Mer Kala Veman vs State

Chhatpar, J.—This is an appeal from an order of conviction of the Appellant of an offence u/s 304(2), Penal Code and sentence of 6 years'' rigorous imprisonment imposed by the Additional Sessions Judge, Porbandar, for causing the death of one Bai Zanzi by administering blows with an axe. The accused was charged with an offence u/s 302, Penal Code but considering that the accused; had used the blunt part of the blade of the axe and had no intention to cause death, the learned . Additional Sessions Judge convicted him of the lesser offence u/s 304(2), Penal Code.

The prosecution case was that the accused had an uncle by name Sidi, whose widow was the deceased. Sidi had no issue and had during his lifetime taken in adoption one Bhoja, who is the sister''s son of Zanzi some 15 years before the date of the offence. Sidi died about 10 or 12 years before and his widow Zanzi continued to keep Bhoja and his wife in her house. Bhoja was treated as the adopted son of Sidi. Bai Zanzi in order to make the question of adoption certain and beyond dispute executed a regular deed of adoption of Bhoja in the month of May 1952. The next heir of Sidi otherwise was the accused being his nephew. Coming to know of this adoption-deed the accused raised some dispute. Some days before the commission of the offence, he approached the members of the Village Panchayat Committee to persuade Zanzi to cancel the adoption-deed. Two members by name Gokal Kanji and Devanand met at the latter''s place, called Zanzi and tried to persuade her to cancel the deed, but she did not agree. They also tried to persuade her to divide the property left by Sidi into equal shares and give half share to Bhoja and half share to Kala. She also did not agree to this and said that at the most she would be prepared to part with only 5 bighas of land which may be given to Kala.

This was conveyed to Kala, who appears to have got annoyed thereby. At any rate it seems he had a serious grievance against Zanzi and this has been put by the prosecution as the motive of the assault by the accused on the woman. The particulars of the offence are that on 30-11-52 at about 10 in the morning, the accused gave blows with an axe to the old lady, who was aged about 70 years as a result of which she succumbed there and then. The accused himself is an old man of 75 years. There seems to have been some altercation between the two and while the blows were being given, one Bhagu Giga, who also belongs to the same village was passing by the Wada where the quarrel took place, and he heard the altercation and the cry of Zanzi that the accused was beating her. He did not see them actually. But Bhagu did not think it fit to interfere. He went to Rupi the wife of Bhoja, the adopted son, who was in the field nearby and informed her that the accused was beating Zanzi. Rupi''s husband Bhoja was working in a different field. The distance between the scene of the offence and the field where Rupi was working is only about 100 feet. Rupi immediately went to the Vada where the assault had taken place and found Zanzi lying dead. She covered the dead body with a cloth and went to the field where her husband Bhoja was working. She informed him and came back to the place where Zanzi was lying.

Bhoja followed her soon after. He also saw Zanzi at the place and went to inform the police, patel. He probably thought that the police patel was at the ''Chora'' of the village where people used to gather and there he found him in the company of two other persons named Gokal and Devanand. He told them about the crime whereupon the four came to the scene of the offence and seeing Zanzi dead, the first information was recorded there. All this happened within a very short time of the commission of the offence. The accused was then arrested and he produced an axe from his house. This axe had stains on the blunt part of the blade, stated above. The Chemical Analyser has certified them to be blood stains though it has not been ascertained by obtaining a report from the serologist whether the stains were of human blood. The prosecution probably thought that the other evidence was sufficient to establish the guilt of the accused and there was no necessity to obtain a serologist''s report which might have taken considerable time. The accused thereafter was charge-sheeted with an offence u/s 302, I.P. Code.

Now the evidence in the case is of Bhagu. Giga, who happened to pass by the Vada where he heard the deceased and the accused quarrelling, and the cry of the deceased of her being beaten. In the Sessions Court he merely stated that he heard the deceased crying for help as she was being beaten without disclosing the name of her assailant and he also further stated that he conveyed this information to Rupi saying that the deceased was being beaten by somebody and therefore she should run up to her. In the committing Magistrate''s Court he had stated that he had not only heard the quarrel between the two but he had also heard the cry of the deceased saying that the accused was beating her. The Public Prosecutor apprehending that this witness was turning hostile requested the Judge to bring his evidence in the Committing Magistrate''s Court on the record u/s 288 Code of Criminal Procedure The Sessions Judge agreed and the statement was brought on the record and questions were put to the witness in connection with his previous evidence. The whole statement was read over to the witness but a specific question whether he had heard the cry of the deceased mentioning the name of the accused was not put to the witness.

A nice question of law was, therefore, argued before us relying upon the recent Supreme Court decision in - Tara Singh Vs. The State, , wherein their Lordships of the Supreme Court held that there was no reason why Section 145, Evidence Act should be excluded when Section 288, Code of Criminal Procedure states that the previous statements are to be "subject to the provisions of the Indian Evidence Act". Section 145 falls fairly and squarely within the plain meaning of these words. On giving effect to the plain meaning of these words, therefore, the evidence in the Committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required by Section 145, Evidence Act. If the prosecution wishes to use the previous testimony to the contrary as substantive evidence, then it must confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence u/s 288 Code of Criminal Procedure

We have therefore in the first place to see as to what was the statement of Bhagu in the Committing Magistrate''s Court, which has been brought on the record u/s 288, Code of Criminal Procedure and what parts thereof have been specifically, put to the witness in the Sessions Court to contradict him. Mr. Shukla, the learned advocate for the Appellant, has argued that the statement in the lower Court even does not mention that the deceased in her cry mentioned the name of the accused. In any case he argued that the witness had admitted that in the police statement he had not mentioned that it was the accused who was beating the deceased. But the witness at the same time had added that he had stated this fact in his statement before the Fouzdar. Now there are not two statements before the police authorities. The Faouzdar who has been examined says that it was be who recorded the statement of the witness. No question was asked to him whether this witness Bhagu had stated that the deceased in her cry had or had not mentioned the name of the accused.

