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2015 DIGILAW 58 (CHH)

Ramsai v. State of Chattisgarh

2015-02-19

MANINDRA MOHAN SHRIVASTAVA

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JUDGMENT MANINDRA MOHAN SHRIVASTAVA, J. 1. This appeal is directed against impugned judgment of conviction and order of sentence dated 29-4-98 passed in Sessions Trial No. 167/97 by the 2nd Additional Sessions Judge, Raigarh whereby the appellant has been held guilty of commission of offence as described below:- 1. Under Section 307 of IPC R.I. for seven years and fine of Rs. 1,000/- and default of fine, three months simple imprisonment. 2. Prosecution story, as unfolded from the records of the case is that on 8-6-97, the appellant and the victim-Ramnath (PW 1), who are brothers, were sitting in the veranda and consuming liquor. During that time, certain words were uttered by the victim. It is said that there were abuses hurled and then the appellant picked up axe and gave a blow on the neck of the victim resulting in incised wound. The incident was reported to the police. Victim-Ramnath (PW1) was sent for medical examination and treatment. He was examined and treated by Dr. Basant Singh (PW 6), FIR was lodged in the police station by Umesh Singh (PW 2), son of the victim. On the next day, i.e. on 9-6-97, offence under Section 307, IPC was registered against the appellant. Upon completion of investigation, charge-sheet was filed. The appellant was charged of commission of offence under Section 307, IPC which he denied having committed. So, he was put to trial. 3. In order to prove its case, the prosecution examined, in all, seven witnesses and thereafter, the appellant was examined under Section 313, Cr. P.C. in respect of the incriminating circumstances appearing against him in the evidence led by the prosecution. No defence witness was examined. 4. Learned trial Court, mainly relying upon the ocular testimony of victim-Ramnath (PW 1), nature of injury, weapon used for commission of offence held the appellant guilty of commission of offence under Section 307, IPC and sentenced as described above, which has given rise to this appeal. 5. Assailing correctness and validity of impugned judgment of conviction and sentence, learned counsel for the appellant argued that no case of commission of offence under Section 307, IPC is made out as the circumstances of the case, back ground in which incident happened, at the most, it could be a case of assault without any premeditation, in a sudden heat of passion, upon sudden quarrel. She submits that the appellant was the brother of the victim and both of them were sitting together in the veranda and consuming liquor which shows that there existed cordial relation between them and because of some words uttered, suddenly in a heat of passion injury was inflicted by the appellant. Though the injury was caused in the neck, injury was not likely to cause death in the absence of treatment even though it was grievous in nature. The victim (PW1) has stated that he was discharged from the hospital in two days. She further submits that the incident happened in the evening on 8-6-97 whereas the victim was taken for treatment to the doctor at 2.45 p.m. next day, which by itself shows that the injury was not serious. Therefore, opinion of the doctor is not reliable. It is next contended that the incident happened in the house between the two brothers, it being a 20 years old incident and the appellant, at present is aged about 73 years, the impugned judgment of conviction may be set aside or in the alternative, altered to the period already undergone as commission of offence under Section 304, IPC only. In support of his contention, learned counsel for the appellant relied upon Ramesh vs. State of Uttar Pradesh, (1992) 1 SCC 318 : AIR 1992 SC 664 ; Madan Sahu vs. State of Chattisgarh, (2013) 1 CGLJ 9 and Thakur Ram vs. State of Chattisgarh, (2013) 4 CGLJ 299 . 6. Per contra, learned counsel for the State supports the judgment of conviction and sentence and submitted that relevant attending circumstances of the case which prove intention to cause death are that the appellant, with a trivial dispute with his brother, took up axe, which is a dangerous weapon and chose to inflict injury on a very vital part of the body i.e. neck. This clearly manifests intention of the appellant to murder the victim (PW 1). He next submitted that irrespective of the result of overt act, if the intention to cause death is proved, conviction under Section 307, IPC has to ensue. He further submits that the doctor has stated in his evidence that if specific treatment would not have been provided the injury was likely to cause death of the victim. He next submitted that irrespective of the result of overt act, if the intention to cause death is proved, conviction under Section 307, IPC has to ensue. He further submits that the doctor has stated in his evidence that if specific treatment would not have been provided the injury was likely to cause death of the victim. He further submits that the depth and intensity of injury as also force used by the appellant also supports the case of the prosecution that the appellant assaulted the victim with intention to cause death. In support of his contention , learned State counsel relied upon State of Madhya Pradesh vs. Kashiram and Others, (2009) 4 SCC 26 : AIR 2009 SC 1642 and Girija Shankar vs. State of Uttar Pradesh, (2004) 3 SCC 793 : AIR 2004 SC 1808 . 