^ il ^I fl^^ ^p1-'1 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR, JJ. CriminaLAppeaLNo.607 pl 2006 Santram Versus ssg^ State of Chhattisgarh JUDGMENTFOR CONSIDERATION Sd/- T.P. Sharma Judge Hon'ble Mr.R.N.Chandrakar, J. ca^< Sd/- R.N. CHANDRAKAR. Judge 23/11/2011 POST FOR PRONOUNCEMENT OF THE JUDGMENT ON : 23/11/2011 Sd/- 23/11/2011 .:i6-S ^rK f^-teip^' .„•- ""anp*""' ,4^Ss>- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR, JJ. Criminal Appeal No.607 of 2006 Appellant Santram, S/o. Teju^Ram, aged about 33 (In Jail) years, Occupation-Asst.Grade III Tahsil Office Charama R/o Sitlapara Charama, Dist. Kanker Versus State of Chhattisgarh Through Police Station-Charama Ditt.Kanker Chhattisgarh Respondent (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) Mr.K.K.Singh, counsel for the appellant. Mr.J.A.Lohani, Panel Lawyerforthe State/respondent. » a !ti li.. JUDGMENT (Delivered on 23rd November, 2011) The followina iudament ofthe Court was delivered bv T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 20.7.2006 passed by the Additional Sessions Judge (F.T.C.), Kanker, in Sessions Trial No.12/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Geetabai convicted him under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs.10,000/-, in default of payment offine to further undergo R.l. for six months. 2. Conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality. ,; '""£! '•?;•. 15 ;)-tw^- aiaaiKfei^ 3. As per case of the prosecution, unfortunate deceased Geeta Bai, mother of Shivendra Kumar Sinha (PW-23) and elder sister-in-law of the appellant was appointed on compassionate basis on account of death of her husband Shivram in Block Education Office, Charama as Class-IV employee. The appellant was interested in getting pensionary benefits of his brother i.e. Shivram, husband of deceased Geeta Bai. On account of such benefits the appellant used to quarrel with Geeta Bai. On 21.9.2004 at about 9.55 a.m. Geeta Bai (since deceased) was cleaning the office, the appellant went to the office, he was holding axe, Kanhaiya Lal (PW-16) was also present at the office, he went to hand pump for fetching water, the appellant caused repeated assault by axe over Geeta Bai (since deceased). Shivendra Kumar Sinha (PW-23) his son shouted for help, then Kanhaiya rushed towards the office, at the same time the appellant came out from the office, he was holding axe, Geeta Bai died on the spot on the same day within 35 minutes of the incident. Shivendra Kumar Sinha (PW-23) lodged F.1.R. vide Ex.P/37 and merg vide Ex.P/38. Investigating officer left for scene of occurrence and after summoning the witnesses vide Ex.P/8 prepared inquest over dead body of the deceased vide Ex.P/9. The appellant fled from the spot and left his motor-cycle, which was seized vide Ex.P/10. Bloodstained plaster, plain piece of plaster, table cloth, one pair chappal and jhadu were seized from the spot vide Ex.P/1 1. Spot map was prepared by investigating officer vide Ex.P/33. Photographs were taken vide Exs.P/42 to P/57. Papers were seized vide Ex.P/8. Dead body was sent for autopsy to Community Health Centre, Charama vide Ex.P/58, where Dr.lndrakumar Som (PW-10) conducted autopsy vide Ex.P/15 and found following injuries:- (i) Head, blouse and neck were stained with blood. (ii) Incised wound of %" x %" x %" over forehead with fracture of bone. (iii) Four injuries over occipital region of 2" x %" x 1" along with fracture of bone of 2" x %" x 1" beside the aforesaid injuries. (iv) Injury of 2" x %" x 1" over back of the neck. ll-J' ..LJ.. yi^,^ '-tt- »w"easSt^ ^i»3SliaaaiB-% •;1 (v) Injury of 3" x 1" x 1/2" over back of the neck with fracture of bone. (vi) Injury over neck of 3" x 1" x ^". (vii) Internals organs were found cut. (viii) Injury over fronto parietal region of 2" x %" x 1" along with fracture of bone. Two incised wounds of 2" x %" x 1" and 1" x %" x V-i' over right arm. (ix) Fracture of frontal bone and cut fracture of head bone. Occipital bone broken into pieces. Death was homicidal in nature. During the course of investigation, the appellant was taken into custody, he made