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2014 DIGILAW 59 (CHH)

Shyam Sundar v. State of C. G.

2014-02-11

MANINDRA MOHAN SHRIVASTAVA, YATINDRA SINGH

body2014
JUDGMENT 1. These two appeals are being decided by this common order as both the appeals arise out of judgment of conviction and order of sentence dated 30th September, 2008 passed by learned Special Judge (under the provision of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Korea, in Special Case No. 13/06, whereby and where under the appellants in both the appeals have been held guilty of commission of offence alleged against them and sentenced as described below- Conviction Offence Under Section 302/34 IPC Life imprisonment with fine of Rs. 500/- in default to payment of fine amount, additional R.I. for 3 months, to each of the appellants Prosecution Story: A merg intimation in Ex. P/1 was lodged in Police Station - Kelhari by Mansingh (PW1) on 12/05/05 at 16:10 hrs., in which it was stated by him that his brother-in-law Vijay Singh was assaulted with axe by Bhagirathi, Shyam Sundar and his son Rajkumar in which incident, Vijay Singh has died. Upon receipt of information with regard to death of Vijay, which prima facie disclosed commission of offence, FIR was registered at 16:20 hrs. in the Police Station-Kelhari in Ex. P/2. In the FIR, Mansingh (PW1) stated that he is the resident of village-Shripur and a gond tribal. His brother in law Vijay was going to his house after meeting Jadunath at about 3:00 p.m. in the afternoon and at that time, in the field of Shyam Sundar, he was pulled down from his bicycle and assaulted by axe and club by Shyam Sundar, Bhagirathi and Rajkumar. The incident has been seen by Rangu. His brother in law has been murdered due to old enmity. Two-three days before the date of incident, there was altercation and heated talks between the deceased and Shyam Sundar. Jadunath has seen Bhagirathi hurling abuses and running with an axe in his hand. The police proceeded to the scene of occurrence and prepared inquest report over dead body. The dead body was sent for postmortem and Dr. Puran Singh (PW11) conducted postmortem of the dead body at 11:30 a.m. on 13/05/05. Upon examination of internal and external injuries, doctor opined that the mode of death was shock due to excessive hemorrhage from brain due to ante-mortem injury by sharp object and was homicidal in nature. The memorandum of Shyam Sundar and Bhagirathi was taken in Ex. P/11 and Ex. Upon examination of internal and external injuries, doctor opined that the mode of death was shock due to excessive hemorrhage from brain due to ante-mortem injury by sharp object and was homicidal in nature. The memorandum of Shyam Sundar and Bhagirathi was taken in Ex. P/11 and Ex. P/12 and it is the case of the prosecution that on the basis of the memorandum an axe was recovered at the instance of Bhagirathi and a club (laathi) Was recovered on the disclosure statement of Shyam Sundar. The police also recovered blood stained soil, clothes of the deceased & appellant and sent those articles for chemical examination to FSL. After completion of usual investigation and recording diary statement under Section 161 Cr.P.C., police filed charge-sheet before the Special Court. 2. On the basis of the material contained in the charge-sheet, the learned trial Court framed charges on 29/08/05, in which, it was alleged that on 12/05/05 at 15:00 hrs. the appellants with common intention to cause death of Vijay Singh, who belonged to scheduled tribe, assaulted with the help of axe and club and caused his death and thereby committed offence punishable under Section 302/34 IPC and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The third accused Rajkumar being juvenile was separately tried by the Juvenile Justice Board. The appellants abjured guilt and they were put to trial. In order to prove its case, the prosecution examined as many as 13 witnesses. The appellants were also examined under Section 313 of Cr.P.C. on 02/06/08 in respect of the incriminating evidence appearing against them in the evidence led by the prosecution. The appellants denied having committed any offence. In order to prove its defence, the appellant examined Kodulal (D.W.1) as a sole defence witness. Relying upon the evidence led by the prosecution, learned trial Court held the appellants Shyam Sundar and Bhagirathi guilty of commission of offence and sentenced as described above. 