7?r CF0000060167 CyiA ^^~5'\\t ^" Sf •\ no.J^ll. APPEAL mreONER Name "'3"s^]?|f_<^l ^ ^^ y. .^- ^>^(y^ s:T<No-13<?/^ Fathe^s Name^li^^f ^^^ ______ Resident^^S^m^^^r^^:^ A^ ^£^1Sentenced \o^5^^W^L_w ^}^j^ v(y^^ Under SectionAQ^ 3p? _on ^ff__~by ~:^^/ns^H^^^ ^^ x T •^yf^ It isexplaioedto the prisoner that if he statesorwishes to be rcpresented by a legal practitioner ^tbe Appellate Court will rioy proceed with tbe basies for seven days unless the legal practitioner appears If tbe legalpractitioner does not a^pear within seven days he may be beard at allif legal practitioner the court at once with the case and will noit be obliged to give a bearing to ;'^&. *" . . .^•"•"- . -" - '"..-^ - "'"" . ' ' - "" " ' '-•• " : 'y • " y a^l^egal practitKmer who should appear. 1. Date of application for copy of Judgement:- 2. Date of which copy received :- <^5 V/ "?/9 ^ 3. Date on which appeal sent :- / // s^ " 4. Whether the prisoaer wished to be representedor not :- ^ Yes / No. No._M^_^.^Name •^T^' ^<VT -^ ^®^^^^y ContinuedSn '^Vr^Cy' Jail ^«?/<?<?^a(_ __ No. ^ 6^^^%r: 9A Dated ^ /^/^ Forwarded to the CHIEF JUDICIAL MAGISTRATE -SlW^V^ ^^^5^) tegether with a copy of Judgement or order passed in thecasb fbr favou^ of transmission to the proper Applleate Court ^m^ Mt./Sub-Jail. Superinten^c DateofreceiptmC.J.M. Office.'?--^"^ ^ Date of receipt of record to accompany. Memo pf Appeal of the Appellate Court No. ^2- dated _J?—?-^_^_ ~^l-' v^- ^•n Forwaidedtothe, dated •^vT^r ^sT'^TT^^zf-^SF^ cw? fi^y-— ^o^o O. R. M^eiS^^FKI^SS. ftaie @f receipi in A^plieate Court, 11 ^m HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPBAL N0. 2551 OF 1998 Madkami Deva Vs. State of Chhattisgarh Judgment for consideration Sd/- Sunil Kumar Sinha Judge Hon^leShriJ^khryddin,^J, SJ2L Sd/- aucrge 1 ^ Postfor ^/12/2004 Sd/- Fakhruddin Judge ® B. <: HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPBAL N0. 2551 OF 1998 Madkami Deva Vs. State of Chhhattlsgarh CORAM - DB : Hon*ble Shri Fakhruddin SB Hon*ble Shri Sunil Kumar Sinha, JJ. Shri R.K. Jain, Counsel for the appellant. Shri Akhil Mishra, Panel Lawyer for the State. As per Sunil Kumar Sinha, J JUDOMBNT (Dated \^ /December, 2004) Heard. 2. This is an appeal from jail preferred by the appellant against judgment of conviction dated 21.07.1998 passed in Sessions Trail No. 136/98 by fhe Sessions Judge, Bastar, Jagdalpur. The leamed Sessions Judge held the appellant gmlty of the offence punishable under Section 302 of ttie Indian Penal Code and sentenced hun to undergo imprisonment for life. 3. In this appeal, later on Shri R.K. Jain, Advocate was engaged as counsel, who argued the case on behalf of fhe appellant. ^-,, \ 4. The case of the prosecution is that on 24.01.1998 at about 8.00 P.M. the deceased namely Faguram was sitting near his house. The appellant caiae over there and on a pre- text that why the extracted juice of Chhind tree (a material used as a drink in viUages) has been consunied by the deceased, he gave a blow on the head of titie deceased and the deceased died on the spot. The blow was given by a Khotla (a piece of wood which is frequently used in the viUage). The most important part of the story is that the deceased is the father of the appellant, another part of the story is thiat the sole eye witness cited by the prosecution is the real sister of the appeUant and daughter 6f the deceased namely Madkame Hadme(P.W.l). 5. The Fu-st Infonnation Report (FIR) of the incident was lodged oit 25.01.1998 at about 18.45 Hrs. by the daughter of the deceased (P.W. 1). The FIR is Ex.P/5. The FIR reveals that the distance of poUce station from the village is about 10 km. The complainant lodged fhe FIR that on the date of incident i.e. 24.01.1998, her elder brother came to fhe place of occurrence and on the pre-text of not findtag the juice of Chhind tree, he asked hls father. The father replied that he had taken the juice and on this only, the appellant assaulted his father with the help of said Khotla. 6. On the basis of the aforesaid report, the investigation commenced and the dead body was sent for post mortem vide Iwwgs^ the requisition Ex.P/9 on 26.01. 1998. The post mortem was performed by the doctor namely P.N. Shaiidilya (P.W.5). In the external examtnation, the doctor found one injury on the middle part of the head of the deceased, which was in form of a contusion and was black in colour and was 2x1 inch in size. Post mortem report is Ex.P/12. The description of the injuries as nientioned inthe post mortem report is as foUows: "Ir^ury - On scalp hair remove top ofthe head Bruise (contusion) seen dark black red colour seen. Bruise situated rmddle of the head. Sregular size 8s shape. Measure 2"xl' swell. On remove scalp skin 8s muscle dark black colour clot on top of head and fi'acture top of head bone joint (Top offrontal bone). Head bonejoint break." 