CORAM: Hon’ble Shri Raieev GuQta, C.J. & Hon’ble Shri Sunil Kumar Sinha J. Criminal Appeal No. 810 of 2003 Balak Ram @ Baul Vs. State of Chhattisgarh JUDGMENT For consideration 5d!- Snil Kumar Sinha _r Ju \ sf amt/fag CHIEF JusTICE 1‘ Post for Judgment ;/H92/2009 Sdl- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH BILAsPUR ’ “ HON’BLE SHRI JUSTICE RAJEEV GUPTA u “i HIGH COURT OF CHHATTIsGARH. BILASPLB H Hon’ble Shri Ra'eev Gu ta C.J. & CORAM: Hon’ble 'Shri R Sunil Kumar Sinha J. Criminal Aegeal No. 810 of 2003 APPELLANT Balak Ram, @ Baul, S/o Dilu Ram Surguja Jivualiya, (C.G.) P.S. Lakhanpur, Distt. Occupation- Kanwar, aged Agriculture,_ about R/o, 48 Vinage- years, Versus RESPONDENT State of Chhattisgarh, Through P.S.~ Lakhanpur, Distt. Surguja (C.G.) (Appeal under Section 374 (2) of The Code of Criminal Procedure) . Aggearance: Ms.P.ushpa Dwivedi, Counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. . JUDGMENT (I2. .02.2009) Following judgment of Sunil Kumar Sinha J. the‘if‘Court was delivered by m (1) Appellant Balak Ram @ Baul stands convicted u/s 302 IPC for commission of murder of his wife, Jakni Bai, and sentenced to undergo imprisonment for life by the Sessions Judge, Surguja (Ambikapur) Chhattisgarh, in Sessions Trial No. 68/2002 on 23.10.2002. (2i wool are Crimianl Appeal No. 8 1 0 of 2003 taking whey (Mathah), where she was retained by her mother. The allegations are that in the evening at about 6.00 p.m., the appellant came there and assaulted the deceased with hands, fists and chappel (slipper). She sustained some external injuries. Her two teeth were uprooted. This was witnesses by the mother of the deceased namely Padwaien Bai (PW-3). Manta Ram (PW—2), brother of the deceased, was not in the house on 2.11.2001 as he had gone for guarding the ground-nut crops. When he returned on 3.11.2001, the story was narrated to him by his mother. Jakni Bai died at about 7.00 p.m. on 3.11.2001 on account of injuries sustained by her. The matter was reported to the concerned ’ police station on 4.1 1 .2001 by brother of the deceased, Manta Ram (PW- 2), on which, merg intimation (Ex.—P/6) and a First information Report (Ex.-Pl3) were recorded. (3) On such information, the Investigating Officer left for the scene of occurrence, gave notice (Ex.—P/4) to the Panchas and prepared inquest (Ex.-P/5) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to Community Health Center, Udaipur through requisition Ex.-P/9, where the post-mortem examination was conducted by Dr. l.D. Bhatnaagar (PW—5), who prepared his report Ex.- P/18. The Autopsy Surgeon noticed the following injuries on the body of the deceased: (i) Lacerated wound over left eye size 1 inch x 1/2 inch x 1/2 inch; Bruise over upper lip with laceration on upper gum. Two teeth of upperjaw were uprooted; (iii) Bruise around neck which may have been caused by throttling ; (iv) Bruise over right chest size 3 inch x 3 inch & Abrasion over left forearm size 2 inch x 2 inch. (ii) 3 Cn‘inianl Agpeal No. 810 of2003 On internal examination, he noticed that blood clots were there on the membrane of right lung and it was ruptured. Other organs like liver, spleen and kidney were congested. He opined that the cause of death was asphyxia due to throttling and internal haemorrhage in the lungs and it 1" was homicidal in nature. (4) In further investigation, spot maps were prepared under Ex.-P/2 & P/8. 2 Nos. of teeth & ruer sliper were seized under Ex.-P/10. Saree blouse, sent from the hospital, were seized uder Ex.-P/1 1. The cloths of the deceased were sent for their chemical examination to Forensic Science aoratory, Raipur uner Ex.-P/16, from where, a rept Ex.-P/17 was obtained. According to the F.S.L. report, blood stai were found on thos cloths. e (5) After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Ambikur, who‘ turn, committed the- matter o te Sessions Court, Ambikapur, where the trial was conducted and th appellant/accused was convicted and sentenced as aforementioned. (6) Ms. Pushpa Dwivedi, learned counsel for the appellant, has not C disputed the homicidal death of the deceased. She hs also not disputed the involvement o the appellant in crime in question. She has only argd that the opinion of the Doctor that the cause of death as sphyxia due to throttling does not appear to be correct in view of the features found in the post-mortem report and the evidence of the mother of the deceased , namely- Padwaien Bai (PW-3), whq has witnessed the occurrence, and / / bb p & n Lb d or ns ap in t h e a f ue w a 4 g9 Crimianl Appeal No. 810 of 2003 fudher in View of the fact that the incident took place at 6.00 p.m. on 2.11.2001 and the deceased was alright for the whole night as also till the evening of 3.11.2001 and she died at about 7.00 p.m. She submits that if the death was on account of throttling or strangulation by compression of the'neck by hands, the deceased would have died instantaneously and ‘ many other post—mortem features would have been observed by the Doctor. She argued that, in fact, the deceased was beaten by the husband by hands, tist and chappel, who received some injuries and ultimately, she died after about more than 24 hours, therefore, the appellant would be liable for punishment under some lesser Section preferably Part-ll of Section 304 IPC. (7) On the other hand, Mr. Ashish Shukla, leatned Govt. Advocate, appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. We have heard the learned counsel for the parties at length and (8) ‘ have also perused the records of the sessions case. (9) ln case of strangulation, if the windpipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless‘to call for assistance, becomes insensible, and may die instantly. lf the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death. ln such cases, the lungs are usually markedly congested, showing haemorrhagic patches and petechiae and exuding dark fluid blood on section. They may show a emphysematous bullae on their surface due to over distension and rupture 6 died on