Siyadeen @ Bhakada Kol vs State Of Madhya Pradesh

Sujoy Paul, J.

This Appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short called as “Cr.P.C.â€) is directed against the judgment of

conviction dated 19.05.2009 under Sections 307 and 302 IPC and order of sentence for the said offences for 10 years and RI for life respectively,

with fine and default stipulation.

Draped in brevity, the story of prosecution is that on 8.10.2008 (Wednesday) at around 12:30 p.m., complainant Putti Bai (PW/1) came out of her

house to call certain girls to invite them for a feast (‘Kanya bhojan’). In midway, the complainant was stopped by appellant who abused and

threatened her. The complainant objected and; in turn, the appellant threatened her with a knife. The complainant tried to escape and ran towards her

house. She was followed by appellant and in front of house of Deoraj the appellant could caught hold of the complainant and attacked her by knife

because of which her left wrist, left and right thighs got knife injuries. There was bleeding from the said wounds and the complainant cried to save

herself pursuant to which her father Mahajan Kol came out from his house and tried to save the complainant. The appellant left the complainant and

attacked at Mahajan’s chest with the knife. Mahajan fell down on the road then appellant threw a stone on the head of Mahajan because of which

Mahajan died at the spot. The appellant fled away from the place of incident.

The complainant with her cousin Harideen went to the Police Station, Chandia at around 13:05 p.m. and informed about the incident on the strength

of which FIR Exh. P/2 was recorded.

The injured witness Putti Bai(PW/1) was sent to Primary Health Centre, Chandia for treatment. The spot map and dead body’s panchnama

Exh. P/4 were prepared. The dead body of Mahajan (hereinafter referred to as ‘the deceased’) was sent to Primary Health Centre, Chandia.

The appellant was arrested by Exh. P/8 and his memorandum statement Exh. P/5 was prepared. The knife used in the incident was seized by P/6.

Similarly, spot map Exh. P/1 was prepared and the stone used for killing the deceased was seized as P/2. The clothes of deceased were seized by

PW/6 and were sent for examination by letter Exh. P/16. In turn, the matter was committed to the court of competent jurisdiction for trial which was

registered as Sessions Trial No.347/2008.

The appellant denied the charges in toto and contended that he has been falsely implicated by the court below. The court below framed four issues

and came to hold that the charges against the appellant are found proved beyond doubt.

Ms. Seema Pandey, learned Amicus Curiae raised threefold contentions. Firstly, the complainant Putti Bai was daughter/relative of the deceased

and; therefore, her statement is not trustworthy. Secondly, by taking this court to the statement of prosecution witnesses including the complainant, it is

urged that the appellant at the time of incident was under the influence of liquor and; therefore, he deserves a sympathetic treatment. Thirdly, in view

of nature of incident and the injuries caused, the offence under Section 307 and 302 may be converted into offence under Section 304 Part-I of IPC.

Per contra, Shri A.P. Singh, learned Government Advocate supported the impugned judgment and contended that the prosecution has led credible

evidence which is supported by medical evidence. The charges are found proved beyond reasonable doubt. The necessary ingredients for attracting

Section 304 Part-I are not available in the present case. The appellant was under the influence of liquor, cannot be a ground to either exonerate him or

deal with him in a lenient manner.

No other point is pressed by the learned counsel for the parties.

We have heard the parties at length and perused the record.

The learned amicus curiae attacked the statement of P.W.-1 on the ground that she is daughter/relative of the deceased and, therefore, being an

interested witness, her statement is not trustworthy. It is noteworthy that the complainant/P.W.-1 herself was injured and her statement was supported

by eye-witnesses, namely, Sukhya Bai (P.W.-2), Anju (P.W.-3) and Harideen (P.W.-4). Their depositions are in tune with the story narrated by

P.W.-1. Thus, the said statement cannot be brushed aside solely on the ground that P.W.-1 is daughter of the deceased.

This is trite law that merely because a witness is a relative, her statement cannot be discarded if otherwise it is creditworthy. The Apex Court in

catena of judgments opined that if statement of a related witness has substance and could not be demolished, it cannot be disbelieve solely on the

ground that it is a statement given by a relative.

