^^ ^ HIGH COURT OF CHHATTISGARH. BILASPUR DB: Hon'ble Shri L.C. Bhadoo & Hon'ble Shri Sunil Kumar Sinha, J J. Cr. A. No.282 of 2003 Kailash Thakur Vs. State of Chhattisgarh JUDGMENT Judgment for consideration SdA Sunil Kumar Sinha Judge Hon'ble Shri Justice L.C. Bhadoo, J Sd/- L.C. Bhadoo Judge Post for Judgment: -yz-/01 /2008 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Aooeal No.282 of 2003 APPELLANT RESPONDENT Kailash Thakur, S/o Mangal Singh, Aged about 26 years, Occupation Driver, R/o Village Khorpa, P.S. Patan, District Durg Versus State of Chhattisgarh, •^ (Appeal under Section 374(2) ofCr.P.C.t Appearance: Shri Vivek Sharma, counsel for the appellant. Shri D.K. Gwalre, Govt. Advocate/Asst. Public Prosecutor, for theState. DB: Hon'ble Shri L.C. Bhadoo and Hon^ble Shri Sunil Kumar Sinha, JJ, JUDGMENT (O^Z.01.2008) The following judgment ofthe Court was delivered by Sunil Kumar Sinha, J, (1) This appeal is directed against the judgment of conviction and order of sentence dated 13.2.2003 passed by VIIth Addl. Sessions Judge (F.T.C), Durg, in Sessions Trial No.219/2001 whereby the appellant has been convicted u/s 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default ofpayment offlne, to further undergo simple iniprisonment for sbc months. (2) The case of the prosecution is that on 27.3.2001 at about 10 p.m., Satwantin Bai (P.W.2) was present in front of her house. She heard the commotion from a nearby place i.e., Chabutara. When she went towards there, she saw that the appellant was quarreling ^s^ KKS6 -;@f ^^y ^. .€ ^^ Criminal^r>Beal3Sro. 282 of2003 with her nephew Saryay Yadav (P.W.4). The deceased Punarad Yadav @ Balla also t^me over there ahd said to the appellant as to why he is quairelmg mth SanjayYad^ Yadav, the appellanf pushed Puriarad^^Y^ distance and gave one kmfe blow orithe left side 6f h^ ran away irom the place bf^^b^^ witnessed by Satwantin Bai (P.W,2). Punarad Yadav died bn fhe spot. (3) The first information report, Ex.P.lO, was lodged by Satwantin Bai (P.W.2) on the same night at about 11.30 ^.m. The invesfigatingofHcerleftforthesceneofoccurrenceon 28.3.2001 and after giving notice to the Panchas (Ex.P. I) jprepared inquest on the body ofthe deceased under Ex.P-lA. The bc^^^^w^ po^stmorteni exarninatioh t6 Primary Hea Ex.P.8. Affcer itaking accused appellant into custbcfy, his memorandum was recorded under Ex^P.2, based on whieh, blood stained shirt of;the appellant was seizeci under Ex.P.4. The Isnife and full pant of the appellant were seized under Ex.P.2-A. The plain soil and blood stained soil were sei^^ plan was prepared under Ex.P.6. The postmortem exammadon was conducted; by Dr.S.K. Agrawal (P.W.8), who prepared his report Ex.P.8-A.| He noticed the following'^njuries ori the body of deceased: (i) an abrasionmsizeof 6cm x 1/2cm on the right chin. (ii) an iabrasion in size of 4cmx ¥2cm on the left forehead; i (iii) an abrasion in size of 2cm x 1/2cm onthe middle of theforehead; i (iv) Onei stab wound on the left side of the chest measuring 1W length x %" width & deep to the heart. Oh internal examination empty and ther^ into the cavity were antemorteni to extensive of i, hefburidthatchambersoftlieheartwere was incised WQund iri s^^ the left ventricle. He opined that the; i^ in nature and the cause of death was shocls due h^miQrrhog^^^^^^^^^ o^ :^.^^^ife:.^.^^^^: •i;:'l^:.;,^;^——fc ^^^^^^eil'^S^i^^^^ c; Criminal Appeal No. 282 of 2003 sustained by the deceased. In further investigation, seized articles were sent to the Forensic Science Laboratory, Raipur, from where the report Ex.P.4 was received. According to the said report, all the seized articles, including the weapon of offence, clothes of the deceased and soil, except the plain soil, were found stained with blood. The weapon of offence i.e., Knife was also sent for examination to the Doctor who observed that the iron portion of knife was having length of 3 V2?? and width of 1.5 cm. The wooden handle of the knife was 4.5?) in length. An iron ring was also fitted with the wooden portion of the knife. The doctor opined that injury found on the chest of the deceased could be caused by the said knife. He gave his report ex.P.9-A. (4) After completion of the usual investigation, charge sheet was filed in the Court of J.M.F.C., Durg, who in turn committed the case to the Court of Sessions Judge, Durg, from where it was received on transfer by the 7th Addl. Sessions Judge (F.T.C), who after conducting the trial, convicted and sentenced the accused appellant as aforementioned. (5) Learned counsel for the appellant has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of P.W.2 Satwantin Bai that the deceased was stabbed by the appellant and he died on the spot. Her version is corroborated by the evidence of P.W.4 Sanjay Kumar, who immediately reached to the spot, to whom she disclosed that the appellant has stabbed the deceased and has ran away from the place of occurrence. The oral testimonies of these two witnesses are supported by the evidence of Dr.S.K. Agrawal (P.W.8), who conducted autopsy and prepared his report Ex.P.SA. He noticed the above injuries on the body of deceased and opined that the cause of death was shock due to extensive hemorrhage and antemortem viscera injuiy received by the deceased. Therefore, on the basis of above ocular and medical evidence, it is established that the death of the deceased was homicidal