HG—7S s-^-^ \^'u sii^; qnftiiw '(T!?! S?^?T i?%%' r-t 3^^ '^WM't-t, W^U'W, [^fftWy A. sniRi iraq; (ijcit-i^sg) tFl. 200) TOfIWdfel 311^1 ttii<iT<*i41t Tm?if '^f,fe(^ ^f-^R ^T aifiiii aii^r APPELLANT: (!n Jail custody) -VereLl RESPONDENT: (Criminal Appeal under S| Division Bench: - Hon'ble Shri L.C. Bhadoo & Hon'ble Shri Sunil Kumar Sinha, 41J. 2-11-2007:- Shri V.P. Gupta, counse! for Shri Akhil Mishra, Panel Lawlfer for Oral judgment dictated on D^is. Sunil Kumar Sinha. J, This appeal is directed again of sentence dated 26-6-2001 pass S.T. No.207/2001 whereby, th accused/appellant guilty of the the I.P.C., sentenced him to underg Brief facts are that the dece; of appellant Madvi Kosa. Madvi f^ Madvi Kosa, S/o Madvi Deva iVIuriya, aged 35 years, Occupation Cultivator, resident of village Doleras, P.S. Kukanar, Distt. Dantewara, Chhattisgarh. s- State of Chhattisgarh, Through P.S. Kukanar, Distt. Dantewara, Bastar, Chhattisgarh. 3ction 374 (2) ofthe Cr.P.C.) |he appellant. the State/respondent, i^tthejudgment ofconviction and order (ed'by the Sessions Judge, Bastar in i^ said Court, after holding the off^nce punishable under Section 302 of l|3 imprisonment for life. ased namely, Madvi Erre was the wife osa was ill since few days prior to the Es? ^ -^i... Xl.HG—78 £ 3'5'q' ^wivft^, yTfly'Ko, Scf0i'y^< 2 W^ 200 an^r iiaq; (lyt^i^) sn^B 9?r fq-ti* w)!an^isR!!N7 ^•KilW tlf^fl sn^T 4)|'4ht1'4N 'RFRlf ^fe^ <r<>(^,l< ^aiRnsii^i placje date of the incident which took house of PW-1 Muchaki Paike, who used to practice witchcraft. the house of Muchaki Deva for thel day at about 4 a.m., Muchatei wife Madvi Erre with the helpv immediately rushed towards the Madvi Kosa ran away from th®pl^ incident was iodged by PW-1 under Ex.P/1. The investigatinb occurrence, prepared inquest on th| He seized blood stained soil and under Ex.P/3. A piece of wood wa^ Kosa (accused) under Ex.P/5. Thf postmortem examination to Chindg^ii conducted by Dr. P.N. Shandilya He noticed following injuries on the wHo Sihce PaiHe d>f p|ace Muchy<i F|lain > One lacerated wound on also punctured, shape wa; Injury was ante mortem in rough object. On dissection, he back of ear bone. Brain membrane the body were congested. He gav' shock due to heavy blood loss and side oftemporal bone. Death was on 26-2-2001. He was taken to the is the wife of PW-2 Muchaki Deva, few days back they were sitting in purpose of witchcraft. On the fateful saw that Madvi Kosa assaulted his a piece of wood (Khotla). She and saw injuries on her left ear. |ice of occurrence. The report of the tifeki Paike in the Police Station Kukanar officer reached to the place of body of the deceased under Ex.P/2. soil from the place of occurrence seized from the possession of Madvi 1^ body of the deceased was sent for ^rh, Dantewada. The postmortem was (F|W-5). He prepared his report Ex.P/7. t>ody of the deceased:- the back side of left ear, which was irr.egular, size 1" x 0.5" x 0.5". jiature and was caused by hard and foilnd that there was fracture on left side |was also ruptured. Al! other organs of /^ his opinion that cause of death was Ibrain haemorrhage and fracture of left Homiddal in nature. itTTn""—'-ln-i!!-i" HC—78 sn^s y!t ftfw OTI3IR'Bg?E!W 3TCT'<>11'41<?ji'4, ^+f'Ko, RjWI'My "WI, 200 3II^?T 'WK ( ^dIW ^lfCT 311^1 <*l't|i<'l4-< HIHdf "B.fs'^l <fil«SK ^T ^iRi^ <KI^<I In further investigation, Ex.P/9. Site plan was prepared for chemical examination to the] under Ex.P/13, but no report from After completion of the usya the Court of Judicial Magistrate, 1 the case to the .Court of Sessions impugned judgment of conviction n|<erg utder intimation was registered under Ex.P/11. Seized artictes were sent Forensic Science Laboratory, Raipur he said laboratory was produced. investigation, charge sheet was filed in Class, Sukma, who in turn committed where the trial was conducted and the order ofsentence was passed. slnd Learned