In Dalip Singh vs. State of Punjab (AIR 1953 SC 364), it has been observed as under:

“25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the

foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we

know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common

to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan [Rameshwar v. State

of Rajasthan, AIR 1952 SC 54 : 1952 Cri LJ 547] .â€​

In the said case, it has also been further observed: (AIR p. 366, para 26)

“26. 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 relative 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.â€​

In this context, it is requisite to quote the observations made by the Apex Court in State of Punjab vs. Jagir Singh (1974) 3 SCC 277, which reads

as under:

“23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as

to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of

interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court

has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have

to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time

reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.â€​

In Hari Obula Reddy vs. State of A.P., (1981) 3 SCC 675. the Apex Court has ruled that evidence of interested witnesses per se cannot be said to

be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduce a passage

from the said authority:

“13. … an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material

particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and

accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be

sufficient, in the circumstances of the particular case, to base a conviction thereon.â€​

In State of U.P. Vs. Naresh, 2011 (4) SCC 324, the Apex Court held as under:

“29. A mere relationship cannot be a factor to affect credibility of a witness. 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 [(2009) 9 SCC 719 : (2010) 1 SCC (Cri)

107] ,Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] andBalraje [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211]).â€​

In Kanhaiya Lal Vs. State of Rajasthan, 2013 (5) SCC 655, the Apex Court held as under :

“23…………...When relatives, who are alleged to be interested witnesses, are cited by the prosecution, it is the obligation of the

court to scrutinise their evidence with care, caution and circumspection. In the case at hand, the entire occurrence took place in and around the house

of Purshottam. Five people had been done to death. In such a circumstance, it is totally unexpected that other villagers would come forward to give

their statements and depose in the court. It is to be borne in mind that Ram Narayan, Sarpanch of the village, solely on the basis of suspicion, had seen

to it that five persons meet their end. Such a situation compels one not to get oneself involved and common sense give consent to such an attitude.

Thus, no exception can be taken to the fact that no independent witness was examined. As far as the relatives are concerned, Radhey Shyam, PW 1,

is the brother of the deceased; Ram Lal, PW 2, is the brother of Radhey Shyam; Panna Bai, PW 3, is the mother of Purshottam and Nirmala Bai, PW

5, is his wife; and Anita, PW 5; Badribai, PW 8; Manisha, PW 9 and Kaushalya, PW 10, are also close relatives and these witnesses have been cited

as eyewitnesses.â€​

In Jodhan Vs. State of M.P., 2015 (11) SCC 52, the Apex Court held as under:

“22. As per the evidence brought on record, the incident had taken place near the house of the deceased and the witnesses. The criticism that has

been advanced against these witnesses is to the effect that they are interested witnesses and hence, their version does not deserve acceptance is sans

merit, for they are the witnesses who were there at the spot and sustained injuries. They are close relatives and they have stood firm despite incisive

cross-examination. There can be no cavil over the proposition that when the witnesses are related and interested, their testimony should be closely

scrutinised, but as we find, nothing has been elicited in the cross-examination to discredit their version. On a studied scrutiny of their evidence, it can

be said with certitude that they have lent support to each other's version in all material particulars. There are some minor contradictions and omissions

which have been emphasised by the learned trial Judge. The High Court has treated the said discrepancies and the minor contradictions as natural.

That apart, their evidence also find support from the medical evidence and the initial allegations made in the FIR. The High Court has opined that there

is no inconsistency in their version and on a perusal of the said evidence, we find there is absolutely no inconsistency which will compel a court of law

to discard their version. The learned trial Judge, as is evincible, has attached immense emphasis to such omissions and contradictions which, according

to the High Court, with which we concur, are absolutely insignificant and trivial. It is also perceived that the learned trial Judge has given notable

stress on the fact that the accused persons and the informant were on inimical terms due to non-voting by the informant's party in their favour. In our

considered opinion, in the present case, the same cannot be a ground for not placing reliance on the eyewitnesses who have supported the prosecution

version.â€​

In Ram Chander Vs. State of Haryana, (2017) 2 SCC 321, the Apex Court held as under:

“33. The submission of the learned counsel for the appellants that since Guddi (PW 9) was in close relation with the deceased persons, she should

not be believed for want of evidence of any independent witness, deserves to be rejected in the light of the law laid down by this Court in Dalbir Kaur

v. State of Punjab [Dalbir Kaur v. State of Punjab, (1976) 4 SCC 158 : 1976 SCC (Cri) 527] and Harbans Kaur v. State of Haryana [Harbans Kaur v.