in nature. Criminal Appeal No. 282 of 2003 (6) Learned counsel for the appellant has argued that P.W.2 Satwantin Bai is the sister in law (Babhi) of the deceased, therefore, she is a relative and interested witness and her testimpny cannot be accepted. He also argued that the incident took place in the night and there is every possibility that the eye witness namely Satwantin Bai (P.W.2) may not have properly identified the culprit, therefore, the appellant should be given benefit of doubt. He further argued that even assuming that the appellant has participated in commission of crime in question, the offence committed by the appellant would not travel beyond section 304 Part II, IPC and atleast that benefit should be extended to him. (7) So far as the testimony of P.W.2 Satwantin Bai and the complicity of the accused appellant in crime in question on such testimony is concerned, learned counsel for the appellant relied on the decision of the Apex court rendered in the matter of State qf Puniab and Gurvnei Sinah -vs' Jit Sinah and others, AIR 1994 S.C. 549. In the said decision the Apex Court held that the evidence of the interested witness needs to be scrutinized considering probabilities, past statements and attending circumstances. In the said case, the F.I.R., and deposition of the witness before the Court were containing different versions as to purpose behind going to scene of occurrence and proper explanation for difference in versions, was not forthcoming. Even the presence of witnesses at the scene of occurrence was doubtful and in that situation, version of the witness was held to be unreliable. (8) So far as question of relative witnesses is concerned, almost similar principle has been laid down by the Apex Court in many cases. It has been held by the Apex Court in the matter of Rizan and another -Vs- State of Chhattisgarh^ through the Chief Secretary. Govt. of Chhattisaarh, Raitnir, AIR 2003 S.C. 976, in para 6, that the relationship is not a factor to affect credibility of a witness. It is more often than not 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 Criminal Appeal No. 282 of2003 such a case, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. (9) In Namdeo -Vs- State of Maharashfra. 2007 AIR SCW 1835, the Apex Court further held 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. The Apex Court also referred to the decision rendered in the matter of Harbans Kaur and another - Vs- State of Haruana^ 2005 AIR SCW 2074, m which, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason hag 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. (10) Therefore, in view of the above legal position, the evidence of P.W.2 Satwantin Bai has to be scrutinized with care and caution considering all probabilities and her past statements as also the attending circumstances and after such a scrutiny, if her evidence is found to be trustworthy and fully reliable, conviction can be based upon her such testimony. P.W.2 has deposed that on the fateful night at about 10 p.m., she was present near the boring where there is a UChabutard\ Two lights were glowing there. The quarrel was going on between the appellant and nephew of the deceased. The deceased went there for pacification. On this, --.-.../ ^. Criminal Appeal No. 282 of2003 appellant said "Who is he to do like that??. He took the deceased to some distance and stabbed him with knife. The deceased started crying like "save?? "savew. She immediately hold the deceased, and the appellant ran away from the place of occurrence. She saw an injury on the left side of chest of the deceased. She started crying, on which, Sanjay Yadav, Dilip Verma and Tijau Yadav etc., came to the place of occurrence. Her husband also came there. The deceased died instantaneously at the place of occurrence itself. In the cross examination, a question has been put to her that she has not stated before the police that two lights were glowing at the place of occurrence. She has admitted this, but she has categorically stated that it is wrong to say that there was darkness at the place of occurrence. Except this omission, nothing material has been brought in the cross examination of this witness. She has categorically stated that it is wrong to say that she was not present at the place of occurrence and since the deceased was her brother in law, she has given false evidence against the appellant. (11) Now the question arises that whether on this omission only that she had not stated in her previous statement or in the First Information Report that lights were glowing, she should be out- rightly disbelieved ? If we go through the F.I.R., lodged by this witness, she has categorically mentioned about the incident which took place and almost similar version has been mentioned by her in the F.I.R., which was promptly lodged within IVa hours, except that two lights were glowing at the time of occurrence. When in the natural way, a version is coming that a witness has seen the occurrence by her own eyes and is categorically mentioning about the occurrence in a sequence, there would be hardly any occasion for him/her to mention about glowing oflights on her own because when he/she is claiming that he/she has witnessed the occurrence and the occurrence took place in the night in a dense locality, it is implied that there was a situation in which he/she was able to see the occurrence