWN 68 = 2007(3) MPHT 485 ]. According to us there can be no hard and fast rule about “it or about” condition in section 157 of the Evidence Act. These three decisions have been relied upon by the Division Bench of this Court in Chander Singh Chamar v. State of M.P. [ 2007(III) MPWN 68 = 2007(3) MPHT 485 ]. According to us there can be no hard and fast rule about “it or about” condition in section 157 of the Evidence Act. The main test is whether the statement was made as early as can reasonably be exposed in the circumstances of the case and before there was opportunity of tutoring or concoction. In the present case the deceased was the father of the author of the FIR Mohansingh (PW2) and the eye-witness Jeewani Devi (PW5) is the wife of the deceased was present at the spot at the time of occurrence and because without wasting any time immediately she rang to her son PW2 and informed him on telephone about the incident, according to us the testimony of Mohansingh (PW2) is quite relevant and admissible in evidence as envisaged under section 157 of the Evidence Act although he is not an eye-witness. In a later pronouncement the Supreme Court in Ramashray Yadav v. State of Bihar [ AIR 2006 SC 201 ], has laid down the same proposition of the law. 12. On going through the testimony of the eye-witness Jeewani Devi (PW5) we find that at 6 in the morning when the deceased was offering pooja in the Shiv Temple and was coming back the appellant came out from his house having an iron rod in his hand and dealt its blow on the head of the deceased and this she saw from her house which is not far away. On receiving the injury by iron rod the deceased fell down on the ground and on seeing the scene by the witness she started screaming and on hearing her shriek, the neighbours assembled at the place of occurrence thereafter the appellant fled from the place of occurrence and she found that the deceased was having injury on the head and he was besmeared in the blood. Nothing has been carved out from her testimony in order to disbelieve her and, therefore, according to us looking to her unimpeachable testimony it is as clear like a noon day that it was appellant who caused the blow of iron rod on the person of the deceased as a result of which he had died. 13. Nothing has been carved out from her testimony in order to disbelieve her and, therefore, according to us looking to her unimpeachable testimony it is as clear like a noon day that it was appellant who caused the blow of iron rod on the person of the deceased as a result of which he had died. 13. The evidence of the eye-witness Jeewani Devi (PW5) and son of the deceased Mohansingh (PW2) is further also medically corroborated. Dr. Hemant Patel (PW1) has found the following injuries on the person of the deceased which are also mentioned in the post-mortem report Ex.P-1: (1) Brain matter seen out of the skull cavity fracture of the parietal, occipital frontal vault are crushed. (2) Lacerated wound 5”x1” bone deep from the palmer aspect of the left little finger to the dorsal aspect of the left right finger. (3) Fracture left 4th and 5th interphalangeal joint. (4) Fracture 9th, 10th, 11th, rib in left side of chest on the front part. 14. On examining the testimony of Jeewanti Devi (PW5) and Mohansingh (PW2) vis-a-vis to the evidence of Autopsy Surgeon Dr. Hemant Patel (PW1), the post-mortem report of the deceased Ex.P-1 we do not have any doubt in our mind in holding that it was appellant who dealt the iron rod blow on the person of the deceased as a result of which, he had died. 15. We shall now advert ourselves to the alternative submission put forth by learned counsel for the appellant. It has been proved by the evidence of wife and son that because during the dawn hours the deceased used to offer pooja and was also blowing the conch shell (shankh) which was disliked by the appellant who is his neighbour it made annoyance to him, hence, on the date of incident when the deceased was coming back after offering pooja the iron rod blow was dealt by the appellant. Since, there appears to be no previous enmity and the incident had occurred all of a sudden on account of the blowing of conch shell (shankh). The case of appellant would come within the ambit and scope of section 304 Part-I IPC and accordingly the conviction of appellant is altered from section 302 IPC to 304 Part-I IPC and is, hereby, sentenced to 10 years RI and fine as directed by the trial Court with defaulting clause. 16. The case of appellant would come within the ambit and scope of section 304 Part-I IPC and accordingly the conviction of appellant is altered from section 302 IPC to 304 Part-I IPC and is, hereby, sentenced to 10 years RI and fine as directed by the trial Court with defaulting clause. 16. Resultantly, this appeal succeeds in part to the extent indicated hereinabove. .............