State of Haryana, (2005) 9 SCC 195 : 2005 SCC (Cri) 1213], which lays down the following proposition: (Harbans Kaur case [Harbans Kaurv. State

of Haryana, (2005) 9 SCC 195 : 2005 SCC (Cri) 1213] , SCC p. 198, para 7)

“7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of

partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused.â€​

In Namdeo v. State of Maharashtra [Namdeo v. State of Maharashtra, (2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773], this Court further held:

(SCC p. 164, para 38)

“38. … it is clear that a close relative cannot be characterised as an “interested†witness. He is a “natural†witness. His evidence,

however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy,

conviction can be based on the “sole†testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject

his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an

innocent one.â€​

It is equally settled that the statement of an injured witness carries more weight than the statement of an ordinary witness. In the present case, the

injured witness is a person who herself has received injuries arising out of the same incident and; therefore, her presence and her statement is on a

higher footing qua the statement of an ordinary witness. The prosecution has meticulously established that the injuries sustained by Putti Bai (PW/1)

were arising out of the same incident and assault by the appellant. In this regard, the Supreme Court in the case of State of Maharashtra Vs. Tulsiram,

(2007 Cri.LJ 4319) opined that if witnesses are injured witnesses, their statements should be given due importance. In 2011 (6) SCC 288 (Brahm

Swaroop Vs. State of U.P.), the Apex Court held that where a witness to the occurrence has himself been injured in the incident, the testimony of

such a witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of the

crime and is unlikely to spare his actual assistant (s) in order to falsely implicate someone. The said principle is recently followed by Supreme Court in

2017 (13) SCC 585 (Chandrasekar Vs. State). It was poignantly held that criminal jurisprudence attaches great weightage to the evidence of a person

injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise.

Interference of this Court is also prayed for on the ground that the appellant was under the influence of liquor at the time of incident. This point

requires serious consideration. In Rex v. Meakin [(1836) 173 ER 131 : 7 Car & P. 295] Baron Alderson referred to the nature of the instrument as an

element to be taken in presuming the intention in these words:

“However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a

stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if he had used a

different kind of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no

effect on the consideration of the malicious intent of the party.â€​

Patteson J., observed in Regina v. Cruse and Mary his wife [(1838) 173 ER 610 : 8 Car . which is as under:

“It appears that both these persons were drunk, and although drunkenness is no excuse for any crime whatever, yet it is often of very great

importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention at all, and yet he may

be guilty of very great violence.â€​

Coleridge J., in Reg. v. Monk house [(1849) 4 Cox CC 55], which is as under:

“Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner

to prove it , and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself

from committing the act in question, or to take away from him the power of forming any specific intention. Such a state of drunkenness may no doubt

exist.â€​

A plain reading of the judgment in Monk house (supra), it is clear that burden is on the defence to establish/prove that the degree of intoxication

was such because of which he could not prevent himself from committing the act in question.

Interestingly, the Apex Court in AIR 1956 SC 488 (Basdev Vs. State of Pepsu) considered Section 86 of IPC and did not accept the excuse and

incapacity of the accused on the ground that he was under influence of liquor. It was held that such incapacity as would have been available to the

accused as a defence and so the law presumes that he intended the natural and probable consequences of his act. Since accused had failed to prove

such incapacity, the Court came to hold that he intended to inflect bodily injury to the deceased and the bodily injury intended to be inflicted was

sufficient in the ordinary course of nature to cause death.

