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Judgment
Dhirendra Mishra, J.—This criminal appeal u/s 374(2) of the Code of Criminal Procedure is directed against the judgment of conviction and order of sentence dated 31st July, 1991 passed in S.T. No. 216/90, whereby learned Sessions Judge, Bastar at Jagdalpur has convicted the appellant u/s 302 of the IPC and sentenced him to life imprisonment for causing homicidal death of deceased Premdas.
Briefly stated, case of the prosecution is that the appellant and the deceased were students of Class- XII. A year before the incident, the deceased had eveteased sister of the appellant during a drama staged in Village-Lohandiguda. They had quarreled on account of the above incident. In the previous night of the incident also, the deceased and the appellant had gone to see Durgotsav and there also, some oral altercation took place and deceased Premdas had slapped the appellant. Because of the above incident, the appellant nourished grudge with him. On 7.10.1989 at about 11, the deceased was going to school with PW-1 Pooran Singh, when the accused came from behind armed with an axe. Deceased Premdas tried to flee from there, however, he slipped and fell down and the appellant attacked him with an axe.
PW-1 Pooran Singh ran towards the local post office, where his father Jai Singh (PW 2) worked. He narrated about the incident to his father Jai Singh. Report of the incident was lodged by Ghasiram (PW 3) vide Ex.P/3. After preparing inquest over the person of the deceased, the dead body was sent for autopsy to Primary Health Centre, Lohandiguda where Dr. J.K. Verma (PW-10) conducted postmortem and gave his report of Ex.P/15. Weapon of offence - bloodstained axe and bicycle were taken into possession on being produced by the accused vide Ex.P/6 & P/7 respectively. Similarly, shirt and pant worn by the accused, stained with blood, were taken into possession vide Ex.P/16. Bloodstained articles were sent for chemical examination to Forensic Science Laboratory, Sagar. The FSL vide its report of Annexure P/17 opined that amongst other articles, axe, shirt and pant were stained with blood. However, report of the serologist is not available in the record.
After completing investigation, charge sheet was filed against the accused/appellant in the Court of Judicial Magistrate First Class, Jagdalpur, who, in turn, committed the case to the Court of Sessions Judge for trial.
Learned trial Court framed charge u/s 302 of the IPC against the accused, who abjured his guilt. The prosecution in order to establish charge against the accused examined 11 witnesses in all. Thereafter, statement of the accused was recorded u/s 313 of Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. He further stated that he has been implicated in the said offence due to animosity as few months back, the deceased had eveteased his sister and he had warned him, and on this, the deceased had slapped him twice.
Learned trial Court, after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in Para-1 of this judgment.
Homicidal death of Premdas is not in dispute. Even otherwise, from the evidence of Dr. J.K. Verma (PW- 10), who conducted postmortem and proved his report of Ex.P/15, in which he found following injuries on the person of the deceased and opined that the deceased died as a result of excessive bleeding due to above injuries and the death was homicidal in nature as injuries sustained by him were sufficient to cause his death in the ordinary course of nature, homicidal death of Premdas is established. Injuries:
(i) One incised wound 15 cm long over right side of scalp running downwards and anteriorly from perieto temporal region to angle of mandible (lower jaw) by cutting right ear, skull bone is cut at side of injury up to back of right ear (about 6 cm).
(ii) One incised wound about 13 cm long over right lateral of chest deep up to thoracic cavity by cutting the adjacent muscle and lower four costal cartilage and diaphragm extending from 3 cm behind the post auxiliary border. Wound is superficial at upper side and deep at lower end. Blood is present.
(iii) One incised wound 5 cm long and deep to the thoracic cavity extending from lower end of medial side of left scapula and running downwards. Three ribs below lower angel of scapula are cut by injuries.
(iv) On internal examination, lower lobe of left lung was cut and thoracic cavity was full with blood and fluid.
Shri Prafull Bharat, learned counsel for the appellant, argued that conviction of the appellant is based on the evidence of PW-1 Pooran Singh. The trial Court has considered him as an eyewitness of the incident, though from the evidence of this witness, it would be evident that he did not see the assault as he had fled from the place of incident. Thus, there is no eyewitness to the incident. He further argued that recovery of bloodstained clothes from the appellant has been heavily relied upon by the trial Curt as a corroboratory evidence, whereas there is no evidence that the appellant was wearing the aforesaid clothes at the time of incident and there is no scientific evidence that it contained human blood and that too, of the blood group of the deceased, therefore, the same cannot be considered to be an incriminating evidence against the appellant.
