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2020 DIGILAW 216 (JHR)

Ravi Gope S/o Gura Gope v. State of Jharkhand

2020-02-03

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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ORDER : 1. Four persons, namely, Sidiu Kunkul, Ravi Gope, Sikandar Sirka and Bosen Kunkal have been named by the informant as the assailants of her husband, namely, Dee Singh Kunkal. On the basis of her fardbeyan which was recorded in the midnight, at about 00:30 hrs. on 12.1.2010, Manjhari (Tantnagar) P.S. Case No. 02 of 2010 has been lodged against them under sections 341, 342 and 302 r/w section 34 of the Indian Penal Code. 2. In S.T. Case No. 104 of 2010, the appellants have faced the trial on the charge under section 302/34 of the Indian Penal Code for committing murder of Dee Singh Kunkal. They have been convicted and sentenced to R.I. for life and fine of Rs. 10,000/- each for the said offence. 3. The prosecution has projected PW-2 who is wife of Dee Singh Kunkal and PW-3 who is his elder brother as eye witnesses. PW-1, PW-4 and PW-6 who are the co-villagers have been declared hostile at the instance of the prosecution. 4. In her fardbeyan, the informant has stated that it was Barobonji festival on 11.1.2010. Barobonji puja is celebrated by the villagers together and on 11.1.2010 it was performed at Moribasa. On that day Sidiu Konkal had invited her husband for food. Her husband had joined him over food and at about 6:00 p.m. in the evening he was returning home and when he reached near the house of Chaman Suren, the accused persons, namely, Sidiu Kunkal, Ravi Gope, Sikandar Sirka and Bosen Kunkal started a quarrel with her husband. The accused persons encircled him and started assaulting him and when she tried to intervene they threatened her. On receiving injuries, her husband fell on the ground and died on the spot. Thereafter the accused persons fled away towards northern side of the village. She has claimed that the incident has been seen by Sumitra Soren and Sunita Kunkal, her co-villagers and when they intervened they were also threatened by the accused persons. In the court also she has deposed about Sidiu Konkal inviting her husband on Barobonji puja, return of her husband after the puja and the accused persons assaulting him. PW-3 who is the elder brother of the deceased has also deposed that the accused persons have assaulted his brother near the house of Chaman Suren. 5. PW-1 and PW-4 have been declared hostile. PW-3 who is the elder brother of the deceased has also deposed that the accused persons have assaulted his brother near the house of Chaman Suren. 5. PW-1 and PW-4 have been declared hostile. From their evidence it would appear that they have stated about a quarrel between Dee Singh Kunkal and Ravi Gope but they have not named other accused persons and that was the reason they have been declared hostile by the prosecution. PW-6 has stated that when he came back home on 11.1.2010 his wife has informed him about the occurrence. The expression hostile witness is not defined in the Code of Criminal Procedure but in the legal parlance a witness who does not support the prosecution is called a hostile witness. The law on hostile witness is by now well settled. On account of fear, forgetfulness, lapse of time etc. a witness may not state everything what has been stated by him before the police and therefore an opportunity is given to the prosecution to cross-examine a witness who has not supported the prosecution. Under section 154 of the Indian Evidence Act, the court may in its discretion permit the person who calls a witness to put any question to him which might be put in the cross-examination by the adverse party and sub-Section 2 to Section 154 provides that any part of the evidence of such witness can be relied by the person who has cross-examined his witness. That is the reason testimony of a hostile witness is not rejected altogether and that part of his testimony which supports the prosecution’s case can be relied upon by the prosecution to corroborate other evidences. 6. In Lahu Kamlakar Patil vs. State of Maharashtra, (2013) 6 SCC 417 , Hon’ble Supreme Court has observed thus: “15. It is settled in law that the evidence of a hostile witness is not to be rejected in toto. In Rameshbhai Mohanbhai Koli vs. State of Gujarat, reiterating the principle, this Court has stated thus: (SCC p. 117, Paras 16-17) “16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. In Rameshbhai Mohanbhai Koli vs. State of Gujarat, reiterating the principle, this Court has stated thus: (SCC p. 117, Paras 16-17) “16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh vs. State of Haryana, Rabindra Kumar Dey vs. State of Orissa, Syad Akbar vs. State of Karnataka and Khujji vs. State of M.P.] 17. In State of U.P. vs. Ramesh Prasad Misra this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde vs. State of Maharashtra, Gagan Kanojia vs. State of Punjab, Radha Mohan Singh vs. State of Uttar Pradesh, Sarvesh Narain Shukla vs. Daroga Singh and Subbu Singh vs. State.” 