disclosure statement of axe vide Ex.P/5, same was recovered at the instance of the appellant vide Ex.P/6. Bloodstained cloth of the appellant was seized vide Ex.P/7. Sealed clothes of the deceased were seized vide Ex.P/22. Patwari prepared spot map vide Ex.P/26. Articles were seized from the appellant vide Ex.P/35. Registered was seized from Lalit Kumar Janghel vide Ex.P/36. Attendance register relating to the appellant was seized vide Ex.P/39. Register of Kiran Lodge (copy of entry) was seized vide Ex.P/60 which shows that the appellant stayed in said lodge since 24.9.2004 till 29.9.2004. Seized articles were sent for chemical examination and presence of blood over axe and clothes of theappellant was confirmed vide Ex.P/62. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'Code') and after completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Kanker, who in turn, committed the case to the Court of Sessions, Jagdalpur, from where the Additional Sessions Judge (F.T.C), Kanker received the case on transfer for trial. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 34 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code, in which he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. He has taken specific defence of alibi and has taken the defence that on 21.9.2004 i.fe^..!?:^-ui^ii.^^ '^S;Bf^-*^-rff WaNistji!;. he was present at Champaran, District Saran, State of Bihar for treatment of his abdomen pain, loose motion and burning in urine. He was treated by Dr.Ajay Kumar Tiwari (DW-4) at Champaran. He has examined Ku.Saroj Sinha (DW-1), sister of the appellant, who has deposed that in the absence of the appellant, lock of box was opened and police has seized Rs.1,39,100/- and also took motor-cycle from the house of the appellant. On 15.9.2004 the appellant was treated by Dr.J.L.Uike (DW-2) who has deposed that'the appellant has applied for treatment on 15.9.2004. Dr.Ajay Kumar Tiwari (DW-4) has deposed that on 20.9.2004 he has treated Santram Tor problem of abdomen pain, loose-motion and burning in urine vide Ex.D/4, in which address of Santram has written as Gandhi Chowk. 6. After providing opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellant vehemently argued that conviction is substantially based on the evidence of Shivendra Kumar Sinha (PW-23), son of the deceased aged about 14 years and Kanhaiya Lal (PW-16) whose evidence do not inspire confidence and trustworthy, their evidence are contradictory and their presence are doubtful. Even otherwise, Kanhaiya Lal (PW-16) has notwitnessed the incident, but he has tried to become eyewitness which shows his interestedness. The deceased was elder sister-in-law of the appellant, the appellant was also working in Block Office, there was no occasion for demanding money of pensionary benefits of his brother. The appellant was not present at Charama on the date of incident and he was present at Champaran, State of Bihar for his treatment. The prosecution has failed to prove the commission of murder. Contradictory statement of child witness Shivendra Kumar Sinha (PW-23) is not safe to rely. ilill 1111 .i.ai;'E.-wi.:B.it.isy4,UBitit tavissssfisss'^ taussi»t»^ 9. Learned counsel placed reliance in the matter of Pratapsingh and another v. State of M.P. in which the Supreme Court has held that evidence of child witness contradicting himself on material particulars, then chance of tutoring cannot be ruled out. His only evidence cannot be relied upon. 10. On the other hand, learned Panel Lawyer for the State/respondent opposed the appeal and argued that conviction is substantially based on the evidence of Shivendra Kumar Sinha (PW-23) and Kanhaiya Lal (PW-16) who have witnessed the incident and their evidence inspire confidence and trustworthy and are safe to rely. After appreciating the evidence available on record the Additional Sessions Judge convicted and sentenced the appellant as aforementioned. Learned counsel further submits that the appellant has taken false defence and has offered false explanation that he was at Champaran for his treatment. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of fatal injuries found over the body of deceased Geetabai has not been substantially disputed on behalf of the appellant, even otherwise, it is established by the evidence of Dr.lndra Kumar Som (PW-10) and autopsy report Ex.P/15 that death ofthe deceased was homicidal in nature. 13. As regards the complicity of the appellants in the crime in question, conviction is substantially based on the evidence of ShivendraKumar Sinha (PW-23) and Kanhaiya Lal (PW-16). As per evidence of Shivendra Kumar Sinha, child witness aged about 14 years and son of the deceased, his mother was appointed as compassionate appointment on account of death of his father. The appellant was having grudge on pensionary benefits given on account of death of his father. On 21.9.2004 at about 9.45 a.m. he went B.E.O. Office Charama along with his mother, he was standing near his mother, his mother was cleaning office, Kanhaiya Lal (PW-16) was also present in the office, he went to hand-pump for fetching water, the appellant came ^^A. |R!tSS^:r?fe-^i. rsiiiaie«:^3,i. in B.E.O. office, he was holding axe, he assaulted his mother upon her head, neck, leg and hands by axe, he shouted Kanhaiya for help and Kanhaiya rushed to the office, the appellant was moving the axe and fled from the spot, Geetabai died on the spot. He went to the Police Station and lodged the report. Kanhaiya Lal (PW-16) has substantially corroborated the evidence of Shivendra Kumar Sinha. He has specifically deposed that at the time of fetching water from hand-pump the appellant came to the office, Shivendra Kumar Sinha and deceased Geeta Bai were inside the office, Shivendra Kumar Sinha shouted loudly and he called him, he was shouting^that the appellant is assaulting his mother by axe, then he rushed to B.E.O. office where he saw that the appellant was assaulting Geetabai, the appellant came out from the office, he was holding axe, he came out from the office, he hidden axe in the office. 14. Defence has cross-examined these witnesses at length. There are contradictions, omissions and exaggerations in their statements, but that too trifle in nature, inter alia, Shivendra Kumar Sinha (PW-23) has explained the fact that while he was cross-examined by the defence. In para 33 of his cross-examination, he has explained that how dead body of his mother was found. hle has explained that the appellant assaulted his mother inside the room, but for the purpose of taking her to hospital, he dragged his mother up to verandah where he found that his mother was dead. As per evidence of Shivendra Kumar Sinha (PW-23) and Kanhaiya Lal (PW-16), they were present in B.E.O. office, after sometime Kanhaiya Lal went to hand-pump for fetehing water, then only two persons i.e. the deceased and Shivendra Kumar Sinha (PW-23) were present, the appellant came with axe, he assaulted Geetabai, then Shivendra Kumar Sinha shouted to Kanhaiya for help, then Kanhaiya rushed towards the office. Kanhaiya Lal (PW-16) has deposed that he has seen the incident from window, but there is controversy relating to witnessing the incident from window, but he has specifically deposed that the appellant came out from the room and fled. A^is-j^f ^I.i£ t|fceSs^:^'^';5-/ 15. The appellant has taken defence of alibi that at time of incident he was at Champaran, State of Bihar. He has examined Dr.Ajay Kumar Tiwari, M.B.B.S. D.0. As per his evidence, he has examined Santram at Champran on 20.9.2004 as outdoor patient vide Ex.D/4, he was not having nursing home, there was no admission facility. As per para 2 of his evidence, he has treated the appellant for the problem of abdomen pain, loose motion and burning in urine.The appellant is resident of Gandhi Chowk, for away from Champaran^ State of Bihar. Dr.Ajay Kumar Tiwari (DW-4) is not expert in any field of treatment, he is not renowned personality in the country. Treatmenf of aforesaid problem was easily available at Charama, Kanker and State of Chhattisgarh. There was no propriety for the appellant to go Champaran for treatment from Dr.Ajay Kumar Tiwari whom even he was not knowing and he was not renowned person. This is false explanation on behalf of the appellant. Evidence of Ku.Saroj Sinha (DW-1), Dr.J.L.Uike (DW-2), Bhupat (DW-3) and Dr.Ajay Kumar Tiwari (DW-4) is of no help in the present case. 16. Shivendra Kumar Sinha (PW-23) is child witness of 14 years. Oath has been administered to him. He has answered the questions rationally. He has denied the suggestion that he has been tutored. Only on the ground that he is relative witness, he cannot be treated as tutor witness. Even otherwise he has promptly lodged the F.1.R. within 35 minutes of the incident. Only he has given details of the incident which he has deposed in the Court. 