Sharad Ganveer @ Dhan Dhan vs State of Chhattisgarh

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 16-12-2004 passed by Session Judge, Bilaspur in Sessions Trial No. 374/2003. By the impugned judgment, accused /appellant Sharad Ganveer alias Dhan has been convicted u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. Case of the prosecution, in brief, is as under:

On 27-6-2003, at 11:30 P.M., Ravindrakant Bharti (PW-10) lodged First Information Report (Ex. P-12) in Police Station Civil Lines, Bilaspur that at about 10 P.M., he came out of house to see his nephew Abhinav Bharti alias Manto (the deceased). He saw that the appellant was sitting on a motor cycle along with Pradeep Kamle (PW-2), Sourabh Rajak (PW-3), Amit, Golu and Keshav Gupta near Dhobi Lane Culvert. On being asked about his nephew, they told that he will come. Then, he went to Bhola Grocery Shop, situated near the culvert, and sat there. Keshav Gupta took the appellant on his motor cycle ahead. Deceased Abhinav Bharti alias Manto began to go towards the Post Office along with his other friends. Sourabh Rajak (PW-3) and Golu went towards Dhobipara. On this, he asked from his nephew (the deceased) about where was he going? The deceased told him that he was called to talk. Thereafter, he saw that the appellant assaulted the deceased with a Chakoo (knife) near Konher Garden. Pradeep Kamle (PW-2), Amit and Sourabh Rajak (PW-3) tried to extricate the deceased. Due to injury, the deceased began to run towards the culvert. Thereafter, the appellant again assaulted the deceased with the Chakoo (knife) twice on the abdomen near new culvert (near Tiwari Clinic) and fled. Pradeep Kamle (PW-2), Amit and he himself picked the deceased up and took him in an ambulance to hospital for treatment, where he died.

Merg Intimation (Ex. P-13) was recorded in Police Station Civil Lines, Bilaspur. The Investigating Officer reached Government Hospital, Bilaspur and gave notice, (Ex. P-5) to Panchas. He prepared Inquest (Ex. P-6) on the dead body of the deceased. The dead body was sent to Government Hospital, Bilaspur for post mortem examination vide Ex. P-15. Dr. N.S. Chandel (PW-8) conducted autopsy on the dead body of the deceased and gave his report (Ex. P-8), in which, he found that cause of death was hemorrhage and cardiogenic shock caused by injury to heart.

In further investigation, Spot-Map (Ex. P-14) was prepared. Statement of Sourabh Rajak (PW-3) was recorded by police vide Ex. P-2. The Chakoo (knife) was seized from the place near new culvert (near the clinic of Dr. Tiwari) before Sharad Kashyap (PW-5) and Lokesh Shukla vide Ex. P-4. The appellant was arrested vide Ex. P-23. The Chakoo (knife) was sent to Government Hospital, Bilaspur. Dr. N.S. Chandel (PW-8) examined the Chakoo (knife) and gave his report (Ex. P-10). Cotton Kurta of the appellant was seized vide Ex. P-17. The seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex. P-20. FSL Report was received vide Ex. P-25. Articles A-Chakoo (knife), B-Kurta, C1-T-Shirt, C2-T-Shirt like Baniyan, C3-Chaddi (underwear) were found stained with blood.

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

Shri Vinay Dubey, learned counsel for the appellant argued that there is no independent eye witness. Ravindrakant Bharti (PW-10) is the uncle of the deceased. He is highly interested witness. His presence at the place of occurrence is doubtful. He further argued that some quarrel had taken place between the appellant and the deceased. The prosecution did not adduce any cogent and reliable evidence. Therefore, the conviction recorded by the learned trial Judge is not sustainable and the appellant deserves to be acquitted.

Alternatively, learned counsel argued that the act of the appellant would not be punishable u/s 302 IPC, and even after admitting the entire case of the prosecution, the appellant would be liable for punishment for some lesser offence preferably Part II of Section 304 IPC. He placed reliance on Jagtar Singh Vs. State of Punjab, Bagdi Ram Vs. State of Madhya Pradesh, K. Ramakrishnan Unnithan Vs. State of Kerala, Sukumar Roy Vs. State of West Bengal, , and Ravi Kumar Vs. State of Punjab,

Shri D.K. Gwalre, learned Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Session 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 Session Trial No. 374/2003. The conviction of the appellant u/s 302 IPC is based on the evidence of Ravindrakant Bharti (PW-10), Alok Patil (PW-1), Pradeep Kamle (PW-2) and Sourabh Rajak (PW-3). It is not disputed that Ravindrakant Bharti (PW-10) is uncle of the deceased. Therefore, he is nearest relative of the deceased.

Evidence of Relative and Interested Witness :

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

17 ... 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 :

xxx

(i) xxx

(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, moreso, 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...

