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2015 DIGILAW 776 (CAL)

Motilal Rana v. State of West Bengal

2015-09-16

RAJIV SHARMA, SHIVAKANT PRASAD

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JUDGMENT : Shivakant Prasad, J. Challenge in this appeal arises out of judgment and order of conviction dated April 5,002 and April 6, 2002 respectively passed by the learned Additional Sessions Judge, 3rd Court, Midnapore in Sessions Trial Case No. 59/August/2000 convicting the appellant under Sections 302/326 of the Indian Penal Code. 2. Brief facts leading to the instant appeal is that on 27.12.1997 at about 10 O' Clock in the night one Yogneswar Rana and Anil Rana were performing dance and singing in the house of one Smt. Lal Rana. After a few while an altercation took place and Motilal Rana shouted at the top of his voice saying 'mar-mar'. On hearing the shout, the de-facto complainant went to the place of occurrence and found that Anil and Yogneswar were lying on the pathway at the threshold of the house of Motilal after sustaining bleeding injury. It is further case of the prosecution that Anil Rana succumbed to his injuries on the spot and Yogneswar Rana sustained severe injuries. On being asked Yogneswar stated that accused Motilal had assaulted Anil with the blunt side of a spade on his head. As a result, he sustained bleeding injuries and while he had been to the rescue of Anil, Motilal and his son, Chhoton @ Nagen had assaulted him on his head. Yogneswar, the injured was taken to local hospital and admitted instantaneously with the help of Kush Rana, Suryakanta Rana and Shankar Singh. An FIR was lodged and Nayagram P.S. Case No. 35/1997 was started under Sections 302/326/307/34 IPC against the accused Motilal and his son Chhoton on the basis of which I.O. submitted Charge-sheet being C.S. No. 6/99 dated 18.3.1999 under Sections 302/326/307/34 IPC on completion of investigation. 3. After the case was committed to the Court of Sessions the learned Sessions Judge took cognizance under Sections 193 Cr.P.C. and started trial after framing of the Charges under Sections 302/34, 307/34 and 326/34 IPC vide order dated 03.8.2001. After completion of evidence learned Trial Judge examined the accused persons under Section 313 IPC wherefrom it emerges that the defence case is one of denial of charges levelled against the accused person. After completion of evidence learned Trial Judge examined the accused persons under Section 313 IPC wherefrom it emerges that the defence case is one of denial of charges levelled against the accused person. The learned Trial Judge upon hearing argument of the prosecution and of the defence, convicted the accused persons and after giving an opportunity of reflection in segregation in the correctional home, heard on the question of sentence and the appellant Motilal Rana was sentenced to suffer life imprisonment and to pay a fine of Rs.500/- i.e. to suffer further one month's S.I. for the Charge under Section 302 IPC who is the appellant before us. The learned Judge also sentenced the convict, Nagen @ Chhotu @ Chhoton Rana to undergo ten years' R.I. for the Charge under Section 326 IPC for assaulting injured Yogneswar Rana and to pay a fine of Rs.500/- i.e. to suffer S.I. for one month by the impugned Judgment dated 06.4.2002 which is under challenge before this Court. 4. It would not be out of the context to mention here that this appeal has been preferred only by the convict Motilal Rana who is languishing behind the bar since the order of conviction and sentence. 5. It is contended by the learned counsel for the appellant that the order of conviction and sentence is manifestly unjust, incorrect and illegal inasmuch as it is against the weight of evidence on record as the learned Court did not give any importance regarding the actual time of murder in the FIR and there it was not mentioned who are the eye witnesses of the murder case and that the appellant has been falsely implicated in the case by highly interested and partisan witnesses because there was no eye witness of the murder case and no prosecution witness has narrated the truth behind the murder. 6. It is also submitted that the learned Judge has not adhered to the provisions of law while examining the accused under Section 313 of the Code of Criminal Procedure and there are various glaring, omissions, contradiction and discrepancies in the evidence on record. Accordingly, it is urged that the evidence on record warrants an order of acquittal in favour of the appellant. 7. Accordingly, it is urged that the evidence on record warrants an order of acquittal in favour of the appellant. 7. We understand from the evidence on record that incident took place in the midst of altercation on the land dispute and the ocular testimony of the injured witness is convincing in so far as the prosecution case is concerned, It is the clenched position of law that there is no bar under the law to base conviction on testimony of a single witness under Section 134 of Evidence Act which lays down that no particular number of witnesses shall, in any case be required for the proof of any fact. This Section has enshrined the well-recognised Maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. We find on evidence of record and from the Judgment impugned that the learned Judge has considered all aspects of the case based on the circumstances as well as the direct evidence of the ocular testimony of the injured witness. 8. The evidence of the injured Yogneswar Rana P.W.-9 in clear crystal term reflects that accused Motilal Rana and Chhotan had assaulted him and Anil on their head with an axe and a spade. He has also identified the accused persons namely Motilal and Chhotan during the trial and in unequivocal term narrated the manner in which the incident took place to this effect that an altercation took place in between Motilal and Anil in the house of Motilal and in the midst of altercation, convict Motilal, the appellant herein assaulted Anil with Spade with its blunt head as a result, Anil fell on the ground and died on the spot. Thereafter, accused Chhotan also assaulted P.W.