Shriram and Others vs State of M.P. (Now C.G.)

T.P. Sharma, J.—Challenge in this appeal is to the judgment of conviction and order of sentence dated 20-8-1990 passed by the 4th Additional Sessions Judge, Bilaspur in Sessions Trial No. 298/1987 whereby and where under learned Additional Sessions Judge after holding the Appellants guilty for commission of offence under Sections 302 and 147 of the I.P.C., sentenced the Appellants including Appellant No. 4 Ghurauram (since deceased) to undergo imprisonment for life and R.I. for one year, respectively. The Additional Sessions Judge also convicted Appellant No. 1 Shriram u/s 323 of the I.P.C. and sentenced him to undergo S.I. for one year.

Judgment is challenged on the ground that without any proof of intention for commission of the murder, the Court below has convicted and sentenced the Appellants as aforementioned and thereby committed illegality.

During the course of appeal, Appellant No. 4 Ghurauram died.

Case of the prosecution, in brief, is that on the fateful day of 14-7-87 at about 7 p.m. the Appellants assaulted Chiburam (since deceased), their relative, with sticks as a result of which Chiburam fell down and died instantaneously. The matter was reported on second day at Outpost Hardibazar of Police Station Korba vide Ex.P-19. The investigating officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-3, prepared inquest over the dead body of Chiburam vide Ex.P-4. The dead body was sent for autopsy vide Ex.P-20 to Primary Health Centre, Korba and the autopsy was conducted by Dr. G.L. Wadhwani (P.W. 6) vide Ex.P-20A who found following injuries:

A. Abrasion 4 cms. x 3 cms. over left scapular region.

B. Contusion over right side of back, multiple of different sizes.

C. Contusion 10 cms. x 8 cms. over right side of lower abdomen.

D. Contusion over right frontal region 4 cms. x 2 cms.

E. Contusion 8 cms. x 4 cms. over right parietal and temporal region of head.

On internal examination, extradural haematoma 4 cms. x 4 cms. was found over right parietal region, membrane congested on right side and right kidney was completely lacerated and swollen. Presence of huge amount of blood in the abdomen was also found.

Spot map was prepared by the Patwari vide Ex.P-2. Bloodstained and plain soil were recovered from the spot vide Ex.P-5. Bloodstained cloth of the deceased was recovered from wife of the deceased vide Ex.P-6. Accused Bisesar was taken into custody, he made discloser statement of stick vide Ex.P-8 and the same was recovered at his instance vide Ex.P-9. Accused Ghurauram also made discloser statement of stick vide Ex.P-10 and the same was recovered at his instance vide Ex.P-11. Accused Badriprasad made discloser statement of stick vide Ex.P-12 and the same was recovered at his instance vide Ex.P-13. Accused Shriram made discloser statement of stick vide Ex.P-14 and the same was recovered at his instance vide Ex.P-15. Accused Jethuram made discloser statement of stick vide Ex.P-16 and the same was recovered at his instance vide Ex.P-17. Blood stained cloth was recovered from accused Bisesar vide Ex.P-18. Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure Seized articles were examined by the doctor. Kamla Prasad (P.W. 3), injured, also sustained injury and he was examined by Dr. Kamal Kishore Airy (P.W. 1) vide Ex.P-1 who found abrasion on the person of Kamla Prasad.

After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where the 4th Additional Sessions Judge, Bilaspur received the case on transfer for trial.

In order to prove the guilt of the accused/Appellants, the prosecution has examined as many as ten witnesses. The accused were examined u/s 313 of the Code of Criminal Procedure in which they denied the circumstances appearing against them, pleaded innocence and false implication. They have also examined Kiran Kumar (D.W. 1), Thanuram (D.W. 2) and Brijlal Pandey (D.W. 3) in their defence. Thanuram (D.W. 2) has deposed that after hearing the sound of quarrel he came out from his house, but he has not seen anything. Other two defence witnesses have proved the Rojnamcha and non-availability of dak book.

