HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri RaieevGupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 465 of 2002 Telami Soma Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEVLGUPTA 1—^ J ^^^^l Sd/- Chief Justice Post for Judgment :23/01/2009 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'bleShri Sunil Kumar Sinha. J. APPELLANT RESPONDENT Criminal Appeal No. 465 of 2002 Telami Soma aged 35 years s/o Irpa, Caste Bhuriya, resident of Telephanta, P.S. Kutru District Dantewada Versus State of Chhattisgarh (Appeal under Section 374 (21 of The Code of Criminal Procedure) Appearance: Mr. D.R. Sharma, Senior Advocate with Smt. Swati Shukla, Counsel for the appellant. Mr. Praveen Das, Dy. Govt. Advocate, for the State. JUDGMENT (Z3.01.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Telami Soma stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for 1 year, by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Additional Sessions Jude, Jagdalpur in Sessions Trial No. 391/2001 on 21.3.2002. (2) Deceased Telami Sukki was the wife of Telami Narangu (PW-1). Appellant Telami Soma is the cousin of Telami Narangu. They were residing separately. On 21.6.2001 at about 8-9.00 p.m., the appellant Criminal Appeal No. 465 of2002 came to the house of Telami Narangu and said as to why he had brought his ox ? Saying this, he took his ox with him. Deceased Telami Sukki followed the appellant. The allegations are that in the way, appellant Telami Soma gave Khotla blows on her head and elbow. This was witnessed by her daughter Telami Mangli (PW-4). Mangli narrated the story to her father Telami Narangu, who went to the place of occurrence and brought the deceased to the house. The deceased succumbed to the injuries sustained by her. Narangu (PW-1) lodged the merg intimation (Ex.- P/1) and the First Information Report (Ex.-P/2) in the concerned police station. On such report, Sub-lnspector Narendra Pujari reached to the scene of occurrence, gave notice (Ex.-P/3) to the Panchas and prepared inquest (Ex.-P/4) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to P.H.C., Kutru vide Ex.-P/5. The post-mortem examination was conducted by Dr. Gajendra Singh Dhruw (PW-6), who prepared his report Ex-P/5 (A). He noticed two external injuries on the body of the deceased. There was a lacerated wound on the back side of the skull on occipital region admeasuring 3x1 inches. There was an another lacerated wound on the left forearm admeasuring 4 x ^ inches. On internal examination, he found fracture in occipital bone and blood clot on the back region of the skull. He opined that the cause of death was coma due to subdural haemorrhage and it was homicidal in nature. In further inyestigatson, a memorandum (Ex.-P/6) of the appellant was recorded u/s 27 of the Evidence Act on 23.6.2001 and a Khotala (wooden frame for making tiles) was seized at his instance under Ex.-P/7. Site plan was prepared under Ex.-P/11. Blood stained soil and plain soil were also seized under Ex.-P/S. Khotala was sent for its physical examination to Dr. Gajendra Singh Dhruw (PW-6) vide Ex.-P/9, who gave Criminal Appeal No. 465 of2002 his report Ex.-P/9 (A) and opined that the injuries sustained may be caused by the said article. The seized articles were sent for their examination to Forensic Science Laboratory, Raipur under Ex.-P/12. However, their examination report could not be brought on record. (3) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Dantewada, who in turn, committed the matter to the concerned Sessions Judge, from where, it was received on transfer by the Special Judge/Additional Sessions Judge, Jagdalpur, who conducted the trial and convicted & sentenced the accused/appellant as aforementioned. (4) The conviction of the appellant is based upon the sole testimony of daughter of the deceased namely Telami Mangli (PW-4). (5) Mr. Sharma, learned senior counsel appearing for the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Telami Mangli (PW-4) that the deceased was assaulted on her head by the appellant who sustained injuries and died on account of such injuries. Dr. Gajendra Singh Dhruw (PW-6), who conducted the post- mortem examination, found two injuries on the body ofthe deceased along with fracture of occipital bone and has clearly opined that the cause of death was coma due to subdural haemorrhage sustained by the deceased and the death was homicidal in nature. Therefore, it was established that the death was homicidal in nature. (6) Mr. Sharma mainly argued that PW-4, Telami Mangli, is the daughter of the deceased and she was an interested witness, therefore, conviction Criminal Appeal No. 465 of2002 based on her sole testimony cannot be sustained. We do not agree with the argument advanced by Mr. Sharma. (7) The Apex Court has said time and again that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.^lease see Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835). In Harbans Kaur and another -Vs- State of Harvana. 2005 AIR SCW 2074, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. (8) If we examine the evidence of PW-4, Telami Mangli, in light of the above proposition of law, we do not find any infirmity in her evidence. She has clearly deposed that the appellant had assaulted her mother. She has deposed that the appellant had assaulted her mother by Khotala on account of ox which he was taking. She has specifically mention that Criminal Aopeal No. 465 of 2002 Khotala blow was given on the back portion of the skull of her mother and she has witnessed the assault. In cross examination, she stated that she was at a distance of 7-8 hands (approximately 7-8 feet) from her mother where the assault was made. The defence could not elicit any such circumstance in her cross examination, on which, her testimony may be discarded. The Sessions Court has believed the testimony of this witness and has recorded the finding that the appellant had caused injuries to the deceased. We do not find any infirmity in such finding recorded by the Sessions Court and the arguments advanced by Mr. Sharma cannot be accepted. (9) Mr. Sharma then argued that in the facts and circumstances of the case, offence lessor than one punishable u/s 302 IPC would be made out as there appears to be no premeditation and preparation and the assault appears to be given on the spur of the moment in heat of passion. He argued that the act committed by the appellant would be punishable under Part-IlofSection3041PC. (10) On the other hand, Mr. Praveen Das, Dy. Govt. Advocate, opposed these arguments. (11) We have considered the arguments advanced by Mr.Sharma. (12) Section 304 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, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge Criminal Appeal No. 465 of2002 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 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, 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, 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, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. (13) If we analyze the evidence of case on hand, it would appear that the incident took place when the appellant was taking back his ox from the house of his cousin Telami Narangu, PW-1, saying that why he had brought his ox he will give him another ox. On this, PW-1 did not resist and allowed the appellant to take the ox. However, the deceased followed the appellant and in the way, the appellant gave Khotala blow to her. It is not the case of prosecution that the appellant was holding Khotala while he had gone to the house of the deceased. He might have picked up Khotala from the place of occurrence itself and then on the resistance by the deceased, he gave blow to her. This shows that there was no preparation or premeditation to assault the deceased. It further shows that the ^ Criminal Appeal No. 465 of2002 appellant was having no intention to assault her and on the spur of the moment, in heat of passion, without premeditation, preparation and intention, such assault was given by the appellant to the deceased. Therefore, in our considered view, the act committed by the appellant would be punishable under later part of Section 304 IPC as the knowledge can well be attributed to the appellant, whereas he was having no intention to do such act. (14) Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. Instead, the appellant is convicted u/s 304 Part-11 IPC and sentenced to undergo rigorous imprisonment for 10 years. The appellant is in jail since 24.6.2001. He shall be entitled to set-off the period already undergone by him. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge