HIGH COURT OF CHHATTISGARH AT BILASPUR D-B-: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri JusticeRadhe Shyam Sharma ft'r-p^ Criminal Appeal No.589 of 1995 Munna alias Om Prakash versus State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- R.S. Sharma Judge Hon'ble Shri Sunil Kumar Sinha. J.: J Sd/- Sunil KumarSinha Judge Post for 2^-08-2011 Sd/- R.S. Sharma Judgei 8 I •^,^^ ^"^//- ^^^v" ^^ ~ /J-F'l'- HIGH COURT OF CHHATTISGARH ATBILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.589 of 1995 Appellant versus Respondent Munna alias Om Prakash, aged about 24 years, son of Roopsay, Caste Urav, R/o Village Silma, P.S. Batauli, District Surguja (Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Present: Smt. Ranjana Jaiswal, counsel for the appellant. Shri U.N.S. Deo, Government Advocate forthe State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on 29tt* August, 201 1) Per Radhe Shvam Sharma. J.: This appeal is directed against the judgment dated 22-3-1995 passed by 1stAdditional Session Judge, Ambikapur in Session Trial No. 105/1993. By the impugned judgment, appellant Munna alias Om Prakash has been convicted under Sections 302 and 323 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.2,000/-, in default, to further undergo simple imprisonment for three months and rigorous imprisonment for one year and to pay fine of Rs.500/-, in default, to further undergo simple imprisonment for one month, with further direction to run the sentences concurrently. 2. Case of the prosecution, in brief, is as under: '^.^.^^^w^.^^^.^:.^.. p Deceased William was son of Samrath (father) (PW-8) and Jagaro (mother) (PW-9). On 8-1-1993, at about 7 P.M., deceased William, Samrath (PW-8) and Jagaro (PW-9) were warming themselves sitting before fire. At that time, appellant Munna alias Om Prakash and co-accused Jai Prakash (acquitted) came there and assaulted the deceased. Samrath (PW-8) and Jagaro (PW-9) intervened and tried to save their son (the deceased) from the assault. On this, Samrath (PW-8) and Jagaro (PW-9) were also assaulted by the appellant. The deceased was given Tanga (Axe) blows by the appellant. He sustained injuries on head, eye-brow, orbital region, occipital region and cheek and succumbed tothose injuries. Samrath (PW-8) lodged First Information Report (Ex.P-12) in Police Station Batauli. The investigating officer reached the place of occurrence, gave notice to Panchas and prepared inquest (Ex.P- 6) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Primary Health Centre, Batauli. Postmortem examination was conducted by Dr. Vijay Kumar Mishra (PW-3), who gave his report Ex.P-1, in which, he found near-about four incised and three lacerated wounds on the body of the deceased. The doctor opined that the death was due to coma resulting from head injuries and it was homicidal in nature. Samrath (PW-8) and Jagaro (PW-9) had also sustained injuries during intervention to save the deceased from the assault. They were also sent for examination to Primary Health Centre, Batauli. Dr. Vijay Kumar Mishra (PW-3) examined them and gave his reports Ex.P-2 and P-3, respectively. "/ ^ In further investigation, memorandum statement (Ex.P-11) of the appellant was recorded under Section 27 of the Evidence Act on 10-1-1993 and at hisinstance a Tanga (Axe) was seized vide Ex.P- 8. The appellant was arrested vide Ex.P-9 on 10-1-1993. After completion of the investigation, a charge-sheet was filed against appellant Munna alias Om Prakash and co-accused Jai Prakash in the Court of Judicial Magistrate First Class, Ambikapur, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the 1st Additional Session Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant as mentioned above. The learned Additional Session Judge acquitted co-accused Jai Prakash of the charges framed against him. r 3. Smt. Ranjana Jaiswal, learned counsel for the appellant argued that the evidence of Samrath (PW-8) and Jagaro (PW-9) are not reliable. They are relative and interested witnesses. There are many contradictions and omissions in the evidence of these witnesses. There are material contradictions in medical evidence and ocular evidence. The independent witnesses, who were examined by the prosecution, did not support its case. Therefore, she claimed that the appellant deserves to be acquitted. 4. On the other hand, Shri U.N.S. Deo, learned Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by ^fe the learned Additional Session Judge does 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 record of the session case. The conviction of the accused/appellant under Section 302 of the Indian Penal Code is based on the testimonies of Samrath (PW- 8) and Jagaro (PW-9), who are eye-witnesses of the occurrence and whose evidence are corroborated by the medical evidence. ^ 6. It is not disputed that deceased William was son of Samrath (PW-8) and Jagaro (PW-9). Both these witnesses are nearest relative of the deceased. So far as relationship is concerned, it is not a factor to affect the credibility of witnesses and even the relative witnesses would not conceal the actual culprit and make allegations against innocent person. Foundation has tp be laid if plea of false implication is made. Therefore, we have to adopt a careful approach and analyze the evidence to find out whether their evidence is cogent and credible? 7. In 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. In 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. '^'^ 1 %»®.,ii I'T^J '%-^y.^ The Court 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 related to the victim. The Court held as under: (SCC p. 213,paras23-24) "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 look 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. 