,.^- ^ ¥.^^ ^...^^^^ i£ "^i^.S^'''" '3 ^ ^-/:1L_ ^3-^-^/i HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma ^.. Criminal Appeal No.413 of 1995 Satyendra Prasad versus State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- R.S. Sharma Judge Hon'ble Shri Sunil Kumar Sinha. J.: J.ajn^^. Sd/- Sunil Kumar Sinha Judge Postfor^.^-08-2011 Sd/- R.S. Sharma Judge ^vess-S^^^tt^MSwK^s^ ,^^;^^^, ft- ' "< :^^:^,:..^ (^ HIGH COURT OF CHHATTISGARH AT BILASPUR /i-F'l^ [ €. D-B-: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.413 of 1995 Appellant versus Respondent Satyendra Prasad, son of Nonkeshwar Prasad, aged 34 years, resident of Village Khajuriadeah, P.S. Kushmi, District Surguja (Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Present: Shri Abhay Tiwari, counsel for the appellant. Shri U.N.S. Deo, Government Advocate and Shri Ravindra Agrawal, Panel Lawyer for the State/respondent. Crimjnal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on 23 August, 201 1) Per Radhe Shvam Sharma. J.: This appeal is directed against the judgment dated 17-2-1995 passed by 2nd Additional Session Judge, Ambikapur in Session Trial No.216/1992. By the impugned judgment, appellant Satyendra Prasad has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: On 5-2-1992, at about 4 P.M., deceased Rajesh was standing on the road in front of his house. At that time, the appellant came there on a bicycle and dashed the deceased. On account of that, an altercation took place between them. Thereafter, the appellant //^ !^ss -/ @ caught hand of the deceased and dragged him, due to which, his wrist watch broke and he fell down. Some altercation took place between them. Thereafter, the appellant took out a Chakoo (knife) from his pocket and assaulted the deceased on his neck and lips. The deceased sustained injuries on his neck and lips and succumbed to the injuries. Devanti Devi (PW-2), mother of the deceased and Sarita Kumari (PW-3), sister of the deceased were present at the place of occurrence and they witnessed the incident. Hiraprasad son of Birchhan Sao (PW-1) lodged First Information Report (Ex.P-1) in Police Station Kusmi. Merg Intimation was also lodged vide Ex.P-10. The Investigating Officer reached the place of occurrence, gave notice (Ex.P-2) to Panchas and prepared inquest (Ex. P-3) on dead body of the deceased. Dead body of the deceased was sent for post mortem examination to Government Hospital Balrampur. The post mortem was conducted by Dr. S.R.Nirala (PW-13), who gave his report Ex.P-16, in which he found a punctured wound of 2inchesx1^cmx1cm at the right angle of lower lip and an other punctured wound of 1 cmx1^cmx1 ^inches at the suprasternal notch. The doctor opined that the death was due to excessive haemorrhage and shock and it was homicidal in nature. In further investigation, memorandum statement (Ex. P-6) of the appellant was recorded on 7-2-1992 and at his instance a Chakoo (knife) was seized vide Ex.P-7. Lungi and shirt of the appellant were also seized from him vide Ex. P-8. The seized Chakoo (knife) was sent for examination to Dr. S.R.Nirala (PW-13) vide requisition Ex. P-12. The doctor gave his report Ex.P-12A. -s®^.,T -^%; ..^' ^s^^s" t- After completion of the investigation, a charge-sheet was filed in the Court of Judicial Magistrate First Class, Ambikapur, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the 2nd Additional Session Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Abhay Tiwari, learned counsel for the appellant argued that the evidence of Devanti Devi (PW-2) and Sarita Kumari (PW-3) are not reliable. They are highly interested witnesses. There are many contradictions and omissions in the evidence of these witnesses. There are material contradictions in medical evidence and ocular evidence. The prosecution has not examined any independent witness. He further argued that the appellant was provoked by the deceased. The appellant also sustained injuries. There was severe exchange of abuse between the appellant and the deceased. The appellant would not be punishable under Section 302 of the Indian Penal Code. Even after admitting the entire case, he would be liable for punishment under Section 304 of the Indian Penal Code. 4. On the other hand, Shri U.N.S. Deo, learned Government Advocate and Shri Ravindra Agrawal, learned Panel La^wyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Session Judge does not warrant any interference by this Court. -^^^^ ^ ^- 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also record of thesession case. The conviction of the accused/appellant under Section 302 of the Indian Penal Code is based on the testimonies of Devanti Devi (PW-2) and Sarita Kumari (PW-3), who are eye-witnesses of the occurrence and whose evidence are corroborated by the medical evidence. 6. It is not disputed that deceased Rajesh was son of Devanti Devi (PW-2) and brother of Sarita Kumari (PW-3). Both these witnesses are nearest relative of the deceased. So far as relationship is concerned, it is not a factor to affect the credibility of witnesses and even the relative witnesses would not conceal the actual culprit and make allegations against innocent person. Foundation has to be laid if plea of false implication is made. Therefore, we have to adopt a careful approach and analyze the evidence to find out whether their evidence is cogent and credible? 7. In Dhamidhar vs. State of Uttar Pradesh and others, (2010) 7 SCC 759, the Hon'ble Supreme Court held as follows: "12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, this Court had occasion to consider whether theevidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an ^ ^y^ ^: ^"•-"'•^ interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213,paras23-24) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint." 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P., (2010) 1 SCC 722, where the -—--^^ .^ .f' '^ 6 Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." 8. In case in hand, the appellant examined Hiralal son of Kalika Sao as defence witness No.1. Hiralal (DW-1) deposed in paragraph 3 that it is true that hearing noise of altercation, mother and sister of the deceased had come to the place of occurrence and they were trying to resolve the dispute. He also deposed that wrist watch of the deceased had fallen down, which wassearched by deceased's mother. Evidence of Hiralal (DW-1 ) clearly shows that Devanti Devi (PW-2) and Sarita Kumari (PW-3) were present at the time of occurrence. Therefore, testimonies of Devanti Devi (PW-2) and Sarita Kumari (PW-3) cannot be discarded on the ground of their relationship with the deceased. We find that their evidence are credible, cogent, trustworthy and duly corroborated by the medical evidence. 