7. FIR in Ex. P/2 has been proved by Umesh Singh (PW 2), who has stated in his evidence that after assault given by the appellant to his father, he had gone to police station and lodged report. He has proved his signature. The Investigating Officer-Prakash Soni (PW 5) has also stated that on the report of Umesh Singh (PW 2), he had recorded FIR in Ex. P/2 and has proved his signature. The FIR which was lodged on the next day of the incident (no time mentioned in the FIR), it has been stated that on the date of incident, at about 7 o- clock in the evening in the house of appellant, he along with his father, mother, Dharamsai and Balram were all sitting and at that time, an issue arose relating to marriage of Balram and also regarding partition and at that moment, the appellant got enraged and scolding his father, picked up axe kept in the veranda and gave assault in the neck resulting in deep injury and profuse bleeding. His father caught hold of the axe and came back to his veranda and fell down. It is stated that after assaulting, the appellant ran away from the spot. 8. Victim (PW 1) has proved the incident of assault by deposing that the appellant and his brother was sitting with him in the evening and at that time, his son Umesh, wife and grandson was also there. At that time, appellant started hurling abuses to him, his wife and the son and then assaulted him with the axe. 8. Victim (PW 1) has proved the incident of assault by deposing that the appellant and his brother was sitting with him in the evening and at that time, his son Umesh, wife and grandson was also there. At that time, appellant started hurling abuses to him, his wife and the son and then assaulted him with the axe. Thereafter, he fainted. In his cross-examination, he has admitted that he was called in the house of the appellant in the evening of the fateful day and consumed liquor. He has been subjected to detailed cross- examination but nothing could be elicited to disbelieve his testimony as an injured witness that it was the appellant who had assaulted him in the neck by an axe. Umesh (PW 2), the son of the victim has stated that he reached at the spot after the incident happened and he had not seen Ramnath assaulted by Ramsai. He, however, has emphatically stated that first FIR was lodged by him and then his father was taken to the hospital for treatment. 9. Beejkunwar (PW 3), wife of the victim has also stated in her cross-examination that she has not seen the incident. 10. From the testimony of the injured witness, it is proved that he was assaulted by the appellant. It is also proved that the appellant had used an axe for assaulting. The evidence of victim (PW 1) also states regarding the genesis of dispute which led to assault. It has been stated that while the victim was sitting along with other members of the family, the appellant started hurling abuses and then assaulted. He has denied suggestion that in the state of intoxication, there were heated talks. Other witnesses have not seen the incident, therefore, their version with regard to the genesis of dispute which led to assault, cannot be relied upon. There is one important aspect which has been elicited in the cross-examination of the victim (PW 1) that the appellant and the victim both were sitting in the house of the appellant and were consuming liquor. The appellant and the victim are real brothers. Thus, the proved circumstances of the case are that the appellant and the victim being real brothers, while consuming liquor in the veranda, started quarrelling and abuses being hurled, followed by an assault. The appellant and the victim are real brothers. Thus, the proved circumstances of the case are that the appellant and the victim being real brothers, while consuming liquor in the veranda, started quarrelling and abuses being hurled, followed by an assault. This shows that there was no preparation for committing offence nor can it be said that there existed some dispute between the two brothers and with premeditation, armed with weapon, the appellant came to the house of the victim and then assaulted with intention to clause murder. The evidence that the two brothers were sitting together in the evening and consuming liquor only show that the relations between them were cordial till a sudden quarrel started between them. Therefore, it has to be held that the incident happened, all of a sudden and the assault was without any pre-meditation but only in the heat of moment. It was almost in the same moment where quarrel took place that the axe was picked up and assault was given and it is not a case where the appellant, after sometime, when the quarrel was over, returned back, armed with weapon and assaulted. As the evidence has come, the appellant and the victim were sitting in the courtyard consuming liquor and the axe was picked up, which was lying there. The appellant gave one blow on the neck of the victim. The victim (PW 1) stated that he caught hold of the axe. It is not the case of the prosecution that attempt was made by the appellant to repeat the blows. The case of the prosecution is that the appellant then ran away from the spot. 11. In order to constitute