16. Recently, in Bhajju vs. State of M.P. a two-Judge Bench, in the context of consideration of the version of a hostile witness, has expressed thus: (SCC p. 341, Para 35) “35........Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 Cr.P.C. the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.” 7. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.” 7. PW-2 and PW-3 both have stated about death of Dee Singh Kunkal on account of the injuries suffered by him and PW-1 and PW-4 have spoken about injury on the person of Dee Singh Kunkal. Therefore, this part of their testimony which corroborates the prosecution story of assault on Dee Singh Kunkal is relevant. 8. On scrutiny of the testimony of PW-2 and PW-3, we find that they are reliable witnesses. During their cross-examination nothing material could be elicited by the defence and these witnesses have remained completely unshaken. Presence of PW-2 and PW-3 in their house on the day of the occurrence is natural. Both have claimed that they have seen the occurrence. The occurrence has taken place near the house of Chaman Soren and why he has not been examined by the prosecution has been answered by PW-2 in her cross-examination. In paragraph no. 5 of her cross-examination she has stated that Chaman Soren lives in Dhanbad with his family and no one except a lady lives in his house. In so far as non-examination of other witnesses from the village or sister-in-law of the informant during the trial is concerned, we reiterate what has been observed by the Privy Council in Stephen Seneviratne vs. The King, AIR 1936 PC 289 , an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence cannot be approved. 9. In view of the above discussions, we do not find any substance in the contention raised on behalf of the appellants that the informant has substantially changed her version of the incident when she was examined in the court. 9. In view of the above discussions, we do not find any substance in the contention raised on behalf of the appellants that the informant has substantially changed her version of the incident when she was examined in the court. This contention is based on a statement of the informant in her examination-in-chief wherein she has stated that her husband came back home after the puja and in the evening Sidiu Konkal called him and whereafter he has gone near the house of Chaman Soren where the accused persons have assaulted him whereas in her fardbeyan she has stated that while returning from puja when they reached near the house of Chaman Soren the accused persons have assaulted her husband. In our opinion, this is not such a discrepancy in the testimony of the informant which would render her evidence unreliable. The appellants and the informant are co-villagers, they are residing nearby and the informant is a rustic village lady and, therefore, her testimony has to be examined in that context. Moreover, this contention has been raised in ignorance of the provisions under the proviso to section 162 of the Code of Criminal Procedure and section 145 of the Evidence Act. All through her cross-examination this inconsistency, if at all it is an inconsistency, was not brought to the notice of the informant and, therefore, her statement in court must be accepted. 10. Through PW-2 and PW-3, the prosecution has proved presence of the appellants at the place of occurrence and at the time of occurrence. They have assaulted Dee Singh Kunkal by lathi-danda has also been established by the prosecution. 11. However, in our opinion, conviction of the appellants under section 302/34 of the Indian Penal Code is not proper. 12. Section 300 of the Indian Penal Code provides that culpable homicide is a murder if the act by which death is caused falls under any one of the four clauses under section 300. At the same time section 300 also provides that culpable homicide is not murder if the act by which death has been caused falls under any one of the five exceptions under Section 300 of the Indian Penal Code. We are of the opinion that act of the appellants falls under Exception 4 to section 300 of the Indian Penal Code. We are of the opinion that act of the appellants falls under Exception 4 to section 300 of the Indian Penal Code. The essential ingredients for bringing a case under Exception 4 to section 300 of the Indian Penal Code are: (i) the accused has acted without pre-meditation, (ii) he has committed the offence in a sudden fight and in the heat of passion, (iii) he has not taken undue advantage and (iv) he has not acted in a cruel and unusual manner. 