••!9s> i»S'i, ^ ...,^ ^ HIGiLCOURT OF CHHATTISGARH AT BILASPUR D.B.: Hon^bLe Shii Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.412 of 1994 Appellants 1. 2. 3. 4. 5. versus Respondent Jawahar alias Dahru, son of Kumar Khandiya, aged 26 years, Nanki, son of Kumar Khadiya, aged 22 years, Kumar, son of Karya, aged 50 years, Mangli alias Raigadhhin, wife of Kumar Khadiya, aged 45 years, Kumari Bai, wife of Jawahar alias Dahru Khadiya, aged 24 years, All labourers, resident of Village Junadih, Police Station Sarangadh, District Raigarh (M.P.) (Now Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Present: Smt. Savita Tiwari, counsel for the appellants. Shri U.N.S.Deo, Government Advocate for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on 21 September, 2011) Per Radhe Shyam Sharma, J.: This appeal is directed against thejudgment dated 28-2-1994 passed by 2 Additional Session Judge, Raigarh in Session Trial No.22/1993. By the impugned judgment, appellant No.1 Jawahar alias Dahru has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life, appellants No.2 to 5, Nanki, Kumar, Mangli alias Raigadhhin and Kumari Bai, respectively ras have been convicted under Sections 325/149 IPC and sentenced to undergo rigorous imprisonment for two years each and to pay fine of Rs.100/- each, in default, to further undergo rigorous imprisonment for 15 days each, and all the appellants have also been convicted under Section 147 IPC and seritenced to undergo rigorous imprisonment for one year each. The jail sentences awarded to the appellants are directed to run concurrently. 2. Case of the prosecution, in brief, is as under: On the fateful day, i.e., 1-8-1992, deceased Narayan had gone to Village Khairaha. In the night, he was coming back to his home along with Dhaman (PW-2). When they reached near the house of appellant Jawahar alias Dahru, the appellants, armed with Lathi-Danda, committed Marpeet with the deceased. When Dhaman (PW-2) and wife of the deceased, namely, Fulobai (PW-1), tried to defend the deceased, the appellants committed Marpeet with them also. The deceased died due to grievous injury sustained by him on his head. According to the prosecution, due to a message given by brother of the deceased in the village that he will transfer his land in the name of Obhiram, son of the deceased, the appellants were annoyed with the deceased and his family. On .account of this enmity, they committed murder of the deceased. Fulobai (PW-1) lodged First Information Report (Ex.P-1). Merg Intimation (Ex.P-19) was also recorded. The investigating officer reached the place of occurrence, gave notices (Ex.P-17 and P-18) to Panchas and prepared inquest (Ex.P-6) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Primary '^•~:i^. ^l' ;tli£13|j .;"^y "fi3;K^';l ^ Health Centre, Sarangarh vide Ex.P-4A. Post mortem examination was conducted by Dr. Anil Kumar Tirkey (PW-3), who gave his report Ex.P-3, in which he found that mud was present all over the bodyand face of the deceased. Clothes of the deceased were wet and stained with mud. A lacerated wound of 3inchesx1inchxfull muscle deep was present over the left side of parietal region. Skull bone was visible through the wound. Blood clot was present over the left parietal and temporal regions and left parietal bone was fractured. Blood clots were present under dura and mid brain cavity on left side. Brain was congested. The doctor opined that the cause of death was coma due to injury over skull, compression of brain tissue and rupture ofinternal vessels. In further investigation, plain earth and blood stained earth were seized vide Ex.P-14. Two L^this were also seized vide Ex.P- 10 and P-11. The seized articles were sent for chemical examination to Director, Forensic Science Laboratory, Sagar vide Ex.P-21 and a report Ex.P-23 was received. In the FSL report (Ex.P-23), articles A and B - blood stained soil, article C - Lathi, article D - Towel, article E - Lathi, article F - Gamchha, article G1 - Full Pant, article G2 - Baniyan and article G4 - Shirt were found stained with blood. After completion of the investigation, charge-sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Sarangarh, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the 2" Additional Session Judge, Raigarh, who conducted the trial and convicted and sentenced the appellants as mentioned above. ^ 3. Smt. Savita Tiwari, learned counsel for the appellants argued that the evidence of Fulobai (PW-1) and Dhaman (PW-2) are full of contradictions and they have exaggerated their version in the Court. They are interested witnesses. In the First Information Report (Ex.P- 1), there is no mention about any weapon used by the appellants except appellant Jawahar alias Dahru. There is no clinching and reliable evidence against the appellants, therefore, the conviction and sentence awarded to the appellants are unsustainable. 