,,;il """^3^. ../"«'na'"». -•'^^. HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hpn'ble ShrLJustice SunlLKumaLSinha and Hon'ble Shri Justice Radhe Shyam Sharma Criminal Aupeal No.903 of^ll96 Tintiyus Kujur and others versus ' The State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- R.S.Sbarma Judge Hon'ble Shri Sunil Kumar Sinha, J.: ^. / ^ o^.ye.e-. Sdf- Sunii Kumar Sinha Judge Postforz^,-11-2011 Sd/- jUtifeE^. ^5~'-11-2011 \- HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil KumarSinhaand Hon'ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.903of1996 Appellants 1. 2. 3. versus Respondent Tintiyus Kujur, S/o Budhram Kujur, aged about 35 years, Silwanus Kujur, S/o Budhram Kujur, aged about 45 years, Fegna Kujur, S/o Budhram Kujur, •'aged about 37 years, All residents of Village Dandadih Tola, Rajouti, Thana Kunkuri, District Raigarh The State of Madhya Pradesh (now Chhattisgarh) through Police Station Kunkuri, District Raigarh Present: Shri Vivek Ranjan Tiwari, couRsel for the appellants. Shri Ravindra Agrawal, Panel Lawyer for the State/respondent. Criminal Appeal yndeLSectioh 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on 281t' November, 201 1) Per Radhe Shvam Sharma, J.: This appeal is directed against the judgment dated 19-4-1996 passed by Additional Sessioh Judge, Jashpurnagar in Session Trial No.24/1996. By the impugned judgment, accused persons/gppellants Tintiyus Kujur, Silwanus Kujur and Fegna Kujur have been convicted un^ler Sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.1,0007- each, in default, to further undergo simple imprisonmentforthree months. ['; .' "I i--J fp!:ai' 3S?-.?.?g$^^ @ 2. Case of the prosecution, in brief, is as under: Pankhrasiya (DW-1) is wife of appellant Tintiyus. Appellant Tintiyus deserted his wife and wanted customary divorce from her. Pankhrasiya lodged report in Police Station Kunkuri. On the suggestion of Station Hquse Officer, appellant Tintiyus agreed to keep her. On 03.12.1995, at about 6.30 p.m., deceased Benedik, Lalit Kujur (PW-2), Piyus (PW-3.), Thomas Kujur (PW-4) and Manuvea (PW-8) had gone to the house of the appellants along with Pankhrasiya. When these witnesses entered into the house of the appellants, the appellants assaulted Benedik (deceased) with burchi and danda. They also assaulted Thomas Kujur (PW-4). Thomas Kujur (PW-4) sustained injuries. Benedik also sustained injuries and he died. Merg intimation.(Ex-P/-11) and First Information Report (Ex- P/1) was lodged by Bhushan Khalkho (PW-1 - son ofthe deceased). The investigating officer reached the place of occurrence, gave notice to Panchas and prepared inquest (Ex-P/2). Dead body of the deceased was sent for post mortem examination to Primary Health Centre, Kunkuri vide Ex-P/12. Post mortem was conducted by Dr. S.Toppo (PW-10), who gave his report vide Ex-P/18. He found contusion with swelling and other injuries over left fronto parietal region and there were multiple fractures on fronto parietal bone. He opined that/;auseof death was haemorrhagic shock due to fracture of left fronto parietal bone'{rf, skull and the death was homicidal in nature. In further investigation, Patwari B.L. Kunjan (PW-9) prepared site map (Ex-P/17). The investigating officer seized plain soil and ^...,._,.<<^ .^' ';i>iiE"<iF'.<(?' ^"teXB''''* blood stained soil from the place of occurrence vide Ex-P/3. Memorandum statement (Ex-P/4) of appellant Tintiyus was recorded on 04.12.95 and at his instance burchiwas seized from him vide Ex- P/7. Memorandum statement of appellant Silwanus was also recorded on 04.12.95 vide Ex.P/5 and at his instance stick was seized from him vide Ex.P/8. Memorandum statement of appellant Fegna was also recorded on 04.12.95 vide Ex. P-6 and at his instance bamboo stick was seized vide Ex.P/9. Plain soil, blood stained soil and other seized articles were sent for chemical examination to Regional Forensic Science Laboratory, Raipur. Report was received from there vide Ex-P/15. From the report, it is found that article 'A' i.e. blood stained soil, article 'C' i.e. burchi, article 'F' i.e. sweater of the deceased, article 'G' i.e. baniyan, article 'H' i.e. lungi, article T i.e. underwear of the deceased were found stained with blood. • 3. After completion of the investigation, charge sheet was filed against the appellants in the Court of Additional Chief Judicial Magistrate, Jashpurnagar, who, in turn, committed the case to the Court of Session, Raigarh, from where, the case was received on transferby Additional Session Judge, Jashpurnagar, who conducted the trial and convicted and sentenced the appellants as mentioned above. •. / 4. The prosecution examined Bhushan Khalkho (PW-1), Lalit Kujur (PW-2), Piyus (PW-3), Thomas Kujur (PW-4), Investigating Officer K.S. Dhruw (PW-5), Chandraman (PW-6), Abraham (PW-7), Manuvea (PW-8), Patwari B.L. Kunjan (PW-9) and Dr. S.Toppo '•;•' 4 (PW-10) and the appellants examined Pankhrasiya (DW-1) as defence witness. 