counsel for the homicidal death of the deceased. RA/-1 Muchaki Paike that the hut sleeping in the Kotha Qf her hous( saw that the appellant assaulted tt( to which the deceased received coming out. The evidence of PW| evidence of PW-5 Dr. P.N. Shandi] the body of the deceased and on her head. He opined that ca^ b!ood loss and brain haemorrhagj bone. He further opined that deatt is established that death of the decf Learned counsel for the ad case of single eyewitness. There i^ evidence in this case. He submitsl |accused/appellant has not disputed Moreover, it comes in the evidence of ^band and wife (deceased) both were <e. On 26-2-2001 at about 4 a.m. she (e deceased with the help of Khotla due injuries on her head. Blood started f-1 Muchaki Paike is supported by the (ya, who conducted the postmortem on above extemal and internal injuries ijise of death was shock due to heavy ^ and fracture of left side of temporal was homicidal in nature. Therefore, it sased was homicidat in nature. fouhd tused/appellant argued that this is a discrepancy in the ocular and medical that the sole eyewitness namely PW-1 i ^ -HC—78 3^r '*ii-4i<7'><<, ^+f'is, Ri^K-iy WI, 200 aiii?r.1ragi ( aii^'^fls^R? ^S|T:3ti^(g?IlN; TCIIW ^lf?a 3II^T <bl*lf<rt^*1 iTR^f ^ls^ <I^l^l< ^3rf?PT3TT^T Muchaki Paike has stated that th4 on the head of the deceased, whejes injury was noticed by the doctor. case of the prosecution, there w^s ^f.. and the wife on accourit of"'takin|g brought for giving to PW-2 Mucha|ki and on account of this only, husba|id deceased. Therefore, offence beyond Section 304 Part-11 ofthe h^. appellant had given repeated assault i(eas in the postmortem report, only one |Mternatively, he argued that as per the '^s some quarrel between the husband of coconut by husband, which was a|ki Deva, who was practicing witchcraft gave single blow on the head of the ajgainst the accused would not travel ?.c. On the other hand, learn( argument and supports the judgm^nt passed by the trial Court. To appreciate the argument) accused/appellant, we have caref discrepancy in between ocular and| been held by the Supreme Court in| Gopal and another and further i} others that "where the eye-witn^ trustworthy, medical opinion poinf accepted as conclusive. Importan^ orality ofthe trial process. Eye independent assessment and not b®adversely prejudged makin^ ' (1988)43cc 302 2 AIR 2004 S.C. 77 d counsel for the State opposes this of conviction and order of sentence advanced by learned counsel for the fulty perused the record. So far as medical evidence is concerned, it has Ithe matter of State of U.P. V. Krishna i|i Ramakant Fiai V. Madan Rai and witnteses' account is found credible and png to alternative possibilities is not te and primacy should be given to the witr|esses' account would require a carefu! eval^iation for their credibility which should any other evidence, including medical 1114 iXI-He—78 sii^tqir '(TO 3H%?t sh'-[i<C "\ T5?T '^w\ff>i\, aifly'iis, Kt<7iiyy<. "^ 200 3II^?t 'VIV ( ^kii^R tif^a 3H^T <»)i<t(<n'EiTTi^t*r<rtl* ^fe^ <,P>I^I<, ^? 3TRIIT 3II^[ evidence, as the sole touchstone! evidence must be tested for its probability of the story; consistencjy held to be creditworthy; consistenc of the witnesses; their 'performanj^ obseroation ete. Then the.probaf eligible to be put into the scale for for the test of such credibitity. The ihherent consistency and the inherent with the account of other witnesses ^y with the undisputed facts; the 'credit' in the witness-box; their power of tive value of such evidence becomes cumulative evaluation." Therefore, it is clear tha^ tt inaccuracies and exaggeratiohs; account of lapse of memory or recount and recite accurately. sufficient car®while performing exs opinion may be based on in^ examination or lack of comptete h\ a total correspondence between earefuily examine the discrepancj arrive at the substantial and true M prosecution case