offence under Section 307, IPC, what is important is the intention or knowledge to be examined in the light of attending circumstances, rather than the injury. In the case of Girija Shankar ( AIR 2004 SC 1808 ) (supra), the scope and ambit of offence under Section 307, IPC was examined by the Supreme Court in the light of provisions contained under Section 307, IPC. The Supreme Court held - 13. Section 307, IPC reads : 307. In the case of Girija Shankar ( AIR 2004 SC 1808 ) (supra), the scope and ambit of offence under Section 307, IPC was examined by the Supreme Court in the light of provisions contained under Section 307, IPC. The Supreme Court held - 13. Section 307, IPC reads : 307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extended to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 12. The aforesaid view was reiterated by the Supreme Court in the case of Kashiram ( AIR 2009 SC 1642 ) (supra) relied upon by the learned State counsel. 13. This Court in the case of Dau Ram and Others vs. State of Chattisgarh, 2015 Cri. 12. The aforesaid view was reiterated by the Supreme Court in the case of Kashiram ( AIR 2009 SC 1642 ) (supra) relied upon by the learned State counsel. 13. This Court in the case of Dau Ram and Others vs. State of Chattisgarh, 2015 Cri. L.J. 1727 (Chh) also examined the scope and ambit of the aforesaid provision as to in what circumstances, overt act would fall within the ambit of Section 307 of IPC. It was held thus :- 13. In the case of Hari Singh vs. Sukhbir Singh and Others, (1988) 4 SCC 551 : AIR 1988 SC 2127 the Supreme Court held that while examining whether a case of commission of offence under Section 307, IPC is made out, the Court is required to see, whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of attempt to murder. Under Section 307, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner, in which, it is used motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. The state of mind of the accused has to be established from surrounding circumstances and the motive would be relevant circumstance. Where the evidence is not sufficient to establish with certainty, existence of all requisite intention or knowledge of the accused, there can be no conviction under Section 307, IPC. The evidence on record, nature of injuries, if examined in the light of the aforesaid principle laid down by the Apex Court, it is difficult to hold that the appellants arrived in the house of the victim, Maikulal with an intention to cause death. 14. The evidence on record, nature of injuries, if examined in the light of the aforesaid principle laid down by the Apex Court, it is difficult to hold that the appellants arrived in the house of the victim, Maikulal with an intention to cause death. 14. If the provisions contained in Section 307, IPC as interpreted and explained in the aforesaid decisions are applied to the established facts and circumstances of the case, as discussed hereinabove, this Court has no hesitation to hold that the incident happened in the heat of passion and there was no premeditation behind the incident. Therefore, the element of intention to cause death is not proved beyond doubt by the prosecution. 15. This is more so because though the injury was caused by an axe and on vital part i.e. neck, the contents of FIR and evidence on record show that the victim (PW 1) had gone along with his son (PW 2) to the police station to lodge report which would not have been possible, had there been a serious injury. According to the evidence which has come on record, the victim went to the hospital to seek treatment on the next day at 2:45 p.m. as stated in the evidence of Dr. Basant Singh (PW6). There is no evidence that during this period, because of some reasons, beyond control of the relatives of the victim, he could not be taken to hospital. This is also indicative of the fact that the injury was not so grave in nature as to create an emergency requiring immediate hospitalization of the victim. 16. According to the evidence of the doctor, the injury is stated to be 1.5 cm. deep but he has stated that no veins were cut, but the injuries were stated in his report to be muscle deep. In his evidence, the doctor has, however, stated that in the absence of specific treatment, the injury was likely to cause death which is not based on any specific medical report. The victim himself attended the hospital after about 18 hrs. of the assault, there being no evidence of cut of any veins, trachea, much less any bony injury, the doctor has explained it only by saying that such opinion was only a probability, therefore, he had so stated. The victim himself attended the hospital after about 18 hrs. of the assault, there being no evidence of cut of any veins, trachea, much less any bony injury, the doctor has explained it only by saying that such opinion was only a probability, therefore, he had so stated. Victim (PW 1) though states in his examination-in-chief that he was admitted in the hospital for about 10-12 days, in his cross-examination, he admits that he was admitted for two days. Therefore, taking into consideration the above evidence on record, the injury cannot be said to be of the nature which was likely to cause death. 