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2013 DIGILAW 238 (CHH)

LOHARAN RAM v. STATE OF C. G.

2013-08-13

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

body2013
JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. 1. This appeal is directed against judgment dated 18-03-2008 passed by Sessions Judge, Jashpur in Sessions Trial No. 97/2007. By the impugned judgment, accused/appellant Loharan Ram has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: Deceased Kant Kumar was son of the appellant. Sewati Bai (PW-1) is wife of the appellant. Abhay Kumar Ram (PW-3) is son of the appellant. The deceased was brother of Abhay Kumar Ram (PW-3) and son of Sewati Bai (PW-1). The deceased was residing alongwith the appellant in the house of the appellant. On the fateful day, Sewati Bai (PW-1) had gone to her sister's house at Village Katu Jamtola, On Monday morning, the appellant told Abhay Kumar Ram (PW-3) that he killed deceased Kant Kumar with a Martul (hammer) on the same day, Sewati Bai (PW-1) came back to her house then Abhay Kumar Ram (PW-3) narrated the incident to her. Sewati Bai (PW-1) lodged merg intimation (Ex.P-1) and First Information Report (Ex.P-13) in Police Outpost Ara. Thereafter, regular First Information Report was recorded in Police Station Jashpur. The Investigating Officer reached the place of occurrence, gave notice to panchas and prepared inquest (Ex.P-11) on the dead body of deceased Kant Kumar. The dead body of the deceased was sent to the Government Hospital, Jashpur for post mortem examination vide Ex.P.-14. Dr. Smt. Manju Minj (PW-5) conducted post mortem examination on the dead body of the deceased and gave her report (Ex.P-8), in which she found (i) lacerated wound of 6 cm x 5 cm on left lower occipital region of head (ii) lacerated wound of 5 cm x 2 cm over left and his parietal bone was fractured. She opined that cause of death of the deceased was haemorrhagic shock as a result of head 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.-2 and at his instance the Martul (hammer) was seized vide Ex.P-4. Lock and key were seized from the appellant vide Ex.P-5 Sando Baniyan and half pant were seized vide (Ex.P.6) Spot map Ex.P-15 was prepared. In further investigation, memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.P.-2 and at his instance the Martul (hammer) was seized vide Ex.P-4. Lock and key were seized from the appellant vide Ex.P-5 Sando Baniyan and half pant were seized vide (Ex.P.6) Spot map Ex.P-15 was prepared. 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 the Court of Session, Jashpur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Pankaj Agrawal, learned counsel appearing on behalf of the appellant has not disputed the homicidal death of the deceased. He has also not disputed the involvement of the appellant in the incident. He has argued that in the above facts and circumstances of the case, when in a sudden quarrel, the appellant gave blow to the deceased by the Martul (hammer) an offence u/s 302 IPC would not be made out and the act of the appellant would be punishable under some other section providing lesser punishment preferably under Part-II of Section 304 IPC. 4. On the other hand, Mr. Akhil Mishra, learned Dy. Government Advocate appearing on behalf of the State, opposed the above arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the record of the sessions case. 6. We have gone through the evidence of Abhay Kumar Ram (PW-3). He is son of the appellant and brother of the deceased. Abhay Kumar Ram (PW-3) deposed that in the night of Sunday, he was sleeping in the house alongwith the appellant and the deceased. He further deposed that in the morning of Monday, he saw that Kant Kumar (deceased) was lying dead in the house. The appellant told him that he killed deceased Kant Kumar with a Martul (Hammar). He further deposed that he narrated the incident to her mother Sewati Bai (PW-1), Abhay Kumar Ram (PW-3) stated in his cross-examination that his father (the appellant) told him that he killed-deceased Kant Kumar with the Martul (Hammer). At that time he was alone at the house. 7. In Gura Singh Vs. State of Rajasthan (2001) 2 SCC 205 , the Hon'ble Supreme Court observed as follows: "6. At that time he was alone at the house. 7. In Gura Singh Vs. State of Rajasthan (2001) 2 SCC 205 , the Hon'ble Supreme Court observed as follows: "6. It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 , this Court again in Maghar Singh v. State of Punjab, (1975) 4 SCC 234 , held that the evidence in the form of extrajudicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of MP., (1985) 4 SCC 26 , this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extrajudicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P., (1991) 1 SCC 286 , this Court held that an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. In Kishore Chand v. State of H.P., (1991) 1 SCC 286 , this Court held that an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law Sewati Bai (PW-1) suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in Baldev Raj v. State of Haryana, 1991 Supp (1) SCC 14. After referring to the judgment in Piara Singh v. State of Punjab, (1977) 4 SCC 452 , this Court in Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 , held that the extrajudicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration." 8. In Aftab Ahmad Anasari Vs. State of Uttaranchal, (2010) 2 SCC 583 , the Hon'ble Supreme Court observed as follows: “52. Though extra-judicial confession is considered to be a weak piece of evidence by the courts, this Court finds that there is neither any rule of law nor of prudence that the evidence furnishing extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The evidence relating to extra-judicial confession can be acted upon if the evidence about extra-judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused. 53. The evidence relating to extra-judicial confession can be acted upon if the evidence about extra-judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused. 53. In State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 , this Court, while explaining the law relating to extra-judicial confession, ruled that if the words spoken by the witness are clear, unambiguous and unmistakable, one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then 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 a conviction. According to this Court, in such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon." 9. We have carefully perused the evidence of Abhay Kumar Ram (PW-3). He specifically deposed that his father (the appellant) told him that he killed deceased Kant Kumar with the Martul (Hammer). Form the medical evidence, we find that the deceased died due to haemorrhagic shock as a result of head injury and the death was homicidal in nature. The evidence of extra-judicial confession made by the appellant before Abhay Kumar Ram (PW-3) that he killed Kant Kumar (the deceased) is reliable and the extra-judicial confession of the appellant can be the basis for conviction. 