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2020 DIGILAW 943 (JHR)

Satrughan Gope v. State of Jharkhand

2020-09-28

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. The appellant has been convicted and sentenced to RI for life and a fine of Rs. 2000/- under section 302 of the Indian Penal Code and RI for one year under section 323 of the Indian Penal Code. 2. Goelkera P.S. Case No. 14 of 2011 was registered against the appellant on 29.05.2011, on the basis of fardbeyan of Deoki Gope which was recorded at village-Horokochatola at about 14:30 PM on 29.05.2011 and after the investigation a charge-sheet was filed against him under sections 341, 323, 307 and section 302 of the Indian Penal Code. In Sessions Trial No. 222 of 2011 the prosecution has examined eight witnesses out of whom PW-1, PW-4 and PW-6 are related to the deceased. 3. The case of the prosecution is that the appellant who is elder brother of Sonu Gope removed tiles from his house which led to a quarrel between them and the appellant struck two blows on his head by a wooden log on account of which he has died. The informant, wife of Sonu Gope has been examined as PW-1; his son is PW-4 and his father-in-law is PW-6. These witnesses are intimately related to Sonu Gope and therefore, their evidence is required to be examined with a greater care and caution as indicated by the Hon'ble Supreme Court in Nallabothu Venkaiah vs. State of A.P. (2002) 7 SCC 117 . The relationship of a witness with the accused or the deceased is not a reason for discarding his evidence and what has been observed by the Hon'ble Supreme Court in Masalti vs. State of U.P. AIR 1965 SC 202 that; when a criminal Court has to appreciate evidence of a witness who may be partisan or interested the Court has to be very careful in weighing such evidence, must be kept in mind while evaluating evidence of a related witness. It has been observed that “whether or not there are discrepancies in the evidence the evidence whether appears to the Court genuine and the prosecution story is probable or not, are all matters which have to be taken into account while appreciating evidence of a related witness.” 4. PW-1 is the sole eye-witness in this case. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. PW-1 is the sole eye-witness in this case. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. This is quite a settled proposition in law that in a criminal trial testimony of a solitary eye-witness can form the basis of conviction if his evidence is found by the Court cogent, credible and consistent and it inspires confidence of the Court. In Kartik Malhar vs. State of Bihar, (1996) 1 SCC 614 , the Hon'ble Supreme Court has held that the Court can convict an accused on the basis of the evidence of a sole eye-witness provided his credibility is not shaken by any adverse circumstance and at the same time the Court is convinced that he is a truthful witness. A close scrutiny of the evidence tendered by PW-1 leaves an impression that she is a truthful witness. There is a ring of truth reflecting in her testimony. She has stated that the occurrence has taken place in the afternoon of 28.05.2011 and at that time she was at home. Her presence in her house when the incident has taken place is not in doubt. She has deposed in the Court that the appellant came to her house and a quarrel started between her husband and the appellant and the appellant has struck two blows on the head of her husband with a wooden log (of the cot). She has stated that at the time of the incident the appellant was accompanied by his wife, another brother Bhula Gope and brother-in-law, however, these witnesses have not been examined in the Court. But the reason for non-examination of these witnesses is not far to seek. They are related to the appellant and, therefore, they would not have supported the prosecution case. PW-1 has stated that at the time of the incident Govind Gope and his wife were also present there. She has further stated that she has five children, but none of them has been examined during the trial. Govind Gope has been examined as PW-4 and he has supported the prosecution case. The reason for non-examination of children of the deceased appears to be their tender age. 5. PW-1 is an the injured witness. She was examined by PW-5, Dr. Paraw Manjhi, on 29.05.2011 at Referral Hospital, Goilkera. Govind Gope has been examined as PW-4 and he has supported the prosecution case. The reason for non-examination of children of the deceased appears to be their tender age. 5. PW-1 is an the injured witness. She was examined by PW-5, Dr. Paraw Manjhi, on 29.05.2011 at Referral Hospital, Goilkera. He has found abrasion on the right supra orbital region of the size of 1” x 1/3” and lacerated wound on left parietal region of the head of the size of 1” x 1.” PW-5 has recorded that Deoki Gope had pain and swelling on her upper lip. The injuries were caused to her by hard and blunt object, within 24 hours. The evidence of an injured witness has a special status in a criminal trial. It lends assurance to the Court that the witness was present at the place of occurrence, if the injury is not superficial and self-inflicted. 