5. Shri Vivek Ranjan Tiwari, learned counsel for the appellants argued that version of the.eyewitnesses is not reliable. Prosecution witnesses, namely, Lalit Kujur (PW-2), Piyus (PW-3), Thomas Kujur (PW-4) and Manuvea (PW-8) are interested witnesses. There is no independent witness. Manuvea;' (PW-8) did not support the prosecution case. There are many contradictions in the statements of prosecution witnesses. There are material contradictions in the medical evidence and ocular evidence. The prosecution has not examined any independent witness. He further argued that the deceased and the prosecution witnesses had entered into the house of the appellants and ttxey, provoked the appellants. There was a severe exchange of abuse between the appellants, the deceased and prosecution witnesses. Therefore, the appellants would not be liable for punishment under Section 302 IPC. Even after admitting the entire case, they would liable for punishment under Section 304 IPC. 6. On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent supporting the impugned judgment submitted that the conviction and the sentence award by the learned sessions Judge does not warrant interference by this Court. 7. We have heard learned counsel forthe parties at length and have perused the impugned judgment. Conviction of the appellants under Section 302 IPC is based on the testimonies of Lalit Kujur v,.^ ua <r! .r,.w t^. (PW-2), Piyus (PW-3), Thomas Kujur (PW-4) and Manuvea (PW-8), who are the eyewitnesses of the occurrence and whose evidence are corroborated by the medical evidence. 8. Lalit Kujur (PW-2).admitted in his cross-examination that the deceased was his matej-nal grand father and Thomas Kujur (PW-4) is his uncle. It appears that Thomas Kujur (PW-4) and Lalit Kujur (PW-2) are closely related to the deceased. So far as relationship is concerned, it is not a factor to affect the credibility of witnesses and even the relative witnesseswould 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 analyse to find out whether evidence of above witnesses is cogent qnd credible. 9. In Brahm Swaroop and aflother vs. State of U.P., AIR 2011 SC 280, the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person.^A party has. to lay down a factual foundation anjzf prove by leading impeccable evidence in respect of its false implicatioq. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible eviden'ce. ,^i^': 22. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes within a built-in guarantee of his presence at the sceneof the crime and is unlikely to spare his actual asrsailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness. ..........." ~^\ 10. Lalit Kujur (PW-2) deposed that appellant Tintiyus deserted his wife Pankhrasiya (DW-1). Pankhrasiya (DW-1) lodged report against appellant Tintiyus. Thomas Kujur (PW-4) deposed that appellant Tintiyus did not keep his wife with him. Manuvea (PW-8) also deposed in similar fashion. Head Constable Chandraman (PW- 6) deposed that appellarit Tintiyus did not keep his wife Pankhrasiya (DW-1) with him. Pankhrasiya (DW-1) lodged report in Police Station Kunkuri. He entered her ipport in Rojnamcha Sanha No.114 vide Ex.P-16. Lalit Kujur (PW-2), Thomas Kujur (PW-4) and Manuvea (PW-8) deposed that on suggestion of the Station House Officer, appellant Tintiyus agreed to keep his wife Pankhrasiya (DW- 1)with him. 11. Lalit Kujur (PW-2), Thomas Kujur (PW-4) and Manuvea (PW- 8) deposed that they had taken Pankhrasiya (DW-1) to the house of ./ the appellants. When they reached to the house of the appellants, the door.was open. WhenThey entered the house of the appellants, the appellants assaulted the deceased. Appellant Tintiyus assaulted w\th Barchhi and appellant No.2 Silwanus Kujur and appellant No.3 Fegna Kujur assaulted with Danda. The deceased fell down and 7 succumbed to the injuries. Thomas Kujur (PW-4) deposed that the appellants had assaulted him also. He had sustained injuries in the assault. 12. Lalit Kujur (PW-2)'deposed in cross-examination that he, the deceased, Thomas Kujur (PW-4) and Pankhrasiya (DW-1) had entered the house of the appellants together. He further deposed that he and Thomas Kujur (PW-4)'had made a call to the appellants. Piyus (PW-3) deposed that the appellants assaulted him, the deceased and Thomas Kujur (PW-4). The deceased had sustained multiple injuries. 