3. Assailing the correctness and validity of impugned judgment of conviction and sentence, learned counsel for the appellants argued that the evidence of sole eyewitness-Rangu (PW9) is not reliable and trustworthy. It is contended that this witness in para-11 of his testimony, has stated that at the time when Vijay died, he was sleeping in the house with his wife. Thus, he is a concocted witness. It is contended that this witness in para-11 of his testimony, has stated that at the time when Vijay died, he was sleeping in the house with his wife. Thus, he is a concocted witness. The statement of Rangu (PW9) suffers from serious contradictions and omissions. In the diary statement, no specific overt act was alleged against the appellants and there is improvement in the statement that Shyam Sundar caught hold of the deceased and Bhagirathi assaulted with the help of axe. It is also submitted that the witness has admitted that he suffers from weak eyesight and even according to the prosecution, the distance of the house of this witness from the place of incident is 200 yards. Therefore, the evidence of Rangu (PW9) is not at all reliable. Particularly, with regard to the involvement of Shyam Sundar, it has been submitted that in the Court statement, it has been stated for the first time that Shyam Sundar caught hold of deceased. The medical evidence proves that deceased sustained solitary incised wound. Therefore, the involvement of Shyam Sundar on the basis of so called eyewitness account Rangu (PW9) does not get support from the medical evidence. Learned counsel for the appellants further argues that the memorandum statement and recovery of axe and club has not been supported from independent witnesses of the prosecution. It is also submitted that in the absence of FSL report, recovery of axe and club are inconsequential. 4. On the other hand, learned counsel for the State supports the judgment of conviction and order of sentence and submits that the case of the prosecution is proved beyond reasonable doubt on the basis of truthful account of incident given by Rangu (PW9), who had seen the incident. This witness has repeatedly stated in his examination and cross examination that he has seen the incident. Therefore, the entire evidence, taken in its totality, proves beyond doubt that this witness had seen the incident. It is further submitted that the statement of this witness is corroborated from the evidence of Jadunath Singh (PW3), who deposes that he saw appellant Bhagirathi running alongwith axe in his hand and hurling abuses. The medical evidence supports the evidence of witness that Bhagirathi assaulted the deceased with the help of an axe. There is prompt merg intimation and FIR lodged at 4:10 hrs. and 4:20 hrs. The medical evidence supports the evidence of witness that Bhagirathi assaulted the deceased with the help of an axe. There is prompt merg intimation and FIR lodged at 4:10 hrs. and 4:20 hrs. respectively i.e. within one hour and ten minutes and one hour and twenty minutes, in which, the appellants have been named as assailants. Therefore, the allegation of false implication or improvement has no basis. 5. Homicidal death of Vijay is not substantially disputed. Dr. Puran Singh (P.W.11) has deposed that on 13.5.2005, dead body of Vijay was brought for examination and he conducted postmortem and found following external and internal injuries: external injuries: flj ds Åij e/; esa nkfguh rjQ ,d 8 ls-eh- yEck rFkk 3 l-lh- xgjk bUlkbt oq> fn[k jgk FkkA ftlesa flj ds gM~Mh vanj czsu esa pyh xbZ gS rFkk czsu fV’;w ckjg fudyh gqbZ gSA ogka ij fcyfMax gksus ds ckn CyM lw[k x;k FkkA ;g bUlkbZt oq.M chp esa 2 l-eh- pkSMk gSA bldh ekftZu jsxqyj rFkk Mk;jsD’ku lkeus ls ihNs dh rjQ Fkh vkSj ;gk¡ ls dkQh [kwu fudyk gSA internal injuries: flj dh peM+h gVkus ds ckn 3 ls-eh- yEck rFkk 2 ls-eh- pkSM+kbZ vaMkdkj vkdkj esa ,jsxqyj ekftZu ds lkFk flj dh gM~Mh czsu ds vanj pyh xbZ gS rFkk czsu ds vanj ls CyhfMax gqbZ gSA czsu fV’;w ckgj Hkh fudyh gqbZ gSA czsu fV’;w ‘kkiZ vkctsDV ls dVs gq, gSA** The doctor also deposed that the injury on the head was in the nature of depressed fracture and that was caused six hours before the postmortem. On the basis of the examination of internal and external injuries found on the body of the deceased, doctor proved his opinion and postmortem report Ex. P-19 by deposing that cause of death was shock as a result of excessive bleeding due to ante-mortem injury caused by a sharp edged weapon and is homicidal in nature. In the cross-examination of the doctor, nothing could be elicited to dispute the veracity of testimony of the doctor with regard to nature and extent of injury. He has denied suggestion that the injury on the head could be caused by fall on a sharp edged stone and has clarified that in the postmortem report he has nowhere stated that the injury was caused by any hard or blunt object because he did not find any such injury. He has denied suggestion that the injury on the head could be caused by fall on a sharp edged stone and has clarified that in the postmortem report he has nowhere stated that the injury was caused by any hard or blunt object because he did not find any such injury. Therefore, homicidal death is proved by the prosecution beyond doubt. 