/•f^ •HIGhLCOURT OF CHHATTJSGARH AT BILASPUR fl'p p^± D.B.: Hon^ble ShrLJustice^ynil Kymar Sinhaand Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.1617 of 1994 •» Rajaram versus' State of Madhya Pradesh (now State of Chhattisgarh) JUDGJVIENTLFOR CONSIDERATION Sd/- R.S. Sbarroa Judge Hon'bie Shri Sunil Kumar Sinha, J.: Sd/- Sunil Kumar Sinha Judge •^- Postfor^'Y-06-2011 Sd/- JU'DGE' ^ ^06-2011 KSEft, Ji ;S;LW"1-^ ^ JS HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Uon'ble^hj'i Justice^Synil Kymar Sinha and Hon'ble Shrj Justice Radhe Shyam Sharma CriminalABpeaLN^.1617 of 1994 AppeLlajit versus ResBpndent Rajaram, son 6f Jageshwar, aged about 40 years, resident of Maini Thana, Bagicha, District Raigarh, Madhya Pradesh (now Chhattisgarh) State of Madhya Pradesh (now Stateof Chhattisgarh) Present: Shri R.K.Jain, couhsel for theappellant. Shri U.K.S.Chandel, Panel Lawyerforthe State/respondent. Cnmjnal Appeal under Section 374(2) ofthe Code ofCriminal Procedjjre JUDGMENT (Delivered onn3J June, 2011) Per Radhe ShvamSharma, J.: This appeal is directed against the judgment dated 29-9-1994 passed in Sessions Trial No.98/94 by the Additional Sessions Judge, Jashpurnagar, District Raigarh. By the impugned judgment, the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. ; 2. Btief facts of the case are as under: According to the progtecution, Lilavati (PW-1) and her husband Udaybhan used to quarrel with accused Rajaram for partition of property, The mother of the accused had given Achar (pickle) to the son of Udaybhan, namely, Niranjandas (the deceased), aged ahout 2%years.. A quarrel took place between Lilavati (PW-1) and her mother-in-law in this regard. Lilavati asked her mother-in-law not to give Achar (pickle) to her son. Due to the quarrel, the accused went to the house of Lilavati on 18-8-1993 and said her that she keeps on calling his mother Tonhi and thereafter the accused started quarrelling with Lilavati. The accused had a weapon 'Dauli in his hands. Having caught hair of Lilavati, the accused dragged her towards him. On being stopped by tlie witnesses Sukhdev, Lachhu Prasad and others, the accused left Lilavati and ran to assault the witnesses. The witnesses ran away from there. Lilavati (PW-1) also ran away. Niranjandas, the son of Lilavati, was present there. The accused lifted-up Niranjandas, brought him in front of his house and assaulted on his face with the Dauli 2-3 times. Niranjandas sustained cut injuries on his face. Thereafter, the accused tried to run away but the villagers caught him with the Dauli. Sukhdev Sai (PW-8) lodged first information report (Ex. P-6) with Police Station Bagicha on 18-8-1993 and gave merg intimation (Ex.P-7) and ultimately the investigation commenced. Sub-lnspector of Police Manoharlal Patel (PW-7) left for the place of occurrence on 18-8- 1993 and prepared inquest on the body of the deceased Niranjandas under Ex.P-8 and sent the dead-body for post-mortem examination to Primary Health Centre, Bagicha. Dr. K.N.Choudhary had conducte^ autopsy on the body of the deceased. He found that / there were multiple incised wounds on the mouth, nose, face and ''-o- right side of the head and he also found a compound fracture of skull bone of the deceased. According to the opinion of the doctor, these injuries were caused by a sharp object within 24-36 hours from the time of examination. The autopsy surgeon opined that the death My'^ 'tar-"^ '% @ was due to blood loss and neurogenic shock on account of multiple injuries and the nature of death was homicidal. The post-mortem report Ex.P-11 was admitted by the accused under Section 294 of the Code of Criminal Procedure. On being produced Dauli by Burnu (PW-3), seizure memo (Ex.P-1) was prepared by Sub-lnspector of Police Manoharlal Patel (PW-7) and Dauli was sent for chemical examination. After completion of the investigation, a charge-sheet was filed in the Courtof Judicial Magistrate First Class, Jashpurnagar, who, in turn, committed the case to the Court of Session. The Sessions Judge made over the case to the Additional Sessions Judge, Jashpurnagar for trial, where the trial of the accused wasconducted. Learned Additional Sessions Judge, Jashpurnagar, after framing charges and recording evidence of the prosecution witnesses, held that the accused/appellant was guilty of the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. Thereagainst, the accused/appellant has preferred the instant appeal. 