Vijay Kumar and Another vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment dated 30-3-1995 passed by Additional Sessions Judge, Sakti in Sessions Trial No. 459/1992. By the impugned judgment, accused persons/appellants Vijay Kumar and Rajimbai have been convicted u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. Case of the prosecution, In brief, is as under:

On 1-1-1992, at about 9:30 A.M., Bhagwat (son of deceased Munda) was making heap of earth to prepare bricks. At that time, appellant Vijay Kumar forbade him to do so. Deceased Munda told the appellant that the earth would get moved over after preparing the bricks and he refused to move the earth. Appellant Rajimbai and co-accused Baishakhabai (dead) caught the hands of deceased Munda and appellant Vijay Kumar brought Kudali (hoe) and assaulted deceased Munda. Narendra Kumar (PW-1) tried to intervene, but appellant Vijay Kumar inflicted him too. Thereafter, the appellants and co-accused Baishakhabai (dead) fled from there. Deceased Munda was taken in the hospital, but he died on the way. Bahadur (PW-6, son of the deceased) lodged First Information Report (Ex. P-1) in Police Station Pamgarh. Investigating Officer reached the placed of occurrence and prepared inquest (Ex. P-3) on the dead body of the de-ceased. The dead body was sent to Primary Health Centre Pamgarh for post mortem examination vide Ex. P-9A. Dr. B.L. Mishra (PW-8) conducted post mortem examination on the dead body of the deceased and gave his report (Ex. P-3 A), in which, he found-

(i) lacerated wound 3 X 2 1/2 X 6 cm on left temporal bone and

(ii) lacerated wound 2 X 2 X 4 cm on the left side of back and 8th, 9th and 10th ribs were fractured.

He opined that cause of death of the deceased was neurogenic and haemorrhagic shock due to injury on vital part and the death was homicidal in nature.

In further investigation, memorandum statement of appellant Vijay Kumar u/s 27 of the Evidence Act was recorded vide Ex. P-5 and at his instance, Kudali (hoe) was seized from him vide Ex. P-6. Shirt and Lungi were also seized from the appellant vide Ex. P-7. Blood stained soil and plain soil were seized from the place of occurrence vide Ex. P-8. Patwari Malechharam (PW-11) pre-pared spot map vide Ex. P-9. Seized articles were sent to Forensic Science Laboratory, Sagar. Report (Ex. P-11) was received there-from. Serological report was also received, in which, Dhoti, Baniyan and Shirt were found stained with human blood.

After completion of the investigation, charge sheet was filed against the accused persons/appellants and co-accused Baishakhabai (dead) in the Court of Judicial Magistrate First Class, Janjgir, who, in turn, committed the case to the Court of Session Judge, Bilaspur, from where, it was received on transfer by Additional Sessions Judge, Sakti, who conducted the trial and convicted and sentenced the appellants as mentioned above.

Shri Subhash Yadav, learned counsel for the appellants, submitted that there is no independent eye-witness. Narendra Kumar (PW-1) is grand son, Sumitrabai (PW-2) is daughter-in-law, Soni Bai (PW-3) is widow and Bahadur (PW-6) is son of the deceased. They are relatives and highly interested witnesses. There evidence can-not be accepted. He further argued that Amarnath (PW-12) is not reliable witness. His presence at the place of occurrence is suspicious. The prosecution did not adduce any cogent and reliable evidence. He further argued that according to the prosecution initially a quarrel took place between the deceased and appellant Vijay Kumar. The place of occurrence is in front of the house of the appellants. Presence of appellant Rajimbal at the place of occurrence Is natural. Mere presence of the appellant Rajimbai Is not sufficient to draw Inference for common Intention. Prosecution did not establish that there was any common intention of appellant Vijay Kumar and Rajimbai to assault the deceased. Therefore, the conviction of the appellants u/s 302 IPC is not sustainable.

On the other hand, Shri Arvind Dubey, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court.

We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 459/1992. The conviction of the appellants is based on the testimonies of Narendra Kumar (PW-1), Sumitrabai (PW-2), Soni Bai (PW-3) and Amarnath (PW-12).