-9 with a spade on his head resulting which he fell senseless. The ocular testimony of the injured witness is of unimpeachable character and corroborates the prosecution case. 9. It is settled principle of law that mere interestedness is not a ground to reject the evidence of eye witnesses, particularly who were injured. Firstly, because their presence cannot be doubted. Secondly, the injured witness could be the last person to leave out the real culprit and implicate others falsely. 9. It is settled principle of law that mere interestedness is not a ground to reject the evidence of eye witnesses, particularly who were injured. Firstly, because their presence cannot be doubted. Secondly, the injured witness could be the last person to leave out the real culprit and implicate others falsely. A reference to a decision reported in AIR 1993 SC 1544 may be made on this aspect as the injured cannot falsely implicate an innocent and leave out a culprit. 10. In all trial of criminal cases, the Trial Court has the opportunity of watching the demeanour of the prosecution witnesses and in this case too we find that appraising the evidence adduced by the prosecution the learned Trial Court in the facts and circumstances of the case convicted and sentenced the accused persons. Even at the cost of repetition, we find that the version of the injured witness is consistent with that of the medical evidence. It is reflected from the P.M. report that autopsy surgeon found lacerated injury in front of left ear extending up to left temporal bone up to parietal bone 63 x ½-3 x ½-3. The stroke of spade given on the head of the deceased by the appellant was so strong that it caused exposer of the brain matter. It is true that family feud was on the issue of land dispute and on the spur of moment the incident took place so case may be covered under the provision of Section 304 Part-I of Indian Penal Code, nevertheless, the intention to kill was not writ large. 11. It must be remembered that discrepancies do not necessarily demolish the testimony of the prosecution witnesses. We find that FIR has been duly corroborated by its maker. It is well established principle that a First Information Report is not a substantive piece of evidence and it can be used for the limited purpose of corroborating or contradicting the evidence given by the informant in Court or confirming or impeaching his credit. The names of witnesses not listed in the FIR is not fatal to the prosecution case. Therefore, sifting the chaff from the grains and giving an anxious consideration to the facts and circumstances of the case, learned Trial Judge was justified in convicting the appellant. 12. The names of witnesses not listed in the FIR is not fatal to the prosecution case. Therefore, sifting the chaff from the grains and giving an anxious consideration to the facts and circumstances of the case, learned Trial Judge was justified in convicting the appellant. 12. In second fold argument, the learned counsel for the appellant submitted that the learned Judge ought to have altered the charge to one under section 304 IPC from that of section 302 IPC while convicting and sentencing the appellant in the given facts and circumstances of the case considering the weapon used. 13. In support of his submission, he has referred to the case of Bhera v. State of Rajasthan reported in 2000 Supreme Court Cases (Cri) 1230, wherein it is observed that the accused and deceased while quarrelling, accused in anger suddenly brought out a knife and gave blow on chest of the deceased which resulted in his death. On this set of fact the Hon'ble Court held that it cannot be said that the accused gave the knife blow with the requisite intention of causing murder of the deceased and the conviction of the appellant under Section 302 was set aside and instead the appellant was convicted under Section 304 Part-II and was sentenced to 5 years' imprisonment. 14. In case of Pularu v. State of M.P. reported in 1993 Supreme Court Cases (Cri) 1023, the accused inflicting a single blow on head with an agricultural implement, tabbal which resulted in fracture of bones causing death of deceased it was observed that having regard to the time and the surrounding circumstances it cannot be held that he intended to cause death particularly when he was not armed with any deadly weapon and as such the offence was covered by Section 304 Part II and not Section 300 1stly or 3rdly. 15. In case of Kallu alias Kalyan Atmaram Patil v. State of Maharashtra reported in (2009) 3 Supreme Court Cases (Cri) 804, it is held that evidence of P.W.-12 is not sufficient to establish that the appellant inflicted fatal injury on the head of the deceased with an intention to cause his death or with a knowledge that the injury so inflicted shall cause the death of the deceased in the ordinary course of nature. It has been observed that the ocular evidence of P.W.-12 corroborated by the medical evidence, would prove that the offence committed by the appellant fell under Section 304 Part-I and not under Section 302 IPC. Accordingly, conviction of appellant was altered and sentence of R.I. for 10 years and fine of Rs.500/- with default stipulation was imposed. 16. Respectfully relying on the above cited decisions and giving an anxious consideration to the facts and circumstances of the instant case and bearing in mind the age of the appellant who was 70 years old on the date of his examination under Section 313 Cr.P.C., we are of the considered view that the order of conviction and sentence is manifestly unjust and it is against the weight of evidence on record and hold that the offence committed by the appellant falls under Section 304 Part-I IPC. We accordingly, alter the conviction and sentence of life imprisonment under Section 302 IPC and convict the appellant under section 304 Part-1 and impose sentence of rigorous imprisonment for 10 years and fine of Rs.500/- with default stipulation as imposed by the Trial Judge. 17. It appears that the appellant is behind the bar undergoing sentence of Rigorous Imprisonment of life in terms of impugned judgment of conviction and sentence dated 06.4.2002. That is to say, the appellant has already undergone incarceration in jail for more than ten years. Therefore, we direct that the appellant be released from the custody forthwith if not wanted in any other case. Thus, the appeal is partly allowed. Let the Lower Court Record together with a copy of this Judgment be sent down to the learned Trial Court forthwith. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. ajiv Sharma, J. - I agree.