6. In order to hold the appellants guilty of commission of offence, learned trial Court has relied upon the eyewitness account of Rangu (P.W.9). Rangu (P.W.9) is the sole eyewitness of the case. He has stated in his evidence that in the afternoon at 3:00 pm, when he was going towards west direction to respond to call of nature, he saw Vijay coming from the North side and going towards South and when he reached near the house of the appellant coming on a bicycle, Rajkumar intercepted and obstructed by putting a club across the bicycle. Thereafter, Shyam Sundar caught and Baghirathi assaulted Vijay with the help of a battle-axe due to which his head was cut and it started bleeding. Vijay fell down on the spot, where after Rajkumar, Baghirathi and Shyam Sundar went to their house. Vijay died at the spot. He then called villagers stating that Vijay has been murdered. Villagers arrived at the spot and then report was lodged in the police station. This witness has been subjected to detailed cross-examination. The evidence of this eyewitness is sought to be impeached mainly on the submission that this witness was sleeping in the house at the time of incident; there are material contradiction and omission rendering testimony un-reliable, witness suffering from weak eyesight and prosecution evidence showing that this witness had seen the incident from far away. Learned counsel for the appellants also sought to impeach reliability and credibility of the testimony of Rangu (P.W.9) by contending that in the case diary statement under Section 161 Cr.P.C., this witness has not stated regarding specific overt act committed by each of the appellants and has given a vague statement that the bicycle of Vijay was obstructed by a club and thereafter he was assaulted by Baghirathi, Shyam Sundar and Rajkumar by a battle axe and club. In the evidence before the Court, the witness, for the first time, has come out with specific overt act of each of the assailants including the appellants. In the evidence before the Court, the witness, for the first time, has come out with specific overt act of each of the assailants including the appellants. Therefore, the evidence of this witness suffers from material contradiction and liable to be disbelieved. To this argument, learned State counsel replied by submitting that if the defence intended to contradict the witness by his previous statement, the attention of the witness ought to be called to those parts of the statement which were intended to be used for the purposes of contradiction. Therefore, that part of the statement to which the attention of the witness was not drawn cannot be used for the purposes of contradiction to impeach credibility of the witness. 7. In order to appreciate the submission of learned counsel for the appellants and respondent with regard to various omissions, contradictions and improvement, it would be relevant to examine the scope and ambit of provision contained in Section 145 of the Evidence Act, which is extracted as below:-- 145. Cross-examination as to previous statements in writing--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 8. A plain reading of the aforesaid provision would show that if it is intended to contradict a witness by his previous statement, his attention must be called to those parts of the previous statement which are to be used for the purposes of contradicting him. Therefore, the part of the diary statement relating to overt act of the witnesses could be used for the purposes of contradicting the witness provided that the attention of the witness was drawn to that part of the case diary statement which are to be used for the purposes of contradicting the witnesses. However, the cross-examination of the witness does not reveal that the attention of Rangu (P.W.9) was drawn to the part of diary statement with regard to the specific overt act by the appellants. However, the cross-examination of the witness does not reveal that the attention of Rangu (P.W.9) was drawn to the part of diary statement with regard to the specific overt act by the appellants. Therefore, learned counsel for the State is correct in submitting that the defence could not use the diary statement of the witness to contradict him with regard to the specific overt act of the appellants. 