Ram Kumar vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment dated 22-1-2007 passed by 9th Additional Sessions Judge (FTC), Bilaspur in Sessions Trial No. 384/2005. By the impugned judgment, accused/appellant Ram Kumar has been convicted u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 200/-, in default of payment of fine, to further undergo imprisonment for 3 months. Case of the prosecution, in brief, is as under:

The appellant married Badrikabai in Churi form. Badrikabai is sister of deceased Chandlal. Smt. Sumitrabai is first wife of the appellant and was living with the appellant. The appellant locked the house in which Badrikabai was living. Badrikabai called for a Panchayat for resolving the dispute between her and the appellant. On 19-8-2005, at about 5 p.m., Badrikabai opened the lock of her house and started living there along with her children. The appellant came there and abused Badrikabai and the deceased. On the same day, at about 9:20 p.m., the deceased and his wife Rambati (PW-1), Bhagwat Prasad (PW-5) and Shyamlal (PW-6), after taking dinner at the house of the deceased, were coming out of the house. At that time, the appellant fired his Bharmar Gun on the deceased. On account of being shot by the appellant with his gun, the deceased fell down. The deceased was being taken to Primary Health Centre, Seepat, but he died on the way. Bhagwat Prasad (PW-5) lodged First Information Report (Ex. P-8) in Police Station Seepat. Merg Intimation (Ex. P-7) was also recorded in Police Station Seepat. The Investigating Officer reached Primary Health Centre, Seepat, gave notice (Ex. P-12A) to Panchas and prepared inquest (Ex. P-11) on the dead body of the deceased. The dead body was sent to Primary Health Centre, Seepat for post-mortem examination vide Ex. P-15A. Dr. Rajesh Kumar (PW-13) conducted post-mortem examination on the dead body and gave his report (Ex. P-16), in which, he opined that cause of death was shock and haemorrhage as a result of injury to the chest and abdomen caused by gun-shot like fire-arm injury and the death was homicidal in nature.

In further investigation, memorandum statement of the appellant was recorded u/s 27 of the Evidence Act vide Ex. P-1 and at his instance, Bharmar Gun and its licence were seized from him vide Ex. P-2. A pair of black plastic chappal and a white gamchha were seized from the place of occurrence vide Ex. P-3. Spot-Panchnama (Ex. P-4) was prepared. The Investigating Officer prepared site-map (Ex. P-5). Patwari Pramod Tandon (PW-14) also prepared sitemap (Ex. P-9). The seized gun was sent to Central Forensic Science Laboratory, Chandigarh for examination. Report (Ex. P-27) was received therefrom. In Ex. P-27, it is opined that barrel swabs and barrel wash of SBML gun marked ''A'' were taken for chemical examination. On chemical examination, firing discharge residues were detected. Assistant Director (Ball) of the Central Forensic Science Laboratory, therefore, came to the conclusion that the SBML gun marked ''A'' had been fired through. He further opined that SBML gun marked ''A'' was in working order and seven pieces of irregular and mutilated/deformed pellets under reference were the fired pellets.

After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Bilaspur, who, in turn, committed the case to the Court of Session, Bilaspur, from where, it was received on transfer by 9th Additional Sessions Judge (FTC), Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Ram Kumar Tiwari, learned counsel for the appellant argued that Rambati (PW-1), Bhagwat Prasad (PW-5), Shyamlal (PW-6), Melaram (PW-7) and Badrikabai (PW-9) are related to each other and they are highly interested witnesses. There are many contradictions and omissions in their evidence. There is no clinching and reliable evidence against the appellant. Therefore, the conviction of the appellant cannot be sustained and the appellant deserves acquittal.

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

We have heard learned counsel for the parties at length and have perused the record of Sessions Trial No. 384/2005. The conviction of the appellant is based on the evidence of Rambati (PW-1), Bhagwat Prasad (PW-5), Shyamlal (PW-6), Melaram (PW-7) and Badrikabai (PW-9).

Evidence of Relative and Interested Witness:

In Ranjit Singh and Others Vs. State of Madhya Pradesh, the Hon''ble Supreme Court held as follows:

.............. under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable.

In Muthu Naicker and Others Vs. State of Tamil Nadu, this Court explained the aforesaid judgment by stating that in a situation where a witness has been attacked by the members of an unlawful assembly composed of a large number of persons, the Court should carefully consider the question of the credibility of such a witness. Where the Court is of the view that the testimony of such a witness is in the facts and circumstances of the case not reliable, it should insist that such testimony be corroborated by one or more other witness before it can be accepted by the Court.

......... There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. All the same when the size of the unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident............

