HIGH COURT OF CHHATHSGARH. BILASPUR •V. CRIMINAL APPEAL Ho. 1S8 of2006 ^ .Dewar Singh Vs. Tfae State pf Chhattisgarh JUDGMEHT Post for 25.W.2007 Sd/- Sunil Kumar Sinha Judge 'n)t-|il HIGH COURT OF CHHATTISGARH. BIL^SPUR CMMIMAL APPEAL No. 158 of 2006 APPBLLAIIT (JAIL MATrtai) Dewar Singh, s/o Sadarain Saliu, aged about 60 years, r/o viUagc Maharum, P.S. Dongargaon, Distt. Rajnandgaon (C.G.) RBSPONDEMT Versus ; Th.eState of Cfahattisgartt, -^ .. Through Police Station Dongargaon, District Dongai^aon (C.O.) Appearance: - Ku. Sofia Khan, counsel forthe appcUant. Shn M.P.S. Bhatia, Panel Lawyer, forthe State; JVDCtUKWT (25.06.2007) SUBUL KUMAR SIKHA. J. (1} This appeal is directed agaiust the judgnient ofconviction and oider ofsentence dated 31.12.2005 passedin;SessiDnsTrial No.95/2005 by the Addl. Seasions Judge, Rajiiandgaon (C.G), wfaereby fhe appellant was cbnvicted u/s 304 <|part-I) ofI.R.C. and sentenced to undergo R.I. for 10 years ahtf'fo pay a fiup of Rs.lOOO/-, in default ofpaymentoffinetoftirther.undei^oS.I. for3 monfhs. P) The appeUant was chai^d u/s 302 & 341 ofI.^'.G; The aUegations, are that on 03.7.2005,ui the inoming when the deceased Paharu Ram was sitting on fhe CAauni (platform) in fiont ofhis house, the appeBant came over there and started altercatious with hiiu. Aflter the altercatKin, he rushed to his house, brought an Axe and assaulted the deceased with tiie Axe, as a result of which the deceased feU down. This iacidprit was witnessed by Homan Bai (P.W.2) aiid Kamlesh (P.%3); yho are Cr.A.^fo. 158 of2006 Bf 1 i ;1;:! !l:i m.^. ;iil M ;:;1' W-i*l: 111 ;1] the daughter-iti-law aud grand son of fhe deceased. The deceased was taken to Doiigaigaon. hospital, finm where he was referred to District Hospital, Rajnaadgaon, where he died. By tfaat tiine, the Dehccti ^gfefa'was recorded by Dongai^aon Police under Ex.P.l and fhe Firsf Information Report was registered vide Ex.P.22 u/s 307 I.P.C., but later on when the deafh was infonned, fhe meiy iatiination (Ex.P-2) was todgcd and further investigation conunenced. The body was sentfor post inortein. There was one stitGhed wound, 4" long, obliquely pteced over occipital region of scalp. Wheu the stiteheswere removed aad tfae wound was opened, one big clot (approximatefy of 100 grams) was present there and when the same was also renioved, the autopsy sui^eou detected a compound comininuted fi^cture of occipital bone which was broken into niauy pieces and it was. badly lacerated wifh fhe back portioa offhe brajn. The depth of thewoundwasabout4*', According to the P.M, report; Ex.P-20, prepaned by Dr.Rajesh Sadaai (P.W. 11)^ the cause of death was severe head injuiy & heinorrhage shock due to excessive bleeditig. (3( The convietion of the appellan.t fe based upon the testimony ofHpmfln Bai (P.W.2) and Kainlesb (P.W.3). (4) Lcamed counsel for the appeUant firstly submitted that while fhe deceased was taken to Dongargaon Hospital, he was examiued by Dr. Diuesh Gypta (P.W.14), who had noticed a defused sweUiug and lacerated wound admeasuring 5cm; x lcm, reddish colouT wifh bleeding present in right OGcipital region. Aceording to his opuuan, the injury might have been-caused by hard aad' blunt object, but the eye-witoesses are tellmg tbat the injury was caused by a sharp edged weapon i.e., Twijgia and it was caused fiTDin its sharp edged portion, theFeforeJ there is disciepancy in the oral testunony aad inedical evidenee, heQce, .fh& oral testimony 6f tfaese witaesses should bei rgected. Secondly, retying pn the dsGision Tendered in fhe jmatter of '>t&ng agttt Ram. -»s-State afMndftBa nitdesh 20<M C'rfclw/.i 632 '?»E: Cr.A.No.l58of2006 (SC). she alsoar^ued that £hesentence awarded to the appeUant is on higher side, which should be reduced to ininim.um preferabty to 3 yeare R.I. as has been held in the said case, (5) On fhe other faand.leamed State Counsel opposed these arguments aad supportjed the judginent ofconviction and order ofsentence passed by the trial Court. (6j Homaa. Bai (P.W.2) has stated that there was some land dispute between her fatlier-in-Iaw (deceased) and the appeUant since last 3-4 years. Pn the fatefiil day, she was in her house and herfather-ia-lawwasSittmgontheChaura (Platfpnn) ofthe house. The appeUant, whose faouse is situated near fheir house caine over there and he had som.e talk wifti her iather-in-law and thereafter he went to his house'and came witfa a Tangia and gave a Tangiablow on fhe bacls: portion ofthe head offtle father- ui-law.In the exaHunatioD.-in-chief, she has not stated as to which portiou ofthe Axewas used by the appeBant, however, m. Para 4 of her cross exaiuuiation, she has adnutted that fhe appellaat had assaulted &osi sfaarp edged portion ofit. (7) Kaiulesh (P.W.3)^who is aged about 13 years, has also stated ahnost .smular fhing. In Bis eross exainiilaUon. vide Para 4, he stated that his grand faflier had receiwed uyuries fi-om sharp edged portion of fhe weapon. (8) It is on: these two admissions made na the cross examination by the above two witaesses, coujisel for the appeUant argued that since the Version of these witaesses are not supporied by the medical evidence, their testimotiy should be disbelieved and the appeUantshould beaGquitted. | ^ 1 • (9) It has been held by tfae SupreiHe Gourt in the inatter of State ttfV.P. -vs- KrishfuiGopaliemdem^aier^flSS^ 4 SCC 302_aaui fwfher m ^ttmtifcai^Jtai—t J adan^€tiL<u*id«>tters AER .2004 S.C. 77 fhat "wUere tlie eye-witnesses" account is f fouiid credibte and trustwoithy, medieal opuiion pouituig to -K-'f-t-tisiiSt-k-SWS Cr.ANo,.158 of2006 »Wl. atteraative possibilittes is not accepted' ^^^ (Xaiclusive, _ ^ Iinportaoce and prunacy shouM fee giyeirft^^tee^oralityofc^ ^•~ trial process. Eye witnesses' accounf wouM rtquire a^capel^ independent assessineut and evahiation ^^^heir ei^flmtBty -, wiuGh should not be adversely prejudged inafcuig aoy ptller^ ^"3 evidence, mchidiag inedical-eyideoce, as tfae sate touclistone%r ~ •;; s fhe test of such credibility. Tfaje eyidence inust be^ested fosits - inherent consistency amt the infafirent pixtbahjlily ofiitBe stoiy;. E.y;. consistency with the account of. ofher wituesses hfilft ^16 "be i- creditworthy; consistency with the uiriisputed facte; 'ffie^'teTed-tt' ~.~ of the witnesses; fheir perfonnatifie in the witDfiss-bQx;^fIieijr" ,^ power of observatidn ete. Then fhe piobstiwe vahie of such ^ • evidence becouies eligible fo be put intoFthe scale fiM^;a ? cuiuulative evaluation." . : ^. ; i . (10) Re^qngon fb£said,<Iec^flinaieDdei^lytiie^exCc^^ ^~:^ this Coyrt also faeM in tiie matter.oB^Atni^jLeaM^^ - of Chhataseiarh. S007 CrLlMJT. 