on the basis of s^ witnesses and ocular witness< Inconsistency is not sufficient to d| eye witness may allege a blow) corresponding injuries. The possif not causing injury cannot be ruled| direction or the blow etc. Inconsl the two items of evidence ma^ discrepancies regarding the wea); |e eye witness testimony may contain [here may be errors or omissions on po^r power of observations or inability to So[netimes, doctors also may not bestow (mination or preparing records and their afdequate or incomplete or defective jowledge. It is indeed not fair to expect thlese two items of evidence. Court must >s and if it is reasonably possible to jersion. Court should not throw out the |ch discrepancies. Accuracy of medical ^s depends upon several factors. ]scredit an eye witness. Sometimes an or stab etc., but there may not be >ility of weapon not actually striking and |out. Eye witness may err in details like stency regarding such details between not be important. There may be >ori or manner of attack. If the eye (;XI-He—78 S i: !ES> 3'EST '<ll<IK?i<<, KTn^'ie, fa<?)]'M^< V^ 200 an^?r t(3R? ( 311^1 ?a1^IRT wnsn^wis TOIIWdfei3TI^[ / +l'(I<"l*il'l ^IPraf "EfJS^ <I»i«;i< '^'stfRm^n^T coriv tatto|?ing havb witness testimony is clear and Doctor is a witness-of both fact and check upon testimony of eye yvitnes^ far as it establishes facts e.g'.', injury etc. Medical evidence \S\ testimony, in as much as it may ^ caused in the manner alleged. De\ to show that the injury could not discredit eye witness testimony. goes so far that it completely rute4 injuries taking place 4n the mann|B( prosecution version cannot be th| inconsistency between the two item^ that medical evidence is mainty form its own independent conclusi4n must tfy to reconcile the two; if appreciate the evidence like any oth^r and data provided by the Doctor witness testimony. If eye witnesses| opinion suggesting alternative conclusive. Primacy should be giveif opirjion that dnd PW-1 Muchaki Paike has wth her husband namely, Deva w whereas, the appellant and the Kotha in the same house. At about that the appellant was beating his orjvincing, discrepancies cannot matter. opinion. Medical evidence acts as a >; it is also independent evidence in so marks, nature and dimensions of also corroborative of eye witness ^how that the injury might have been (ence could use the medical evidence been caused as alleged and thereby ^ewever, unless the medical evidence out all possibility whatsoever of the sr alleged by the eye witness, the fown out on the ground of alleged of evidence. Court has to remember evidence on which the court could In case of divergence, the Court is not possible the court lias to ;r evidence, having regard to reasons the cogency or otherwise of eye 1 are credible and trustworthy, medical pc^ssibility may not be accepted as to oral evidence. dep^sed that in the fatefut night she along >re sleeping in a room in her house were sleeping in Varanda like > a.m. she heard some noise and saw with the help of a Khotla (piece of dedeased vtife -HG—78 ~s^ •^m<ft''i, vnf\w> , Ririi'yy< "ssa. WI, 200 3»RR!T'TOER C^Syvyi) SlI^rqiT-f^lW 'tTO3'^!a!tIW TCITW^fel 311^1 ^)1^<Ill _HI»Rlf^fe(^ <.f<1^1< ^aiRpTaii^r wood). She saw that Khotla blow vijas given on the head of the deceased. She has further deposed that the afxused had given 3 blows on the head of the deceased. In para-3 of her e'j/idence, she has deposed that coconut was brought by them for giving as pidai (last gift) while leaving the house after the witchcraft. When the wif^had gone to fetch the water, coconut was taken by the husband for eatiifig. On this, she said that this has not been brought for your eating and 4>n this count, there was some tension between them. 