Mayaram and Others vs State of C.G.

R.S. Sharma, J.—This appeal is directed against judgment dated 02-03-2007 passed by Sessions Judge, Mahasamund in Sessions Trial No. 29/2006. By the impugned judgment, accused persons/appellants Mayaram, Bisaru @ Chandu and Purushottam have been convicted u/s 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 year. Case of the prosecution, in brief, is as under:

Kaliram (PW-1), Baliram (PW-2) and appellant No. 1 Mayaram are real brothers. On 21-7-2006, at about 4:00 P.M., Kaliram (PW-1) was going to his house. On the way, he saw that the appellants were assaulting his son Chaman with Lathi and Danda. Due to fear, he ran away from there and went to Village Kotwar, Shivkumar (PW-5) and his brother Baliram (PW-2) and narrated the incident to them. They returned to the place of occurrence. They saw that deceased Chaman was lying unconscious in the lane. He had sustained injuries on the head and hand. Ku. Leena Sahu (PW-3) also witnessed the incident. Kaliram (PW-1) lodged First Information Report (Ex. P-1) in Police Station Kotwali, Mahasamund. Dehati Merg intimation (Ex. P-2) was also recorded. The" Investigating Officer reached the place of occurrence, gave notice (Ex. P-3) to Panchas and prepared inquest (Ex. P-4) on the dead body of the deceased. The dead body of the deceased was sent for post mortem examination to District Hospital, Mahasamund vide Ex. P-16. Dr. R.K. Pardal (PW-12) conducted post mortem examination on the dead body of the deceased and gave his report (Ex. P-22), in which, he found-

External Injury:

(i) lacerated wound, 8 X 2 X 1 cms on right parietal bone,

(ii) lacerated wound, 5 X 2 X 1 cms on left parietal bone,

(iii) bruise, abrasion and tenderness present in right forearm, fracture on humorous bone, the size of bruise were 8"X11/2" vertically and 4"X11/ 2" horizontally,

(IV) bruise and abrasion on waist, blood clot was present on right side of the waist, the size of bruise was 10" x 114" horizontally, 2 bruises, 5" x 1 1/2 and 6"x 1 1/2" below the above bruise.

Internal Injury:

On dissection, he found 10" long fracture on right parietal bone extending from occipito-parietal junction to internal bone of right eye. Subdural haematoma was present over brain and blood clots were present in left and right portions beneath the brain membrane. He further found that 5th and 6th ribs were fractured and pleura was ruptured. He opined that cause of death was shock, haemorrhage and coma due to grievous injury to vital organ, right brain, lung, bones and the death was homicidal in nature.

In further investigation, the appellants were taken into custody and memorandum statement (Ex. P-6) of appellant Mayaram was recorded u/s 27 of the Evidence Act and at his instance Danda was seized vide Ex. P-7. Memorandum statement (Ex. P-8) of appellant Purushottam was recorded u/s 27 of the Evidence Act and at his instance Danda was seized vide Ex. P-9. Memorandum statement (Ex. P-10) of appellant Bisaru @ Chandu was recorded u/s 27 of the Evidence Act and at his instance Danda was seized vide Ex. P-11. Blood stained soil and plain soil were seized from the place of occurrence vide Ex. P-12. Spot map (Ex. P-15) was prepared by Patwari Mukesh Kumar (P W-10). Another spot-map (Ex. P-5) was prepared by the Investigating Officer G.N. Baghel (PVV-11).

After completion of the investigation, charge sheet was filed against the appellants in the Court of Chief Judicial Magistrate, Mahasamund, who, in turn, committed the case to the Court of Sessions Judge, Mahasamund, who conducted the trial and convicted and sentenced the appellants as mentioned above.

Shri Sanjeev Kumar Agrawal, learned counsel for the appellants, has argued that there is no independent eye-witness. Kaliram (PW-1) is father of the deceased and Ku. Leena Sahu (PW-3) is daughter of the deceased. They are relatives and highly interested witnesses. Evidence of Puran Bandhe (PW-6) is not reliable. His presence at the place of occurrence is suspicious. He further argued that there was an old enmity between Kaliram (P W-1) and the appellants. On account of that enmity, the appellants have been falsely implicated by Kaliram (PW-1) and Ku. Leena Sahu (PW-3), therefore, their evidence are not acceptable. The prosecution did not adduce any cogent and reliable evidence. Therefore, the conviction recorded by the learned Sessions Judge is not sustainable and the appellants deserve to be acquitted.

Learned counsel for the appellants alternatively argued that even if the entire evidence is accepted, it would appear that there was no intention to commit murder of the deceased. Therefore, the appellants cannot be convicted u/s 302 of the Indian Penal Code. Instead, they would be liable for punishment u/s 304 of the Indian Penal Code. He placed reliance on Zakir Hussain and others vs. State of M.P. (Now Chhattisgarh), 2012 (2) CGLJ 36 (DB).

Shri. Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge do not warrant any interference by this Court.