Evidence of Relative and Interested Witness:

In Dayal Singh and Others Vs. State of Uttaranchal, , Hon''ble Supreme Court observed that:

This Court has repeatedly held that an eye-witness version cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness. "12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In J Jayabalan Vs. U.T. of Pondicherry, , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court had occasion to consider whether the evidence of an interested witness can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24): (paras 21 and 22 of AIR, AIR SCW)

We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavor of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

In Dharnidhar Vs. State of U.P. and Others, , the Hon''ble Supreme Court held as follows:

There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan Vs. U.T. of Pondicherry, , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24)

We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

In Brahm Swaroop and Another Vs. State of U.P., the Hon''ble Supreme Court held as follows:

Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh and Others Vs. State of Punjab, Masalti v. State of UP., AIR 1965 SC 202; Lehna Vs. State of Haryana, and Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh,

{See also Shaukat Vs. State of Uttaranchal, (Paragraphs 35 and 36)}

In Waman and Others Vs. State of Maharashtra, the Hon''ble Supreme Court held as follows:

In Balraje @ Trimbak Vs. State of Maharashtra, this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, this Court held that: (SCC p. 679, para 30)

30 if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.

The above principles have been once again reiterated in State of U.P. Vs. Naresh and Others, Here again, this Court has emphasized that relationship cannot be a factor to affect the credibility of a witness. The following statement of law on this point is relevant: (SCC p. 334, para 29)

29 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 and Others Vs. State of Punjab, Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje @ Trimbak Vs. State of Maharashtra,

Narendra Kumar (P-1) deposed that the deceased was his grand father. Sumitrabai (PW-2) deposed that the deceased was her father-in-law and Soni Bai (PW-3) deposed that the deceased was her husband. Sumitrabai (PW-2) deposed that two year before, at about 9:30 A.M., she had prepared the food. Her son Narendra (PW-1) and Ramgopal (PW-4) were studying. Her husband Bahadur (PW-6) had gone to the field to irrigate the wheat crop. She further de-posed that her brother-in-law Bhagwat brought the earth (clay) and put for preparing bricks. The appellants were strewing the earth. The deceased forbade the appellant of strewing the earth. The deceased was collecting the earth. Appellant Vijay Kumar told him not to collect the earth and appellant Rajimbai and co-accused Baishakhabai (dead) caught the hand of the deceased and appellant Vijay Kumar brought Kudali (hoe) from his house and assaulted the deceased. She further deposed that appellant Vijay Kumar gave Kudali (hoe) blow on the head of the deceased. She further deposed that Narendra Kumar (PW-1) tried to save the deceased, but appellant Vijay Kumar assaulted him also with blunt side of Kudali (hoe). She further deposed that Ramgopal (PW-4) went to the filed and called Bahadur (PW-6). Soni Bai (PW-3) also deposed in similar fashion.

Amarnath (PW-12) deposed that at about 8-9:00 PM, he was returning to his home from Bhatapara. He saw that co-accused Baishakhabai (dead) and appellant Rajimbai had caught the hands of the deceased and appellant Vijay Kumar assaulted the deceased with Kudali (hoe). Blood was oozing out of the head of the de-ceased. He further deposed that Narendra Kumar (PW-1) tried to save the deceased, then, appellant Vijay Kuamr assaulted Narendra Kumar (PW-1) also with Kudali (hoe).

Bahadur (PW-6) deposed that he had gone to the field to irrigate the water to wheat crop. His son Ramgopal (PW-4) came to him and narrated the incident to him. He further deposed that the deceased was taken to the hospital, but the deceased died on the way. He further deposed that he lodged the FIR (Ex. P-1) in Police Station Pamgarh.

Investigating Officer A.P. Tiwari (PW-15) deposed that on 1-1-1992, Bahadur (PW-6) lodged the FIR (Ex. P-1) in Police Station, Pamgarh. He further deposed that he reached the place of occurrence and prepared inquest (Ex. P-3) on the dead body of the de-ceased and he send the dead body of the deceased to Primary Health Centre for post mortem examination.

Dr. B.L. Mishra (PW-8) deposed that he conducted the autopsy on the dead body of the deceased and gave his report vide Ex. P-4. He further deposed that he found lacerated wound 3 X 21/4 X 6 cm on left temporal bone and lacerated wound 2 X 2 X 4 cm on the left side of back and 8th, 9th and 10th ribs were fractured. He opined that cause of death of the deceased was neurogenic and haemorrhagic shock due to injury on vital part and the death was homicidal in nature.

