BIJENDRA SAHU vs STATE OF CHHATTISGARH

Challenge in this appeal is to the judgment of conviction and order of sentence dated 22.1.2013 passed by the learned Sessions Judge, Bilaspur in

S.T. No.195/2011 thereby convicting the accused/appellant under Section 302 of the Indian Penal Code (henceforth 'the IPC') and sentencing him to

undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine to undergo Simple Imprisonment for 6 months.

Case of the prosecution, in brief, is that deceased Ramshila Bai was married to accused/appellant and she was second wife of accused/ appellant.

Out of their wedlock, they have two daughters and one son namely Shrawan Kumar (PW-8), aged about 21 years. Before marrying the

accused/appellant, deceased was married to one Chowaram Ram and had one son namely Santosh Kumar Sahu (PW-2), aged about 28 years, from

said Chowaram. In the night intervening 22nd & 23rd September, 2011 the accused/appellant is alleged to have killed Ramshila Bai by causing several

injuries to her with axe. Incident was witnessed by Kiran Sahu (PW-1) & Shrawan Kumar (PW-8). FIR (Ex.P-11) was lodged on 23.9.2011 at 1.45

a.m. by Shrawan (PW-8) against the accused/appellant under Section 302 of IPC. Immediately thereafter merg intimation (Ex.P-10) was recorded at

2.15 a.m. at the instance of said Shrawan (PW-8). Inquest (Ex.P-5) was prepared over the body of deceased on 23.9.2011. Body was sent for post

mortem examination vide Ex.P-7 which was conducted by Dr. Vijay Kumar Verma (PW-5) and he noticed following injuries on the body of

deceased:-

• Lacerated wound of 6 x 5cm x bone deep on forehead just above root of nose.

• Lacerated wound of 4 x 3cm just above to left eyebrow.

• lacerated wound of 3x2cm x bone deep just medial to left eye.

• Incised wound of 6x3cm in size deep cutting the trachea.

• Incised wound of 13x6 cm in size, bone deep, over middle and right side of chest.

• Commuted fracture of frontal, left and right parietal bone of skul.

• Complete cutting of trachea and phyranx.

• Fracture of right clavicle bone on its medial part.

As per opinion of the autopsy surgeon, the deceased died due to external & internal haemorrhage and shock as a result of multiple injuries. On

24.9.2011 memorandum of accused/appellant was recorded vide Ex.P-1 and on the basis of disclosure statement made by accused/appellant, axe was

recovered from the village pond at his instance vide seizure memo Ex.P-2.

After completion of investigation, charge sheet was filed against the accused/appellant under Section 302 of the IPC and accordingly the charge

was framed framed against him. The prosecution in order to substantiate its stand, examined 09 witnesses and exhibited a number of documents.

Statements of accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the

prosecution case, pleaded innocence and false implication in the crime in question.

After hearing counsel for the parties, the trial Court by the impugned judgment convicted & sentenced the accused/appellant in the manner as

described above.

Learned counsel for the appellant submits that;

• testimony of PW-1 is not reliable as she is interested witness and therefore conviction of the appellant is bad in law.

• on the date of occurrence the appellant was not in his house and had gone to village Newra.

• recovery of axe at the instance of appellant is of no consequence as there is no report of FSL confirming presence of blood on it.

• witness of memorandum and seizure have been examined by the prosecution but they did not support the prosecution case and as such declared

hostile.

• even if the entire prosecution case is taken as it is, the appellant cannot be convicted under Section 302 of IPC and at the most the appellant could

be convicted under Section 304 Part I or II of IPC as it appears that the incident occurred without premeditation in the heat of passion upon a sudden

quarrel.

On the other hand, supporting the impugned judgment learned counsel for the State submits that conviction of accused/appellant is strictly in

accordance with law and there is no illegality or infirmity in the same warranting interference by this Court. He has further submits that there is no

reason to disbelieve the statement of PW-1 who is an eyewitness of the incident and has duly supported the prosecution case.

Heard counsel for the parties and perused the evidence available on record.