We have heard learned counsel for the parties at length and perused the record of Sessions Trial No. 29/2006. The conviction of the appellants u/s 302 /34 IPC is based on the evidence of Kaliram (PW-1), Ku. Leena Sahu (PW-3) and Puran Bandhe (PW-6).

Evidence of Relative and Interested Witness:

In the instant case, it is not disputed that Kaliram (PW-1) is father and Ku. Leena Sahu (PW-3) is daughter of the deceased and, therefore, they are relative witnesses. The prosecution examined Puran Bandhe (PW-6), who is an independent witness.

In Dharnidhar Vs. State of U.P. and Others, the Hon''ble Supreme Court held as follows:

There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan Vs. U.T. of Pondicherry, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim.................

Similar view was taken by this Court in Ram Bharosey Vs. State of U.P., , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same.

In Brahm Swaroop and Another Vs. State of U.P., the Hon''ble Supreme Court held as follows:

Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence.

In Waman and Others Vs. State of Maharashtra, , the Hon''ble Supreme Court held as follows:

In Balraje @ Trimbak Vs. State of Maharashtra, , this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused...........

19...."29.......... The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives'' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh and Others Vs. State of Punjab, Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje @ Trimbak Vs. State of Maharashtra,

Now, in light of the above principles laid down by the Hon''ble Supreme Court, we shall examine the evidence of Kaliram (PW-1) and Ku. Leena Sahu (PW-3).

Kaliram (PW-1) deposed that appellant Mayaram is his brother appellant Bisaru alias Chandu and appellant Purushottam are his nephews. He further deposed that deceased Chaman was his son. He further deposed that on Friday, at about 3-4 P.M., he had gone to the shop, where having heard the noise of quarrel, he returned therefrom and reached in front of the lane of his house. He saw that the appellants were assaulting the deceased with Lathi and Danda. Appellant Purushottam saw him. Due to fear, he fled from there and went to his brother Baliram (PW-2) and narrated the incident to him. They returned to the place of occurrence. The deceased was lying unconscious there. The appellants prepared to assault him also. At that time, Ku. Leena Sahu (PW-3) was present at the place of occurrence.

Baliram (PW-2) deposed that the incident was of the month of Sawan. At about 4 P.M., Kaliram (PW-1) came to him and told that appellants Mayaram, Purushottam and Bisaru alias Chandu were assaulting the deceased. Both of them reached to the place of occurrence. They saw that deceased Chaman was lying unconscious and appellants Bisaru alias Chandu and Purushottam were standing there. He further deposed that Ku. Leena Sahu (PW-3) was also standing there. He further deposed that he asked from the appellants why did they kill the deceased? Appellants Purushottam and Bisaru alias Chandu admitted their guilt.

Puran Bandhe (P W-6) deposed that he was returning from his work at about 3:30 P.M. At that time, he came to know that a quarrel had taken place between the deceased and the appellants. He reached at the place of occurrence. He saw that the appellants were assaulting the deceased with Lathi and Danda.

Ku. Leena Sahu (PW-3) deposed that on 21-7-2006 at about 3-4 P.M., she was taking meals along with her father (the deceased). At that time, the appellants came in front of their house and began to abuse. She and her father came out of the house. At that time, the appellants started committing marpeet with the deceased with Lathi and Danda. Her father fell down and died.

Learned counsel for the appellants has argued that conduct of Kaliram (PW-1) is unusual and unnatural. The deceased was his son. Despite having seen his son (the deceased) being assaulted by the appellants, Kaliram (PW-1) did not make any effort to save his son and fled from the place of occurrence. Therefore, the conduct of Kaliram (PW-1) is unnatural and not reliable. According to the prosecution, Ku. Leena Sahu (PW-3), the daughter of the deceased also witnessed the incident, but she did not shout for help. Therefore, their evidence is not reliable.

In Kathi Bharat Vajsur and Another Vs. State of Gujarat, , the Hon''ble Supreme Court observed as follows:

This Court in Mehmood Alam Tariq and Others Vs. State of Rajasthan and Others,

11.... Experience reminds us that civilized people are generally insensitive when a crimes committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Partap and Others Vs. State of Haryana, Chinnappa Reddy, J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed: [SCC p. 330, SCC (Cri.) p. 604, para 6]

''6.... Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Everyone reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.''

We are in agreement with the above observations. When an eyewitness behaves in a manner that perhaps would be unusual, it is not for the prosecution or the court to go into the question as to why he reacted in such a manner. As has been rightly observed by His Lordship O. Chinnappa Reddy, J. in Rana Pratap case, there is no fixed pattern of reaction of an eyewitness to a crime. When faced with what is termed as "an unusual reaction" of an eyewitness, the court must only examine whether the prosecution story is in any way affected by such reaction. If the answer is in the negative, then such reaction is irrelevant. We are afraid that the unusual behaviour of the injured eyewitness, PW 6, will not, in any way, aid the appellants to punch a hole on to the prosecution story.