and making mention about the light etc., would be unnatural. The F.I.R. would show that a natural version has been given by this witness about the occurrence and if she could not say specifically about the lights at the place of Cruninal Appeal No. 282 of 2003 occurrence in the F.I.R., only on this ground her version cannot be discarded. Admittedly, this incident took place in a dense locality of the village where there was also a beetle shop and in all probabilities, there was no necessity for this witness to say about the presence of glowing lights at the scene of occurrence, on her own. Such omission on the face of her entire evidence would not be fatal. More over, the evidence of this witness is corroborated by the evidence of P.W.4 Sanjay Kumar Yadav who deposed that when the quarrel was going on between himself and the appellant, the deceased came there and he started taking him. He took him towards the house and after leaving him at some distance, he parted his company. At that time he heard hue and cry and he immediately rushed towards the commotion and saw that Satwantin Bai (P.W.2) was holding the deceased who has received injuries. He asked Satwantin Bai that who caused injuries ? On this, she immediately disclosed that the appellant has caused injuries to the deceased with the help of a knife. Therefore, after careful scrutiny of evidence of P.W.2 Satwantin Bai and P.W.4 Sanjay Kumar Yadav, in all probabilities, the evidence of P.W.2 cannot be discarded and she cannot be said to be untrustworthy. Therefore, the complicity of the accused in crime in question is established and it is also established that the accused/appellant has caused the stab injury to the deceased who died on the spot. (12) As far as the argument regarding offence not traveling beyond section 304 Part II is concerned, learned counsel for the appellant has relied on the decisions of the Apex Court rendered in the matters of J?am Prakash Sinah -Vs- State of Bihar, AIR 2998 SC 2190,' Sridhar Bhuvan -vs- State of Orissa JT 2004 f6) SC 299 and Ravi Kumar -vs- State of Puniab 2005 Cri.L.J.1742. (13) In all these cases, the principle regarding applicability of 4th Exception of Section 300 has been laid down. In Ram Prakash case (supra), the Apex Court found that there was previous friendship between the accused and the deceased and there was $ome hot exchange of words between the two. In sudden quarrel, Criminal Anpeal No. 282 of 2003 the accused inHicted single knife injury to the deceased but the said injury was not aimed at any particular part of body of the deceased. Further medical evidence was not stating that injury was sufficient in the ordinary course to cause death, and in such circumstances, when the injury was caused only due to sudden quarrel, it was held that accused was liable to be convicted u/s 304PartIIofI.P.C. (14) In Ravi Kumar's case (Supra) a quarrel took place between the accused and deceased, the accused picked up Dhangu and gave two blows on the head of deceased. (15) In Sridhar Bhuyan's case (supra) also plea of sudden quarrel and applicability of 4th Exception to Section 300 were rejected by the two courts below and in such situation where a sUdden quarrel took place and a fatal blow was inflicted, the Apex Court held that in the facts and circumstances ofthe case, 4th Exception to Section 300 would be applicable and the conviction was altered to section 304 Part II IPC. (16) Therefore, as provided by the Legislature, and it is also clear by the above principles, that for applicability of Exception 4 of Section 300 IPC, the act must have been done without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel with the deceased without the offender having taken undue advantage and not having acted in a cruel or unusual manner. (17) In the present case, P.W.2 Satwantin Bai has categorically stated vide Para 4 of her deposition that there was no quarrel or fight between the deceased and the appellant at the time of incident. She has also stated that there was no history of previous quarrel or fight between them. It does not come that the appellant stabbed the deceased in heat of passion or as a consequence of sudden fight between them. Rather it comes that he straight way stabbed the deceased when he inter^ened and took his nephew while the appellant was quarreling with his nephew. Here the intention of the accused/appellant is writ large on record. The cS) Criminal Appeal No. 282 of2003 intention can be gathered from the nature of weapon used, the manner in which it was used, severity of the blow, part of the body where the injury was inflicted etc. The appellant has caused injury to the chest of the deceased with the help of knife measuring 8" in length having width of 1.5 cm. at its iron portion. The knife has penetrated into thoracic cavity and has damaged the ventricle chamber of the heart of the deceased, and an incised wound was caused to the left ventricle as a result he died spontaneously. Therefore, the arguments advanced by learned counsel for the appellant that the offence would not travel beyond section 304 Part II ofI.P.C., cannot be accepted. (18) We do not find any reason to interfere with the judgment of conviction and order of sentence passed by the trial Court. (19) The appeal has no merits. The same deserves to be and is accordingly dismissed. r Sd/- L.C. Bhadoo Judge Sd/- Sunil Kumar Sinha Judge Rao