17. Evidence of the witnesses cannot be discarded only on the ground of discrepancies, exaggerations, omissions and contradictions. It is duty of the Court to separate grain from the chaff, the truth from the falsehood, yet this can only be possible when the truth is separable from the falsehood. 18. While dealing with the question of reliability of the evidence of the person who has exaggerated and patiently given false statement up to some extent, the Supreme Court in the matter of Laxman and others ^^^^twss-W^S^ ?»*!»•,.»„„ ^^ IB^tSfci'i.fca v. State of Maharashtra has held that witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts oftheir statements are demonstrable incorrect or doubtful. Relevant portion reads as under: "Before we discuss the evidence further, we may observe that Professor Munsterberg in a book called "On the Witness Stand" (p.51), "Law and the Modern Mind" (see: 1949 ed. P.106) gives instances of expehments conducted by enacting sudden unexpected preplanned episodes before persons who were then asked to whte down, soon afterwards, what they had seen and heard. The astounding result was: "Words were put into the mouths of men who had been silent spectators during the whole short episode; actions were atthbuted to the chief participants of which not the slightest trace existed; and essential parts of the tragic- comedy were completely eliminated from the memory of a number of witnesses". Hence, the Professor concluded: "We never know, or imagine". Witnesses can not, therefore, be branded as liars in toto and their testimony rejected outhght even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted or acted upon. It is sound commonsense to refuse to apply mechanically, in assessing the worth of necessahly imperfect human testimony, the maxim: "falsus in uno falsus in omnibus". 19. Evidence of Shivendra Kumar Sinha (PW-23) well corroborated by the evidence Kanhaiya Lal (PW-16), promptly lodged F.I.R. and medical evidence inspire confidence and trustworthy and are safe to rely. 20. As held by the Supreme Court in the matter of Pratapsingh (supra), contradicting himself on material particulars of child witness is not safe to rely and there may be chance of tutoring, but in the present case there is no material contradictory, there is no chance of tutoring of Shivendra Kumar Sinha (PW-23). The facts ofthe case of Pratapsingh are distinguishable to that ofthe present case. 21. After appreciating the evidence, the trial Court has hetd that the appellant has caused homicidal death of the deceased. Finding of the trial Court is based on credible, clinching and reliable evidence. J974 SC 308 .ai^^SKt., 22. As regards the question of motive, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. 23. In the present case, multiple fatal injuries with fracture have been found over head, neck and other parts of body which shows the intention of the appellant. 24. After appreciating the evidence available on record, learned trial Court has convicted the appellant under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs.10,000/-. Considering the brutal act by the appellant for causing homicidal death 6f deceased Geetabai who was his elder sister-in-law (bhabhi) during one year of death of her husband while imposing minimum sentence of imprisonment for life and fine of Rs.10,000/- the trial Court has not committed any illegality warranting interference. 25. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Sd/- R.N. CHANDRAKSR. Judge BA. -f sdjiiiji^^