17. However, considering that the appellant assaulted the victim by an axe, which is a dangerous weapon, case of commission of offence under Section 324, IPC is certainly made out. It has been submitted that the appellant has already undergone more than 11 months of imprisonment and stated to be 73 years of age. In the case of State of Madhya Pradesh vs. Saleem alias Chamaru and Another, (2005) 5 SCC 554 : AIR 2005 SC 3996. Their Lordships in the Supreme Court held that the duty of every Court is to award appropriate sentence having regard to the nature of offence and the manner in which it was executed or committed etc. The aforesaid legal position was illuminatingly stated by the Supreme Court in the case of Sevaka Perumal and Another vs. State of Tamil Nadu, (1991) 3 SCC 471 : AIR 1991 SC 1463 , Paras 6 to 8). 7. Thus the settled law is that an approver is a competent witness against the accused person. But the court, to satisfy its conscience, insists as caution and prudence to seek, as a rule, corroboration to the evidence of the approver, a particips criminis from independent evidence ocular or circumstantial, of general particulars regarding the story spoken of by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance. The reliability of the evidence of an approver should be considered from totality of the facts and circumstances. In the trial of Athiappan murder there is no dispute that such a corroborative evidence connecting both the appellants is available which was minutely considered by the trial court and the High Court and was accepted. The reliability of the evidence of an approver should be considered from totality of the facts and circumstances. In the trial of Athiappan murder there is no dispute that such a corroborative evidence connecting both the appellants is available which was minutely considered by the trial court and the High Court and was accepted. We find no infirmity in that regard. In the trial of the death of Hariramachandran, A-2 was acquitted on the ground that his extra-judicial confession made to PW 23, the only corroborative evidence, was disbelieved by the High Court. Both the courts below gave categorical finding that PW1 is a reliable witness. The evidence of the approver received corroboration from independent evidence on general prosecution case, namely, PW 16 who spoke that the deceased was brought by the accused and stayed in the lodge. PWs 2 to 4 spoke of A-1 working in their shop, previous thefts by A-1 and MO 1 being missing, their attempt to take back the deceased and MO 1, the dead body was found in the well and was taken out as spoken to by PWs 7 to 10. The medical evidence establishes the stabbing with the knife and death was due to it. PW 24 corroborates A-1 of selling MO 1 chain and taking the money. The canopy of the material evidence from independent sources suficiently corroborates the approver- s evidence. PW 1 is a reliable witness. No infirmity has been pointed out to disbelieve his evidence. 8. It is next contended that the courts below were not justified in imposing the extreme penalty of death sentence under Section 302, IPC and strongly relied upon the judgment of Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 : AIR 1980 SC 898 . It is contended that the acquittal of A-2 giving the benefit of doubt in Hariramachandrans death trial introduces an element of doubt which should be extended to convert the death sentence of A-1 to life imprisonment. We find no substance in the contention. The doctrine of benefit of doubt only would operate in proof of the commission of the offence. If there is any reasonable doubt, not the doubt of vacillating mind of a Judge, the accused is entitled to that benefit and be acquitted. The benefit of doubt again does not enter in the area of consideration of imposing sentence. 9. The doctrine of benefit of doubt only would operate in proof of the commission of the offence. If there is any reasonable doubt, not the doubt of vacillating mind of a Judge, the accused is entitled to that benefit and be acquitted. The benefit of doubt again does not enter in the area of consideration of imposing sentence. 9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of order should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that, State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society, Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation of sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed difficult task. 18. The mitigating circumstances are that the appellant did not proceed to inflict another injury. Such act of balancing is indeed difficult task. 18. The mitigating circumstances are that the appellant did not proceed to inflict another injury. Further mitigating circumstance of the case is that the incident is more than 18 years old and the appellant is stated to be an old man of 73 years. Thus, balancing the aggravating and mitigating circumstance, in the considered opinion of this Court, it would be in the interest of justice to award sentence for the period already undergone by the appellant. For this, the Court has taken into consideration the incident happened where the brothers sitting in the house and they were in the state of intoxication. 19. In the result, the appeal is partly allowed. As the appellant has already undergone more than 11 months of imprisonment, the bail stands discharged. Appeal partly allowed.