9. Devanti Devi (PW-2) deposed thaton the fateful day his son Rajesh (the deceased) came back from the school at 4 P.M., changed the full-pant and went out of the home. At that time, Satender (the accused/appellant) came there along with a friend from west-side on a bicycle and he cycled the bicycle on foot of deceased Rajesh. The deceased objected to cycling ofthe bicycle on his foot. On this, the appellant caught hand of the deceased, snatched his wrist watch and kept it in his pocket. Then, she and her daughter Sarita Kumari (PW-3) came out of the house. She saw that the appellant had caught hand of her son (the deceased). She asked the appellant to leave her son and return the wrist watch. Thereafter, the appellant took out a Chakoo (knife) and assaulted the deceased on his neck. 10. Sarita Kumari (PW-3) deposed thaton the fateful day at about 4 P.M., she was standing near the Well situated at thedoor of her house. Her mother (Devanti Devi, PW-2) was also with her. At that time, her brother (the deceased) had come back from the school and entered the house. Thereafter, he changed his full-pant and came out of the house. At that time, the appellant came there and cycled the bicycle on foot of her brother Rajesh (the deceased). She further deposed that the appellant, catching the deceased, dragged him upto a distance of about 1 bamboo and thereafter he assaulted the deceased with a Chakoo (knife) twice, one blow was given on the neck and the other blow was given above the lips. Due to the Chakoo blows, the deceased fell down and died. 11. Bholaprasad (PW-4) deposed that disclosure statement of the appellant was recorded by police in which the appellant had stated that he had hidden the Chakoo in the field of one Fitul and the Chakoo was recovered from the said field vide Ex.P-7. Assistant 8 Sub-lnspector Surendra Giri (PW-8) deposed that memorandum statement of the appellant was recorded by him on 7-2-1992 vide Ex. P-6 and at his instance, the Chakoo was seized from him in presence of the witnesses vide Ex.P-7. Bandheshwar (PW-10) also deposed that the Chakoo was seized from the appellant vide Ex. P-7. 12. From the evidence of the witnesses and memo of recovery, it js clear thatthe Chakoo (knife) was hidden by digging earth which could not have been easily located by anyone. In our opinion, the recovery cannot be said to be from a place which could have been easily accessible to anyone. 13. We have carefully perused the evidence of Devanti Devi (PW- 2) and Sarita Kumari (PW-3). These witnesses have categorically deposed that on the fateful day the appellant assaulted the deceased with the Chakoo (knife). Hiralal (DW-1) has admitted in his evidence the presence of Devanti Devi (PW-2) and Sarita Kumari (PW-3) at the time of occurrence. The evidence of Devanti Devi (PW-2) and Sarita Kumari (PW-3) are duly corroborated by the medical evidence also. From the medical evidence, we find that the death of the deceased was due to excessive haemorrhage and shock and it was homicidal in nature. Therefore, we do not find any infirmity in the finding recorded by the Additional Session Judge that it was the appellant who caused the injuries on the body of the deceased with the Chakoo (knife) and the deceased died on account of the injuries caused by the appellant. i.st.&Ss^.,.^-^aSt&K ,,,^^'%^'.v''\ /^fc. "^ ^ ^_ ^' A .:^^-^;^, ^<l®?is-"^ ^// ^' .^^' 9 14. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 ofthe Indian Penal Code. 15. Shri Tiwari, learned counsel for the appellant argued that the appellant was provoked by the deceased. They abused each other and scuffle took place between them. Therefore, the act of the appellant would not be punishable under Section 302 of the Indian Penal Code and he would be guilty of the offence punishable under Section 304 ofthe Indian Penal Code. 16. 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 the important 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 ofthe 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 ?i /(a3 10 provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without 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 part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 17. 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." 18. In Satish Narayan Sawant vs. State of Goa, (2009) 17 SCC 724, the Hon'ble Supreme Court held as follows: .,':le"-";3%.. /— "^ 'tlk ^i^. , y Is'eiy^l 1 :;i '^%il^^ 1 '^te^ ^ 11 "40. That being the well-settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable 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 inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. 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 side 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." 19. In the instant case, Hiraprasad (PW-1) deposed that the deceased had told the appellant that his bicycle was trembling. Having heard this, the appellant had caught hand of the deceased. Hiralal (DW-1) deposed that the appellant and the deceased abused each other and a scuffle took place between them. On this account, the appellant gave Chakoo (knife) blows to the deceased on his neck and lips. 20. In the above facts and circumstances of the case, we are of the view that the act of the appellant would fall within the Exception 1 '^., i i / i €?. 12 to Section 300 of thelndian Penal Code and he would be liable for punishment under Part II of Section 304 of the Indian Penal Code. 21. For the foregoing reasons, the appeal is allowed in part. The conviction and sentence awarded to the appellant under Section 302 of the Indian Penal Code are set aside. Instead thereof, the appellant is convicted under Section 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. The appellant was arrested on 8-2-1992 and he was released on bail on 3-7-2002 vide order of this Court dated 7-5- 2002, therefore, he has already undergone for more than ten years. Presently, he is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge ,opal