@ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon’ble Shri Justice Sunil Kumar Sinha and Hon’ble Shri Justice Radhe Sh am Sharma Criminal Aggeal No.1 292 of 1996 Bhagwandutt Versus State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT FOR CONSIDERATION Honible Shri Sunil Kumar Sinha, J.: Sd/- SUNIL KUMAR §INHA f Judge ‘ Post for {1 42-2011 . am: .< 1w g R.s,SHARMA ’ fir-{Egg K , f w; 4 1 a: A @ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon’ble Shri Justice Sunil Kumar Sinha and Hon’ble Shri Justice Radhe Shyam Sharma Criminal AMal No.1292 of 1996 Present: Smt. Savita Tiwari, counsel for the appellant. Shri Ravindra Agrawal, Panel Lawyer for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on 16* December, 201 1) Per Radhe Shyam Sharma, J.: This appeal is directed against judgment dated 17-5-1996 passed by Additional Session Judge, Janjgir in Session Trial No.273/1993. By the impugned judgment, accused/appellant Bhagwandutt has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: On 25-4—1993, at about 2-3 O’clock, complainant Dinesh Prasad Dubey lodged a report in police to theeffect that when he was sleeping along with his wife at his house in the afternoon, a villager Rakesh Dubey was peeping inside the door of the house. \ \ Appellant Bhagwandutt, S/o Ghanshyam Dubey, aged about 46 years, R/o Village Rasauta, Police Station Pamgarh, District Biiaspur versus ’ Respondent State of Madhya Pradesh (Now State of Chhattisgarh) through Police Station Pamgarh, District Bilaspur @ On being seen his peeping and making shout, Rakesh Dubey fled from there. He was caught in a Iane and a Marpeet had taken piace with him. A preventive action was taken against him. On this, the appellant went to deceased Narendra Singh at about 4:30 P.M. and requested him to extricate his son Rakesh Dubey. The deceased refused to heip him in extricating Rakesh Dubey saying that Rakesh Dubey used to'peep mothers—sisters of the viliage in their houses. Thereafter, at about 9:30 P.M., the deceased and witnesses, after having dinner, were sitting near Gudi. Their faces were towards the public road on west side. At that time, the appellant came out of his house situated in north side. He was having a Sabba/ in his hands. Taking advantage of darkness, the appellant gave two Sabbal blows on the head of the deceased. The deceased got smeared with blood and unconscious sitting on the chair itself. The witnesses prevented the appellant from giving third Sabbal blow. The complainant intervened and used light force against the appellant in which the appellant also sustained simple injuries. The deceased was brought to the police station. At that time, he was unconscious. On lodging of First Information Report (Ex.P-11), an offence under Section 307 IPC was registered and investigation took place. The deceased died during treatment in Bhilai Hospital. Merg‘ Intimation (Ex.P-3) was recorded. Registration of offence was converted from Section 307 IPC to Section 302 IPC. The Investigating Officer gave \ notice (EXP-13A) to Panchas and prepared inquest (EXP-13) on dead body of the deceased. The dead body was sent for post " mortem examination vide EXP—16. ’Dr. R.B.Agrawal (PW—12) conducted autopsy on dead body of the deceased. He gave his EN L, \ @ 3 report (Ex.P-1 7), in which, he opined that cause of the death was shock and haemorrhage as a result of head injury. In further investigation, the Sabba/ was seized from Raghvendra Pratap Singh (PW-8) vide Ex.P-12. Map of the spot (EXP-15) was also prepared by Revenue Inspector Sonaram Sahu (PW-1 1). Plain soil, blood stained soil and a chair were seized vide Ex.P—21. Angauchha, blue Sando and Baniyan of the deceased were seized vide EXP—22. The seized articles were sent for examination to Assistant Chemical Examiner, Regional Forensic Science Laboratory, Raipur, from where, report (EXP-27) was received. In the FSL Report (EXP-27), articles A — Sabbal, B — blood stained soil, D — chair, E — underwear, F1 — Gamchha and F2 — Baniyan were found stained with blood. These articles were sent for serological examination to the Serologist at KolKata (Calcutta). After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Janjgir, who, in turn, committed the case to the Court of Session, from where, it was received on transfer by the Additional Session Judge, Janjgir, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Smt. Savita Tiwari, learned counsel for the appellant argued that the appellant had also sustained an injury in the same incident, ’which has not been explained by the prosecution. The prosecution story is doubtful. The appellant is falsely implicated in the case. The prosecution witnesses are highly interested witnesses. Therefore, 4 the appellant deserves to be acquitted of the charge framed against him. 4. On the other hand, Shri Ravindra Agrawal, learned Panei Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Session Judge do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of session case. 6. The conviction of the appellant is based on testimony of Raghvendra Pratap'Singh (PW-8), Dakwar Singh (PW-9) and Radhe Vallabh Singh (PW—10). It is not disputed that Raghvendra Pratap Singh (PW—8) is nephew of the deceased: 7. ln Dharnidhar vs. State of Uttar Pradesh and others, (2010) 7 SCC 759, the Hon’ble Supreme Court held as follows: “12. There is no hard-and—fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. ln Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Coutt took the view that a pedantic approach cannot be applied while dealing with/the evidence of an interested witness. Such 'evidenCe cannot be ignored or thrown out solely because it comes from a person closely 5 related to the victim. The Court held as under: (SCC p. 213, paras 23-24) “23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to Iook for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.” 