7. Thereafter, a memorandum iinder Section 27 of the Indian Evidence Act was recorded by fhe Investigating Officer on 30.01.1998 at about 10.30 A.M. vide Ex.P/6 and in consequence of the memorandum the Khotla was seized on the sanie day at about 11.00 a.m. vide Ex.P/7. 8. The story of the prosecution is based upon ttie sole testimony of the stngle eye witness namely Madkame Hadme (P.W. 1), who is the real sister of the appellant. According to her statement, she had witnessed the occiurence and had seen fhe appellant giving the Khotla blow on the head of ftie deceased. ^.^ ^ 9. The leamed Sessions Judge after recording fhe evidence of the prosecution witnesses, recorded the statement of the appellant under Section 313 of the Code of Cruninal Procedure in which the appeUant admitted the discovery as well as the recovery part of the weapon which was put up to him vide question No.7 of the examuiation of accused. 10. The leamed Sessions Judge relying upon the testimony of the sote eye witness Madkaine Hadme (P.W.l) convicted the appellant and sentenced him as aforementioned. 11. Leamed coiinsel for the appellant advanced two fold arguments. First of all, his contention is that the prosecution has failed to prove the story to the effect that the fatal blow was given by the appellant and the story setforth by the sole interested eye-witness P.W. 1 is false and unreliable. In the altemative, he has also contended that in the facts and circumstances of the case when a single blow is given to the deceased, no case under Section 302 of the Indian Penal Code is made out and if fhe appellant is held responsible for causing the death of his father, then he may be convicted under Section 304 Part - I only. 12. Considering the first question regarding the testimony of the sole eye witness a judgment rendered by the Apex Court in fhe matter of State of Bifear, AopeUfint -Vs- Trilaki Sirwh. respondent reuorted in 1999 CRT.Z».c7. 2447 is referable. Vide para 17 of the aforesaid judgment, Their Lordships of tiie Apex Court contended as foUows:- "It was then submitted fhat the other witnesses examined by the prosecution do not claim to be eye-witnesses and the case of prosecution rests solely on the deposition of the mformant P.W.2. We are conscious of the fact that the prosecution case rests solely on the evidence of the informant and therefore, we have read her evidence with great care and caution so as to avoid any miscarriage of justice. We have found that the deposition of the informant has a ring of truth. There is no reason for her to falsely implicate ttie appellant. She had full opportunity to identify the assailant of her son. Ttie appellant was known to her and therefore, there is no question ofmistaken identity. We are of the considered view that havmg regard to the quality of evidence of the informant, the same can form a reliable basis by itself for conviction of the appellaat." Considering all these facts, Their Lordships further laid down the principles that where the prosecution case rests on the testimony of a sole witness, the conviction can be based on the testimony of such a witness, if the testimony has the requisite quality, which inspires confidence and rule out any possibiUty of miscarriage ofjustice. Another question, which comes for consideration is about the testunony of the relative witnesses. The law referable in this regard is reported in AER 2003^S.C._?76, which is in the matter of Rizein andothers - ys- The State of Chheittisfiarh. Vide para 6 of the Judgment, Their Lordships laid down that the relationship is not a factor to efiect the credibUity of a witness. It is more often fhan not fhat a relation would not conceal actual culprit ^ and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such case, the court has to adopt a careful approach and analyse the evidence to find out whefher it is cogent and credible. Relying upon the decision of the apex Court reported in AIR 1973 S.C. Pfl.1073, the Division Bench of the Kerala High Court also held in the matter of Sahadevan RctScin <xnd others -Vs- State of Kerala reported in 1992 CJtJ.Ir.J. 2049 that the straightforward and trustworthy evidence of relations of the deceased need not corroboration for sustaining the conviction. Such evidence cannot be discarded on the sole ground of interestedness in the prosecuUon case. 13. In the light of the aforesaid law laid down by the apex Court we shall examine the testiinony ofP.W.l. We have gone through the evidence of Madkame Hadme (P.W. 1), who is the sole eye witness and real sister of fhe appellant. She has categorically stated in para 2 of her evidence that in the evening tune the appellant came for taking juice of Chhind tree, he climbed on the tree. He did not find the juice in the receptacle on the tree and he retumed back to home and by saying that his father had consumed the juice, he gave two blows on the head of his father by picking the said Khotki, in consequence of which the deceased feU down. The witness also says that she herself had seen the occurrence and on the next date she lodged the report vide Ex.P/5. 