WS HIGH GOURTOFCMHATTISGARH.BILASPUR CriminaIApDeal No.415of20Q2 Jantaram - Versus - State of Chhattisgarh a>. JUDGMENT FOR CONSIDERATION-^ v- • •' • T- ': ., Sd/-:,,. '•••':,'LC..Bhadp:s HON'BLE NIR. JUSTICE SUNIL KUMAR SINHA j G^-^yt^. Sd/- Sunil Kumar Sinha Judge TH POST FOR JUDGMENT ON 17'" SEPTBMBER. 2007 Sd/^ L.C. Bhadoo Judge -r':-'-T li;lffl;!^!HliEtailijauji«fB»aa) :.,fti*i .-l^ HIGHCOURTOF CHHATTlSGARH.BILASPUR CriminalADDealNo.415of2002 APPELLANT: -Versus- RESPONDENT: Jantaram, Son of Ram Singh Kanwar, aged 19 years, R/o Muhunara, Ghowki Rajgamar, Police Station Balco, District Korba. State of Chhattisgarh, Through Police Statibn Baleo Nagar, Korba, District Korba (Chhattisgarh) Present: - Shri H.V. Sharma, Advocate: ShriAkhil Mishra, Panel Lawyer: For the appellant. For the State/respondent. DIVISION BENCH*: - HON'BLESHRIL.C.BHADOOAND HON'BLESfelRI SUNII-KUMAR SINHA-JJ. J'UDGMENT (Delivered on 17th September, 2007) The followina iudament of the Court was delivered bv L.C. Bhadoo.J: - This appeal is directecf against the judgment of conviction and order of II - • . -' • : , sentence dated 20t March, 2002 passed by the Additional Sessions Judge, Korba, inS.T.No.3/2001,wherebythe learned AdditionalSessions Judge after holding the accused/appellant guilty for commission of offence under Section 302 of the T.P.C.,' for committing the murder of Sonsai, sehtenced him to undergo imprisonmentforlife&to paya fineof Rs.500/-, in defaultof payment of fine to further undergo S.l. for 1 month. | Thecase ofthe prosecution, in brief, is that PW-1 RatyanoiBai, wifeof Sonsai, lodged a report in the Police Station tp the effect thaton 26-10- 2000 deceased Sonsai and Ratyarfo Bai kept paddy in the threshing field pf the accused; Both of them were present in the threshing field; At aboyt 2 ->.p.m., during the day, the accused came in the threshing field and asked S'.-M!SI.'!^BU s^^iii^rfKaajSS 4. 5. Sonsai to remove paddy. Sonsai was hard pf hearing. Ratyano Bai said thattheywill remove paddy. Deceased Sonsai asKed the accused as he is not fencing threshing field just now, whenever he will fence the threshing field, they will remove paddy, on which the accused attacked the deceased with axeon his stomach, as a result ofwhich axe pierced into stomach & Sonsai fell down on the grgund. Ratyano Bai called her sons Roop Singh and SuKh Singh. In the meantime, Panch, Patel and Sarpanch of the village had alsoarrived. < •'" Receiving this report, StationHouse Officer, Police Station registered FIR Ex.P/1, left for scene dfoccurrence.after giving notice Ex.P/3, prepared inquest Ex.P/2on the body of Sonsai. While in the police custody, the accused gave memorandum Ex.P/6, in pursuance of that, axe, weapon of offence, wasseized under Ex.P/7., Site plan Ex.P/9 was prepared by Halka Patwari. Site plan Ex.f3/9-A was prepared by 1.0. The body of the deceased was sent forr postmortem examination t6 100 bedded Government Hospital, Korba under Ex.P/10 where Dr. D.K. Shrivastava conducted postmortem & prepared postmortem report Ex.P/11. He opined that causeof death was as a result of combiiled neurogenic & haemorrhagic shock due to injury to abdomen wallleading to protrusion of intestine and injuryto kidney leading toshock. After completion of the investigation, charge sheet was filedagainst the accused in the Cburtof Judicial Magistrate, 1 Class; Korba, who in turn cdmmitted the case to the Sessions Judge, Bilaspur, from where learned Additional Sessions Judge receivedthe casebntrarisfer. The prosecution in order to establish charge against the accused examined 11 witnesses. Statementofthe accusedwas recorded under Section 313 Cr.P.C. in which he denied material appearing a^ainst him in the prosecution evidence.stated that he is innocent and ha| been implicated in 6. 9. a false case. He examined one defence witness namely, Kashi Prasad (DW-1). Learned Additipnal Sessions Judge after hearing learned counsel for the respective parties, convicted and sentenced the accused as aforementioned. We have heard Shri H.V. Sharma, counselfor the appeilant and ShriAkhil Mishra, Panel Lawyer for the State/respondent. <!' Learned counsel for the accused/appellant has not disputed homicidal death ofSonsai. Moreover, PW-1 Ratyano Bai, wife of the deceased, has categorically stated that the accused attacked the deceased with axe on his stomach, as a result of which he fell down & died. Ocularevidence of this witness is corroborated bythe medical evidence of Dr. D.K. Shrivastava (PW-11). He has stated thaton27-10-2000 heconducted postmortem on the body of Sonsai. He noticed thatthere was incised wound in epigastric region 5cm above navel, as a result of which intestine came out of the stomach. There wasa perforation in the intestine. Food and fickle matter came out of the intestine. There was incised wound in the size of 4cm in lengthin spindle shape & 2 em in width. Death was homicidalin nature.In view of the above ocular and medical evidence, it is established that death of Sonsai was homicidal in nature. As far asinvolvement ofthe accused in the crime in question is concemed, tearnedcounsel for theaccused/appellant argued that evidence of PW-1 Ratyano Bai is not worth reliance, as she was nat present on the scene of occurrence. There are c'ontradictions between policecase diary statement and the Court evidence, therefore, her evidence cannot be believed. •^. 