1036 pi.B). ibat Ms eye ; witetess testunpny may contam. insiccura;ies and exaggeratioQS,.; ..i~ there uiay be errors or oiiuasioiis on acGount Qflapse,6Eineinbiy='-i or poor power ofobservations or uiability to ixxxmnt-stnSsecSte:- ^— accurately. Soinetunes, ifloctora alsQ:may DOt'best^^ ^~;? care wliite performing exainioatjon pTeparingzSeeoi^s ^and their opinkm. may be Uasetf^ madequateSpr^mcoBaplete^or;: Sjg defective exammation or lack bf jcomplet&'^fcDCiwled^!/ • It^ is. 5:*K iudeed not fair to expect a totolGoiiespoiKleaee^ttBt'^ee&.fflese^ g^ two iteius of evidence. <^touit~'iUi^ carefully^exaiaufe^^ discrepancies and if it is l®as0tiab^pQssiyK^03ariiv®>^t;..Bie^^^ substantial and true veisiooi:; CiouifcisIiQuld-.aaiiaffii^ : w — prosecutK>D:.case on,'the^basis.of.suQi5li]s®i^>a|^^^.^ iH:^^ 1511s medjcal ;witnesses aiut cwulaT^'rotaas^^S^tegg^^gEgttjBE)^!^^^ s factors. IiiconsisteiK;y -is^lKrt^Sufficis3ast23^*^B8i[^its^^^^^ witaess; Soinetunfis aa ey^-witaless-anay altege-a;1>l)^ t^ssCa|^ etc., bvt fhere' .inay :iK>(^-be"'',:eoiTesy>iuIin!^^iiyuraes.^;^3|^^^ possibility of weapon not actuaB^^ strildng aDd.^Dot ^Gansi^gg|!:t| );,';:;|!sjt.;igillll I^^SIiaBSIH nissj Cir.A.Nb. 158 of2006 iujluy canuot be ruted out Eye wituess may err in details Uke direction or the blow eto. InconsistEncy regaiding such details belween the two items of evideace Inay not/be importaat. Itiere may be discpepancies regarSing theweapbn orinarmerofattaGk. If fhe eye witaiess testimoDy is clear and Gonvinciag, discrepaiicies cannot matter. Doctbris awitnesspf both fa.et and opiniou. Medical evidence aets as a check upon testunony of eye witness; it is alsp jadepeiuleat evidence in so faras it estabBsUes &Gts e.g., tattooing iRartes, aature and diin injuiy etc. Medieal^evidence is also^/eoi-robdrative of eye witnsss testimony, iu as muGli as it may sh<^ that the inju^ might have been caused ia thc manner alle^d. Defence coUld. use llie Inedical evidence fo sbow that fhe uijuiy could nQt have toeen caused as alleged aud thereby disGredit eye witness testiaiony, Howeyer, unless the luedical-CTnflenee @^s so&Ari^Biat it completety rutes out aU possiBility^'whflGlsoevcT^^^o^ taldng place in the mfinner allegeff -by ftie eye :witnfis&, ^ftie prosecution version cannot be thrown out OD: the gKniiKl^of aUeged Micoiisistency between. the Iwo iteins of evKfauce: C^iuit.; has to reineinber that inedical evideace is main^ evidence on whk:h the court uld foiin ite OT^ UMlepen^nt^ conchisioii. Iri case of divergERCe, the Coiu-t niust iiy to? reconciie the two; if that is ncrt possible the court has 'to- apprecjate tUe evidence Uke any otfaer evidence, haviag regard tQ reasons and data pnwided by tlw Doetpr and tlie c6gei&y.<)F otherwise ofeye witness liestiliiony. Ifeye witnesses are CTedible; and tTustwwrthy, med&^ opiiuon siiggestm^ att^^ possibitily inay not be accepted as conclusive/ Prima<^sl^^ be'given'tooralendeace. : .• ' ; ,;.L;1':' i.~: •.'•J-../....' -^.iS (11\ Therefore, it ia eteaT that if •tlierei.is ^iscrepaBiey UetnEeeifc medicM'aiid ocu^«videiK;eaiid^"w^ro:thfi^stim£^ witnesses is eredibte and . tTll^^ suggestmg atteHiative pQssiBilit^ weaiM^ ! coriclusive arid pnmacy has te Uejgjven to oral evid^oe. k : ';.. : : ' - ' .'-. .':::; 111.' 1: '-•.<' -'..:,'-"-' vs ^:^;^;' S •f^wN; "iSSi •11?B •J^^-!