Reliance is placed on the judgments in the matters of Sharad Birdhichand Sarda v. State of Maharashtra; Balu Sonba Shinde v. State of Maharashtra and K. Sukumaran v. State of Kerala.
On the other hand, learned counsel for the State supported the impugned judgment.
We have heard learned counsel for the respective parties and perused the material available on record as also the impugned judgment.
The trial Court has convicted the appellant relying upon the evidence of PW-1 Pooran Singh. The trial Court has further observed that from the uncontroverted evidence of Pooran Singh, it is established that there was animosity between the appellant and the deceased due to quarrel and marpeet on account of eveteasing the sister of the appellant by the deceased. On the date and time of incident, the deceased tried to flee on seeing the accused armed with axe. However, the deceased, while running away, slipped and fell on the ground. The accused chased him and thereafter, raised axe for assaulting the deceased. The above evidence has not been controverted in his cross-examination. PW-1 Pooran Singh and PW-2 Jai Singh are independent and impartial witnesses. There is no material omission or contradiction in their evidence. The seizure of weapon of offence - axe (Ex.P/6) and shirt & pant from the accused (Ex.P/16) has been duly proved by PW- 5 Sudu, PW-9 Suryapal Singh-Head Constable and PW-11 R.P. Singh-Sub Inspector. The above seized articles were found to be stained with blood by the report of FSL vide Ex.P/17. Though the prosecution has failed to prove the origin and nature of the blood, however, this evidence is admissible as corroboratory piece of evidence, and conviction is not based only on recovery of above bloodstained articles.
PW-1 Pooran Singh has deposed that the appellant and the deceased were students of his school. The appellant was his class fellow. On the date and time of incident, the deceased while going to school, informed him that in the night, he had quarrel with the accused. However, he (deceased) did not tell him any reason for the quarrel. At that time, the appellant came from behind armed with axe and seeing him, the deceased fled from there. The accused chased him, the deceased slipped and fell down and the accused raised his axe for assaulting. Thereafter, he (Pooran Singh) fled from there and therefore, he could not see as to how many axe blows the appellant gave to the deceased. He narrated about the incident to his father in the post office and went to school. This witness was cross-examined by the prosecution after declaring him hostile. However, this witness stuck to his examination-in-chief. In the cross- examination by the defence also, this witness stuck to his examination-in-chief. The version of this witness is substantially corroborated from the evidence of his father Jai Singh (PW-2). This witness has also been cross-examined by the prosecution after declaring him hostile, however, the prosecution could not extract anything more from this witness.
PW-3 Ghasiram has lodged the FIR of Ex.P/3 as he found the dead body of the deceased lying on the spot. PW-5 Sudu is a witness of seizure memos of Ex.P/6 & P/7 whereby bloodstained weapon of offence - axe and bicycle were taken into possession on being produced by the appellant. PW-6 Jainath is a witness of the earlier incident of quarrel between the appellant and the deceased on account of eveteasing in a drama staged in their village Lohandiguda. He is also a witness of the incident of previous night when the deceased slapped the appellant twice. PW-9 Suryapal Singh-Head Constable has also proved the documents of Ex.P/6 & P/7, whereby bloodstained weapon - axe and bicycle were seized on being produced by the appellant. PW-11 R.P. Singh-Sub Inspector has deposed that on 8.10.1989 he seized bloodstained full pant and shirt from the appellant vide seizure memo of Ex.P/16.