8. lt is not disputed that Raghvendra Pratap Singh (PW-8) is nephew of the deceased. It is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the Court is satisfied that the evidence of the interested witness has a ring of truth such evidence could be relied upon even without corroboration. The fact of being a relative cannot by itself discredit the evidence. When the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. \ @ 9. Raghvendra Pratap Singh (PW—8) deposed that on 25-4-1993, at about 4:30 P.M., the appellant came to the deceased and asked him to help him in extricating his son Rakesh Dubey. The deceased told him that Rakesh Dubey used to peep mothers—sisters in their houses, therefore, he will not help him in extricating Rakesh Dubey. ln the night of the same day, at about 9 P.M., when he himself, the deceased, Dakwar Singh (PW-9) and Radhe Vallabh Singh (PW-10) were sitting near Gudi, the appellant came out of his house. He was having a Sabbal in his hands. The appellant gave two Sabbal blows on the head of the deceased. The deceased sustained injuries on right side of his head. When the appellant tried to give third Sabbal blow to the deceased, Dakwar Singh (PW-9) caught the Sabbal and tried to snatch it from the appellant. During this snatching, the appellant sustained injury on his umbilicus region and fell over a stone. 10. Dakwar Singh (PW-9) and Radhe Vallabh Singh (PW—10) deposed that on 25-4—1993, at about 9-9z30 P.M., when they were sitting near Gudi, the appellant came out of his house having a Sabbal in his hands and gave two Sabbal blows on the head of the deceased. The deceased sustained injuries on right side of his head. While the appellant was attempting to assault the deceased with the Sabbal at third instance, Dakwar Singh (PW-9) caught the Sabbal and tried to snatch the same from possession of the appellant. During snatching the Sabbal, the appellant sustained /. ,/ \ \njury on his umbilicus region and fell oVer a stone. X 11. Learned counsel for the appellant argued that the evidence of the above prosecution witnesses are exaggerative and contradictory to each other’s evidence. This argument is not acceptable. 7 12. It is true that there is some variance in the testimony of the prosecution witnesses, but the testimonies of Raghvendra Pratap Singh (PW-8), Dakwar Singh (PW—9) and Radhe Vallabh Singh (PW- 10) are convincing and trustworthy about the incident and there is no reason to disbelieve their evidence as claimed by learned counsel for the appellant. The contradictions are minor in nature and not related to the overt act attributed by the appellant. 13. The date and time of the incident was 25-4-1993 at about 9:30 P.M. and the FIR (Ex.P-11) was lodged by Raghvendra Pratap Singh (PW-8 - eyewitness) on 25-4—1993 at 10:30 P.M. It appears that the FIR (Ex.P—11) was lodged within an hour of the incident. Name of the appellant is mentioned in the FIR (Ex.P—1 1). Names of witnesses Dakwar Singh (PW—9) and Radhe Vallabh Singh (PW—10) are also mentioned therein. 14. Dr. B.L.Mishra (PW-7) deposed that injured Narendra Singh (since deceased) was brought before him for medical examination. After examining him, he gave his report (Ex.P-8) in which he found lacerated wound, 4cmsx2cmsx2cms on frontal bone between middle line and eyebrow, lacerated wound, 7cmsx3cmsx4cms on right parietal bone, lacerated wound, 3cmsx2cmsx1cm on right maxillary bone. Dr. R.B.Agrawal (PW-12) deposed that after conducting autopsy on dead body of the deceased, he gave his report (Ex.P— 17'), in which he found stitched wound on the frontal region of right @ side of scalp, 2” long (5 stitches), stitched wound on right parietal region, 4” long (9 stitches) on the scalp, stitched wound on right cheek, 2" long. He also found depressed compound fracture on right frontal and right parietal bones. The bone pieces were multiple. Brain matter was coming out from fracture side. He further deposed that cause of death of the deceased Was shock and haemorrhage as a result of hea‘d injury. Therefore, the evidence of Raghvendra Pratap Singh (PW-8), Dakwar Singh (PW-9) and Radhe Vaiiabh Singh (PW-1 O) are corroborated by the medical evidence also. 8 15. Learned counsel for the appellant argued that the injury sustained by the appellant has not been explained by the prosecution, therefore, the prosecution story is doubtful and is not acceptable. 