8MI lllii;IIBste81B :'?py%1 HIGHCOURTOFCHHATnSGARH.BILASFaR Criminal Appeal No. 1108 of 2Q03 Mahant alias Mahendra & others - Versus - State of Chhattisgarh ^ JUDGMENT FOR CONSIDERATION iJlj-D-CTE7 25-02-2008 HON'BLE SHRIT.P. SHARMA^J ^Mf"^- Sd/- T.P. Sharma Judge POST FOR JUDGMENT ON^T.^.FEBRUARY, 2008 Sd/- L.C. Bhadoo Judge HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Aooeal No. 1108 of 2003 APPELLANTS: (In Jail Custody) 1. Mahant alias Mahendra, Son of Videshi Jaiswal, aged about 40 years. 2. Divaker alias Guddu, Son of Mahant alias Mahendra Jaiswal, aged about 20 years. 3. Mallu alias Suraj, Son of Ram Kumar Sarathi, aged about 25 Years, All resident of village - Prabhat Chowk Chingraj Para, P.8.- Sarkanda, Distt.: Bilaspur (Chhattisgarh) - Versus - RESPONDENT: State of Chhattisgarh, through: P.S. Sarkanda, Distt. Bilaspur (Chhattisgarh) {Appeal under Section 374 (2) ofthe Code ofCriminal Procedure} Present: Shri V.P. Gupta & Shri F.S. Khare, counsel for the appellants. Shri Rakesh Jha, Deputy Govt. Advocate for the State/respondent. Division Bench: Hon?ble Mr. L.C. Bhadoo and Hon^ble Mr. T.P. Sharma, JJ. JUDGMENT ,^ (Delivered on '2.7' Februaiy, 2008) The following iudgment ofthe Court was delivered bv L.C. Bhadoo, J.: - 1. By this appeal under Section 374 (2) of the Cr.P.C. the accused/ appellants have questioned legality & correctness of the judgment of conviction and order of sentence dated 25th August, 2003 passed by the Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, in Special Sessions Trial No. 118/2001 wheroby and whereunder learned Special Judge after holding the accused/appellants guilty under Sections 302 read with Section 34 & 302 read with Section 34 of the I.P.C. for committing the murders of Chuttan and his wife Laxmin Bai, sentenced each of the accused to undergo imprisonment for life & to pay a fine of Rs.200/-, in default ^.^-.^ -^ 2. 3. of payment of fine to further undergo S.I. for 2 months for each murder; also convicted the accused/appellants for commission of offence under Section 324 read with Section 34 of the I.P.C. for causing simple injuries by sharp edged weapon to Meghnath & Bhola 8s sentenced each of the accused for each offence to undergo S.I. for 6 months 85 also convicted the accused/appellants under Section 323 read withSection 34 ofthe I.P.C. for causing simple injuries to Manoj 8& sentenced each of the accused to undergo S.I. for one month. It was further directed that all the sentences shall run concurrently. However, learned Special Judge acquitted co-accused Rajkumar and Snit. Chameli Bai. The case of the prosecution, in brief, is that in the afternoon of 3-6- 2001 Meghnath and Bhola were beaten by Diwakar, Mahant and Chameli Bai, they were persuaded by others, therefore, they left the place. However, in the night in between 9-10 p.ni. 5 accused persons namely, Rajkumar, Mahant, Smt. Chameli Bai, Diwakar 85 Mallu formed an unlawful assembly with an object to attack Meghnath. In furtherance of common object of the assembly, they assembled near Peepal tree and attacked Meghnath with barber's knife, lafhi, sword and abused him in filthy language. At that time, Chuttan, Laxmin Bai & Manoj came there. When Chuttan and Laxm.in Bai were going to lodge a report of the incident in the Police Station, the accused persons attacked them, as a result of which they died on the spot, on which the matter was reported by Bhola in the Police Station Sarkanda under Ex.P/28. Receiving the said report, Police registered the crime under Sections 294, 307, 147, 148 and 149 of the I.P.C. The investigating officer left for the scene of occurrence, after giving notices Ex.P/18, Ex.P/19, Ex.P/20 8s Ex.P/21 to the Panchas prepared inquest Ex.P/22 on the body of Chuttan and Ex.P/23 on the body of Laxmin Bai. Clothes of deceased Chuttan were seized under Ex.P/24. Plain soil and blood stained soil was seized under Ex.P/3 from the place of occurrence. Clothes of deceased Laxmin Bai were seized under Ex.P/25. The body of Chuttan was sent for postmortem examination to Dharam Hospital, Bilaspur under Ex.P/8 whei^e Dr. A.K. Shukla (PW-13) conducted postmortem on the body of Chuttan. He opined that there were 6 incised wounds on the body of Chuttan. Parieto occipital bone r ^-•~— ^- ^^ 4. 5. 