24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint." 13. Similar view was taken by this Court in Ram Bharosey\i. State of U.P., (2010) 1 SCC 722, where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity ordue to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." 8. Samrath (PW-8) deposed that the appellant and the deceased were coming from the house of Hira quarreling with each other. He tried to save the deceased. On this, the appellant assaulted on his head. Jagaro (PW-9) deposed that when she tried to saver her son (the deceased), the appellant assaulted her. She sustained fracture in her left hand. Dr. Vijay Kumar Mishra (PW-3) deposed that he examined Jagaro (PW-9) and Samrath (PW-8). Vide his report (Ex.P-2), he found linear abrasion of 15cmsx3mm on left anterior chest, bruise of 6cmsx4cms on left forearm in middle region. There were bruise, tenderness with blood clots on both nasal cavity and nostrils of Jagaro (PW-9). Vide report (Ex. P-3), the doctor found one incised wound of 5cmsx1^cmxbone deep on right frontal region and one lacerated wound of 2cmsx1cm on parietal region of the skull of Samrath (PW-8). Samrath (PW-8) and Jagaro (PW-9) had received injuries in the same occurrence in which the deceased had sustalned injuries. Where a witness to the occurrence has himself ^: been injured in an incident, testimony of such witness cannot be discarded and the witness is considered to be reliable as his presence on the place of occurrence cannot be doubted. ^. r 9. In Brahm Swaroop and another vs. State of U.P., AIR 2011 SC 280, the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh & Ors. V. State of Punjab, AIR 1953 SC 364; Masalti v. State of U.P., AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC 76; and Rizan & Anr. V. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh, (2003) 2 SCC 661) : (AIR 2003 SC 976). Injured witness Attar Singh (PW.1) has been examined, his testimony cannot be discarded, as his presence on the spot cannot be doubted, particularly, in view of the fact that immediately after lodging of FIR, the injured witness had been medically examined without any loss of time on the same day. The injured witness had been put through a grueling cross- examination but nothing can be elicited to discredit his testimony. r 8 22. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes within a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". (Vide: State of U.P. v. Kishan Chand & Ors., (2004) 7 SCC 629 : (AIR 2004 SC 4671); Krishan & Ors. v. State of Haryana, (2006) 12 SCC 459; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270 : (AIR 2008 SC 3259); Jarnail Singh & Ors. v. State of Punjab, (2009) 9 SCC 719 : (AIR 2010 SC 3699); Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477 : (AIR 2009 SC (Supp) 2374); Anna Reddy Sambasiya Reddy & Ors. v. State ofAndhra Pradesh, AIR 2009 SC 2661; and Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673): (2010 Cri LJ 3443 (SC)." {See also Shaukat vs. State of Uttaranchal, (2010) 5 SCC 68 (Paragraphs 35 and 36)} 10. In case in hand, both Samrath (PW-8) and Jagaro (PW-9) are injured witnesses, therefore, their presence at the scene of crime is proved and their testimonies are wholly reliable. 11. Samrath (PW-8) deposed that on the fateful day he returned to his house in the evening. His wife Jagaro (PW-9) was present at the house. When he was taking meal, he heard noise of a quarrel in his neighbourhood. The quarrel was going on between the appellant and his son (the deceased) in the house of his neighbourer Hira. The appellant and the deceased were coming from the house of Hira quarreling with each other. While coming, the deceased was ;?l"r'^. !^ ^ j 1 %$By %s^!sy "^^^A^;;'' \\ 9 running. He intervened and tried to save the deceased. On this, the appellant assaulted on his head. He could not understand about the weapon of assault. He received injuries on the head. Blood was oozing out of it. He fell down due to the injuries and the quarrel continued. He further deposed that the appellant, running, went to his house, brought a Tanga (Axe) and assaulted the deceased on his head with the Tanga (Axe), due to which, the deceased died. Blood was oozing out of the head of the deceased. 12. Jagaro (PW-9) deposed that on the fateful day, in the evening, a quarrel was going on between appellant Munna and her son William (the deceased) and the appellant was beating the deceased. When her husband Samrath (PW-8) tried to save the deceased, the appellant assaulted her husband with a Lathi. Her husband fell down. Her husband sustained injury on his head. When she tried to save her son (the deceased), the appellant committed Marpeet with her, due to which, she sustained fracture in her left hand. The deceased was present there. The appellant, quarreling with the deceased, assaulted him on his head with a Tanga (Axe). The deceased received injuries on the head. Blood was oozing out of it. The deceased had also sustained injury on back of the head and blood was oozing out of it. 13. Learned counsel for the appellant argued that the Investigating Officer was not examined in this case and that has resulted in prejudice to the accused/appellant. 