^ Cr.A.No.l58of2006 (12) In the present case, fhe evidence of both eye witnesses namely Homan Bai (P.W.2) and Kamlesh (P.W.3) appears to be natural, credible and trustworfhy. They had reasons to remain present at fhe scene of occurrence because the-iacident took place in fiuut offheir house and they have deposed things ia the aatural manner which caiinot be said to be unnatural or unTeliable. Nb reasons have been set forth to disbeUeve their testunonies except the discreparicy wifh the medical evidence referred to above. I fiud ffaeir testunonies to be credible and dependable aad they cannot be disbelieved on this point alone that they admitted titiat injury was inflicted from the sharp edged pordon of the weapon used aD.d in fact, that injuiy was fouud to be a laceration. I do n.ot find aad force iu. the first ar^ument advanced by teamed counsel for the appellant and the same is rejected. (13) So far as quaatum of sentence is concemed, in fhe inatter of Ba&di Ram (supra), refenTed to by learned couusel for the appellant, fhe sentenceofS years R.I. was held to be on highcr side and reduced to 3 years on the ground that both fhe parties indulgediabrick-battuigandthe peraons belonging to both fhe parti.es had received injuries and there was au altei-cation foUowed by assault on P.Ws. 1 and 4. The Apex Court held fhat when tempera raa lugh, ia the heat of passion, upon sudden quarrel, ffae appellant assaulted fhe deceased though ua uaarmed, but without premeditation, whk-h had caused only one injury to the deceased by picking up the gaintf (pfck axe) lying thfire, and in that situation the Apex Coiirt had]rcduced the sentence awatded to the appellant. In the preseiit case, afljer certaia altercatiou wifh the deceased, fhe appeUant rushed to Uis house, rctumed iminediately armed with an Axe and gave fatal blow to the head of the deceased though he was being stoppcd by bis wife seymg as '"1:1?f 'TRt TRr ~f^' and m ihis situation, the Court below has awaided the sentence of 10 yeara ~R.I. to tfae appeUaut. The judgment referred to by Counsel for Cr.A.NaI^ofZOOfi the appellant is distinguishable ori these points and it cafinbt be applied in the facts and circuinslance&ofthis case. (14) The principle of proportion between crune an3 punishmfint is goveraed by fhe ''Dix^rme qfjust cteseF?. Thel doctrine is the foundation bf a erimmal senterice which is ultiinately awarded for a punishiD.ent to the WTong doer. What one really deserves should be the punishment for haviag coininitted a crim.e is the uaderlyuig principle. The puiushiaent inust not be disproportionatefy great is a corollaiy of "jusf deserf which is gOveined by the sainepriueiplewluchsaysthat fhere caiuibt be a punishinent without guilt and fhe basic eleinent belund the pnnciple is fhe proportipn between ciime and puiushiuent. The lesser is t&e gravity of the criiue,ltlie sinaUer would be the puiushinent and the greafer is the gravity ofthecrtme,fhehigherwouldbethepunishinent,subjectt0 fhe anciBaty factors for deteruunmg the piToportieia 'of the saine, though atl further subject to the sfatutoiy pbUgations specificalty prQvided by law iu.force. I do notfind any nielit in the second point advanced by counsel for fhe appeUan.t on the quantuin of sentence also. . - - (15) In fhe result, tlie appeal fails and fhe same is gismissed. The cdiiviction and sentence awarded by fhe Coiirt 6elowr are hereby confiruied. Sd/- SunilKumarSinha Judge .•4^.x?^t&H-^» -'^' •^t^*^'^ ^''•". :" .." f-