13. In Surinder Kumar vs. Union Territory Chandigarh, (1989) 2 SCC 217 , the Supreme Court has indicated the situations under which an accused may be extended the benefit of Exception-4 to section 300 IPC, thus: “7. To invoke this exception four requirements must be satisfied, namely: (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant has not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.......” 14. The husband of the informant had joined Sidiu Konkal over food and when he was returning home the accused persons have started a quarrel with him near the house of Chaman Soren. It has come in the prosecution’s evidence that Dee Singh Kunkal and the appellants were on friendly terms. PW-2 and PW-3 have stated that there was no enmity either between them or between the appellants and their family. According to the informant she has seen a quarrel between the appellants and her husband but during her cross-examination she has admitted that she does not know the reason for the quarrel. PW-2 and PW-3 have stated that there was no enmity either between them or between the appellants and their family. According to the informant she has seen a quarrel between the appellants and her husband but during her cross-examination she has admitted that she does not know the reason for the quarrel. PW-3 has also stated that he does not know the reason for the quarrel and the appellants and his brother were friends. From narration of the incident by PW-2 and PW-3 it appears that on some trivial issue a quarrel took place between the appellants and Dee Singh Kunkal which has ensued in a fight between them and in the heat of passion without any premeditation they have assaulted Dee Singh Kunkal. At this juncture, we may indicate that in this case the explanation of Exception 4 to Section 300 is relevant because no one has seen how the quarrel has begun. Explanation to Exception 4 provides that it is immaterial that which party has offered provocation or committed the first assault. The medical evidence also does not indicate that the appellants intended to commit murder. PW-5 Dr. V.K. Pandit who has conducted the post-mortem has found four injuries on Dee Singh Kunkal but three of the injuries were bruises and abrasions; the lacerated wound on the right side of scalp of Dee Singh Kunkal was 3” x ½” in dimension, which would reflect that the appellants have not taken undue advantage or acted in a cruel or unusual manner. 15. In the aforesaid facts, we hold that act of the appellants squarely falls under Exception 4 to section 300 of the Indian Penal Code. 16. Accordingly, conviction of the appellants under section 302 r/w section 34 of the Indian Penal Code is set-aside. 17. The lacerated wound which has resulted in fracture of the right parietal bone of Dee Singh Kunkal would impute such knowledge as envisaged under part II to section 304 of the Indian Penal Code to the appellants, but who has inflicted this injury to Dee Singh Kunkal has not been established by the prosecution. On such facts, the appellants are liable to be convicted and sentenced to R.I. for seven years under section 304 Part-II of the Indian Penal Code. 18. On such facts, the appellants are liable to be convicted and sentenced to R.I. for seven years under section 304 Part-II of the Indian Penal Code. 18. The judgment of conviction under section 302 r/w section 34 of the Indian Penal Code dated 28.2.2013 and the order of sentence of R.I. for life with fine of Rs. 10,000/- each dated 01.03.2013 passed by the Sessions Judge, West Singhbhum, Chaibasa in Sessions Trial Case No. 104 of 2010 are set-aside. The appellants are convicted and sentenced to undergo R.I. for 7 years under section 304 Part-II of the Indian Penal Code. 19. Mrs. Priya Shreshtha, the learned APP states that the appellants have remained in jail custody for more than eight years. 20. Accordingly, the appellant, namely, Ravi Gope in Cr. Appeal (D.B.) No. 514 of 2015 and the appellants, namely, Sidiu Kunkal and Sikandar Sirka in Cr. Appeal (D.B.) No. 934 of 2013 shall be set free forthwith, if not wanted in connection to any other case. 21. In the result, Criminal Appeal (D.B.) No. 514 of 2015 and Cr. Appeal (D.B.) No. 934 of 2013 are partly allowed. 22. We appreciate the assistance rendered by Mr. Mukesh Kumar, the learned Amicus. 23. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. 24. Let lower court records be transmitted to the court concerned, forthwith. 25. Let a copy of the judgment be transmitted to the court concerned through “Fax.”