T. Satish vs State Of Chhattisgarh

NK Chandravanshi, J

This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 against impugned judgment of conviction and order of sentence dated 22-1-2014 passed by the Upper Sessions Judge, Durg (CG) in Sessions Case No. 119/2011, whereby the appellant has been convicted for offence punishable under Section 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 undergo additional RI for 6 months.

Case of the prosecution in brief is that, on 14-2-2011, at about 1.00 pm appellant went to the house of complainant Raghuvir Singh alias Ramesh Singh and demanded money and on being denied by him, appellant threatened him by showing knife. At 3.00 pm appellant again came to the house of complainant and was knocking the door of courtyard of his house which was covered by fencing wire. Wife of complainant asked him that no one is in the house, despite that, the appellant was calling Manoj (brother of complainant). When Manoj came out of the house and opened the door, then appellant stabbed Manoj by a sword (Talwar) just below left side of his chest. On crying by Manoj, appellant ran from the spot, he was chased by Manoj, his brother Raghuvir Singh (P.W. 4 complainant) and another brother Rajan Singh (P.W. 5). They caught the appellant while he was entering into the house of Ushabai (P.W. 2), some scuffle took place between them, but somehow appellant escaped and fled from the spot. Due to injury caused by appellant, Manoj fell. He was taken to Government Civil Hospital, Supela Bhilai, where he (Manoj) was declared brought dead.

Un-numbered merg report (Ex. P-4) was lodged at Police Chouki, GRP, Charoda, Distt. Durg, thereafter un-numbered Dehati Nalishi (Ex. P-2) was lodged against the appellant on the basis of written complaint Ex. P-8 made by Raghuvir Singh (P.W. 4) and FIR Exp. P-3 was also registered against the appellant. Inquest over the dead body of Manoj (henceforth referred to as ‘deceased’) was conducted, inquest report is Ex. P-10. Post mortem was got done by Dr. V.S. Baghel (P.W. 6) in which vide post mortem report Ex. P-14, he opined that cause of death of Manoj was shock due to visceral injuries and haemorrhage and nature of injuries is homicidal. He has further opined that time of death was within 24 hours prior to PM.

3.1 During course of investigation, statement of witnesses were recorded. Spot map Ex. P-13 and Ex. P-7 were prepared by police as well as railways officials respectively. Clothes of deceased Manoj were seized vide seizure memo Ex. P-1. Piece of cemented farsh containing blood stain and another piece of cemented farsh not containing blood stain were seized vide Ex. P-11. Sword was seized from Rajan Singh (P.W. 5) vide seizure memo Ex. P-12. Query report in respect of sword was received vide Ex. P-15. Medical report of complainant Raghuvir Singh (P.W. 4) was also received vide Ex. P-17. The appellant was arrested vide arrest memo Ex. P-18. Blood stained articles were sent for chemical examination. Vide FSL report Ex. P-22, it was reported that except article B (plain piece of cemented floor) seized, other articles i.e. piece of farsh containing blood like stains, sword and clothes of the deceased were containing blood stains. Those articles which were reported to be containing blood stains were sent for serological and chemical examination but such report has not been filed. After investigation, charge sheet under Section 302 of the IPC and Section 25 and 27 of the Arms Act was filed against the appellant in the Court of Judicial Magistrate First Class, Durg, thereafter the case was committed to the Court of Session.

During trial, charges under Section 302 of the IPC and Section 25 and 27 of the Arms Act were framed and explained to the appellant, who abjured his guilt and entered into defence.

Prosecution in order to prove its case examined as many as 8 witnesses and exhibited 22 documents. Statement of accused under Section 313 of the Cr.P.C. was recorded in which he denied all the circumstances appearing against him and submitted that he is not guilty and has been falsely implicated in this case. In defence, he has examined one witness namely Vijay Mahot (D.W. 1).

Learned trial Court after appreciating oral and documentary evidence available on record, acquitted the appellant under Section 25(1-B)(B) and Section 27(1) of the Arms Act but convicted him under Section 302 of the IPC and sentenced as mentioned in para 1 of this judgment.