8s occipital bone was found fractured. The cause of death was coma, as a result of head injury No.6. Injury was ante mortem in nature. Death was homicidal. The body of Laxmin Bai, wife of Chuttan, was also sent for postmortem examination to Dharam Hospital under Ex.P/10 where Dr. Shukla (PW-13) conducted the postmortem on the body of Laxinin Bai. He found that there were one incised wound and one lacerated wound on the face and near left ear 85 occipital region. There was extensive subdural haematoma on occipital region. There was fracture of occipital bone. He opined that cause of death was head injury. Death was homicidal in nature. Site plan (Ex.P/6) of the place of occurrence was prepared by 1.0. Injuries of Kusum were examined by Dr. Maya Pandey (PW-2). Injury report Ex.P/2 was prepared. There was one lacerated wound in the size of 3 mm x 2 mm x 1 mm on the right index finger. Injuries of Meghnath were examined by PW-15 Dr. T.S. Shyam. There was one lacerated wound on the left frontal region. There was one incised wound on nose and upper lip. There was one lacerated wound extending from right parietal to left parietal region. There was one incised wound on left parietal region. Injury report Ex.P/13 was prepared. Injuries of Bhola were examined by PW-15 Dr. T.S. Shyam & 2 incised wounds were found on the forearm and parietal region. Injury report Ex.P/14 was prepared. Injuries of Manoj were examined by PW-15 Dr. T.8. Shyam & one lacerated wound on occipital region 85 one contusion on lateral aspect of left elbow were found. Injury report Ex.P/15 was prepared. Injuries of accused Chameli were examined by PW-14 Dr. Ku. S. Rao in which 2 simple abrasions were found. Injury report Ex.P/12 was prepared. Injuries of accused Diwakar were examined by PW-17 Dr. Bhanupratap Singh. He was complaining pain. No visible injury was found. Injury report Ex.P/26 was prepared. Injuries of accused Mallu were examined by PW-17 Dr. Bhanupratap Singh. There was lacerated wound over fronto temporal region of head. Injury report Ex.P/27 was prepared. While in the Police custody, accused Mahant gave memorandum Ex.P/29 regarding the place where he kept lathi, weapon of offence, in pursuance of that, accused Mahant got recovered lathi under Ex.P/35. Accused Diwakar gave memorandum Ex.P/39 regarding -^' 6. 7. 8. the place where he kept sword, weapon of offence. Accused Mallu gave memorandum Ex.P/40 regarding the place where he kept lathi, in pursuance of that, lathi was seized at the instance of Mallu under Ex.P/41 and sword was seized at the instance of Diwakar under Ex.P/42. Merg Ex.P/4 regarding the death of Chuttan and merg Ex.P/5 regarding the death of Laxmin Bai were given. After completion of the investigation, charge sheet was flled against all the accused persons in the Court ofJudicial Magistrate, 1st Class, Bilaspur, who in turn committed the case to the Sessions Judge, Bilaspur from where learned Special Judge received the case on transfer for trial. In order to establish the charges against the accused persons, the prosecution exaniined 25 witnesses. Statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which they denied the material appearing against them in the prosecution evidence, stated that they are innocent and have been falsely implicated in the crime in question. Learned Special Judge after hearing learned counsel for the respective parties convicted and sentenced accused Mahant, Diwakar and Mallu as aforementioned, however^ acquitted accused Rajkumar and Chameli Bai. '9. We have heard Shri V.P. Gupta and Shri F.8. Khare, learned counsel for the appellants and Shri Rakesh Jha, Deputy Govt. Advocate for the State/respondent. 10. Learned counsel for the accused/appellants has not disputed homicidal death of Chuttan and Laxmin Bai. Moreover, PW-13 Dr. A.K. Shukla has stated that on 4-6-2001 he conducted the postmortem on the body of Chuttan. There were 5 incised wounds on various parts of the head, one on index finger of the right hand. He has stated that parietal bone was fractured in the size of 3 cm x 0.5 cm. Occipital bone was also fractured in the size of 4 cm x 1 cm. Cause of death was coma as a result of head injury No.6. Death was honiicidal in nature. Report is Ex.P/9. He has further stated that on the same day he conducted the postmortem on the body of Laxmin Bai. There was fresh incised wound on the left side of face near ear. There was fresh lacerated wound on the right side of occipital region and bone beneath injury was fractured. Subdural haematoma was present which was on the brain. Injury No.2 was fatal. Cause of death was coma as a result of head injury. Death was homicidal in nature. Report is Ex.P/11. The above medical evidence is corroborated by the evidence of eyewitnesses namely, PW-3 Meghnath, PW-8 Kusum, PW-11 Manoj and PW-18 Bhola. They are injured eyewitnesses. They have stated that the accused persons attacked the deceased persons with sword and lathis. Therefore, in view of the above ocular and medical evidence, it is established that death of Chuttan and Laxmin Bai was homicidal in nature. 