the ext day. This goes to show that the deceased was alive for n about more than 24 hours and she was throughout talking with the mohe If, in fact, the cause of death would have been asphyxia due to tr. strangulation or throttling, the mother of the deceased would have deposed that her son-in-law had pressed the neck of the deceased fr o throttling, and in all probability, t deceased would hve been powerlss, he a e insensible and she would have died instantaneously. Apart from the above, there would have been some inju on the trachea and other ry internal portion of the neck. (1 2) ln the present case, the eye witness account says that it was a case of beating by hands and fists which used death after 24 hours, whereas ca medical opinion is pointing towards the death by thttiig‘ o strangulation. ron r The Supreme Court held in the matters of —- Gopal and another, (1988) 4 SCC 302 a Ramakant Rai vs Madan nd —- that “where the eye—witnesses” account is found edible and trustworthy, mdical opinion pointing to cr e alternative possibilities is not accepted as conclusive. Importance and primacy should be given to the orality of the trl process. Eye witnesses’ ia account would require a careful independent assessment nd evaluation a for their credibility which should ot be adversely prejudged makng any n i other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent onsistency and the inherent probability of the story; onsistency with the c c account of othr witnesses held t be creditorthy; consistency with the e o w undisputed facts; the ‘credit' of the witesses; their performan in the n ce witness-box; their power of observation etc. Then the probative value of Crimianl Appeal No. 810 of2003 State of U.P. vs Krishna Rai and others AIR 2004 S.C. 77 W5 ‘k X. 7 Crimianl Apgal No. 810 of 2003 such evidence becomes eligible to be put into the scale for a cumulative evaluation.” (13) Sometimes, doctors also may not bestow sufficient care while performing examination or preparing records and their opinion may be based on inadequate orvincompiete or defective examination or lack of complete knowledge. Doctor is a witness of both fact and opinion. Medical evidence acts as a check upon testimony of eye witness; it is also independent evidence in so far as it establishes facts e.g., tattooing marks, nature and dimensions of injury etc. Medical evidence is also corroborative of eye witness testimony, in as much as it may show that the injury might have been caused in the manner alleged. Defence could use the medical evidence to show that the injury could not have been caused as alleged and thereby discredit eye witness testimony. Court has to remember that medical evidence is mainly opinion evidence on which the court could form its own independent conclusion. However, in case of divergence, the Court must try to reconcile the two; if that is not possible ’ the court has to appreciate the evidence like any other evidence, having regard to reasons and data provided by the Doctor and the cogency or otherwise of eye witness testimony. lf eye witnesses are credible and trustworthy, medical opinion suggesting alternative possibility may not be accepted as conclusive and primacy should be given to oral evidence [Please see - 2007 CRI. L.J. 1036 (Atami Laxman ll. State of Chhattisqa_rhl]. (14) Here credibility of the eye witness, PW—3, Padwaien Bai, is not in doubt. The entire case of the prosecution is based upon her sole 8 Crimianl Appeal No. 810 of 2003 testimony. Her testimony is corroborated by version of her son, PW-2, Manta Ram, who had also seen the deceased alive on 3.1 1 .2001 and has lodged the First Information Report. This shows that the death was not instantaneous and the deceased died after 24 hours. In view of all this, in appreciation, we find that the opinion of Dr. l.D. Bhatnaagar (PW-5) that the cause of death was asphyxia due to throttling was not correct. It appears that the Doctor could not notice some internal injuries of ribs etc. which may have punctured the lungs and has simply suggested that the a cause of death Was asphyxia due to throttling. Therefore, we hold that, in fact, it wasnot a death on account of throttling or strangulation of the deceased by the appellant and the death was on account of injuries, including the injuries on lungs, sustained by the deceased. (15) Now we shall consider as to What offence the appellant, in fact, has committed. According to the mother of the deceased, the deceased was r4 beaten by the appellant by hands and fists and a rubber slipper as the appellant came to their house un—arm. Even he did not pick up any weapon or article from the place of occurrence. This shows that the u appellant was having no intention to kill his wife. Had there been any intention, the appellant would have come with some weapon or he would have useqit at the moment. The death was also not instantaneous as the deceased died after more than 24 hours of the incident. It appears that some blow by hands and fists, proved fatal to the deceased causing injuries to her lungs which the appellant may not have intended to cause to the deceased. However, it can well be inferred that the appellant was having knowledge that his such act may cause death of the deceased or it may cause such bodily injury which may result into death of the ., g Crimianl Appeal No. 810 of2003 deceased. In our considered opinion, the act of the appellant was culpable homicide not amounting to murder and would be punishable u/s 304 IPC. Since the intention appears to be lacking in this case, but the knowledge is writ large, therefore, the appellant would be liable for punishment under Part-ll of Section 304 IPC. (16) Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. Instead, the ,4 appellant is convicted u/s 304 Part-ll IPC and sentenced to undergo rigorous imprisonment for 10 years. The appellant is in jail. He shall be entitled to set-off the period already undergone by him. W. i; .. ' V Sdl- l CHLEFJUSTICE sw— ‘ ‘ l Sunil Kumar Sinha , ( Judge