9. The omissions which have been elicited in the cross-examination of this witness are related to the activity in which he was involved at the time of incident. In the diary statement, this witness has stated that at the time of incident, he was fixing a bamboo in his badi (enclosed field) whereas, in his examination in chief, he has stated that on the date of incident at about 3:00 pm, he was going towards West direction to respond to call of nature. This witness has also been controverted with his diary statement that he heard noise coming from the side of Shyam Sundar's field, which this witness has denied having given to the police. Further omission in the diary statement that deceased-Vijay was coming from North to South on his bicycle has also been elicited. This witness has also been controverted with his diary statement that Vijay was crying for help to save him, but this witness has stated that he has not given this statement to police and he does not know how it was written in his diary statement (Ex. D-1). Another omission with regard to role played by Rajkumar has also been elicited. 10. The variations in the Court evidence and the diary statement with regard to the activity in which the witness was engaged at and around the time when he witnessed the incident cannot, in terms, be said to be contradictory in nature. Fixing of pole within the premises and going towards the field to respond to call of nature cannot be said to be contradictory. 11. The meaning and import of the word "contradiction" was explained by the Supreme Court in the case of Tahsildar Singh and another Vs. State of U.P. AIR 1959 SC 1012 and reiterated in its subsequent decision in the case of Laxman and Ors. Vs. State of Maharashtra (1974) 3 SCC 704 . 11. The meaning and import of the word "contradiction" was explained by the Supreme Court in the case of Tahsildar Singh and another Vs. State of U.P. AIR 1959 SC 1012 and reiterated in its subsequent decision in the case of Laxman and Ors. Vs. State of Maharashtra (1974) 3 SCC 704 . In the case of Tahsildar Singh AIR 1959 SC 1012 (supra), the Supreme Court held: Contradict" according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer--in the sense we have indicated --and the statement in the evidence before the court are so inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other. 12. In view of what has been observed by the Supreme Court in the case of Tahsildar Singh AIR 1959 SC 1012 (supra) and extracted hereinabove, going towards the field to respond to call of nature and fixing a pole cannot be said to be so inconsistent and irreconcilable as to give rise to a contradiction. 13. The omission regarding deceased coming from North to South direction is not very material and only on that basis, testimony of the eyewitness cannot be doubted. The attention of the eyewitness was drawn to his case diary statement that he heard noises coming out from Shyam Sundar's field and Vijay calling for help, to which, the witness stated that he has not given any such statement. This also does not impeach the credibility of the witness as it does not amount to any contradiction with what has been stated by the witness in his evidence before the Court. 14. Learned counsel for the appellants laid considerable stress on what has been stated by witness in para-11 of his cross-examination. However, the statement of the witness has to be appreciated by reading the entire evidence and one or two lines cannot be read in isolation, dehors the context and the circumstances disclosed from other part of the evidence. 14. Learned counsel for the appellants laid considerable stress on what has been stated by witness in para-11 of his cross-examination. However, the statement of the witness has to be appreciated by reading the entire evidence and one or two lines cannot be read in isolation, dehors the context and the circumstances disclosed from other part of the evidence. The witness has clearly stated in his evidence that he has seen the incident in the afternoon. The admission on his part that at the time of death of Vijay, he was sleeping with his wife in his house, would only mean that before he came out from his house in the afternoon and proceeded towards the field to respond to call of nature, he was sleeping in the house. In para-13 of his evidence, this witness has reiterated that Bhagirathi assaulted Vijay with axe, He further stated that he has not been tutored by any Lawyer to give such statement and has denied suggestion that he has not seen the incident. Thus, if the entire evidence of this witness is considered, this witness has emphatically stated having seen the incident. The statement that at the time of death of Vijay, he. was sleeping in the house, does not render doubtful that this witness had seen the incident. 