4. On the contrary, Shri U.N.S.Deo, learned Government Advocate for the State/respondent, vehemently opposed the arguments and supported the impugned judgment. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of the session case. The conviction of appellants is based on the testimonies of Fulobai (PW-1) and Dhaman (PW-2), who are eye- witnesses of the occurrence. 6. It is not disputed that Fulobai (PW-1) is widow of the deceased. Dhaman(PW-2) is also closelyrelated with them. Sofar 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 adopta careful approach and analyze the -^, \ evidence to find out whether their evidence is cogent and credible? X , ' ^ 7. Fulobai (PW-1) deposed that on the fateful day, her husband Narayan (the deceased) had gone in search of a labourer for working in the agricultural field. At that time, she was at home along with her children. Noise was being made near the door of accused Dahru and Nanki. Having heard the noise, she, her son Abhi and her daughter Kumudbai came out of their house and went near the door of accused Dahm and Nanki. She saw that her husband was being assaulted by accused Dahru, Nanki, Kumar, Mangli Bai and Rajkumari. They were armed with Tangiya and Lathi. When she wentnear her husband to defend him, accused Dahru and Nanki assaulted her with the Tangiya. She sustained injuries on the fingers of her left hand. She got unconscious. Her husband had sustained injuries on the head, abdomen and back. The accused, after committing murder of her husband, had buried him in mud of agricultural field. 8. Dhaman (PW-2) deposed that on the fatefut day, Narayan (the deceased) came to his house in the evening. Since it was late evening, he asked to accompany him and take him to his house. He had accompanied him. When they reached near the door of the house of accused, accused Dahru, Nanki, Kumar, Raigadhhin and Kumari Bai were standing at their doors. They caught Narayan and started assautting him. He asked them not to assault. On this, accused Kumar assaulted him on his forehead with a Danda. Accused Kumar, Nanki, Raigadhhin alias Mangli and Kumari Bai had tied his hands by rope. He was detained in the house of accused ^!t |nn»»t^imlni.hlllMiL^.^i^»ifc^>l.^»^i^fm.^i.»i. ^*(3i,K,n,w Dahru. They were assaulting Narayan. He untied the rope knotted on his hands with his teeth and peeped outside through the window. He saw that the accused persons were assaulting Narayan. He came out of the house through that window (Bhulka). At that moment, power supply interrupted. He, getting afraid, fled from there. Narayan was assaulted with Lathi on many parts of his body and injuries were also caused on his head with Tange. 9. In cross-examination, Fulobai (PW-1) deposed that accused Dahru had a Tangiyam his hand. Rest of the accused had Lathi in their hands. The accused persons had assaulted her husband together. She was unable to state number of assaults. She stated that the accused persons would have assaulted her husband at least 25-30 times. She further deposed that when she heard the noise, at that time, they were sleeping at home. She had heard the voice of her husband twice that why was he being assaulted? Before she could reach the place of occurrence.other villagers had gathered there. None of the villagers, present there, tried to defend her husband. She further deposed that she had sustained Tangiya blow on her hand. She did not know exactly how long the Marpeet continued, but it continued for a long time. The Marpeet took place in front of the villagers. The villagers had witnessed the accused causing her husband to run, assaulting him in the agricultural field and burying him in the earth. 10. In cross-examination, Dhaman (PW-2) deposed that houses of accused Dahru, Nanki and Kumar are situated separately. Their ;••' ,.