10. Now, we shall examine the matter in light of the provisions of section 302 vis-a-vis Section 304 IPC. 11. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. 10. Now, we shall examine the matter in light of the provisions of section 302 vis-a-vis Section 304 IPC. 11. 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. 12. Assistant Sub-Inspector Vinod Kumar Shrivas (PW-8) deposed that on 08/05/2007 Sewati Bai (PW-1) lodged a report. On the basis of merg intimation (Ex.P-1) he recorded First Information Report (Ex.P-13). He went to the place of occurrence and prepared inquest (Ex.P-11), on the dead body of the deceased and he sent the dead body of the deceased to Government Hospital Jashpur for post mortem examination. On the basis of merg intimation (Ex.P-1) he recorded First Information Report (Ex.P-13). He went to the place of occurrence and prepared inquest (Ex.P-11), on the dead body of the deceased and he sent the dead body of the deceased to Government Hospital Jashpur for post mortem examination. Dr. Smt. Manju Mihj (PW-5) deposed that she conducted post mortem examination on the dead body of the deceased and gave her report (Ex.P-8), in which she found (i) lacerated wound of 6 cm x 5 cm over left lower occipital region of head (ii) lacerated wound of 5 cm x 2 cm over left parietal bone and the parietal bone was fractured. She further deposed that the cause of death of the deceased was heamorrhagic shock as a result of the head injury and the death was homicidal in nature. The Autopsy Surgeon also found that the above injury caused by a Martul (Hammer). Therefore, we do not find any Infirmity in the finding recorded by the Sessions Judge that it was the appellant who assaulted the deceased by the Martul (Hammer) due to which the deceased received above injuries and succumbed to these injuries. 13. The incident took place inside the house of the appellant, in which the appellant and deceased Kant Kumar were residing together. The incident took place in the night. Abhay Kumar Ram (PW-3) specifically deposed that the appellant sold Mahua of the deceased and some quarrel took place between the appellant and the deceased. The above evidence of Abhay Kumar Ram (PW-3) makes it clear that a quarrel had preceded the incident. Abhay Kumar Ram (PW-3) did not depose that he witnessed the incident and the appellant was armed with a Martul (Hammer). Looking to the evidence of Abhay Kumar Ram (PW-3), it shows that there was no preparation or premeditation on the part of the appellant who committed murder of his son (deceased). All these make it clear that the appellant had no intention to commit murder of his son (deceased). It appears that a sudden quarrel took place between father (appellant) and his son (deceased). The father (appellant) became angry and in heat of passion, he picked up a Martul (Hammer) and gave blow on the skull of the deceased. All these make it clear that the appellant had no intention to commit murder of his son (deceased). It appears that a sudden quarrel took place between father (appellant) and his son (deceased). The father (appellant) became angry and in heat of passion, he picked up a Martul (Hammer) and gave blow on the skull of the deceased. We ate of the view that in the above facts and circumstances of the case, intention of the appellant cannot be inferred, but knowledge can well be inferred that his such act was likely to cause death of his son. 14. In Gurumukh Singh Vs. State of Haryana, (2009) 15 SCC 635 , the Hon'ble Supreme Court discussed some factors which are required to be taken into consideration before awarding appropriate sentence to the accused in such case with a caution that these factors are only illustrative in character and not exhaustive. (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury. (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury. (f) The age and general health condition of the accused; (g) Whether the injury was caused without pre-meditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused, (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused. (l) Incident occurred within the family members or close relations; & (m) The conduct and behavior of the accused .after the incident. 15. In Jagtar Singh Vs. State of Punjab, (1983) 2 SCC 342 , the Hon'ble Supreme Court held thus: "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 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." 16. In Satish Narayan Sawant Vs. State of Goa, (2009) 17 SCC 724 , the Hon'ble Supreme Court held thus: "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." 17. We have examined the instant case in light of the above factors and also in light of the provisions of Section 302 vis-a-vis Section 304 IPC. We have examined the instant case in light of the above factors and also in light of the provisions of Section 302 vis-a-vis Section 304 IPC. We are of the view that in the above facts and circumstances of the case, where the intention of the appellant was lacking, the act of the appellant would not be punishable under Section 302 IPC and the appellant would be liable for punishment under Part II of Section 304 IPC. 18. 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, the appellant is convicted under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for 8 years. The appellant is in jail since 10.05.2007. He shall be entitled to set-off for the period already undergone. Appeal Partly Allowed.