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2013 DIGILAW 245 (CHH)

LEDU RAM v. STATE OF C. G.

2013-08-26

Radhe Shyam Sharma, SATISH K.AGNIHOTRI

body2013
ORAL JUDGMENT 1. This appeal is directed against judgment dated 26-09-2008 passed by Sessions Judge, Surguja (Ambikapur) in Sessions Trial No.441/07. By the impugned judgment, accused/appellant Ledu Ram has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. 2. The facts, briefly stated, are as under: Deceased Sukhanibai was wife of the appellant and Pagul Ram (PW3) is younger brother of the appellant. On the issue of purchase of an ox, the appellant and the deceased used to quarrel. The deceased used to say the appellant that he should not have indulged himself in such a matter and on this, the appellant was getting irritated. On 27-06-2007, at about 7 pm, the appellant assaulted the deceased inside his house. Basanti, who is daughter of the appellant and the deceased, went to the house of Pagul Ram (PW-3) and told him that the appellant was assaulting the deceased. Pagul Ram (PW-3) came to the house of the appellant. At that time, the appellant had closed the door of his house from inside and deceased Sukhanibai was crying. The appellant did not open the door. The deceased died in the night. On the next morning, villagers gathered there. They saw that the dead body of the deceased was lying inside the house of the appellant and the deceased had sustained injuries over her body. Village Kotwar Golo Ram (PW-2) went to Police Station Kusami and lodged a report where First Information Report (Ex.-P/6) and Merg Intimation (Ex.-P/7) were recorded. Investigating Officer reached the place of occurrence, gave notice (Ex.-P/1) to Panchas and prepared inquest (Ex.-P/2) on the dead body of the deceased. The dead body of the deceased was sent to Community Health Center (CHC), Kusami. Postmortem examination on the dead body of the deceased was conducted by Doctor T. Say (PW-5) who gave his report (Ex.-P/5) finding: (i) bruise of 4 x 3 cms. in irregular shape over left cheek, (ii) bruise of 8 x 3 cms. in irregular shape over left side of chest, (iii) bruise of 3 x 2 cms. in irregular shape on right cheek, (iv) bruise of 4 x 3 cms. in irregular shape on left arm, (v) bruise of 3 x 2 cms. in irregular shape over left cheek, (ii) bruise of 8 x 3 cms. in irregular shape over left side of chest, (iii) bruise of 3 x 2 cms. in irregular shape on right cheek, (iv) bruise of 4 x 3 cms. in irregular shape on left arm, (v) bruise of 3 x 2 cms. in irregular shape on left forearm, (vi) bruise of 6 x 3 cms. in irregular shape over right forearm, (vii) bruise of 7 x 3 cms. in irregular shape on right side of abdomen, (viii) bruise of 4 x 3 cms. in irregular shape on right thigh, (ix) bruise of 3 x 2 cms. in irregular shape on knee of right leg, (x) bruise of 6 x 4 cms. in irregular shape on left side of back. On internal examination, he found that spleen was ruptured and 8th, 9th and 10th ribs were fractured. The cause of death was shock and internal haemorrhage due to rupture of spleen and injury on thorax 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/3 and at his instance, lathi was seized vide EX.-P/4. Spot map (Ex.-P/5) was prepared. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ambikapur, who, in turn, committed the case to the Court of Sessions Judge, Ambikapur who conducted the trial and convicted and sentenced the appellant/accused as mentioned above. 3. Shri N.K. Chatterjee, learned counsel for the appellant argued that the finding of guilt recorded on the basis of Circumstantial evidence is not reasonable. The appellant is not responsible for the death of the deceased. He further argued that the circumstantial evidence is not conclusive and it is well settled law that strong suspicion is no substitute for a proof, therefore, the finding recorded by the learned Sessions Judge is not sustainable and the appellant deserves to be acquitted. 4. Shri N.K. Mehta, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge 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 Sessions Trial No.441/07. 4. Shri N.K. Mehta, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge 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 Sessions Trial No.441/07. Admittedly, there is no eye-witness to the incident and the case of the prosecution is based on the circumstantial evidence. 6. It is a settled principle of law that in a case based on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances from which the conclusion of guilt has to be drawn, should be fully established. It is also well settled that suspicion, however grave it may be, cannot be substitute for a proof and the Court should take utmost precaution in finding the accused guilty on the basis of circumstantial evidence. 7. In Jagroop Singh Vs. State of Punjab, AIR 2012 SC 2600 , the Hon'ble Supreme Court observed thus:- "13. In Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 , a three-Judge Bench has laid down five golden principles which constitute the "panchsheel" in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra AIR 1973 SC 2622 : (1973) 2 SCC 793 , it was opined that it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 14. 14. In Pad ala Veera Reddy v. State of Andhra Pradesh and others 1989 Supp (2) SCC 706, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (SCC pp. 710-11, para 10) "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." The similar view has been reiterated in Ramreddy Rajesh Khanna Reddy and another v. State of A.P. (2006) 10 SCC 172 15. In Balwinder Singh v. State of Punjab AIR 1996 SC 607 , it has been laid down that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof. 16. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof. 16. In Harishchandra Ladaku Thange v. State of Maharashtra AIR 2007 SC 2957 , while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasised that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 17. In State of U.P. v. Ashok Kumar Srivastava AIR 1992 SCW 640 , emphasis has been laid that it is the duty of the Court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonably capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypothesis that the accused is guilty. 18. In Ram Singh v. Sonia and Ors. AIR 2007 SC 1218 , while referring to the settled proof pertaining to circumstantial evidence, this Court reiterated the principles about the caution to be kept in mind by Court. It has been stated therein that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. 19. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. 19. In Ujagar Singh v. State of Punjab (2007) 13 SCC 90 , after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, this Court stated that it must nonetheless be emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted." 8. Pagul Ram (PW-3) deposed that the appellant is his elder brother and the deceased was wife of the appellant. The deceased was residing with the appellant in his house. His house is adjacent to the house of the appellant. He further deposed that on the date of incident, at about 5:00 pm, some quarrel took place between the deceased and the appellant. He further deposed that he heard some cry from the house of the appellant. On the next morning, at about 4 am, the appellant called him and told that deceased (Sukhanibai) died. He further deposed that he went to Village Kotwar Golo Ram (PW-2) and thereafter they came to the house of the appellant where the dead body of the deceased was lying inside the room. 9. Golo Ram (PW-2) deposed that Mahendra, brother of the appellant, came to his house and told him that the appellant killed his wife (deceased). Then he went to the house of the appellant and saw that the dead body of the deceased was lying inside the room and she sustained injuries on her neck, chest, thigh and arm. He further deposed that Mahendra told him that some quarrel took place between the appellant and the deceased on account of an ox. 10. Jatru Ram (PW-1) also deposed that he went to the house of the appellant and saw that dead body of the deceased was lying inside the room and she had sustained injuries. 11. Golo Ram (PW-2) deposed that he went to Police Station Kusami and lodged First Information Report (Ex.-P/6) and Merg Intimation (Ex.-P/7) in Police Station Kusami. 10. Jatru Ram (PW-1) also deposed that he went to the house of the appellant and saw that dead body of the deceased was lying inside the room and she had sustained injuries. 11. Golo Ram (PW-2) deposed that he went to Police Station Kusami and lodged First Information Report (Ex.-P/6) and Merg Intimation (Ex.-P/7) in Police Station Kusami. Assistant Sub-Inspector Mahendra Singh (PW-6) deposed that on 28-06-2007, at about 12.00 noon, Golo Ram (PW-2) came to Police Station Kusami and lodged report and he recorded First Information Report (Ex.-P/6) and Merg Intimation (Ex.-P/7). Thereafter, he reached the place of occurrence, gave notice (Ex.-P/1) to Panchas and prepared inquest (Ex.-P/2) on the dead body of the deceased. He sent the dead body of the deceased to CHC, Kusami for postmortem examination. He prepared spot map (Ex.-P/5) of the place of occurrence. 12. In the inquest (Ex.-P/2) and spot map (Ex.-P/5), the place of occurrence is mentioned as house of the appellant. From perusal of inquest (Ex.-P/2) and spot map (Ex.-P/5), it appears that the dead body of the deceased was lying in the room of the house of the appellant. In the inquest (Ex.-P/2) also, finding of the dead body of the deceased is shown at the house of the appellant. 13. Looking to the evidence of Pagul Ram (PW-3), Golo Ram (PW2) and Jatru Ram (PW-1), it appears that they went to the house of the appellant and they saw that the dead body of the deceased was lying inside the room of the appellant. Pagul Ram (PW-3) specifically deposed that at about 7.00 pm, some quarrel took place between the deceased and the appellant and he heard crying of the deceased. On the next morning, at about 4.00 am, the appellant told him that the deceased died. 14. In the instant case, Doctor T. Say (PW-5) deposed that he conducted postmortem on the dead body of the deceased and gave his report (Ex.-P/11). He deposed that cause of death was shock and internal haemorrhage due to rupture of spleen and injury on thorax and the death was homicidal in nature. 15. 14. In the instant case, Doctor T. Say (PW-5) deposed that he conducted postmortem on the dead body of the deceased and gave his report (Ex.-P/11). He deposed that cause of death was shock and internal haemorrhage due to rupture of spleen and injury on thorax and the death was homicidal in nature. 15. The incriminating circumstances which point towards the guilt of the appellant were put to the appellant under Section 313 Cr.P.C. He answered that :- ^^esjk HkkbZ ikxqy tcju cSy [kksydj ys x;k Fkk rks eaS mls okil vius ;gk¡ ys vk;kA rc ikxqy ykBh ysdj esjs ;gk¡ vk;k vkSj ykBh ls eq>s ekjus yxk rks esjh iRuh us chp&cpko fd;k rks ikxqy us mls Hkh ykBh ls ekjk ftlds dkj.k vkbZ pksVksa ds ifj.kkeLo:i lq[kuhckbZ dh e`R;q gks xbZA eS funksZ”k gw¡A^^ 16. Had Pagul Ram (PW-3) assaulted the deceased, the appellant would have tried to save the deceased and shouted for help and immediately disclosed the incident to Village Kotwar, Sarpanch or Ward Members but he did not shout for help and even he did not disclose anyone regarding the assault done by Pagul Ram (PW-3), therefore, the defence of the appellant is not acceptable. The dead body of the deceased was found inside the room of the house of the appellant. The house was closed from inside. When villagers gathered to the house of the appellant, the appellant did not disclose them that his wife was killed by Pagul Ram (PW-3). Therefore, the defence taken by the appellant is not sustainable. 