We have carefully perused the evidence of Narendra Kumar (PW-1), Sumitrabai (PW-2), Soni Bai (PW-3) and Amarnath (PW-12). They categorically deposed that on the fateful day, appellant Vijay Kumar assaulted the deceased with Kudali (hoe). Appellant Vijay Kumar assaulted Narendra Kumar (PW-1) also. Their evidence are corroborated by the medical evidence. From the medical evidence, we find that the death of the deceased was on account of neurogenic and haemorrhagic shock due to injury on vital part and the death was homicidal in nature.

Now, we shall examine the conviction of the appellant Rajimbai u/s 302 IPC.

Narendra Kumar (PW-1) deposed that his grand father (de-ceased) was collecting the earth. Then, appellant Vijay Kumar brought Kudali (hoe) and assaulted the deceased with it. Ramgopal (PW-4) deposed that her mother Sumitrabai (PW-2) and Narendra Kumar (PW-1) told him that appellant Vijay Kumar assaulted the de-ceased with Kudali (hoe). Ramgopal (PW-4) did not speak regarding Rajimbai.

Looking to the evidence of prosecution witnesses and spot map (Ex. P-9), it appears that the house of the appellants was situated in front of the house of the deceased. Bhagwat (son of the decease) was putting the earth in front of the house of appellant Vijay Kumar. At that time, appellant Rajimbai was strewing the earth along with co-accused Baishakhabai (dead). A quarrel took place between the deceased and appellant Vijay Kumar. Appellant Vijay Kumar brought Kudali (hoe) and assaulted the deceased. At that time Appellant Rajimbai was unarmed. In these circumstances, presence of appellant Rajimbai at the place of occurrence was natural and mere presence and holding the deceased in the manner stated in the FIR (Ex. P-1) is not sufficient to draw an inference that appellant Rajimbai shared common intention with appellant Vijay Kumar. There was absolutely no evidence of existence of pre-arranged plan or a prior concerned. There was no evidence at all of prior meeting of minds and in facts and circumstances of the case, the conduct of appellant Rajimbai shows that she had no intention to commit murder of the deceased with appellant Vijay Kumar. Therefore, the conviction of appellant Rajimbai cannot be sustained.

Shri Subhash Yadav, learned counsel for the appellants, argued that the deceased sustained solitary lacerated wound on his hand and prior to the incident there was exchange of abuse between appellant Vijay Kumar and the deceased. Thereafter, appellant Vijay Kumar gave blow on the head of the decease. Therefore, the act of the appellant would not be punishable u/s 302 of the IPC. Instead, appellant Vijay Kumar would be liable for punishment u/s 304 IPC.

We shall now examine the matter in light of the provisions of Section 302 vis-a-vis Section 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 case on hand, the FIR (Ex. P-1) was lodged by Bahadur (PW-6), who is not an eye-witness of the occurrence. Narendra Kumar (PW-1), Sumitrabai (PW-2) and Soni Bai (PW-3) deposed that when Bhagwat brought earth and put for preparing bricks, appellant Vijay Kumar objected. The deceased was collecting the earth. Then, appellant Vijay Kumar started quarreling with the deceased. There-after, appellant Vijay Kumar went to the house and brought Kudali (hoe) and gave Kudali (hoe) blow on the back and head of the de-ceased. 8th, 9th and 10th ribs of the deceased were fractured and this injury was sufficient to cause death of the deceased. The death of the deceased was homicidal in nature. The injury which deceased Munda suffered clearly shows that Kudali (hoe) was used by appellant Vijay Kumar with a considerable force and injury was caused on the head, i.e., vital part of the body. The nature of weapon used by appellant Vijay Kumar, the manner, in which, he assaulted the de-ceased, severity of the blow he dealt against the deceased and part of the body he selected for giving blow would show that he had an intention to commit murder of the deceased.

We are of the considered opinion that, in above facts and circumstances, the act of appellant Vijay Kumar would not be falling under any exception of Section 300 of the IPC.

In the result, the appeal, in respect of appellant Rajimbai, is allowed and her conviction and sentence u/s 302 IPC are set aside. She is acquitted of the charges framed thereunder. She is on bail. Her bail bonds are canceled and sureties stand discharged. So far as appellant Vijay Kumar is concerned, we do not find any substance in his appeal. It deserves to be and is hereby dismissed.