Learned counsel for the appellant would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 of the IPC as prosecution has utterly failed to adduce any reliable evidence. It is further submitted that appellant has not caused alleged injury to the deceased, rather deceased and his brothers were beating him        badly near the house of Ushabai and in such scuffle, deceased injuried himself. It is further submitted that witnesses examined by the prosecution and relied by learned trial Court are relatives of deceased. Hence, they could not have been believed without any independent corroborative witness. It is next submitted that due to beating by deceased and his brother, appellant had sustained serious injuries but this fact has not been investigated by the police. Further, no enmity or motive has been proved by the prosecution to commit alleged crime by the appellant. Alleged weapon has also not been seized from the appellant and no memorandum statement has been recorded in respect of alleged crime. But without appreciating aforesaid facts, appellant has been convicted only on the basis of interested witnesses. It is argued that incident took place in residential area where other persons also reside which has been admitted by Raghuvir Singh (P.W. 4) in his cross-examination, but none of such witness has been examined by the prosecution, therefore conviction based on relative witness and non-examination of any independent witness vitiate the impugned judgment. Hence the impugned judgment passed by learned trial Court is perverse and illegal, therefore, the appeal may be allowed and the appellant may be acquitted from the charge.

Conversely, learned counsel appearing for the State would submit that appellant had gone twice to the house of complainant and demanded money from him, on being refused by complainant, he threatened him showing knife, but since family members came there, he fled from the spot, but after about 2 hours, having sword he again came to the house of complainant and started knocking doors of courtyard. He further submitted that as soon as deceased opened the door, appellant stabbed sword on his chest, which is a vital part of body and due to his such injury, his liver got injured and within some period, he died. Raghuvir Singh (P.W. 4) and Rajan Singh (P.W. 5) are eye witnesses who are not only brothers of deceased, but they also chased and caught the appellant, hence only because they are brothers of appellant, their evidence cannot be discarded. It is next submitted that the impugned judgment is well merited and the same does not call for any interference of this Court.

We have heard learned counsel for the parties, perused the impugned judgment, record of the trial Court and material available on record.

Raghivir Singh (P.W2. 4) and Rajan Singh (P.W. 5) are brother of deceased Manoj. As per their statement, on 14-2-2011 Manoj died due to stab injury caused to him below his chest and while he was taken to hospital, he was declared brought dead. Their aforesaid statements are well supported by Dehati Nalishi Ex. P-2, FIR Ex. P-3, written complaint Ex. P-8, medical report Ex. P-16, inquest report Ex. P-10, which have been proved by the prosecution witnesses.

Dr. V.S. Baghel (P.W. 6) conducted post mortem on 15-2-2011 on the body of Manoj, vide PM report Ex. P-14 in which he found following injuries :-

i. Lacerated wound 2 x ¼ x ¼ cm on right index finger laterally.

ii. Multiple abrasions on dorsum of PIP joint of all fingers of right hand.

iii. Incised wound 1 x ¼ cm skin deep on medial aspect of right wrist.

iv. Incised wound 2 x ½ x ½ cm on pulp of left thumb.

v. Penetrating wound incised 3 x 1 cm with bleeding on lower part of front of chest 1 ½ lateral to midline on left side.

vi. Scratch mark linear 3 cm long on front of neck placed obliquely.

He has further stated that on internal examination he found penetrating wound track goes from below and left lateral part of chest cutting skin, subcutaneous tissue, going below 10th rib and piercing the left lobe of liver, hamoperitoneum ++ (blood clots) were also found. He has opined that nature of injuries was homicidal and because of such injury his death occurred due to shock and haemorrhage. Statement of doctor V.S. Baghel (P.W.6) is well supported by PM report (Ex. P-14) prepared by him. He has denied the suggestion of defence counsel that injury caused to the deceased was not sufficient to cause death. Nothing has been elicited in his cross-examination to discard his such statement. Thus, aforesaid evidence proves that nature of death of deceased was homicidal. Hence, we affirm such finding of learned Court below.