Kiran Sahu (PW-1) is the wife of son of deceased from her first husband. She has deposed that 4-5 days prior to the date of incident, there was a

quarrel between her mother-in-law (deceased) and accused/appellant with respect to registration of land purchased by her husband as the accused/

appellant wanted to get the registration done in his name which was not acceptable to the deceased. According to this witness, she and her mother-in-

law was sleeping together in a room on the fateful night. On hearing the sound of something being struck, she got up and saw that the

accused/appellant was assaulting her mother-in-law (deceased) by axe. He had assaulted her twice. Seeing this, she loudly called her brother-in-law

(PW-8). When her brother-in-law reached there, he also saw the accused in the room. Injuries were present on the neck and head of her mother-in-

law and blood was oozing. The accused thereafter fled from there. Nothing could be elicited by the defence in cross-examination of this witness so as

to discredit her testimony.

Santosh Kumar Sahu (PW-2) is the hearsay witness about the occurrence and hence formal in nature. Hariram (PW-3) is the witness of

memorandum (Ex.P-1) and seizure memos Ex.P-2 & P-3. This witness

did not support the prosecution case and as such declared hostile. However, he has admitted his signature on the memos. Vishal Das (PW-4) did not

support the prosecution and declared hostile by the prosecution. Dr. V.K. Verma (PW-5) is the person who conducted post-mortem examination over

the body of the deceased and noticed the injuries as described above. Rupesh Guru Diwan (PW-6) is the Patwari who prepared the spot map Ex.P-9.

Shankar Soni (PW-7) is the witness of memorandum (Ex.P-1). He has denied that any statement was made by accused in his presence leading to any

recovery. Therefore, he has been declared hostile by the prosecution. However, he has admitted his signature on document Ex.P-1. Shrawan Kumar

Sahu (PW-8) is the another eyewitness to the prosecution, but, he did not support the prosecution case and turned hostile. However, he has admitted

his signature on Merg Intimation (Ex.P-1) & FIR (Ex.P-11). S.B. Dey (PW-9) is the investigating officer who has duly supported the prosecution

case.

Close scrutiny of the evidence available on record makes it is clear that it is the accused/appellant who had committed murder of deceased

Ramshila Bai. Incident was witnessed by Kiran Sahu (PW-1), who has categorically stated that she and her mother-in-law (deceased) were sleeping

together in one room on the fateful night, upon hearing the sound of something being struck, she got up and saw the accused/appellant assaulting the

deceased. She has further deposed that after assaulting the deceased, the accused/appellant fled from there. Statement of PW-1 gets corroboration

from the version given in the FIR (Ex.P-11) lodged immediately after the incident i.e. within two hours of incident. It is well settled that when soon

after the occurrence the FIR is lodged at the police station, false story being cooked-up and/or false implication of accused stands ruled out. The

medical evidence also lends support to the testimony of Kiran Sahu (PW-1). According to Dr. V.K. Verma (PW-5), who had prepared post-mortem

report (Ex.P-5) after post-mortem examination of the body of deceased, the injuries found on the body of deceased were caused by hard & sharp

object. To a specific query put to him, the doctor opined that Injury No.4 & 5 found on the body of deceased could have been caused by the sharp

edged side of axe produced before him for examination. After the incident, a bloodstained axe was seized from the possession of accused/appellant

and no explanation was offered by him as to how the axe was blood stained. Kiran Sahu (PW-1) was cross-examined at length by the defence, no

dent could be made in the assertion made by her that the deceased died because of the axe injuries caused by the accused/appellant.

True it is that another eyewitness of the incident, namely Shrawan Kumar Sahu (PW-8), did not support the prosecution and turned hostile, but it does

not affect the prosecution case at all because the principal eyewitness to the crime i.e. PW-1, remained consistent throughout her examination in the

Court and has fully supported the prosecution. She has categorically stated as to the manner in which the deceased was done to death by

accused/appellant. The facts stated by her conform to and consistent on material points from the facts stated earlier to the police either in FIR or case

diary statement. Thus, the hostility of PW-8 is not fatal in the face of otherwise cogent and convincing evidence of PW-1, corroborated by promptly

lodged FIR and medical evidence. It is also well-established that it is quality of evidence and not quantity of evidence which is material. Quantity of

evidence was never considered to be a test for deciding a criminal trial and emphasis of Courts is always on quality of evidence.