15. The credibility of this sole eyewitness is also sought to be impeached on the submission that the witness has admitted that his eyesight is weak and he claims to have seen the incident from a long distance. However, in the cross-examination of this witness, no measure of distance has been suggested. The distance between the place where the dead body of the deceased was found and the house of Rangu (P.W.9) is stated to be about 200 yards in Ex. P-3. In another spot map (Ex. P-4) the distance from the house of the witness Rangu (P.W.9) and the place where the dead body was found has not been stated. From the evidence of Rangu (P.W.9), it has come out that when the deceased was going from South to North, at that time, the eyewitness was going towards West. The incident happened in the broad daylight at about 3:00 pm in the afternoon. There is no evidence to show that there was any obstruction like tree or any other structure so as to obstruct the view of this witness. The incident happened in the broad daylight at about 3:00 pm in the afternoon. There is no evidence to show that there was any obstruction like tree or any other structure so as to obstruct the view of this witness. The witness has stated that he has weak eyesight but at the same time, he has denied suggestion also. Therefore, the evidence of Rangu (P.W.9) cannot be disbelieved on the ground that the incident happened at such a long distance that it could not possibly be seen by this witness. 16. The eyewitness account of witness Rangu (P.W.9) has also been supported from the medical evidence. This witness has stated that Baghirathi assaulted on the head of deceased by an axe. The medical evidence proves that the deceased sustained one incised wound on his head caused by a sharp-edged weapon. 17. The evidence of eyewitness Rangu (P.W.9) is also corroborated from the evidence of Jadunath (P.W.3) who, though not an eyewitness, has stated that on the date of incident at about 3:00 pm, Vijay had come to meet him and after he left, Baghirathi came and was hurling abuses on Vijay and also threatened him. Thereafter, Baghirathi came back to his house, took out battle axe and chased Vijay. He further deposed that thereafter he heard from Rangu that Baghirathi assaulted Vijay by an axe. This evidence of the witness has remained uncontroverted. Therefore, the evidence of Jadunath also lays credence to the prosecution story. 18. However, in so far as involvement of Shyam Sundar is concerned, the case of the prosecution is not free from doubt. The evidence led by the prosecution shows that Vijay was going on the road, Baghirathi was abusing and he had chased Vijay as deposed by Jadunath (P.W.3). Jadunath (P.W.3) has not stated that along with Baghirathi, Shyam Sundar also chased Vijay. Both Jadunath (P.W.3) and Rangu (P.W.9) have stated that Baghirathi was holding an axe. In the medical evidence and the postmortem report proved by Dr. Puran Singh (P.W.11), a singular injury on the head of the deceased was caused which proved to be fatal. Dr. Puran Singh (P.W.11), has also stated in his cross-examination that he had not reported regarding any injury caused by hard and blunt object because there was no such injury found on the body of the deceased. Puran Singh (P.W.11), a singular injury on the head of the deceased was caused which proved to be fatal. Dr. Puran Singh (P.W.11), has also stated in his cross-examination that he had not reported regarding any injury caused by hard and blunt object because there was no such injury found on the body of the deceased. Therefore, the evidence of Rangu (P.W.9) to the extent it involves Shyam Sundar becomes doubtful. The prosecution has not brought any evidence on record that Shyam Sundar shared any common intention with Baghirathi to cause death of Vijay. Therefore, in view of above evidence and circumstances of the case, particularly one singular incised wound on the head of the deceased and there being no other injury, which could be caused by a club, Shyam Sundar is entitled to be given benefit of doubt. 19. In the result, the conviction of appellant-Bhagirathi is affirmed and that of Shyam Sundar is declared illegal and unsustainable in law and is therefore set aside. Accordingly Cr. A. No. 1086/08 preferred by appellant-Shyam Sundar is allowed. He is acquitted of the charges. Appellant Shyam Sundar is on bail. He shall be set free forthwith if not already required in connection with any other case. Surety and personal bond earlier furnished by him stand discharged, on furnishing fresh personal bond of Rs. 10,000/-. He shall appear before the higher Court as and when directed, as required under Section 437-A of the Cr.P.C. The bond shall remain operative for a period of six months. Cr. A. No. 266/09 preferred by appellant-Bhagirathi is dismissed.