Conviction of the appellant is mainly based on statement of eye-witnesses Raghuvir Singh (P.W. 4) and statement of Rajan Singh (P.W. 5). Raghuvir Singh (P.W. 4) has deposed in his statement that on the date of incident i.e. 14-2-2011 at 1.00 pm, appellant had gone to his house and demanded money, he also said himself Dada, has caused murder and recently he has come from jail. He has further stated that when he denied to give money to appellant and was calling to police on his mobile, then appellant tried to snatch his mobile and went from there showing him knife by threatening to kill him. This witness has further stated that at 3.00 pm appellant again came to his house and started knocking door of fencing boundary wall of their house, at that time, appellant was having sword with him, despite asking by his wife, appellant did not go and when deceased came there and opened the door, the appellant stabbed sword below the chest of Manoj, due to such act of appellant, Manoj cried that T. Satish (appellant) stabbed him on his chest by sword. This witness has specifically stated that he saw stabbing by sword to Manoj by the appellant. This witness has further deposed that after stabbing Manoj by sword, he escaped from the spot, whom Manoj and this witness chased, hearing noise, their brother Rajendra Singh (P.W. 5) also came there, who also chased the appellant. He has further stated that during fleeing, appellant threw the sword near boring tap in a garbage pit near house of Ushabai (P.W. 2) Manoj caught the appellant, there scuffle took place between appellant and him (this witness). Therefore, he (this witness) had also sustained injuries on his head.

Dr. Shyamli Rai (P.W. 8) who had examined Raghuvir Singh (P.W. 4), has deposed that on 14-2-2011 at 6.20 pm on being examined, she found cut injury size 1 x 1 x 1 cm on his head wherein dried blood and soil particles were also found.

Rajan Singh (P.W. 5) has supported statement of Raghuvir Singh (P.W. 4) regarding the incident of 1.00 pm, because as per his statement, at that time, he was also sitting in the house of Raghuvir Singh (P.W. 4). This witness has further stated that at about 3.00 pm when he was sitting in his house which is beside the house of Raghuvir Singh (P.W. 4), at that time, he heard voice of his brother Manoj Singh, who was crying that ‘T. Satish (appellant) has stabbed him by sword on his chest’, other persons were also crying that “Manoj ko mar diye hain”. Hearing such voice/crying, when he went out from his house, then he saw the appellant who was running having sword, Manoj (deceased) and Ramesh (P.W. 4) were chasing him, hence he (this witness) also ran towards them. At that time, he saw blood was oozing from the body of deceased. He has also stated that appellant went in the house of Ushabai, from where he fled. He has also stated that while running, the appellant had thrown sword in a garbage pit near Nalkup. As per Ushabai (P.W. 2), on being heard noice in the afternoon when she came out of her house, she saw scuffle going on between the appellant, deceased Manoj Singh and his brother in her courtyard, whom she ousted by scolding.

Thus, Raghuvir Singh (P.W. 4), who is eye-witness of the incident, has specifically stated that he had seen the appellant stabbing the deceased by sword and when after stabbing appellant was running from the spot, he along with deceased had chased him, also caught him near the house of Ushabai (P.W. 2) and in scuffle, this witness has also sustained injury on his head. Scuffle between the appellant and deceased and aforesaid witness is also supported by Ushabai (P.W. 2). Rajan Singh (P.W. 5) is not an eye-witness of the incident which happened at 3.00 pm but at that time, he has heard voice of deceased Manoj who was crying that appellant has stabbed him by sword on his chest. He also saw appellant appellant from the spot and he had also chased him. Further he had seen the appellant throwing his sword in a garbage pit. Raghuvir Singh (P.W. 4) and Rajan Singh (P.W. 5) have denied the suggestion in cross-examination that “appellant had not stabbed the deceased, rather at 3.00 pm when appellant went to the house of Raghuvir Singh (P.W. 4), at that time, deceased himself was armed with sword, he chased the appellant and caught him and during scuffle between them, deceased sustained injury by sword, which he himself was having”.

Nothing has been elicited in cross-examination to disbelieve the statement of Raghuvir Singh (P.W. 4) and Rajan Singh (P.W. 5), although they are brother of the deceased, but nothing has been brought in their cross-examination to disbelieve their statement. Hence their statement cannot be discarded only because they are relative witnesses. While arguing, learned counsel for the appellant had stated that incident took place in residential area where other persons also reside which has been admitted by Raghuvir Singh ((P.W. 4) in his cross-examination, therefore conviction based on relative witness and non-examination of any independent witness vitiate the impugned judgment.