On the first question whether this witness had mentioned that the deceased had disclosed the name of the accused as her assailant, there can hardly be any doubt by reading the previous testimony as a whole. The only objection that can possibly be urged based upon the Supreme Court decision above stated is that it was not specifically brought to the notice of the witness while giving evidence in the Session Court that he had stated in the Magistrate''s Court that the deceased while crying had mentioned the name of the accused as the person who was beating her. This technical objection is answered by the learned Government Pleader by stating that the whole evidence of the witness in the Magistrate''s Court was read over to him in the Sessions Court and therefore it was not necessary again to put to the witness and draw his specific attention to this particular contradiction whether or not he had said in the Committing Magistrate''s Court that the deceased had cried out giving the name of the accused.

This controversy appears to us to be very insignificant as a substantial compliance of Section 145, Evidence Act, is sufficient. In the present case the sole object of introducing the previous testimony of the witness was to bring out this fact that the deceased had disclosed the name of the accused as her assailant in her cry and the witness fully understood this when his previous testimony was read over to him. In - Bhagwan Singh Vs. The State of Punjab, ), it was observed:

There can be no hard and fast rule as regards the compliance with the requirements of Section 145. All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. The matter is one of substance and not of mere form. Thus where the witness is questioned about every material passage in his previous statement, point by point there is a substantial compliance with what Section 145 requires.

In the present case a further point about which there can be no dispute is that both in the Committing Magistrate''s Court and in the Sessions Court this witness said that he heard the quarrel between the deceased and the accused and soon after he informed Rupi, the wife of Bhoja, of it. In the Sessions Court he stated that somebody was beating the deceased without disclosing the name of the assailant. But in the Committing Magistrate''s Court he had stated that he had told Rupi definitely of the name of the accused as the assailant, and this contradictory statement was specifically put to him in his examination in the Sessions Court. So the technical objection so far as this part of the admissibility of his evidence in the Committing Magistrate''s Court and brought on the record u/s 288, Code of Criminal Procedure in the Sessions Court is satisfied.

Further the witness is a resident of the same village and has his own field nearby; it was quite probable that he recognised that the quarrel was between the deceased and the accused by their voices apart from the cries of the deceased mentioning the name of the accused. So we have in evidence that soon after the occurrence Bhagu who happened to pass by the Wada where the deceased was done to death met Rupi to whom he informed about the incident asking her to go to the aid of Zanzi. And there is further clear evidence that the accused''s name was disclosed as the assailant soon after by Bhoja first at the Chora and then in the first information report recorded at the scene, of the offence. There is therefore no doubt that it was the accused who was responsible for the death of the deceased taking into consideration further the discovery of the axe from the house of the accused and the strong resentment that the accused harboured against the deceased on account of the adoption deed. There is also a further fact which supports the prosecution story and which is that when Rupi was approaching the Wada after having got the information from Bhagu, she saw the accused with an axe in his hand near the Wada. This was the story first given by her but in the Sessions Court she tried to improve upon in by stating that accused threatened her that he would similarly deal with any other person who came in his way, which was not mentioned by her before. But there is no contradiction so far as her seeing the accused with the axe near the Wada is concerned.

One fact on which Mr. Shukla has relied is that there is a contradiction between Devanand and the police patel on the one hand and Gokal, on the other with respect to the incident at the ''Chora'' when Bhoja came to inform them to the occurrence of the offence. The police patel and Devanand both say that Bhoja had disclosed the name of the accused as the assailant, while Gokal says merely that somebody had beaten Zanzi without disclosing the name of her assailant. We prefer to rely upon the evidence of Devanand and the police patel in this respect specially as it is supported by the first information report, which was recorded soon after. Taking all the circumstances in the case, we agree with the finding of the learned Additional Sessions Judge that the prosecution has successfully established the guilt of the accused.

Mr. Shukla the learned advocate for the Appellant has next argued that the accused is an old man of 75 years and that the sentence of 6 years'' imprisonment is much too heavy. The learned Additional Sessions Judge has taken the age of the accused into consideration. The assault seems to have been a very brutal one. The doctor''s evidence shows that five of the ribs were broken and the central bone connecting the ribs was also broken. In addition the collar bone was broken and there was fracture of both the bones of a forearm and there was also an injury on the index finger. The death seems to have been instantaneous. The deceased was also an old woman of 70 years. Taking all the circumstances into consideration, the learned Additional Sessions Judge awarded the sentence of six years'' rigorous imprisonment and we do not see any reason- to interfere with it. The accused, if so advised, may approach the Government for mitigation of his sentence on the ground of his old age. The appeal is dismissed.

Baxi, J.

I agree.