3. Shri R.K.Jain, learned counsel appearing for the appellant argued that the version of the eye-witnesses is not reliable. The prosecution witnesses, namely, Lilavati (PW-1), Kabutaribai (PW-2) and Sukhdev' Sai (PW-8) are interested witnesses and there is no any independentwitness. Th*&re are so many contradictions in the statements of the prosecution witnesses and the prosecution witnesses have improved their statements, therefore, their statement$ are not reliable and cannot be based for conviction ofthe '""^•i-^S''r :;^''?<•''^^SH^S^S^?•-->' -• '^ ^ V S 'w^.^'1 appellant. Learned counsel further submitted that the injuries sustained by the accused/appellant were not explained by the prosecution and, therefore, the prosecution story is not reliable. Learned counsel argued that the accused/appellant deserves to be acquitted of the charge under Section 302 of the Indian Penal Code. Alternatively, he also argued that the act of the appellant would not be punishable under Section 302 of.the Indian Penal Code and even after admitting the entire case he would be liable for punishment under Section 304 ofthe Indian Penal Code. 4. On the other hand, Shri U.K.S.Chandel, learned Panel Lawyer for the State/respondent supported the case of the prosecution and argued that the prosecution witnesses are natural witnesses. Their testimony iswholly-reliable .and learned trial Court is justified in convicting and sentencing the appellant under Section 302 of the Indian Penal-Code. 5. We have heard learned counsel appearing for the parties at length and perused the record of Sessions Trial No.98/94. Conviction of the accused/appellant under Section 302 of the Indian Penal Code is based upon the testimony of Lilavati (PW-1), K&butaribai (PW-2), Burnu (PW-3) and Sukhdev Sai (PW-8), who are eye-witr^esses of the occurrence and whose evidence are / corroborated by the medical evidence. Lilavati (PW-1) is the mother ''-*>. of fhe deceased Niranjandas. Kabutaribai (PW-2) is a neighbourer of Lilavati (PW-1), Sukhdev Sai (PW-8) is the Sarpanch ofthe village .panchayat and Burnu (PW-3) is an independent witness. Hence, pnly t-ilavati (PW-1) is the relative of the deceased and rest of the "•*»- •^i^K'^ % 'lt'"'" .,•": witnesses are independent witnesses. Relationship is not a factor to affect the credibility of a witness and even the relative witness would not conceal the actual culprit and make allegations against an innocent person. Foundation has to 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 it is cogent and credible. In case in hand, only Lilayati (PW-1) is a relative witness. We find that her statement is credible, cogent and trustworthy and duly corroborated by Kabutaribai (PW-2) and Sukhdev Sai (PW-8) as also corroborated by the medical evidence. Therefore, the testimony of Lilavati (PW-1) cannot be discarded on the ground of her relationship with the deceased. 6. Lilavati (PW-1~) has stated in her deposition that deceased Niranjandas was her son. The appellant assaulted Lilavati (PW-1). On this, she ran away and went to the house of the Sarpanch Sukhdev Sai (PW-8) and asked the Sarpanch to stop the appellant assaulting her. Sukhdev Sai (PW-8) could not stop the appellant. The appellant assaulted Lilavati with a Dauli. Lilavati caught hold of the Dauli, due to which she sustained injuries on her right hand and fingers. The appellant left Lilavati. Thereafter, the appellant lifted- upNiranjandas, who was playing there. The appellant took him away and~a6saulted him with the Dauli. He gave three blows on his face with the Dauli. Blood w3s oozing out of his face. His face was savaged. When the appellant was assaulting Niranjandas, Kabutaribai (PW-2) and Burnu (PW-3) reached there. Appellant "'^ then tried to run away. Burnu (PW-3) and Sukhdev Sai (PW-8) caught holdofthe appellant and tied him up near a Budtree. 