In respect of credibility of relative witness, the Supreme Court in the case of Mahesh Vs. State of Maharashtra [(2008) 13 SCC 271] held thus :-

“54. This Court in Salim Sahab v. State of M.P. [(2007) 1 SCC 699 : (2007) 1 SCC (Cri) 425] held that: (SCC pp. 701 & 703, paras 11 & 14-15)

“11. … [mere relationship] is not a factor to affect the 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 analyse evidence to find out whether it is cogent and credible.

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… in Masalti v. State of U.P. [AIR 1965 SC 202] this Court observed: (AIR pp. 209-10, para 14)

‘But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. … The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.’

To the same effect are the decisions in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886] , Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] and Gangadhar Behera v. State of Orissa [(2002) 8 SCC 381 : 2003 SCC (Cri) 32] .”

As regards non-examination of the independent witnesses who probably witnessed the occurrence on the roadside, suffice it to say that testimony of PW Sanjay, an eyewitness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses. The High Court has held in its judgment and, in our view, rightly that the reasons given by the learned trial Judge for discarding and disbelieving the testimony of PWs 4, 5, 6 and 8 were wholly unreasonable, untenable and perverse. The occurrence of the incident, as noticed earlier, is not in serious dispute. PW Prakash Deshkar has also admitted that he had lodged complaint to the police about the incident on the basis of which FIR came to be registered and this witness has supported in his deposition the contents of the complaint to some extent. It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim, that fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny.

The Supreme Court in the case of Nagarjit Ahir Vs. State of Bihar reported in [(2005) 10 SCC 369] has held as under :

“12. It was then submitted that in spite of the fact that a large number of persons had assembled at the bank of the river at the time of occurrence, the witnesses examined are only those who are members of the family of the deceased or in some manner connected with him. We cannot lose sight of the fact that four of such witnesses are injured witnesses and, therefore, in the absence of strong reasons, we cannot discard their testimony. The fact that they are related to the deceased is the reason why they were attacked by the appellants. Moreover, in such situations though many people may have seen the occurrence, it may not be possible for the prosecution to examine each one of them. In fact, there is evidence on record to suggest that when the occurrence took place, people started running helter-skelter. In such a situation it would be indeed difficult to find out the other persons who had witnessed the occurrence. In any event, we have the evidence of as many as 7 witnesses, 4 of them injured, whose evidence has been found to be reliable by the courts below, and we find no reason to take a different view.”

The Supreme Court in the case of Sadhu Saran Singh Vs. State of UP [(2016) 4 SCC 357] held thus :-

“29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.”

In view of above proposition of law settled by Hon’ble Apex Court, only because Raghuvir Singh (P.W. 4) and Rajan Singh (P.W. 5) being brother of deceased, their deposition cannot be discarded, particularly when during scuffle with appellant, Raghuvir Singh (P.W. 4) had sustained injuries on his head which has been proved by Dr. Shyamli Roy (P.W. 8) vide medical report Ex. P-17 and her deposition. Further no enmity or interest of them has been proved to falsely implicate the appellant by them in such a heinous crime.

Raghuvir Singh (P.W. 4) and Rajan Singh (P.W. 5) have specifically stated that while running, appellant had thrown the sword in the garbage pit near boring tap. Rajan Singh (P.W. 5) has further deposed that he had brought that sword from the garbage pit and kept it in the house of Ramesh (P.W. 4), therefore, police had seized that sword from him vide Ex. P-12. Such seizure has also been proved by Ramesh (P.W. 4) and Investigating Officer K.P. Tandan (P.W. 7). Hence, non-seizure of sword from the appellant does not dent the case of the prosecution. In FSL report, blood is also reported to be found on sword, hence this is also one of the circumstances to prove the fact that appellant had stabbed the deceased by sword which was seized vide Ex. P-12. Although Vijay Mahto, who is other witness of Ex. P-12 and who also has been examined by appellant as defence witness and who has not supported the seizure memo Ex. P-12, but he has admitted his signature in Ex. P-12, and other other two witnesses i.e. Raghuvir (P.W. 4) and Rajan Singh (P.W. 5) from whom seizure has been made along with Investigating Officer have supported Ex. P-12, hence hostility of Vijay Mahto does not raise any doubt on Ex. P-12.