Section 85 of Indian Penal Code was again considered by the Apex Court in 2006 (13) SCC 116 (Bablu Vs. State of Rajasthan) and the Apex

Court held as under:

“11. Section 85 IPC deals with act of a person incapable of judgment by reason of intoxication caused against his will. As the heading of the

provision itself shows, intoxication must have been against his will and/or the thing with which he was intoxicated was administered to him without his

knowledge. There is no specific plea taken in the present case about intoxicant having administered without the appellant's knowledge. The expression

“without his knowledge†simply means an ignorance of the fact that what is being administered to him is or contains or is mixed with an

intoxicant.â€​

A Division Bench of this Court in AIR 1960 MP 242 (Jethuram Shukhra Nagbanshi Vs. State of M.P.) has also considered Section 85 IPC. The

Division Bench with profit quoted the Great Philosopher Aristotle who said that such a man deserves double punishment, because he has doubly

offended, viz in being drunk to the evil example of others, and in committing the crime of homicide. And this act is said to be done ignoranter, for that

he is the cause of his own ignorance: and so the diversity appears between a thing done ex ignorantia, and ignoranter.

In the case of Jethuram Sukhra Nagbanshi (supra), the Division Bench further held that the act of drinking was his own act for which the

immediate force was his own free will. The act of persuasion could not and did not make the act of drinking the act of anybody else than the doer's.

But if a person were put in fear of immediate physical clanger and then made to drink, the act cannot be said to be his. Similarly, when he is bound

hand and foot and then the intoxicant is literally poured down his throat, the mere reflex act of swallowing cannot make the drinking of the intoxicant

his own act performed out of Iris own free will.

If the evidence on record is examined on the anvil of principles laid down in the said judgment, it will be clear that the defence has not discharged

the burden to show that the incapacity of the appellant because of intoxication is of that degree where he can claim any benefit. It cannot be forgotten

that the drinking is purely his own act and he cannot be permitted to take advantage of his own wrong. Thus, we do not see any merit in this

contention.

As per medical report, the injuries of P.W.1 were as follows:

Injury No.1:- One incised wound on upper left arm. Wound was oblique.

Size of wound 3x1.3c.m. x 8 c.m. deep.

Injury No.2:- One incised wound on above lateral part of right thigh.

Wound was red and oblique. Size of wound was 4cm x .7 cm deep x 2.5 cm wide.

Injury No.3:- One incised wound on upper and back side of right thigh.

Wound was red and oblique. Shape of wound was spindle.

Size of wound was 3.5cm x .5cm wide x .7cm.

Injury No.4:- One incised wound on lateral part of left hand index finger.

Wound was red and oblique.

Size of wound was 1.3cm x .4cm wide x .3 cm.

P.W.5 (Dr. Ashish Pandey) entered the witness box and opined that the injuries in the body of P.W.-1 were simple in nature. No grievous injury

was found on any vital part of the body of P.W.-1. Thus question cropped up is : whether the appellant can be held guilty of Section 307 IPC ? In our

considered opinion, since simple injuries were caused on the non-vital parts of the body, it cannot be said that the appellant is guilty under Section 307

IPC. Thus, the Court below has erred in holding the appellant as guilty of offence punishable under Section 307 IPC. Indeed, he must be held guilty for

committing an offence punishable under Section 324 IPC. We deem it proper to modify the judgment to this extent.

On the basis of aforesaid analysis, in our considered opinion, the Court below has rightly held the appellant was guilty of offence punishable under

Section 302 IPC. However, the Court below has erred in holding the appellant as guilty under Section 307 of IPC. Thus, the impugned judgment to this

extent stands quashed and modified. The appellant shall undergo a sentence of two years without fine for committing the offence punishable under

Section 324 IPC. The prosecution has objectively and beyond reasonable doubt established that bodily injuries were present on the body of the

deceased. It was clearly proved that there was an intention on the part of the appellant to inflict those injuries to deceased-Mahajan. The injuries, by

no stretch of imagination, can be said to be accidental or unintentional. This cannot also be said that the intention was to cause some other kind of

injury. Since the aforesaid ingredients were duly established by leading credible evidence, we find no reason to interfere in the impugned judgment so

far the appellant is held guilty of offence under Section 302 IPC.

In the result, the appeal is partly allowed. The judgment of the Court below dated 19.05.2009 is set aside to the extent the appellant was held guilty

under Section 307 IPC. The conviction and sentence stands modified under Section 324 IPC and he will undergo a sentence of three years for this

modified punishment. Needless to emphasis that both the punishments shall run concurrently.