11. As far as complicity of the accused/appellants in the crime in question and their conviction under Section 302 read with Section 34, 324 read with Section 34 and 323 read with Section 34 of the I.P.C. for committing the murders of Chuttan and Laxmin Bai & causing simple injuries by sharp edged weapon to Meghnath 85 Bhola & simple injuries with blunt object to Manoj is concerned, learned counsel for the accused/appellants argued that conviction has been based mainly on the testimony of PW-3 Meghnath, PW-8 Kusum, PW- 11 Manoj and PW-18 Bhola, other independent witnesses have turned hostile and they have not supported the prosecution case. He also argued that it has come in cross-examination of these witnesses that there was long standing enmity between the parties. There used to be quarrel between the parties 85 on account of that earlier also criminal cases were registered. All the 4 witnesses are closely related i.e. PW-3 Meghnath and PW-18 Bhola are real brothers, PW-8 Kusum is the wife of PW-18 Bhola. PW-11 Manoj is also brother of PW-3 Meghnath and PW-18 Bhola. The deceased persons are their parents, therefore, on account of close relationship & also on account of contradictions between the police case diary statement and the Court evidence, no explicit reliance can be placed on the evidence of these witnesses. 12. Learned counsel further argued that no clear and cogent evidence is available in order to establish common intention of the accused persons, initially all the five accused persons were charged with the aid of Section 149 IPC, but two of them namely, Rajkumar and Chameli Bai have been acquitted. As three accused persons were left, therefore, with the aid of Section 34 of the I.P.C. the accused persons F-——.-_-.—^-^ have been convicted. Learned counsel for the accused/appellants also argued that common intention is not established on the basis of evidence available on record. Learned counsel also argued that as far as accused Mahant who is father of Diwakar is concerned, there is no cogent and consistent evidence of the witnesses that he attacked the deceased persons or injured persons. As against Mallu there is no consistent evidence. There is contradiction regarding weapon of offence which accused Mahant and Mallu used at the time of commission of crime. Therefore, accused/appellants Mahant and Mallu are entitled for benefit of doubt. Learned counsel for the accused/appellants also argued that all the 3 accused persons had also sustained injuries in the same incident, that establishes that the complainant party was aggressor. Therefore, accused/appellants Mahant and Mallu are entitled for acquittal. 13. As far as accused Diwakar is concerned, there is nothing on record that he atfacked the deceased persons with intention to cause their death. Quarrel started all of a sudden, in that process, he attacked in which he himself sustained injuries, therefore, offence against accused Diwakar does not travel beyond Section 304 Part-II of the I.P.C. 14. On the other hand, learned counsel for the State supported the judgment of the trial Court. 15. Having heard learned counsel for the parties, we have perused judgment of the trial Court and material available on record. As far as point raised by learned counsel for the appellants that all the 4 witnesses are sons and daughter-in-law of the deceased persons, their evidence is not corroborated by the evidence of any independent witness, therefore, explicit reliance cannot be placed on their evidence is concerned, in the matter ofNamdeo V. State ofMaharashtra1, the Apex Court has held that a close relative cannot be characterized as an (interested? witness, he is a (natural9 witness, his evidence howev^r, 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 , i 2007 AIR SCW 1835 y^ v 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 person< 16. In the matter of Harbans Kaur V. State of Haryana2, the conviction of the accused was challenged before the Apex Court, inter alia on the ground that the prosecution version was based on testimony of relatives and hence it did not inspire confidence. Negativing the contention the Apex Court said:- "There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused/' 17. As far as argument of learned counsel for the appellants that the complainant party was on inimical relations with the accused persons, therefore, they have been falsely implicated is concerned, the law on the point is that in such cases the Court is required to scrutinize evidence of the prosecution witnesses with more care and circumspection because animosity, in fact, is a double edged weapon which can be a basis for commissions of crime as also for false implication or over implication. 