Dr. N.S. Chandel (PW-8), who conducted autopsy, opined that cause of death was hemorrhage and cardiogenic shock on account of injury to heart. The injury was ante mortem. Therefore, it is not disputed that the death of the deceased was homicidal in nature.

Alok Patil (PW-1) deposed that he saw that Amit, Sourabh Rajak (PW-3), Pradeep Kamle (PW-2), the appellant and the deceased were standing in front of his house near the culvert. Some talk was going on between the appellant and the deceased. Having seen Ravindrakant Bharti (PW-10), the uncle of the deceased, the appellant and the deceased stopped talking. The appellant sat on the motor cycle of Keshav and went ahead. He further deposed that they saw that a scuffle was going on between the appellant and the deceased. He, Amit, Sourabh Rajak (PW-3) and Pradeep Kamle (PW-2) separated the appellant and the deceased. At that time, Ravindrakant Bharti (PW-10) came there and asked what happened? The deceased told him that the appellant assaulted him. He further deposed that they saw that the deceased was lying unconscious near the culvert and blood was oozing out of his body. Thereafter, an ambulance came there and the deceased was taken to the hospital.

Alok Patil (PW-1) deposed in cross-examination in paragraph 5 that the scuffle had taken place between the deceased and the appellant on the road situated between Chhattisgarh Bhawan and Konher Garden near the Post Office.

Pradeep Kamle (PW-2) deposed that when he came out of his house and went near the culvert of the lane, he saw that argument was going on between the appellant and the deceased. The deceased was abusing the appellant there. Thereafter, the deceased went behind the appellant. Uncle of the deceased (Ravindrakant Bharti-PW-10) was sitting in Bhoja Shop. He further deposed that when they went ahead, they saw that an argument was going on between the appellant and the deceased near Chhattisgarh Bhawan. At that time, Ravindrakant Bharti (PW-10) came there. The appellant fled ahead towards new bridge. The deceased and Ravindrakant Bhatti (PW-10) tried to catch the appellant. He, Alok Patil (PW-1), Sourabh Rajak (PW-3) and Amit went towards the bridge. Ravindrakant Bharti (PW-10) was calling for an auto near the bridge. At that time, an ambulance came there and the deceased was taken to the hospital.

Sourabh Rajak (PW-3) deposed that after taking dinner, he went towards the Chowk or walk. Amit Patil met him near the temple situated at some distance from his house. Both of them went near the bridge situated near the Mohalla. They saw there that a dispute was going on between the deceased and the appellant. At that time, uncle of the deceased (Ravindrakant Bharti-PW-10) came there. Having seen the uncle, the appellant and the deceased calmed down. He further deposed that when they reached near the Post Office, they saw that the dispute was going on between the appellant and the deceased there also. He further deposed that when Ravindrakant Bharti (PW-10) asked from the deceased what happened, the deceased told that the appellant assaulted him and fled. Ravindrakant Bharti (PW-10) was calling for an auto. They saw that the deceased was lying there.

Sourabh Rajak (PW-3) deposed in cross-examination in paragraph 7 that when they tried to intervene between the appellant and the deceased near Chhattisgarh Bhawan, they did not see blood oozing out of the body of the deceased. It is true that Ravindrakant Bharti (PW-10) and the deceased had chased the appellant to catch him. He did not see that the deceased had caught the appellant on the chowk near the bridge. It is wrong to say that Ravindrakant Bharti (PW-10) tried to assault the appellant with a Chakoo on the chowk near the bridge but the appellant could not be caught and he fled and the Chakoo struck on the chest of the deceased. It is true that dispute had taken place between the deceased and the appellant in that night twice.

Ravindrakant Bharti (PW-10) deposed that on the date of incident, at about 9:30 P.M., the deceased was about to serve dinner by his mother at his house. At that time, Pradeep Kamle (PW-2), a friend of the deceased, came to the house and called the deceased. The deceased went out of the house saying his mother that he will come back after 10 minutes and thereafter he will take dinner. He further deposed that he came out of the house and saw near Dhobi Lane that a crowd had gathered there and 7-8 persons were standing there. Pradeep Kamle (PW-2), Sourabh Rajak (PW- 3), Amit Patil, Alok Patil (PW-1) and Manoj Kamle were present in the crowd and the appellant was sitting on the motor cycle of Keshav Gupta along with Keshav Gupta as pillion rider. He further deposed that after 10 minutes, he again called the deceased to come home. The deceased said him that he will be back after removing their confusion. At that time, Keshav Gupta took the appellant on his motor cycle towards the Main Post Office. The deceased was being taken by Sourabh Rajak (PW-3), Pradeep Kamle (PW-2), Amit Patil, Alok Patil (PW-1) and Manoj Kamle. He asked the deceased where was he going and he also began to go behind them towards the Post Office. A crowd had gathered near a transformer between Chhattisgarh Bhawan and Konher Garden where the deceased and the appellant were also present. He was at some distance. He saw that the appellant assaulted the deceased with a Chakoo (knife). He, saying that what was happening, shouted. The deceased, to save himself from his friends, ran towards the river via Putali School. The appellant, having the Chakoo and the other friends chased the deceased. He further deposed that he was unable to run due to severe pain in bone.