16. In Shajahan and others vs. State of Kerala and another, (2007) 12 SCC 96, the Hon’ble Supreme Court observed in paragraph 10 (only relevant portion is extracted below): “10. 8. Non-explanation of injuries by the prosecution will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ram/agan Singh v. State of Bihar, (1973) 3 SCC 881 prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence. to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no @ occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh v. State of Bihar, (1988) 2 SCC 95, it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. lt the witnesses examined on behalf of the prosecution are believed by the court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under .what circumstances injuries have been inflicted on the person oftheaccused. 11 17. In Rizan and another vs. State of Chhattisgarh through the Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh, (2003) 2 SCC 661, the Hon’ble Supreme Court observedin paragraph 14 (only relevant portion is extracted below): “14. ........ Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the \ / \ 10 omission on the part of the prosecution to explain the Injuries. 18. EXP-29 is Medico Legal Report of the appellant and EXP-30 is X-Ray Report of the appeilant. From perusal of both the‘se documents, it appears that the injury sustained by the appellant was simple in nature. Raghvendra Pratap Singh (PW-8), Dakwar Singh (PW-9) and Radhe Vallabh Singh (PW-10) specitically deposed that when the appellant tried to give third Sabbal blow on the head of the deceased, Dakwar Singh (PW-9) caught the Sabbal and tried to snatch it from the appellant. During this snatching, the appellant sustained injury on his umbilicus region and fell over a stone. 19. From the above, it is evident that the prosecution has properly explained the injury sustained by the appellant. 20. Now, we shall examine the matter in light of the provisions of Section 302 vis—a—vis Section 304 of the Indian Penal Code. 21. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. lt draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where ‘ theFe is intention, whereas the second part applies where there is / V, / 11 knowledge but the imponant thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 22. In Jagtar Singh vs. State of Punjab, (1983) 2 SCC 342, the Hon’ble Supreme Court held as follows: “8. The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least’could be imputed with a knowledge that he was likely to cause an injury which .was likely to cause death. " Therefore, the appellant is @ shown to have committed an offence under Section 304 Patt ll of the IPC and a sentence of imprisonment for five years will meet the ends ofjustice." 12 23. In Satish Narayan Sawant vs. State of Goa, (2009) 17 SC.C 724, the Hon’ble Supreme Court held as follows: “40. That being the well-settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. initially the appellant—accused also did not have any weapon with him but during the course of the incident he ’ went inside and got a knife with the help of which he stabbed the deceased. PW 7 in his cross-examination has categorically stated that death due to stab injury was in consequence of Injury 1 and all other injuries were superhcial in nature. So, it was only injury 1 which was fatal in nature. Factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness." 24. In the instant case, the appellant had come to the deceased ’ for extricating his son Rakesh Dubey. On deceased’s refusal to help him, an altercation took place between them and the appellant gave above blows to the deceased. The deceased was taken to the hospital where he died during the course of his treatment. Thus, the de'ath was not instantaneous. “All this shows that there was no @ intention on the part of the appellant to commit murder of the deceased but the knowledge can be attributed to him. Dr. B.L.Mishra (PW-7), who examined the deceased, opined that the injuries sustained by the deceased had been caused by a hard and blunt object. We are, therefore, of the opinion that the appeilant is liable to be convicted under Section 304 Part ll of the Indian Penal Code. (See Gurdial Singh and others vs. State of Punjab, JT 2011 (5) sc 415). 13 25. For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 302 of the indian Penal Code are set aside. Instead thereof, the appellant is convicted under Section 304 Part ii of the Indian Penal Code. It is stated that the appellant was arrested on 27—4-1993. He was released on bail on 13-9-2000 vide order dated 31-7—2000. He has already undergone for about 7 years and 4 months. We feel that the ends of justice would be served if the appellant is sentenced with rigorous imprisonment for the period already undergone by him. Therefore, for his conviction under Section 304 Part II of the Indian Penal Code, the appellant is sentenced to undergo rigorous imprisonment for 7 years and 4 months, i.e., the period already undergone by him. Presently, he is on bail. His bail bonds are cancelled and sureties stand discharged. Gopal I I Sd/— Sd/- /\ SUNH. KUMAR SINHA ‘iy‘l R&SHAmWA . \ Judge ‘ ,JI _ Judge _ I t)