10 14. In Raj Koshore Jha vs. State of Bihar and others, (2003) 11 SCC 519, the Hon'ble Supreme Court held as follows: "11. Mere non-examination ofthe Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In Ram Dev v. State of U.P., 1995 Supp (1) SCC 547, it was noted that non-examination of the Investigating Officer does not in any way create any dent in the prosecution case, much less affect the credibility of otherwise trustworthy testimony of the eyewitnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after examination-in-chief and partial cross-examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have caused any prejudice to the accused on account of the Investigating Officer's non-examination. The prosecution cannot be attributed with any lapse or ulterior motive in such circumstances. In Behari Prasad v. State ofBihar, (1996) 2 SCC 317, it was held that a case of prejudice likely to be suffered mostly depends upon facts of each case and no universal straitjacket formula should be laid down that non-examination of the Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Prasad v. State (Delhi Admn.), (2000) 2 SCC 646, Bahadur Naik \i. State of Bihar, (2000) 9 SCC 153, and Ram Gulam Chaudharyv. State of Bihar, (2001) 8 SCC 311." (See also Birendra Rai and others vs. State of Bihar, (2005) 9 SCC719) 15. Having gone through the evidence of Samrath (PW-8) and Jagaro (PW-9) and other materials available on record, we do not ^' ^- 11 find that any prejudice has been caused to the defence by non- examination of the Investigating Officer. Only the seizure has not been proved in this case because the Investigating Officer was not examined. We, therefore, ignore the seizure made and base our decision on the other evidence and the evidence of two eye- witnesses, who have impressed us as truthful witnesses. 16. Learned counse! for the appellant argued that place of occurrence is not proved by the prosecution and in this regard there are material contradictions in the evidence of Samrath (PW-8) and Jagaro (PW-9). This argument is unacceptable as Samrath (PW-8) specifically stated that a quarrel was going on between the appellant and the deceased in the house of his neighbourer Hira. The appellant and the deceased were coming from the house of Hira quarreling with each other. Jagaro (PW-9) also stated in simiiar fashion. 17. Seegal (PW-1), who was declared to be turned hostile, deposed that on the fateful day, at about 8-9 P.M., deceased Wiliiam had sustained injury on the head and cut injury was also on the fore- head. Rameshwar (PW-2) deposed that on the fateful day, his elder brother (Oacfa) called him making noise that his nephew was being beaten. He went to the place ofoceurrence. When he reached near William (the deceased), he had fallen down there. The deceased had sustained injury on the head and blood was oozing out of it. Ramkumar, Patwari (PW-11) deposed that at the instance of ^- 12 Samrath (PW-8) and Jagaro (PW-9), he had prepared spot-map of the place of occurrence and the map is Ex.P-15. 18. In the spot-map (Ex.P-15), it is mentioned that place '4' is the house of Samrath (PW-8) and place '1' is the place of occurrence. Distance between the places '4' and '1' is 43 Kadi. From perusal of the document Ex.P-15 and the evidence of Seegal (PW-1), Rameshwar (PW-2), Samrath (PW-8), Jagaro (PW-9) and Ramkumar (PW-11), it is crystal clear that the place of occurrence is near the house of Samrath (PW-8), therefore, there is no discrepancy in the evidence of prosecution witnesses about the place of occurrence. 19. We have carefully perused the evidence of Samrath (PW-8) and Jagaro (PW-9). These witnesses have categorically deposed that on the fateful day, the appellant assaulted the deceased with the Tanga (Axe) and he had also assaulted Samrath (PW-8). The evidence of Samrath (PW-8) and Jagaro (PW-9) are duly corroborated by the medical and other evidence. From the medical evidence, we find that the death of the deceased was due to coma resulting from head injuries and it was homicidal in nature. Therefore, we do not find any infirmity in the finding recorded by the Additional Session Judgethat it was the appellant who caused the injuries on the body of the deceased with the Tanga (Axe) and the deceased died on account of the injuries caused by the appellant and he had also caused injuries to Samrath (PW-8). 13 20. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 ofthe Indian Penal Code. 21. The determinative factor in Section 300 of the Indian Penal Code is the intentional injury, which must be sufficient to cause death in the ordinary course of nature. It is immaterial whether the offender had knowledge that an act of that kind will be likely to cause death. The offender's subjective knowledge of the consequence is irrelevant. The result of the intentionally caused injury must be viewed objectively. To find out whether the offender had intention to cause such bodily injury, which in the ordinary course of nature was sufficient to cause death, the divorce factors need to be kept in mind such as the force with which the blow has been dealt with, the type of weapon used, the vital organ or the particular spot of the body targeted, the nature of the injury caused, the origin and genesis of the crime and the circumstances attended upon the death. 22. The appellant assaulted the deceased and gave Tanga (Axe) blows on his head. Near-about four incised and three lacerated wounds were found on the body of the deceased. The injuries, which deceased William suffered, clearly show that Tanga (Axe) was used by the appellant with a considerable force and injuries were caused on the vital parts of the body. 23. The nature of weapon used by the appellant, the manner in which he assaulted the deceased, severity of the blow he dealt against the deceased and the part of the body which he selected for giving such blow would show that he had an intention to commit 14 murder of the deceased. We are of the considered opinion that in the above facts and circumstances, the act of the appellant would not be falling under any Exception to Section 300 of the Indian Penal Code and the present cannot be said to be culpable homicide not amounting to murder. 24. For the foregoing reasons, we do not find any substance in the appeal, which deserves to be and is accordingly dismissed. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge Gopal