6. The evidence of PW-1 is sufficiently corroborated by other prosecution witnesses. PW-2 is a hostile witness, however, he has stated that he has seen dead-body of Sonu Gope. PW-3 is an inquest witness who has also stated that Sonu Gape was assaulted by the appellant. He has not seen the actual occurrence and admits that Deoki Gope had informed him about the incident the next day. PW-4 has told that he has seen the appellant quarreling with his father and he tried to intervene, however, in the meantime the appellant assaulted him with a wooden log. He has admitted in his cross-examination that his statement was not recorded by the police and he stood firm on his presence in his house at the time of the incident. We would exclude his evidence to the extent he says that he has seen the appellant assaulting his father but on other aspects of the matter his testimony inspires confidence. PW-6 is the father-in-law of Sonu Gape and in his examination-in-chief he has stated that Mukhiya came to his house at about 4:00 PM and told him that Sonu Gope has died, however, in his cross-examination he admits that he has not made such statement before the police. He has not seen the occurrence and he has gone to the police station where he has seen dead-body of Sonu Gope and his injured daughter. 7. He has not seen the occurrence and he has gone to the police station where he has seen dead-body of Sonu Gope and his injured daughter. 7. From cross-examination of the prosecution witnesses the defence has not been able to elicit anything substantial which would have thrown a doubt on complicity of the appellant in the crime. Normally, a witness would speak truth in the Court and minor inconsistency, embellishment, omission, exaggeration etc. in testimony of a prosecution witness may occur due to lapse of time, forgetfulness, stress of cross-examination etc. but for that reason the prosecution case cannot be thrown to the winds. In our opinion, the prosecution has laid sufficient evidence to prove presence of the appellant at the place of occurrence and assault by him on Sonu Gope. 8. However, conviction of the appellant under section 302 of the Indian Penal Code is not proper. 9. Exception 4 to Section 300 of the Indian Penal Code reads thus: “Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 10. In Surinder Kumar vs. Union Territory, Chandigarh, (1989) 2 SCC 217 the Supreme Court has indicated the essential ingredients which are necessary to cover a case under Exception 4 to section 300 of the Indian Penal Code, 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. 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 hear 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.......” 11. PW-1 and PW-4 have stated in the Court that the house in which Sonu Gope was residing belonged to the appellant. The appellant is elder brother of Sonu Gope and nothing on animosity between both of them has been brought out by the prosecution during the trial. The evidence of PW-1 is that at the first instance when the appellant removed tiles from roof of the house no quarrel took place at that time. However when the rain began and water started trickling through the roof a quarrel started between the brothers. On such evidence it can be safely inferred that it was Sonu Gope who has started quarrel and therefore, premeditation on the part of the appellant must be ruled out. It is not the prosecution case that the appellant came to the house of Sonu Gope with a wooden log rather from the prosecution evidence it appears that in course of quarrel he picked up a wooden log (leg of the cot) and hit his brother twice. The incident has taken place on a trivial matter and intention to cause death on the part of the appellant cannot be inferred from the prosecution evidence. In a sudden quarrel in the heat of the moment the appellant picked up the wooden log and struck Sonu Gope on his head. A head injury would definitely be dangerous to life but the doctor has not rendered a definite opinion that any of the two lacerated wounds found on Sonu Gope was independently or were cumulatively sufficient to cause death. According to the prosecution the occurrence has taken place at 4:00 PM on 28.05.2011 and he has died next day early morning, at about 4:00 AM. But no medical assistance was given to him. According to the prosecution the occurrence has taken place at 4:00 PM on 28.05.2011 and he has died next day early morning, at about 4:00 AM. But no medical assistance was given to him. In these facts, this also cannot be inferred that the appellant had knowledge that his act was so imminently dangerous that in all probability it would have caused death. No doubt the appellant has struck two blows on the head of Sonu Gope but, for that reason alone it cannot be said that he has taken undue advantage or acted in a cruel manner. 12. From the facts and circumstances of the case narrated hereinabove, we find that the offending act of the appellant falls within Exception 4 to Section 300 of the Indian Penal Code and, therefore, his conviction under section 302 of the Indian Penal Code is set-aside. 13. Accordingly, the judgment of conviction of the appellant, namely, Satrughan Gope under section 302 of the Indian Penal Code dated 16.06.2014 and the order of sentence of RI for life and fine of Rs. 2,000/- for the said offence dated 19.06.2014 passed by the learned Additional Sessions Judge-I, West Singhbhum at Chaibasa, in Sessions Trial No. 222 of 2011 are set-side. 14. The appellant, above-named, is convicted and sentenced to RI for seven years under section 304 Part-II of the Indian Penal Code. 15. However, conviction and sentence awarded to the appellant, above-named, under section 323 of the Indian Penal Code in Sessions Trial No. 222 of 2011 are affirmed. 16. Mr. Bhola Nath Ojha, the learned APP states that the appellant has remained in actual custody for more than nine years and with remission for more than eleven years. 17. Accordingly, the appellant, namely, Satrughan Gope who is in custody, shall be set free forthwith, if not wanted in connection to any other criminal case. 18. In the result, Criminal Appeal (DB) No. 509 of 2014 is partly allowed, in the aforesaid terms. 19. Let lower Court records be transmitted to the Court concerned, forthwith. 20. Let a copy of the judgment be transmitted to the Court concerned through “FAX.” Appeal partly allowed.