7. Kabutaribai (PW-2) has deposed that when Lilavati came out with her son Niranjandas, at that time, the appellant was saying that he will assault and give.her cut blows. On this, Lilavati went to Sarpanch Sukhdev Sai (PW-8) and asked him to save her. She also said the Sarpanch that she will ranaway somewhere with her son. Thereafter, Lilayati came in front of the house of KabutaribaL At that time, Kabutaribai and one Gaura were present there. The appellant dragged Lilavati to the road and when the appellant tried to assault Lilavati with Chhura, having pushed the appellant, Lilavati ran away. During this, she sustained injury on her hand. Thereafter, the appellant lifted-up Niranjandas and caused him to sit at other place. The appellant then falling Niranjandas down cut his face with Chhuri. 8. Sukhdev Sai (PW-8) has also supported the testimony of Lilavati (PW-1) and Kabutaribai (PW-2). Sukhdev Sai (PW-8) has deposed that on hearing the voice of Kabutaribai (PW-2) and others, he reached the house of the appellant. At that time, the appellant, dragging the wife of his brother (Lilavati - PW-1), took her towards his' house. When Lilavati (PW-1) set free from the hands of the appellant, the appellant ran towards Sukhdev Sai (PW-8) and other persons present there. The, appellant was having Dauli'\n his hands. Sukhdev Sai and the other persons ran towards their houses. At that time, one Laxmi Prasad came there and said that they should go to saye the .son of Lilavati. Thereafter, taking Lathi-Danda from -'their tiouses, they had gdne there. When they reached on the road, J!f- ../" -^ v,.ff// they saw that Lilavati's son was gasping. Face of Lilavati's son was cut and blood had clotted there in huge quantity. Thereafter, they called Lilavati and went in search of the appellant. The appellant was seen near Sati Deepara. They surrounded the appellant and asked him to keep the weapon down. [^ 9. Burnu (PW-3) has also corroborated the evidence of Sukhdev Sai (PW-8). 10. Sub-lnspector Manoharlal Patel (PW-7) has stated in his deposition that the Dauli, which was in the hands of the appellant, was stained with blood. Burnu (PW-3) handed over the Dauli to the police (Manoharlal Patel - PW-7) during investigation, whose seizure memo was prepared-vide Ex.P-1. He stated that he had sent the dead body of Niranjandas to Primary Health Centre, Bagicha for post mortem examination on 18-8-1993. 11. The autopsy report (Ex.P-11) has been admitted by the appellant under Section 294 of the Code of Criminal Procedure. Dr. K.N. Choudhary has found multiple incised wounds on mouth, nose, face and fight side of the head as also compound fracture of skull b^he of the deceased. Accordingly, Lilavati's testimony is corroboratec^' by the medical evidence and the independent wjtnesses Kabutaribai (PW-,2) and Sukhdev Sai (PW-8). Therefore, the testimony of Lilavati- is wholly reliable and can be based for conviction of the appellant. :k- '.'/• ":^^.-4.- If 12. Learned counsel for the appellant has also argued about the injuries sustained by the appellant, which, according to him, are not explained by the prosecution. Therefore, the prosecution story becomes doubtful and is not reliable. ^ 13. 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 Ramlagan 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 Khshna Singh v. State ofBihar, (1988) 2 SCC 95, it was observed that the obligation of the prosecution to explain the injuriessustained bythe accused in the same occurrence may/not arise in each and every case. In other words, it is not an invariabl^rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. It 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. ........." 14. 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 observed in paragraph 14 (only relevant portion is extracted below): "14. ........ Non-explanation ofthe 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 omission on the part of the prosecution to explain the injuries. .........." 