^u^. llSS^ %« ^ •Sig^ii houses are adjacent to each other at the lane of the village. When he and Narayan reached, at that time, all the accused were standing at the door of accused Dahru. Accused Dahru was armed with Tangiya and rest of the accused persons were armed with Lathi. They all started assaulting deceased Narayan. Narayan sustained injuries on the whole body. He had sustained 40-50 Lathi injuries. The entire incident had taken place at the door of accused Dahru. No villager was present there. 11. The learned Additional Session Judge, in paragraph 14 of the impugned judgment, observed that had the First Information Report (Ex.P-1) not been lodged very promptly, the exaggerative evidence of Fulobai (PW-1) and Dhaman (PW-2) would not have been reliable. The incident took place at about 8:30 P.M. and Fulobai (PW-1), widow of the deceased, lodged the First Information Report (Ex.P-1), in the police station situated 5 Kilometers away from the place of occurrence, after two hours ofthe occurrence, i.e., at 10:30 P.M. Lodging of the First Information Report (Ex.P-1) very promptly shows that Fulobai (PW-1) would not have been in a position to think or exaggerate the case or implicate any accused falsely. The promptly lodged First Information Report (Ex.P-1) contains names of all the accused/appellants. From the First Information Report (Ex.P- 1), the evidence of Fulobai (PW-1) is corroborated that all the accused/appellants had participated in the Marpeet. I1- ^ K< ^ ^ fo ^ .?• 12. Perusal of the evidence of Fulobai (PW-1) and Dhaman (PW- 2) shows that they made exaggerative statements in the Court. But, lli'i 1s/ y 8 '\ principle of Falsus in Uno, Falsus in Omnibus (False in one, false in all) does not apply incriminal cases in India.as a witness may be partly truthful and partly false in the evidence he gives to the Court and the Court has to assess to what extent the deposition of witness can be relied upon. The Court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate grain from the chaff because they are in- extricably mixed- up, that the whole evidence of such witness can be discarded. 13. Though there are some exaggerations in the evidence of Fulobai (PW-1) and Dhaman (PW-2), but on such exaggerations their entire evidence cannot be discarded. Dhaman (PW-2) is injured witness and his presenceat the place of occurrence cannot be doubted. The occurrence took place at about 8:30 P.M. and the First Information Report (Ex.P-1) was lodged at 10:30 P.M. in the police station which was at a distance of 5 Kilometers. In the First Information Report (Ex.P-1), name of Dhaman (PW-2) is mentioned and the names of the appellants are also mentioned. 14. The learned Session Judge has held that the appellants were members of the unlawful assembly and they participated in rioting. Vide Para-23 of the impugned judgment, it has been held that though the appellants were members of the unlawful assembly, but appellants 2 to 5 did not share common object to commit murder of the deceased. Since appellant No. 1 was holding a lathi, therefore, the common object of appellants 2 to 5, who were unarmed, was at ^ ). z ^i /0[ >• ^ uee'ffi^afl^gg^ ^ the most to commit grievous injuries to the deceased and not to cause his death. 15. We are unable to sustain the above finding recorded by the Session Judge. The evidence would show that the incident took place in front of the house of appellant No.1. Appellant No. 2 is brother of appellant No.1; appellant No.3 is father of appellants 1 & 2; appellant No.4 is mother of appellant No.1 & 2 and wife of appellant No.3 and appellant No. 5 is wife of appellant No.1. Their presence at the place of occurrence was quite natural. Appellants 2 to 5 were unarmed and appellant No.1 alone was armed with a lathi. There is no positive evidence to show that the appellants formed an unlawful assembly and also that they participated in rioting. The evidence ofthe above 2 witnesses i.e. Fulobai (PW-1) and Dhaman (PW-2) is shakey on the part of common object. In the F.1.R., the allegations are that appellant No.1 Jawahar assaulted the deceased by lathi and the other appellants assaulted the deceased by hands and fists. Hence, the findings relation to formation of unlawful assembly and participation in rioting cannot be sustained. Therefore, we set-aside