Admittedly, the prosecution has failed to produce the report of FSL but, in our view, that would not provide a handle to the defence to attack the

prosecution case. No doubt, it would have been better if the investigating officer would have sent the bloodstained articles to the FSL for chemical

examination. However, the said omission on the part of the investigating officer is not a flaw of that type so as to invite the consequence of jettisoning

the sworn testimony of the eye-witness.

Thus, on the basis of the documentary and ocular evidence, we are fully satisfied that the prosecution has been able to prove its case beyond

reasonable doubt and has brought home the guilt of accused/appellant under Section 302 of IPC.

For the reasons afore-stated, we do not find any infirmity in the judgment of conviction recorded by the trial Court, which warrant our

interference. This appeal is, accordingly, dismissed. Since the accused/appellant is already in custody no extra direction is needed regarding his

surrender etc.

According to this court, even without the evidence of other witnesses, who are hear-say witnesses, the evidence of sole eye witness, who has lost

her husband in the incident, is sufficient to establish the guilt of the accused and, therefore, even if this Court ignore the evidence of other hear-say

witnesses then also the complicity of the accused is proved and the accused cannot make a slice of profit in their favour by raising such a lame

contention that the evidence of hear-say witnesses cannot be believed.

But it is well-settled that it is quality of evidence and not quantity of evidence which is material. Quantity of evidence was never considered to be a

test for deciding a criminal trial and the emphasis of Courts is always on quality of evidence. here the facts stated by an eyewitness substantially

conform to and are consistent on material points from the facts stated earlier to the police either in FIR or case diary statements and are also

consistent in all material details as well as on vital points there would be no justification or any valid reason for the court to view his evidence with

suspicion or cast any doubt on such evidence.

 14. It is no doubt true that there is only one eye witness who is also a close relative of the deceased, viz. his son. But it is well-settled that it is

quality of evidence and not quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial

and the emphasis of Courts is always on quality of evidence.

Though this witness was cross-examined at length, no dent could be made in the assertion made by him that the deceased had died because of the

gun shot fired by the appellant. It is well to remember that Mrs. Jishna PW-1 is the wife of the deceased whereas Rupender Kumar, examined as

PW-2, is the son of the deceased. They, being the close relatives of the deceased, would not allow the real culprits to go scot free and implicate the

appellant falsely in the case. is well settled that when soon after the occurrence the FIR is lodged at the police station, false story being cooked up

and/or false implication of accused stands ruled out.

True it is that PW-8 Prahlad, another eyewitnesses of the incident, turned hostile and did not support the case of the prosecution but it is settled

position that the testimony of single eyewitness is alone sufficient to prove the complicity of accused/appellant in the crime in question because

the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual

assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, on the basis of aforesaid evidence, complicity

of accused/appellant in commission of the offence in question stands proved beyond reasonable doubt.

Statements of the aforesaid witnesses have been duly supported by the doctors (PW-13 & PW-15), who have performed autopsy and noticed the

injuries as described in Ex.P-12 & Ex.P-14.

True it is that the eyewitnesses are the relatives of deceased persons, but by now it is a well-established principle of law that testimony of a

witness otherwise inspiring confidence cannot be discarded on the ground that he being a relative of the deceased is an interested witness. The

relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real

culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit

to escape unpunished. In the present case, these witnesses were cross-examined at length by the defence but nothing favourable to the

accused/appellant could come on record and therefore there is no evidence whatsoever before this Court to doubt the version given by the aforesaid

witnesses.

Thus, on the basis of the documentary and ocular evidence, we are fully satisfied that the prosecution has been able to prove its case beyond

reasonable doubt and has brought home guilt of accused/appellant under Section 302 of IPC.

For the reasons afore-stated, we do not find any infirmity in the judgment of conviction recorded by the trial Court, which warranted our

interference. This appeal is, accordingly, dismissed. Since the accused/appellant is already in custody no extra direction is needed regarding his

surrender etc.