15. In the instant case, the injuries sustained by the appellant have been explained by the prosecution properly. Kabutaribai (PW- 2) has stated that the appell'ant was controlled by throwing stones on him. Sukhdev Sai (PW-8) has stated that when they had caught hold of the appellant, they had seen cut injuries on his forehead and leg. Manohartal Patel (PW-7) has stated that the injuries sustained ::)»- K- 10 by the appellant were caused during scuffle with Lilavati, the mother of the deceased. He stated that he had sent Lilavati and the appellant to Primary Health Centre, Bagicha for medical examination. Though the M.L.C. report of the appellant has not been enclosed with the exhibited documents, but the Assistant District Public Prosecutor has admitted his M.L.C. report under Section 294 of the Code of Criminal Procedure. We find that the evidence of prosecution is clear and cogent. The prosecution came with a definite case that the offence was committed by the appellant and proved its case beyond all reasonable doubts. 16. We have carefully perused the evidence of Lilavati (PW-1), Kabutaribai (PW-2), Burnu (PW-3) and Sukhdev Sai (PW-8). These witnesses have categorically deposed that on the fateful day, the appellant came to the house of Lilavati and dragged her and thereafter lifted-up her son Niranjandas and assaulted him with the Dau/i', which he was carrying with him. We have also perused the medical evidence. The doctor has opined that the injuries present on the body of the deceased were caused by a sharp weapon and the death was homicidal in nature. Therefore, we do not find any infirmity in the finding recorded by the Additional Sessions Judge that it was the ^appellant who caused the injuries on the body of the deceas'eef with the Dauli and the deceased died on account of the •«• . injuries caused by the appellant. 17. Now, we shall examine the matter in the light of the provisions ofSection 302 vis-a-vis Section 304 ofthe Indian Penal Code. [CL. :'!a-.- \^s;^ '^ff .S^i 11 18. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It 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 there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be obseryed that a death must'have been caused by him under any ofthe 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/rn doing an act is quite different than the intention which , denotes that a particular Qpnsequence 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 6f a thing to achieve a particular result, whereas, the '«Fr'' ,''• "•^^ 12 knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 19. Shri Jain, learned counsel for the appellant has emphasized on sudden provocation. Sb far as sudden provocation is concerned, it should be given by the person who is the victim. In this case, the appellant was quarrelling with Lilavati and when Lilavati ran away, the appellant caught hold of her son, i.e., deceased Niranjandas, who was aged only VA years, and caused injuries on his mouth, face and forehead with the sharp weapon Dauli and the appellant has also tried to threaten the witnesses. Therefore, the act of the appellant cannot be said to be on sudden provocation. It is evident from the statements of the prosecution witnesses that the appellant had caused many injuries to the deceased Niranjandas, due to which multiple fracture had taken place in the skull bone of the deceased. 20. Severity of the blow can be gathered by the circumstances that the appellant caused cut injuries on the mouth, face and forehead of the deceased and also caused multiple fracture of the skull bone of the deceased. 'The nature of weapon used by the appellant and the manner in which he attacked the deceased along with the.sQverity of the blow which he dealt against the deceased and the part of the body •wtiich he selected for giving such blow would show that he had an intention to commit murder of the deceased. We are of the view that in the above facts and circumstances, the act of the appellant would not be falling under 13 any Exception to Section 300 of the Indian Penal Code and the present cannot besaid to be culpable homicide not amounting to murder. 21. For the foregoing reasons, we do not find any substance in the appeal. The criminal appeal is liable to be and is accordingly dismissed. ^=:ss^ _ ~- _—— _. Sd/- SunaKumarSinha Judge Sd/- R.S. Sharroa Judge ^&*