Kaliram (PW-1) deposed that many persons had gathered at the place of occurrence and Ku. Leena Sahu (PW-3) was already standing there. He further deposed that the deceased sustained injury on the head and the hands were fractured. He further deposed that he had witnessed the incident from a distance of 20 feet. Ku. Leena Sahu (PW-3) deposed that her father (the deceased) sustained injury on the head and the hands were fractured. Appellant Mayaram had, after assaulting the deceased, entered his house. Puran Bandhe (PW-6) specifically deposed that when he reached near the lane, the quarrel was going on and it continued for further 5 minutes.

Kaliram (PW-1) specifically deposed that the appellants assaulted his son (the deceased) and appellant Purushottam prepared to assault him also, therefore, he fled from there due to fear and went to the house of his brother Baliram (PW-2). He returned to the place of occurrence along with Baliram (PW-2). We find that the conduct of Kaliram (PW-1) is not unusual or unnatural. Therefore, his evidence is reliable and cannot be discarded simply on the ground that he did not try to save his son (the deceased).

The date and time of the incident is 21-7-2006 at about 4 P.M. The FIR (Ex. P-1) was lodged on the same day at about 7 P.M. Distance between the place of occurrence and the police station is 25 kilometres. The FIR (Ex. P-1) was lodged within 3 hours of the incident. Therefore, the FIR (Ex. P-1) was lodged without delay. In the FIR (Ex. P-1), the names of the appellants are mentioned as assailants. It is also mentioned therein that the appellants assaulted the deceased with Lathi and Danda. The case diary statements (Ex. D-2) of Baliram (PW-2) and case diary statement (Ex. D-3) of Ku. Leena Sahu (PW-3) were recorded on 21-7-2006, i.e., on the date of incident itself. It is evident that their statements were recorded without delay.

Dr. R.K. Pardal (PW-12) deposed that he conducted autopsy on the dead body of the deceased and gave his report (Ex. P-22). He further deposed that he found above injuries on the dead body of the deceased. He further deposed that the death was due to shock, haemorrhage and coma as a result of grievous injury to vital organ, right brain, lung, bones and the death was homicidal in nature.

We have carefully perused the evidence of Kaliram (PW-1), Ku. Leena Sahu (PW-3) and Puran Bandhe (PW-6). They categorically deposed that on the fateful day, the appellants assaulted the deceased. Their evidence is duly corroborated by the evidence of Baliram (PW-2), the FIR (Ex. P-1) and the medical evidence. From the medical evidence, we find that the death was due to shock, haemorrhage and coma as a result of grievous injury to vital organ, right brain, lung, bones and the death was homicidal in nature.

We shall now consider about common intention of the appellants to commit murder of the deceased.

It is well known that to establish the common intention of several persons so as to attract the mischief of Section 34 IPC, the following two fundamental facts have to be established: (i) common intention to commit an offence and (ii) participation of the accused in commission of the offence. To attract Section 34 IPC, it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they shared common intention to commit the offence in furtherance thereof and each one played his assigned role by doing separate acts, similar or diverse. Section 34 IPC is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 IPC, it is not necessary to show some overt act on the part of the accused.

In the instant case, appellants Mayaram, Bisaru alias Chandu and Purushottam, armed with Lathi and Danda, assaulted the deceased and the deceased sustained injuries and succumbed to the injuries. From the above, it is apparent that the role played by the appellants was with a view to achieve the ultimate objective of killing the deceased.

Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 of the Indian Penal Code.

Shri Sanjeev Kumar Agrawal, learned counsel for the appellants has argued that there was a land dispute between Kaliram (PW-1), the deceased and the appellants. A quarrel took place between the deceased and the appellants. They abused each other. The appellants used Lathi. Therefore, the act of the appellants would not be punishable u/s 302 of the Indian Penal Code and they would be guilty of the offence punishable u/s 304 of the Indian Penal Code.

Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime 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 of the Indian Penal Code 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 of the Indian Penal Code, 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 of the Indian Penal Code, 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 of the Indian Penal Code, 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.

Ku. Leena Sahu (PW-3) specifically deposed that the appellants, armed with Lathi/Danda, came in front of her house and abused her father (the deceased). When the deceased came out of the house, the appellants started committing marpeet with him. The deceased sustained injuries on the head and other parts of the body. Dr. R.K. Pardal (PW-12) found multiple injuries on the dead body of the deceased and fractures on parietal bone, right fronto-parietal junction and in 5th and 6th ribs.

From the injuries of the deceased and evidence of Ku. Leena Sahu (PW-3), it is established that the appellants caused the bodily injuries to the deceased with an intention to cause death of the deceased. Therefore, the act of the appellants does not fall within the purview of culpable homicide not amounting to murder, but falls within the purview of Section 302 IPC.

In light of the above discussions, we see no merit in the appeal. We are of the view that the finding of learned Sessions Judge convicting the appellants on the basis of evidence of Kaliram (PW-1), Ku. Leena Sahu (PW-3) and Puran Bandhe (PW-6) does not call for any interference by this Court. For the foregoing reasons, we do not find any substance in the appeal; it deserves to be and is hereby dismissed.