14. Cross-examination was also done. In para 4 of the evidence a suggestipn was given to the witness that a fight was going in between father and the son. The sug^estion has been recorded in form of denial by the Session Judge. This witness has clearly denied the suggestion given by the defence counsel and has asserted that the fatal blow was du-ectly given on the head of her fatibier. In the cross exainination she has admitted fhat the Chhind tree is at a distance of about 100 steps from the house. It has also been tried by the counsel for the defence to suggest her that due to the darkness she could not see clearly the place of occurrence. 15. In the light of cross-examination, the arguments advanced by leamed counsel for the appellant cannot be accepted that either the presence of P.W. l is doubtful or she has not witnessed the incident. 16. This witness is the real sister of the appellant and also daughter of ttie deceased. We have read her evidence with great care and caution. Her statement is natural and her presence cannot be doubted. We have gone throug^i the entire evidence ofthis witness and also perused thejudgment of the Sessions Court in wNch her testimony has been fully L... 8 relied on. There is no reason for her to falsely implicate the appellant. She had also fuU opportunily to identify the assailants. The appellant was known to her as admittedly he is her real brother and therefore, there is no question of mistaken identity. After going through the entire statement and evidence we are satisfied that no doubts can be created on her testunony and the conviction can be based on the testimony of such a witness as the evidence carries requisite quality which tnspires confidence and rules out any possibUity of miscarriage ofjustice. 17. Now coming to the second argument advanced by the learned counsel for the appellant that the offence under section 302 IPC is not made out, Para 11 of fhe judgment is referable on the point. The leamed Sessions Judge has dealt with this aspect of the matter. In this regard, a decision of the Apex Court reported in (1991) 2 SCCPfi.32 (Jaipraketsh -Vs- State fDelhi Administrationf is also referable. This case is of single injury inflicted by the appellaat. The Apex Court held vide para 19 that "in this case, the accused intentionally inflicted the injury though it may not be premeditated one. AU the circumstances woiild clearly indicate such a state of mind that he aimed and inflicted that injury with a deadly weapon. In the absence of evidence or reasonable explanation to show that the appellant did not intend to stab in the chest with knife with that degree offorce sufdcient to penetrate the heart, it would be perverse (^ to conclude that he did not intend to inflict that injury ftiat he did. When once the ingredient 'intention' is established, the offence would be murder as the 'intended' injiiry is found to be sufflcient in the orduiary course ofnature to cause death. Therefore, an offence ofmurder is niade outf 18. This Court has also exainin^d the case on this line. Though, a single blow was given by fhe appellant on ftie head of the deceased, but the intensity of blow resulting into the fracture of top of frontal bone clearly goes to show the intention, Not only this, the manner in which the blow was given to the deceased by usuig a deadly weapon Uke 'Khotla* and the saine was given by a son to the father, it clearly goes to show the intention of the appellant to cause the murder of the deceased. Hence the same would amount to culpable homicide ainounting to inurder, 19. Having considered the facts and circiimstances of the case and material on record, ui the opinion of fhls Court, since a fatal blow was given on the head of the father by his own son and the occurrence was witnessed by the real sister of the appeUant and the daughter ofthe deceased, the leamed Sessions Judge has rightly convicted the appellant under Section 302 of the Indian Penal Code and none of the exceptions are attracted ui this case. 10 20. Accordingly, the judgment of conviction and sentence dated 21-7-1998 passed by the leamed Sessions Judge is upheld, Coasequently, tfae appeal preferred by the appeUant faUs and the same is dismissed. Sd/- Fakhruddin Judge Sd/- Sunil Kumar Sinha Judge /^/12/2004 Gowri]^>-o k»»*^