In Takdir Samsuddin Sheikh Vs. State of Gujarat and Another, , the Hon''ble Supreme Court observed as follows:

xxxxx xxxxx xxxxx

(i) xxxxx xxxxx xxxxx

(ii) This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.

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......

Badrikabai (PW-9) deposed that the appellant had married her in Churi form. She is sister of deceased Chandlal. Smt. Sumitrabai is first wife of the appellant and was living with the appellant. The appellant locked the house in which she was living. She had called for a Panchayat for resolving the dispute between her and the appellant. On 19-8-2005, at about 5 p.m., she opened the lock of her house and started living there along with her children. The appellant came there and abused her and the deceased. Badrikabai (PW-9) lodged a report in Police Station Seepat. She further deposed that the appellant asked her to call her brother (the deceased). Due to fear, she did not call the deceased.

Rambati (PW-1), Bhagwat Prasad (PW-5), Shyamlal (PW-6) and Badrikabai (PW-9) deposed that on 19-8-2005, at about 9:20 p.m., the deceased and his wife Rambati (PW-1), Bhagwat Prasad (PW-5) and Shyamlal (PW-6), after taking dinner at the house of the deceased, were coming out of the house. The appellant fired his Bharmar Gun on the deceased. Due to the gun shot by the appellant with his gun, the deceased fell down. The deceased was being taken to Primary Health Centre, Seepat, but he died on the way. Bhagwat Prasad (PW-5) deposed that he lodged FIR (Ex. P-8) and Merg Intimation (Ex. P-7).

Melaram (PW-7) and Lalman (PW-8) deposed that they had reached the place of occurrence after hearing the sound of gun-fire. They saw that the appellant was standing there with a gun. They further deposed that having seen them, the appellant fled from there. They further deposed that the deceased had sustained gun-shot injury on the right chest.

Dr. Rajesh Kumar (PW-13) deposed that he conducted post-mortem examination on the dead body of the deceased and gave his report (Ex. P-16), in which, he found gun-shot pellet injuries over the dead body of the deceased. He further deposed that cause of death was shock and haemorrhage as a result of injury to the chest and abdomen caused by gun-shot (fire-arm) injuries and the death was homicidal in nature.

ASI I. N. Singh (PW-15) deposed that he recorded memorandum statement of the appellant on 21-8-2005 vide Ex. P-1 and at the instance of the appellant, a Bharmar Gun was seized from the appellant vide Ex. P-2. He further deposed that he sent the Bharmar Gun to the FSL for examination. Report (Ex. P-27) was received therefrom. Independent witnesses of the memorandum and seizure turned hostile and did not support the case of the prosecution. There is no infirmity in the evidence of ASI I. N. Singh (PW-15). In the instant case, the evidence of ASI I. N. Singh (PW-15) is cogent and reliable in regard to seizure of the Bharmar Gun.

The seized Bharmar Gun was possessed by the appellant under a valid licence. On being questioned u/s 313 Cr.P.C. regarding report (Ex. P-27) of the FSL, the appellant did not offer any explanation. Ex. P-27 is admissible u/s 293 Cr.P.C. In Ex. P-27, it is opined that barrel swabs and barrel wash of SBML gun marked ''A'' were taken for chemical examination. On chemical examination, firing discharge residues were detected. Assistant Director (Ball) of the Central Forensic Science Laboratory, therefore, came to the conclusion that the SBML gun marked ''A'' had been fired through. It is further opined that SBML gun marked ''A'' was in working order and seven pieces of irregular and mutilated/deformed pellets under reference were the fired pellets.

So far as contradictions are concerned, minor contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect core of the prosecution case, cannot be a ground to reject the evidence of prosecution witnesses. Marginal variations between statements made to police and evidence led in Court are not fatal to the case of the prosecution. In the instant case, the contradictions occurred in the evidence of the prosecution witnesses are trivial and do not affect the case of the prosecution.

We have carefully perused the evidence of Rambati (PW-1), Bhagwat Prasad (PW-5), Shyamlal (PW-6) and Badrikabai (PW-9). These witnesses specifically deposed that on the fateful day, the appellant fired on the deceased with his Bharmar Gun. Their evidence is duly corroborated by the evidence of Melaram (PW-7) and Lalman (PW-8), medical evidence and also by the FSL Report (Ex. P-27). From the medical evidence, we find that the death of the deceased was due to shock and haemorrhage as a result of injury to the chest and abdomen caused by gun-shot (fire-arm) injuries and the death was homicidal in nature.

We do not find any infirmity in the finding recorded by the learned Additional Sessions Judge that it was the appellant who caused the gun-shot injury on the body of the deceased and the deceased died on account of the injury caused by the appellant. In the above circumstances, we see no reason to interfere with the view taken by the learned Additional Sessions Judge. The appeal accordingly fails and is hereby dismissed.