In Sharad Birdhichand Sarda1, the Hon''ble Supreme Court has underlined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-152 as under:
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned `must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between `may be proved'' and `must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made:
"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be'' and must be'' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
In Balu Sonba Shinde2, there were some differences between the deceased and the accused, who were real brothers, over some family property. However, the same was subsequently resolved and a deed of partition was entered into between them. Shankar was fencing his portion of land in pursuance of the deed when he was brutally axed by his brother Balu. The prosecution case was based on the evidence of two witnesses; one of them was declared hostile. The trial Court placing strong reliance on the evidence of PW-4 Dharu convicted the accused u/s 302 of IPC. The High Court also dismissed the appeal. The Hon''ble Supreme Court dealt with the evidence of PW-4 Dharu in great detail, who deposed that while he was going to his field on the fateful day, he saw the appellant and the deceased involved in hot exchange of words, he advised them not to fight and proceeded towards his field, and by the time he had advanced barely 30-40 feet, he heard wailing of Baby (PW-5) and on return, he found Shankar in grossly injured condition. However, he was silent about Baby (PW-5) as also about the assailant brother as he did not state anything about the whereabouts of both of them. In these circumstances, it has been observed that the deponent did not see the actual axe-hit, neither could he see the accused from behind - the vision obviously became totally blurred otherwise there was no earthly chance of missing both the accused person and PW-5. Though Gorakh was present but he was not called to give evidence. In these circumstances, evidence of the above witness was not accepted.
In K. Sukumaran3, the appellant was convicted on the basis of circumstantial evidence, as detailed in Para- 1 of the cited judgment. Circumstance No. 10 was that the same group of blood was found on MOs 5 and 6, the clothes of the deceased (sic accused) and MOs 8 and 9, the clothes worn by the deceased at the time of her death. It was argued on behalf of the State that even if the disclosure statement of the accused was rejected by the Courts below, the fact that the blood group found on the clothes of the deceased was same as that in the clothes of the accused, establishes the seizure. Rejecting the above argument of the State, it was held that since there is no evidence on record that the appellant was wearing the same clothes on the date and time of the incident, the seizure of clothes from the accused containing the same blood group as that in the clothes of the deceased, is immaterial and inconsequential.
In the instant case, as already observed by the trial Court and reproduced in the foregoing paragraphs, it is evident that there was animosity between the appellant and the deceased and quarrel between them in the previous night of the incident when the deceased slapped the appellant. From the evidence of PW-1 Pooran Singh, which is substantially corroborated from the evidence of his father Jai Singh (PW-2), it is further proved that while the deceased was narrating about the incident of previous night to Pooran Singh, at that juncture, the appellant armed with a deadly weapon axe came there from behind, and seeing him, the deceased tried to flee away, however, he fell on the ground. PW-1 Pooran Singh has categorically stated that thereafter, the appellant raised his axe for assaulting the deceased and only thereafter, he fled from the place of occurrence and therefore, could not witness as to how many axe blows the appellant gave to the deceased. Report of the incident was lodged by PW-3 Ghasiram and thereafter, the dead body was found from the place, where the incident occurred according to PW-1.
From close scrutiny of the entire evidence available on record, we are of the opinion that the trial Court was wholly justified in observing in Para- 25 of its judgment that normally the burden of proof lies upon the prosecution in criminal cases. However, where the accused fails to offer any explanation with respect to the facts and circumstances established and proved by the prosecution raising strong probabilities against the accused, conviction can be based on such evidence.
The facts of Balu Sonba Shinde2, are distinguishable from the facts of the present case. In the said case, the evidence of PW-4 Dharu was not accepted on certain grounds and therefore, benefit of doubt was extended to the appellant, whereas, in the instant case, the evidence of PW-1 Pooran Singh is free from any blemish and inspires confidence.
Similarly, in Ku. Sukumaran3, the conviction was based only on the seizure of bloodstained clothes from the accused, and the prosecution case that recovery was made at the instance of the accused was held to be not proved. However, in the present case, the appellant has not disputed the recovery of bloodstained clothes by PW-11 R.P. Singh vide Ex.P/16 and the same were found stained with blood. Moreover, conviction of the appellant is not based solely on this evidence and the trial Court has considered the above evidence only as a corroboratory evidence against the appellant.
For the aforesaid reasons, we are of the opinion that finding of the trial Court is based on proper appreciation of the evidence available on record and there is no illegality or infirmity in the impugned judgment.
In the result, the appeal fails. Judgment of the trial Court convicting and sentencing the appellant u/s 302 of IPC is upheld. The appellant is on bail, therefore, his bail bonds are cancelled and he is directed to be taken into custody forthwith to undergo the sentence imposed on him.