the above findings and we also set-aside the conviction ofthe appellants u/s 147 IPC. 16. The learned Sessions Judge has convicted appellant No.1 u/s 302 IPC and the other appellants have been convicted u/s 325/149 IPC. We find that there is no evidence that appellants 2 to 5 were armed with lathi or any other weapon. On the contrary, in the F.1.R. it has been specifically mentioned that they were unarmed and they assaulted the deceased by hands and fists. There was only one eujuo eqi yoiLjM ui seseo pue 'QOS uoipes ui suogdaoxg eqt ^0 euo uiijiiM ue||ej BUIAE4 sij jo^ inq 'jepjnLU 01 psiunoiue aAeq p|noM pe 94} 'iussejd 6uiaq [\K\ o) uoiiueiui ue 'eje^M 'seseo ui peioiijuisq 01 Aiieued 3L|} u89M}9q uoiiouiisip e SMGJP }\ -jepjnLU 0} 6uiiunoLue iou ep!0!Luot<9|qed|no jo^ lueiuqsiund sspiAojd odl fr0£ uoipes •6l •euoq |Btaued ye| uo ejnpejj SBM ajayi pue peseeoap eqi i0 ||n>|s 941 uo puno^ SBM punoM petEjaoei euo A|UO 'eouepiAa leoipsiu aqi 0} Buipjooov 'WBI e qiiM pesesoep 3L|i psiinesse njL|BQ @ jeqeMer [,'ON iue||eddB IBLII sjeedde }\ -uoiioadsLunojo }SOLU)n IjtjM 90U3PJA9 IBOIpBLU 9^1 pue (z-/v\d) UBLueqa pue (l.-Md) !Bqo|nj p eouepiAe eq^ pasmad Q ^ eAA '81. • I. 'ON iue||9dde ^o sseo 341 euiLuexs iieys aM MON •^ [. 'Odl frS/SZS s/n tusuiLisiund jo^ 9|qei| aq p|noM g 0} 3 s}ue||sdde 'eseo 941 p saoueisunojio pue spE^ SAoqe eqt ui }Bqi MBIA 9qi jo SJB SAA 'sisu PUB spueq Aq pssesoep 9L)i p8)|nesse peq 30)^ siue||3dde leqi paieis si^s qoiqM 01 •yrj }dLUOJd 941 pa6po| (|.-Md) 'eqoinj -siqeiisj Aiped ajaM (z-Md) UBLueiia pue (i.-Md) 'eqoin^ •odl Sfrl./OZS s/n g o» z stueiiedde jo uoipiAuoo eqi epise-ies 'ejo^ajayi 'e/v\ 'peuieisns eq louueo saidpuud SAoqe 941 uo Qdl Q^I uoipes jo pje 941 4}iM gze s/n S 0} Z s}ue||edde ^o uoipiAuoo eqi 'ejo^ajsqi 'Aiqujasse |njME|un jo UOIIBLUJO^ y> Buipuy sqi apise-iss ^peajie 9AEq aM eoujs 'paseeoap eyi 01 seunfui snoAeu6 esneo 0} isea| }e SBM pafqo UOLULUOO jiaq) 1B41 Odl 6frl uoipes jo pie eqi q}iM SS£ s/n g 01 3 siue||sdde pepiAuoo seq e6pnr suoisssg 941 •|.-ON luE||9dde Aq pesneo SBM ||n)fs eqt 0} Ajnfui 1041 ^iuiepeQ -psseeoep eqi jo ||n>|s eqi uo ajnpejj 01 !-^ \ 'vsy ^o 11 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 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, 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, 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 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, 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. 20. In case on hand, the overall evidence in the matter would show that so far as appellant No.1 is concerned, he gave single blow to the deceased which hit on his skull and the deceased sustained a lacerated wound on the left side of the skull admeasuring 3 inch x 1 inch x muscle deep and there was fracture on left parietal bone. Had there been intension of appellant No.1 to commit murder of the ft- I. •^.•'.-.'^^^ ^ ,°-y •'•.^B£i&:"" 12 deceased, he would have repeated the blows, but he did not repeat the blow and restricted himself to give only one blow to the deceased. We are of the view that in the above facts and circumstances of the case, an offence u/s 302 IPC would not be made out against appellant No.1 and he would be liable for punishment u/s 304 Part-11 IPC. 21. In the result, the appeal is partly allowed. The conviction of the appellants u/s 147 IPC is set-aside. The conviction ofappellant No.1 u/s 302 IPC is also set-aside. Instead thereof, appellant No.1 is convicted u/s 304 Part-11 IPC and sentenced to undergo R.l. for 10 years. Appellant No.1 was arrested on 3.8.91. He was throughout in jail and was released on bail on 15.8.2006 by order dated 7.1.2005. Therefore, he has already undergone more than 10 years. Presently he is on bail. His bail bonds are cancelled and surety stands discharged. 22. The conviction and sentences awarded to appellants 2 to 5 u/s 325/149 IPC are also set-aside. Instead thereof, they are convicted u/s 323/34 IPC and sentenced to undergo R.l. for 6 months. Appellants 2 & 3 have already undergone for 11 months & 24 days and appellants 4 & 5 have also undergone for 6 months & 21 days. Presently they are also on bail. Their bail bonds are cancelled and sureties stand discharged. 23. The appeal is allowed to the extent indicated above. Sd/- R.S. Sharma ?s| Judge Sd/- SunUKumarSinha Judge L/'\ \\ Gopal/Vatti