10. In order to appreciate argument advanced by learned counsel for the accused/appellant, we have perused evidenc®pf^Ratyano Bai (PW-1), eyewitness. She hasstatedthat on the fateful day paddy was kept in the ^ iitij(!«irai""8 threshing field. She was sitting on the cot. At about 2 p.m. her husband came after watering vegetables, at that time the accused cameand asked her husband to removevpaddy from his threshing field.as he has to fence threshing field. Her husband was hard of hearing, therefore.she replied that today itself he is not'going to fence threshing field, as and when he fences threshing field, ttaey will remove paddy, on-which the aceused became angry. He attacked with axe on the stomach of her husband, as a result of which he sustained injuries. The axe pierced into the stomach of < •"- her husband. He fell down and died. She informed about incident to her son Roop Singh. When Roop Singh came, the accused ran away. Roop Singh has been examined as PW-3 who has stated that his mother informed him, therefore, he reached on the spot. PW-5 Sukh Singh has also corroborated above evidence. He has stated that on hearing the cries of his mother he reached on the spot, he saw that Sonsai was lying in injuredcondition. In c.ross-examination, defence has not been able to elicit any circumstance which discredit evidence of these witnesses. Shri Sharma argued that there are contradictions between police case diary statement and Court evidence ofthis witness. The law on fhe point, as has been held by the Apex Court in the matter of Leela Ram (Dead) through Duli Chand v.State of Haryana and another , is that- "..........the discrepancies found in the ocular account of the witnesses, unless they are so vital, cannot affect the credibility pf the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, thesame should not be used t6 jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be exgected in criminal cases. Minor embellishment, there may be, but variatiQns by reason therefor should not render the evidence of eyewitnesses 1 (1999) 9.SCC 525 ^•^^ii^ig'S 9 unbelievable. Trivial disorepancies ought not to obliterate an otherwise aGCeptable evidence." 11. In the light of above pripciple, ifwe examine evidence of Ratyano Bai (PW- 1), contradictions in the evidence of this witnessare not ofvital value. By these contradictions the defence has not been able to discredit evidence of Ratyano Bai (PW-1) or hgsnot been able to show that-presence of Ratyano Bai on the place of occurrenGewas doubtful. Even Roop Singh PW-3 and PW-5 Sukh Singh, sonsofthe deceased, have also stated about presence <f. oftheir mother on sceneof'occurrenee. Therefore, from the evidence of Ratyano Bai (PW-1), it is establjshed that the accused attacked the deceased with axe as a result of which he succumbed to the injuries. 12. Learned counsel for the accused/appellant argued that there was no animosity between the accused ,and the deceased. The accused is nephew of the deceased, quafrel starte'd ona petty matter on the issue of putting paddy by the deceased jh the threshing field of the accused. The accused without any pre-meditation or preparation went to the field where all of a sudden, some altercation took place.the accused picked up axe and attacked the deceased which proved fatal and he died, therefore, offence againstthe accused does nottravel beyond Section 304 Part-11 ofthe I.P.C. 13. Learned counsel for the State/respondent supported the judgment of the trial Court. V- Y. 14. Having heard learned counsel for the parties, we have perused record. As per the evidence of Ratyano Bai (PW-1), it is admitted fact that the deceased put paddy in thethreshing field of the accused, who isnone else than nephew of the deceased, he went to the field & raised objection & asked the deceasedto remove paddy, as he wanted to fence threshing field, onwhichthe deceased said that he is not going to fence threshing field just now, as and when he fences threshing^field, they Will remove \'" paddy, all of a sudden, the accused picked up axe and attacked the deceased, the axe pierced into stomach of the deceased, which proved fatal. It is nota case^of pre-meditation or preparation. However, the accused attacked with deadly weapon i.e. axe on the stomach of the deceased, which proved-fatal, therefore, looking to the faets and circumstances of the case, we are of the cohsidered opinion that offence against the accused under Section302 of the IPC is not made out. However, on the facts and circumstances of the case, offence under <;: Section 304 Part-1 of the IPC'Ts made out. For this, we are fortified in our view by the decision of theApex Court in the matter of Mahesh vs. State of Madhya Pradesh . 15. In the result, the appeal partly suGceeds. Conviction and sentence imposed upon the accused/appellantunder Section 302 of the I.P.C. are set aside, instead thereof, he is canvicted under Section 304 Part-1 of the I.P.C. and sentenced to undergo R.lifor 10 years. The accused is in detention since 27-10-2000 till today. The accused shall be entitled for set off of the above detention period against the sentence imposed upon him. Sd/, L.C. Bhadoo Judge Sd/- SunilKumarSinha Judge 1996 (6) Supreme 609