After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the Appellants in the aforesaid manner.

We have heard learned Counsel for the parties, perused the judgment and record of the trial Court.

Learned Counsel for the Appellants vehemently argued that in the light of the evidence of eyewitnesses Kamla Prasad (P.W. 3), Shyambai (P.W. 5) and Aghnu (P.W. 7) - Kotwar to whom the eyewitnesses (P.W. 3 and P.W. 5) immediately informed about the incident and who went to the spot, saw the dead body of the deceased and accused/Appellants Shriram and Ghurauram (since deceased) who made extrajudicial confession before him that they have killed Chiburam, medical evidence of Dr. G.L. Wadhwani (P.W. 6), he is not disputing that the Appellants have not caused injury to the deceased and the deceased has not died as a result of such injuries. But learned Counsel vehemently argued that no external injury or fracture was found over the body of deceased Chiburam sufficient for causing instantaneous death. Cause of the death was lacerated wound over kidney and oozing of blood from kidney which may be as a result of shock, shows that the Appellants who were relatives of the deceased have not caused the homicidal death of the deceased amounting to murder and have caused simple injury to the deceased. Therefore, the Appellants are not liable for conviction u/s 302 read with Section 149 of the I.P.C.

On the other hand, learned State counsel opposed the appeal and submitted that the Appellants have caused several repeated injuries over the body of Chiburam and as a result of such injuries Chiburam died instantaneously. This shows the grave intention of the Appellants for committing the murder of Chiburam.

In order to appreciate the arguments of the parties, we have examined the evidence adduced on behalf of the prosecution.

Homicidal death of Chiburam is not substantially disputed on behalf of the Appellants, otherwise established by the evidence of Dr. G.L. Wadhwani (P.W. 6) and autopsy report Ex.P-20A. Dr. G.L. Wadhwani (P.W. 6) has deposed in his evidence that one abrasion and four contusions were found over the body of the deceased and on internal examination, haematoma was found over brain, right kidney was completely lacerated and huge amount of blood was found in abdomen. Injuries found over the body of the deceased were sufficient for causing death of the deceased and the death was homicidal in nature.

As regards complicity of the Appellants in the crime in question, case of the prosecution rests on the evidence of eyewitnesses Kamla Prasad (P.W. 3) and Shyambai (P.W. 5) and the extra judicial confession made by Appellants Shriram and Ghurauram (since deceased) before Aghnu (P.W. 7) - Kotwar. Kamla Prasad (P.W. 3) - injured witness has specifically deposed that at the time of incident all the Appellants were holding sticks and assaulted Chiburam with sticks, when he tried to intervene, the Appellants assaulted him with sticks on which he fled away from the spot and informed to the Kotwar. Shyambai (P.W. 5), wife of Chiburam, has categorically deposed that on the fateful day she was cooking food in her house, her son Shankar and daughter Gauri came to her, they were shouting and told her that their uncles were beating their father on which she immediately went to the spot where the Appellants were assaulting Chiburam, when she tried to intervene, Appellant Bisesar pushed her and she fell down. Her husband fell down and she reported the matter to the Police Station.

Defence has cross-examined Kamla Prasad (P.W. 3) and Shyambai (P.W. 5) in detail and in their detailed cross-examination, defence has not been able to elicit anything to discredit their testimony. They have categorically deposed that the Appellants are the persons who have assaulted Chiburam with sticks. Aghnu (P.W. 7) - Kotwar has also deposed that he was informed by Kamla Prasad (P.W. 3), his wife and his father that the Appellants had assaulted Chiburam, when he went to the spot, dead body of Chiburam was found lying stained with blood, Appellants Shriram and Ghurauram (since deceased) were present there and they made extra judicial confession before him that they have killed Chiburam. In his detailed cross-examination, Aghnu (P.W. 7) has specifically deposed that Appellants Shriram and Ghurauram have made extra judicial confession before him that they have killed Chiburam.