Ravindrakant Bharti (PW-10) further deposed that the appellant again assaulted the deceased with the Chakoo near the road in front of the house of Dr. Tiwari situated near the bridge. He ran to catch the appellant. The appellant, having thrown the Chakoo, began to flee. He further deposed that when he saw the deceased, the deceased had fallen down and blood was oozing out of his body. At that time, it was raining lightly. He further deposed that the deceased was taken in an ambulance to District Hospital, Bilaspur where he died. He lodged First Information Report (Ex. P-12).

Ravindrakant Bharti (PW-10) deposed in cross-examination in paragraph 7 that when he reached near Chhattisgarh Bhawan, a dispute was going on among the deceased, the appellant and their friends. In paragraph 8, he deposed that the appellant was assaulting the deceased with a Chakoo. In paragraph 14, he deposed that the appellant had assaulted the deceased with the Chakoo twice, but the deceased had sustained injury once only.

Dr. N.S. Chandel (PW-8) deposed that he conducted post mortem examination on the dead body of the deceased and gave his report (Ex. P-8), in which, he found one stab wound (punctured wound) in left side of front of chest, cms below nipple between 5th and 6th intercostals space, shape was elliptical and obliquely placed. He opined that cause of death of the deceased was hemorrhage and cardiogenic shock on account of injury to heart.

We have carefully perused the evidence of Ravindrakant Bharti (PW-10). He categorically deposed that on the fateful day, the appellant assaulted the deceased with the Chakoo (knife). His evidence is corroborated by Alok Patil (PW-1), Pradeep Kamle (PW- 2) and Sourabh Rajak (PW-3) as also by medical evidence and the FIR. From the medical evidence, we find that the cause of death of the deceased was hemorrhage and cardiogenic shock caused by injury to heart.

Therefore, we do not find any infirmity in the finding recorded by the learned Session Judge that it was the appellant who caused injury on the body of the deceased with the Chakoo (knife). The deceased died on account of the injury caused by the appellant.

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 Vinay Dubey, learned counsel for the appellant argued that some quarrel had taken place between the deceased and the appellant and the appellant had given single Chakoo blow to the deceased. Therefore, the act of the appellant would not be punishable u/s 302 of the Indian Penal Code and he 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.

In Jagtar Singh (supra), the Hon''ble Supreme Court held as follows:

The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence u/s 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice.

In Satish Narayan Sawant Vs. State of Goa, , the Hon''ble Supreme Court held as follows:

That being the well-settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. Initially the appellant-accused also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. PW 7 in his cross-examination has categorically stated that death due to stab injury was in consequence of Injury 1 and all other injuries were superficial in nature. So, it was only Injury 1 which was fatal in nature. Factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness.

In Bunnilal Chaudhary Vs. State of Bihar, , the Hon''ble Supreme Court observed as follows:

That section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts: the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Shambhu Raut. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not have ensued. In other words, looking at the matter objectively, the injury, which Bunnilal Chaudhary intended to cause, did not include specifically the cutting of the left lungs but to wound Shambhu Raut in the neigh boarhound of the nipple on the left side of the chest. Therefore, we are of the opinion that clause (iii) of Section 300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, Bunnilal Chaudhary did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Bunnilal Chaudhary. The matter, therefore, comes within the third part. The act which was done was done with the knowledge that Bunnilal Chaudhary was likely by such act to cause the death of Shambhu Raut. The case falls within the third part of Section 299 and will be punishable under the second part of Section 304 IPC as culpable homicide not amounting to murder.

In the instant case, looking to the evidence of Ravindrakant Bharti (PW-10), Alok Patil (PW-1), Pradeep Kamle (PW-2) and Sourabh Rajak (PW-3), the appellant and the deceased were quarreling with each other since long; the quarrel took place at two places in continuation and the appellant gave single Chakoo blow on the chest of the deceased. It is, however, crystal clear that the appellant had no animosity against the deceased and he was involved because of some altercation took place between them. According to medical evidence, only one stab wound (punctured wound) in left side of front of chest, 2 cms. below nipple between 5th and 6th intercostals space was found. It is difficult for us to hold that the appellant gave the blow in question either with the intention of causing murder of the deceased or he had intention to cause that particular injury to the heart of the deceased which proved fatal. However, requisite knowledge that the death would otherwise be the inevitable result can be gathered from the above act of the appellant. In such a situation, even on accepting the prosecution case, we hold that the appellant did not commit the offence punishable u/s 302 IPC, but he was liable for punishment under Part II of Section 304 IPC. For the foregoing reasons, the appeal is allowed in part. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. Instead thereof, the appellant is convicted under Part II of Section 304 IPC and sentenced to undergo R.I. for 10 years.