17. In Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 , the Hon'ble Supreme Court observed thus: "14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions 1-quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh, (2006) 10 SCC 681 .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. …………..” 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 18. In State of Rajasthan Vs. Kashiram, (2006) 12 SCC 254 , the Hon'ble Supreme Court observed thus: "19. .......... whether an inference ought to be drawn under Section 106 Evidence Act is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. 23. .......... The principle is well settled. .......... whether an inference ought to be drawn under Section 106 Evidence Act is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. 23. .......... The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his epical knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. .........." These principles have been further reiterated in the matter of State of Rajasthan Vs. Parthu, AIR 2008 SC 10 . 19. The appellant miserably failed to prove his defence. The appellant failed to offer any reasonable and proper explanation in discharge of burden placed on him and he did not throw any light upon the facts which were in his knowledge. The appellant could not explain as to how the deceased was killed and in what circumstances the incident took place in which the deceased person died homicidal death. 20. The cumulative effect of the circumstances are brought by the prosecution by way of evidence. The appellant could not explain as to how the deceased was killed and in what circumstances the incident took place in which the deceased person died homicidal death. 20. The cumulative effect of the circumstances are brought by the prosecution by way of evidence. The prosecution witnesses have clearly deposed that the dead body of the deceased was lying inside the room. The appellant took defence that Pagul Ram (PW-3) assaulted the deceased but the appellant was notable to prove his defence. The learned Sessions Judge rightly disbelieved the defence of attack by Pagul Ram (PW-3). On a close scrutiny of the evidence on record we are convinced that the circumstances that have been proved are that :- 1. occurrence took place in the midnight; 2. the deceased was found lying dead inside the room; 3. the accused/appellant lived with her in his house and accused/ appellant was present at the time of incident. The aforesaid circumstances clearly established that the prosecution has proved the guilt of the appellant and the circumstances are conclusive in nature to exclude every hypothesis but the one proposed to be proved. The chain of evidence is absolutely complete. Thus, we have no hesitation in holding that the appellant assaulted the deceased. 21. Learned counsel for the appellant argued that the injuries sustained by the deceased were on cheek, chest, arm and back and not on any vital part and the injuries caused to the deceased were not intended. Therefore, offence under Section 302 IPC is not made out and the act of the appellant would be punishable under some lesser section. 22. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 of the Indian Penal Code. 23. 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. 24. In the instant case, Doctor T. Say (PW-5) deposed that he found near about 10 bruises on the body of the deceased and injury no.2 was present on the chest and injury no.7 was present on the abdomen and on internal examination he found that spleen was ruptured and 8th, 9th and 10th ribs were fractured. 25. In the instant case, the appellant gave multiple lathi blows to the deceased and one of the injuries of the deceased was on the abdomen and one injury was on chest and due to above injuries, spleen had ruptured and 8th, 9th and 10th ribs were fractured. The incident took place in the night inside the house of the appellant and deceased Sukhanibai was residing with the appellant. The appellant gave lathi blows to the deceased. It is also evident that some quarrel took place between the deceased and the appellant and according to Pagul Ram (PW-3), the deceased and the appellant both had consumed liquor and they quarreled with each other in drunken state and the appellant assaulted the deceased. The appellant gave lathi blows to the deceased. It is also evident that some quarrel took place between the deceased and the appellant and according to Pagul Ram (PW-3), the deceased and the appellant both had consumed liquor and they quarreled with each other in drunken state and the appellant assaulted the deceased. Therefore, we are of the view that in the above facts and circumstances of the case, the intention of the appellant cannot be inferred but knowledge can well be inferred that his such act was likely to cause death of his wife (deceased). 26. We are of the view that in the above facts and circumstances of the case where intention of the appellant was lacking, the act of the appellant would not be punishable under Section 302 IPC, but would be punishable under Part II of Section 304 IPC. 27. 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 for the period already undergone by him. It is stated that the appellant is in jail since 02-07-2007 i.e. for about 6 years 1 month and 24 days. Appeal Partly Allowed.