'The Court evident;e of this witness is supported by the contents of FIR Ex.P/1 which was l[)dged by her. !n the FIR also, there is discrepancy about the story of takitig coconut by husband. There is also description about making assautl by the accused to the deceased. Though she has been put to the ctoss-examination on the point that she could not see the place of occurrpl~se from where she was sleeping, but she has denied all this and ultims|tely no materia! has been brought on record by the defence on the basis) presence on the place of occurren<:e was doubtful or she is making false ailegations against the accused cjr in fact, she had not witnessed the occurrence. The evidence of thi^ witness is also supported by the evidence of PW-2 Muchaki Deva, ^ho is husband. He has stated that his wife immediately told him that the husband and thereafter.report was As far as diserepancy in bt concerned, on the basis of princiri aforesaid cases, primacy has to only one injury is found in the only not be the ground for disb^ of which it can be said that either her deceased has been assaulted by her odged. )fetween medical and ora! evidence is rincirile laid dcwn by the Apex Court in the 4e given to the ocular evidence and if postrfiortem report of the deceased, that can lieving the testimony of this witness. E ........ . -HC—78 3^T ^WW^, f»-<S\W\6, WfftWy. 'V^ 200 an^i 'VRK ( sn^! ^i R'-iw wn'smtnaniN' ^gTWflfei aii^i ct)T^f<n<ili *ii*i<^^ls1^ <P>(^|<, ^T 3(RpT 3D^[ Therefore, complicity of the accuse(| in the crime in question is established in this case on th®basis of above e^idence. feejlin artd As far as argument regardin^ the I.P.C. is concerned, the (^se o< back the appellant and his wife bqt Muchaki Paike and PW-2 MuchaHi because the appellant was not her husband for treatment througl^ the condition of the husband wasl coconut was brought for giving as| took place between the husband husband and thereafter there was fateful day the husband .gave a which resulted into fracture cause of death of the deceased. Ft case, it appears that on account ^f and without any preparation, deceased. Single blow was given circumstances of the case, when said that there was an.intention o< wife. Either in a heat of passion o|- blow on her head with a piece of| therefore, it can be said that ever) .^ppellant but, certainly there was death of his wife and in the facts dn sinble of temrioral husUand offence under Section 304 Part II of the prosecution is that since few days (h were residing in the house of PW-1 il<tj Deva for the purposes of witchcraft •ejling weli. The deceased had brought witchcraft and after some time when |recovering, they had to go back and a present, at that time some quarrel wife regarding taking coconut by the Isome tension between them. On the blow on the head of the deceased, bone, which proved fatal and was t-om the facts and circumstances of the ^f petty quarrel without pre-meditation gave a blow on the head of the |by otla, therefore, in the facts and t^iere was no background, it cannot be the appellant to cause murder of his for any other reason, he gave single |wood, which was already lying there, though there was no intention of the kjnowledge that his such act may cause cireumstances of the case, offence ^nd "^^. ?"^"^- "'txi-He—vs ^eq- ^w\if><r, w^5\ww, ^vfiWy. "ff^ 200 an^iT'<ra% (1pf^s?w) sn^t w Ri'ii't wisn^ignRT rve ^cTIW +if?a 3TI^T <oi<lI<n<Ilt •^Nt'ff^'fe^ <f^^l< ^3ifilH3D^?l committed by the accused/appellai^t would not travel beyond Section 304 Part-llofthel.P.C. In the result, the appeat i; sentenceawarded to the appeflant| aside, instead Shereof, he is conv) I.P.C. and sentenced to undergo F^. the tria! Court, the accused/appeil^nt date. The accused/appellant sha| detention period against thesehten(;e Sd/- L.G. Bhadoo Judge partly allowed. The conviction and lunder Section 302 of the t.P.C. are set lcted under Section 304 Part-11 of the 1.1. for 7 yeare. As per the judgment of is in detention since 27-2-2001 til! be entitted for set off for the above imposed upon him. Sd/- Sunil Kumar Sinha Judge