13. In Waman and others vs. State of Maharashtra, (2011) 7 SCC 295, the Hon'ble Supreme Court held as follows: "17. In Balraje v. Stete of Maharashtra, (2010) 6 SCC 673, this Court held that th6 mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the eyideflce of related witnesses and those witnesses wh.c/are inimically disposed towards the accused. After saying so, this Courtitueld that: (SCC p. 679, para 30) "30. ..... if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to beclear, cogent and credible, there is no reason to discard the same." 19. The above principles have been once again reiterated in State of U.P. v. Naresh, (2011) 4 SCC 324. Here again, this Court has emphasized that relationship cannot be a factor to affect the credibility of a witness. The following statement of law on this point is relevant: (SCC p. 334, para-29) "29. .... The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without-any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jamail Singh v. State of Punjab, (2009) 9 SCC 719, Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje, (2010) 6 SCC673.)" 14. Bhushan Khalkho (PW-1) deposed that the deceased was his father. When he returned from Kunkuri at 6:30 P.M., Lalit Kujur (PW-2) and one Sunil told him that the appellants had assaulted his father (the deceased). He went to the house of the appellants. The door of the house was closed. The appellants did not open the door. He lodged the FIR (Ex.P-1). Station House Officer (S.H.O.) K.S.Dhruw (PW-5) deposed that on 4-12-1995, Bhushan Khalkho (PW-l)Jo^ed the FIR (Ex.P-1) in Police Station Kunkuri. He also recorded - Merg lntimation^o.49/95 (Ex.P-11). Abraham (PW-7) deposed that Village Chowkidar had come to him at about 8 A.M., told him about the incident and took him to the house of the appellants. Hesaw that dead body of the deceased was lying in the courtyard of the house. There was an injury on the head of the deceased. 15. S.H.O., K.S.Dhruw (PW-5) deposedthat he prepared inquest (Ex.P-2) on dead body 6f the deceased in presence of witnesses. Patwari B.L.Kunjan (PW!-9) prepared site-map (Ex.P-17). In the site- map (Ex.P-17), SI.No.1 is shown as courtyard of the house of the appellants where dead body of the deceased was found. Abraham (PW-7) also deposed that dead body of the deceased was lying in the courtyard of the house of the appellants. From the evidence of the above witnesses, it is evident that dead body of the deceased was found lying in the courtyard of the house of the appellants and inquest (Ex. P-2) was prepared there. 16. Thomas Kujur (PW-4) is injured witness. S.H.O., K.S.Dhruw (PW-5) deposed that injured Thomas Kujur (PW-4) was also sent for medical examination vide requisition (Ex. P-13). On the back of Ex.P-13, medical report of Thomas Kujur (PW-4) is mentioned. It appears that Thomas Kujur (PW-4) also sustained injuries in the same incident. Therefore, his evidence is wholly reliable. In the FIR (Ex.P-1), names ofthe appellants are mentioned. 17. Panl-dirasTya Kujur (DW-1) deposed that Lalit Kujur (PW-2), '• / Piyus (PW-3), Thomas Kujur (PW-4) and the deceased had come near her house quarreling with each other. She further deposed that Thomas Kujyr (PW-4) pushed the deceased, due to which, the deceased fell.downat door-frame of the house of the appellants. (DW-1) tried to show from her evidence that the "^: "• l'.t), '% '^ '\\., '"k.i II I dv^ .k rS^^^S 10 deceased had fell down at the door-frame of the house of the appellants due to a quarrel and died there. From her evidence, it is evident that the deceased, Lalit Kujur (PW-2), Piyus (PW-3), Thomas Kujur (PW-4) and Manuvea (PW-8) had gone to the house of the appellants. •» 18. We have perused the evidence of Lalit Kujur (PW-2), Piyus (PW-3), Thomas Kujur (PW-4) and Manuvea (PW-8). Their evidence is cogent, clinching and trustworthy and corroborated by the medical evidence. Dr. S. Toppo (PW-10) found fractures on fronto-parietal bone. He opined that cause of death was haemorrhagic shock due to fracture of left fronto-parietal bone of skull. The death was homicidal in nature. 19. Therefore, we do not find any infirmity in the finding recorded by the Additional Session Judge that the appellants had caused injuries on the deceased and the deceased died on account of the injuries caused by the appellants. 20. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 ofthe Indian Penal Code. 21. Shri Tiwari, learned counsel for the appellants argued that the ./ deceased ,and the prosecution witnesses entered the house of the appellants and they provoted the appellants. It appears that there 'was severe exchange of abuse between them. Therefore, the act of the appellants would not be punishable under Section 302 of the ^Sv '"-<riii "^ "k !;i,:&) •is^ 11 Indian Penal Code and they would be guilty of the offence punishable under Section 304 ofthe Indian Penal Code. 22. 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 theimportant thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, 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 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 ofper^on or property, and in a sudden fight in the heat of passionifi/ithout 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 partofSection 304 ofthe Indian Penal Code, an element of interrtion is a factor whereas for attracting the later part, an °^t. 12 element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a pari:icular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 23. In Jagtar Singh vs. State of Punjab, (1983) 2 SCC 342, the Hon'ble Supreme Court held as follows: "8. The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death; Therefore, the appellant is shown to have committed an offence under Section 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends ofjustice." 24. In Satish Narayan Sawant vs. State of Goa, (2009) 17 SCC 724, the Hon'ble Supreme Court held as follows: "40. That being the well-settled legal position, when we test the:-factual background of the present case on the priflciples laid down by this Court in the aforesaid de'cisions, we are ud^ble to agree with the views taken by the High Court. - As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabifed by both the parties and there is no evidence on ^ record that .the deceased was armed with any weapon. ^^•^s^ ,?::p«!(>w'€^l •F S \.' 13 Initially the appellant-accused also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. PW 7 in his cross-examination has categorically stated that death due to stab injury was in consequence of Injury 1 and all other injuries were superficial in nature. So, it was only Injury 1 which was fatal in nature. Factually therefore, there was only one main injury caused due to.stabbing and that also was given on the back s[de of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness." 25. In the instant case, Piyus (PW-3) deposed that it is true that who were taking Pankhrasiya (DW-1) to the house of the appellants was not known to them. Lalit Kujur (PW-2) deposed that the appellants had also gone to the police station. Lalit Kujur (PW-2) deposed that the witnesses had ^ntered the house of the appellants making noise. 26. The appellants are real brothers. From the above evidence, it appears that the place of occurrence is residence of the appellants. There is no specific evidence that initially the appellants were armed with weapons. This shows that there was no preparation or premeditation. Piyus (PW-3) deposed that it is true that when they entered- tMe house of the appellants, the appellants got annoyed. Thergafter, the appellanf§7 taking the weapons in their hands, assaulted the deceased. It appears that the appellants and the deceased abused.each other and on this account, the appellants ,^i: ^.^'" ^: a.tw'ij tftfSS^i "•.i&.!| Jl-; 14 assaulted the deceased, who along with many persons had entered their house. 27. In the above facts and circumstances of the case, we are of the view, that act of the appellants would fall within the Exception to Section 300 IPC and theywould beliable for punishment under Part llofSection3041PC. ^^fS-Stf'^S S^a^Ss^f !!^WKS:S:.^ 28. For the foregoing reasons, the appeal is allowed in pari:. The conviction and sentence awarded to the appellants under Section 302 read with Section 34 IPC are set aside. Instead thereof, the appellants are convicted under Part II of Section 304 IPC and sentenced to rigorous imprisonment for six years. The appellants were arrested in the yearj 995.-Appellant No.1 Tintiyus Kujur was released on bail on 24-4-2002, appellant No.2 Silwanus Kujur and appellant No.3 Fegna Kujur were released on bail on 30-1-2003. Appellant No.1 Tintiyus Kujur has already undergone for more than six years and appellant No.2 Silwanus Kujur and appellant No.3 Fegna Kujur have already undergone for more than seven years. Presently, they are on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- : i; SuniS'Kupar Sinha | / Judge / •. / Sd/- R.S. Sharma Judge Bini/Gopai 11:1