Accused party and the deceased were close relatives. Shyambai (P.W. 5) is wife of the deceased, as such, she is close relative of the deceased. Kamla Prasad (P.W. 3) is niece of the deceased, as such, he is also close relative of the deceased. Their evidence cannot be discarded only on the ground that they are close relatives of the deceased.

Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the question of evidentiary value of the relative witnesses, the Apex Court in the matter of Dalip Singh and Others Vs. State of Punjab, has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

While dealing with the same question, the Apex Court in the matter of Ashok Kumar Chaudhary and Ors. v. State of Bihar AIR 2008 SCW 3739 has held thus,

...it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of creditworthiness of the evidence of relatives of the victim is concerned, it is well settled though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive.

In the matter of Mohabbat and Ors. v. State of M.P. AIR 2009 SCW 1486 the Apex Court has held that relationship is not ground to affect credibly of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads thus,

Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible.

In the present case, Kamla Prasad (P.W. 3) is the injured witness and his injury has been proved by Dr. Kamal Kishore Airy (P.W. 1) vide Ex.P-1. His presence on the spot cannot be disputed. Evidence of Kamla Prasad (P.W. 3) and Shyambai (P.W. 5) supported by the evidence of Aghnu (P.W. 7) are sufficient for drawing inference that the Appellants had assaulted the deceased and as a result of the injuries sustained by the deceased, the deceased died on the spot.

As regards the question of motive, motive only aids in criminality, in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances.

Admittedly, five persons have assaulted the deceased. Number of external injuries were not so high, sizes of injuries and their nature are simple and of normal size. Medical evidence reveals that cause of death of the deceased was as a result of rupture of kidney and excessive bleeding from kidney, it may be due to shock as a result of injury over the persons of the deceased. But the Appellants have not caused any bone injury or substantial grievous injury. Two accused/Appellants out of the five, were present on the spot even after the incident, they were weeping and have admitted their guilt. The prosecution has not adduced any evidence to show that why the Appellants have caused such injuries on the person of the deceased, but it appears that there must be some family dispute and the incident took place as a result of family dispute.

On close scrutiny of the evidence, especially absence of superficial grievous injury or serious injury and causing of injuries with sticks by five persons, it appears that at the time of causing injuries, the Appellants were having knowledge that they are causing injury with intent to cause death or such fatal injury, but not having definite knowledge that as a result of such injuries, death of the deceased would be sure. In the present case, in our considered view, act of the Appellants does not travel beyond the scope of Section 304 Part-I of the I.P.C.

Evidence adduced on behalf of the prosecution is also sufficient for drawing inference that the Appellants have constituted unlawful assembly and Appellant Shriram has also caused simple injury to Kamla Prasad (P.W. 3).

Learned Additional Sessions Judge has convicted the Appellants under Sections 302 and 147 of the I.P.C. and also convicted Appellant Shriram u/s 323 of the I.P.C, but has not considered the most material aspect that no external fatal injury or bone injury was found over the body of the deceased and number of injuries are not so high, thereby the Additional Sessions Judge has committed illegality.

On close scrutiny of the evidence, we are of the view that the Appellants have committed the offence under Sections 304 Part-I read with Section 149 and 147 of the I.P.C. and Appellant Shriram has also committed the offence u/s 323 of the I.P.C.

Consequently, the appeal is partly allowed.

A. Appellants Shriram, Bisesar, Jethuram and Badriprasad are convicted u/s 304 Part-I read with Section 149 of the I.P.C. and also u/s 147 of the I.P.C. instead of Section 302 of the I.P.C. The Appellants were in custody since 16-7-1987 till 13-12-2000, thereby they were in custody for about more than twelve years. The custodial period of the Appellants is sufficient sentence u/s 304 Part-I read with Section 149 of the I.P.C. and therefore, they are sentenced to the custodial period already undergone by them i.e. about more than twelve years.

B. Conviction and sentence of the Appellants u/s 147 of the I.P.C. are affirmed.

C. Conviction and sentence of Appellant Shriram u/s 323 of the I.P.C. are also affirmed.