18. As far as omissions, contradictions and improvements between the police case diary statement and the Court evidence is concerned, in the matter of Munshi Prasad and others Vs, State of Bihar3 the Apex Court held that:- "While appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of.?? 19. In the matters of State of U.P. V. M.K. Anthony4 and Leela Ram V. State ofHaryana5, the Apex Court held that:- 2 (2005) 9 SCC 195 3(2002) 1SCC351 4 (1985) 1 SCC 505 5 (1999) 9 SCC 525 "Needless to record that difference in some minor detail, which does not otherwise affect the core of the prosecution case, may be there but that by itself would not prompt the court to reject the evidence on minor variations and discrepancies.9' 20. In Leela Rain (supra) the Apex Court observred in para-10 that:- «1n * * * 24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narrations of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.?? The Apex Court further observed:- 25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross- examination. Merely because fhere is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below: <( 155. Impeaching credit of witness. - The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him- (1)-(2) (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.w 26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 ofthe Evidence Act also enables the cross- examiner to use any former statement of the witness, but it cautions that if it is intended to <<contradict?? the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to acontradict?? the witness. 27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tehsildar Singh V. State ofU.P. reported in AIR 1959 SC 1012)." 21. As far as conviction with the aid of Section 34 of the I.P,C. is concerned, in the matter of Girija Shankar V. State of U.P,6 the Apex Court held that:- "Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts ofthe case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section 34 is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is notnecessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision/' 2004AIRSCW810 10 ^''9. 22. In the matter of Maqsoodan and others V. State of U.P.7 the Apex Court held that <(common intention is a question of fact. It is subjective. But it can be inferred from facts and circumstances." 23. Comnion intention can be suddenly formed during occurrence without any prior conspiracy and can generate on the spot itself and such conimon intention can be reasonably inferred from the facts and circumstances of the case and nature of injuries caused by the accused, as has been held by the Apex Court in the matter of Yallappa V. State8, where in a murder trial the accused shared common intention but no specific injury was caused by one out of the sbc accused still he can be convicted under Section 302, IPC with the aid of Section 34, as has been held by the Apex Court in the matter of Pulla Reddy V. State9. 24. As far as contention of learned counsel for the accused/appellants that there was no charge under Section 34 of the I.P.C. against the accused persons, in fact, the charge was with the aid of Section 149 IPC is concerned, as per the prosecution case, five accused persons attacked the complainant party but the frial Court acquitted two persons and convicted three persons i.e. appellants herein. Now the law is well settled that the court can take recourse to section 34 even if that is not specifically mentioned in the charge, as has been held by the Apex Court in the matters of Omar Singh V. State of Haryana10 andBhoor Singh V. State ofPunjab11. 25. Based on the above principle, we have to scrutinize evidence of the prosecution witnesses with care and circumspection because eyewitnesses are blood relations of the deceased persons as also the complainant party and the accused persons were having strain relations since long and independent witnesses have turned hostile. PW-3 Meghnath has stated that in the fateful night at 11 p.m. he went to drop his daughter at his in-laws? place which was on the opposite side oftheir house across the road at some distance. He saw that all the accused persons were standing near water tape and Peepal tree. When he was returning after dropping his daughter at 7 AIR 1983 SC 126 8 (1994) I SCC 730 9 1993 Cri.L.J. 2246 (SC) IOAIR1973SC221 n AIR 1974 SC 1256 11 (/ ff^ <-A- the in-laws' house, accused Mallu, Diwakar, Chameli and Mahant were standing. They attacked him with lathi, club and sword. Diwakar was carrying sword. Mallu was carrying knife whereas, Mahant was carrying iron pipe. When he was attacked, he raised cries. He sustained injuries on upper lip, left eye, head and back side of his body. The marks of injuries were shown by this witness in the Court. He has further stated that on hearing his cries, his mother and father came on the spot. He has further stated that Rajkumar was not there. He had not attacked him. On account of beating given by the accused persons, he fell down, thereafter when mother and father were going to the Police Station to lodge a report, the accused persons attacked them also. Wife of his brother namely, Kusum saw whole incident. As he became unconscious, therefore, he is not able to tell, in fact, who attacked his mother and father. 26. PW-8 Kusum, wife of Bhola, has stated that