During the course of argument, learned counsel for the appellant drew our attention to the fact that Raghuvir Singh (P.W. 4) had not stated in FIR and his statement recorded under Section 161 of the Cr.P.C. that his wife had told that appellant is having sword and some other discrepancies also, but it is settled proposition of law that discrepancies or improvement which do not materially affect the case of prosecution and are insignificant cannot be made the basis for doubting the case of prosecution. In the case of Karan Singh Vs. State of UP [(2022) 6 SCC 52], Supreme Court has held in para 40 and 41 as below :-

“40. In Kuriya v. State of Rajasthan [Kuriya v. State of Rajasthan, (2012) 10 SCC 433 : (2013) 1 SCC (Cri) 202] , this Court held : (SCC pp. 447-48, paras 30-32)

“30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State of Gujarat [Kathi Bharat Vajsur v. State of Gujarat, (2012) 5 SCC 724 : (2012) 2 SCC (Cri) 740] , Narayan Chetanram Chaudhary v. State of Maharashtra [Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457 : 2000 SCC (Cri) 1546] , Gura Singh v. State of Rajasthan [Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 : 2001 SCC (Cri) 323] and Sukhchain Singh v. State of Haryana [Sukhchain Singh v. State of Haryana, (2002) 5 SCC 100 : 2002 SCC (Cri) 961].

What is to be seen next is whether the version presented in the Court was substantially similar to what was said during the investigation. It is only when exaggeration fundamentally changes the nature of the case, the Court has to consider whether the witness was stating the truth or not. [Ref. Sunil Kumar v. State (NCT of Delhi) [Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367 : 2004 SCC (Cri) 1055] ].

These are variations which would not amount to any serious consequences. The Court has to accept the normal conduct of a person. The witness who is watching the murder of a person being brutally beaten by 15 persons can hardly be expected to state a minute by minute description of the event. Everybody, and more particularly a person who is known to or is related to the deceased, would give all his attention to take steps to prevent the assault on the victim and then to make every effort to provide him with the medical aid and inform the police. The statements which are recorded immediately upon the incident would have to be given a little leeway with regard to the statements being made and recorded with utmost exactitude. It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the court has to be reasonable and practicable. Reference in this regard can be made to Ashok Kumar v. State of Haryana [Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 : (2011) 1 SCC (Cri) 266] and Shivlal v. State of Chhattisgarh [Shivlal v. State of Chhattisgarh, (2011) 9 SCC 561 : (2011) 3 SCC (Cri) 777] .”

In Shyamal Ghosh v. State of W.B. [Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 : (2012) 3 SCC (Cri) 685] , this Court held : (SCC pp. 666-67, paras 46 & 49)

“46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. … Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.

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It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.”

Therefore, in view of aforesaid case law, we are not impressed with the aforesaid submission made by learned counsel for the appellant.

It has been proved from evidence of Raghuvir Singh (P.W. 4) and Rajan Singh (P.W. 5) that at about 1.00 pm, appellant had gone to the house of Raghuvir Singh (P.W. 4) who is brother of deceased and demanded money. On being refused by Raghuvir Singh (P.W. 4), appellant threatened him to kill showing knife and went from there. After about 2 hours, he again came back to the house of brother of deceased armed with sword and knocked the door of his house, as soon as deceased opened the door of the fenced boundary of the Raghuvir Singh, appellant stabbed him by sword. Aforesaid fact proves motive of appellant as due to not giving money by brother of deceased to him, he got angered and, therefore, he again went to the house of complainant armed with sword and committed instant crime.

In view of above discussion, we find that the impugned judgment is based on proper appreciation of evidence available on record which does not suffer from any illegality or infirmity. Hence, we do not find any substance in this appeal, the same is accordingly dismissed. The conviction and sentence imposed by the learned trial Court upon the appellant vide impugned judgment are affirmed.

Appeal dismissed.