Vijay Kumar vs State of Chhattisgarh

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 15th September, 2005 passed by Additional Session Judge, Bilaspur in Session Trial No. 387/2004. By the impugned judgment, accused/appellant Vijay Kumar has been convicted and sentenced in the following manner with a direction to run the sentences consecutively:

Case of the prosecution, in brief, is as under:

Prem Bai (PW-6) is the sister of deceased Buti @ Chaitram. On 13-7-2004, she came to her maternal house at Village Manpahari. On 14-7-2004, she had gone to meet her another brother Mitthu Satnami. At about 4.00 p.m., the appellant assaulted the deceased with tabbal in which the deceased sustained injuries on his face, head and ring finger and died on the spot. Having seen this, Prem Bai (PW-6) shouted and tried to intervene. The appellant assaulted her also. She sustained injuries on her left and right forearms. Prem Bai (PW-6) lodged First Information Report (Ex-P/8) in Police Station Takhatpur. The Investigating Officer reached the place of occurrence, gave notice (Ex-P/3) to Panchas and prepared Inquest (Ex-P/4) on dead body of the deceased. The dead body of the deceased was sent to Community Health Centre, Lormi for post mortem examination. Dr. Sagar Shukla (PW-15) conducted post mortem examination on the dead body of the deceased and gave his report (Ex-P/17), in which he found (i) incised wound, 1/2 cm x 1/4 cm x 1/4 cm over ring finger of right hand, (ii) incised wound, 9cms x 2cms x 2cms over left side of face extending to mouth and eye, (iii) incised wound, 10cms x 2cms x 2cms over occipital region of skull and (iv) fracture in occipital bone. He opined that cause of death of the deceased was excessive haemorrhage/increase in intracranial pressure of excessive blood in extradural space due to head injury and the death was homicidal in nature.

Prem Bai (PW-6) was sent to Community Health Centre, Lormi for medical examination vide Ex. P-6. Dr. G.S. Dau (PW-5) examined her and gave his report (Ex. P/6), in which he found (i) incised wound, 10cms x 7cms on the left forearm 1/3rd upper post part and (ii) incised wound, 7cms x 1cm on the right arm lateral part. The above injuries were caused by a sharp cutting object and the doctor referred Prem Bai (PW-6) for X-Ray examination.

In further investigation, memorandum statement (Ex-P/13) of the appellant was recorded u/s 27 of the Indian Evidence Act and at his instance, tabbal was seized from him vide Ex-P/11. Blood stained soil and plain soil were seized from the place of occurrence vide Ex-P/12. T-Shirt and Lungi were seized from the appellant vide Ex-P/14. Confessional statement of the appellant was also recorded vide Ex-P/10. Regular FIR was recorded in Police Station Takhatpur. Seized tabbal was sent for examination to CHC, Lormi vide Ex-P/24. Dr. Sagar Shukla (PW-15) examined the seized tabbal and gave his report (Ex-P/16). The seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex. P/25. Report (Ex-P/27) was received therefrom vide Ex-P/26. In Ex-P/27, article ''E'', i.e., tabbal was found stained with blood. Spot-Map (Ex-P/28) was prepared by Patwari B.R. Banjare (PW-20).

After completion of the investigation, charge sheet was filed in the Court of Judicial Magistrate, First Class, Bilaspur, who, in turn, committed the case to the Court of Session, Bilaspur, from where, it was received on transfer by Additional Session Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Rajnish Shrivastava, learned counsel for the appellant argued that there is no independent eye witness. Prem Bai (PW-6) is the sister of the deceased. She is highly interested witness. Her presence at the place of occurrence is suspicious. The First Information Report was lodged belatedly. 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 for the appellant 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 under some lesser Section preferably u/s 304 Part II IPC. He placed reliance on a judgment of a Division Bench of this Court in Arjun Yadav v. State of Chhattisgarh Criminal Appeal No. 625/2006, decided on 18-11-2011.

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 Additional 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. 387/2004. The conviction of the appellant u/s 302 IPC is based on the evidence of Prem Bai (PW-6), Kailasha Bai (PW-7), Ishwari (PW-8) and the extra judicial confession made by the appellant before Homan Prasad (PW-14) and Kanhaiyalal (PW-3).

Delay in FIR

So far as the FIR is concerned, learned counsel for the appellant argued that the FIR (Ex. P-8) was lodged belatedly and the prosecution did not offer any proper and plausible explanation therefor. This argument is not acceptable.

Ex-P/8 is the First Information Report which was registered as Crime No. 0/2004. In the FIR (Ex-P/8), the date and time of the incident is mentioned as 14-7-2004 at about 4.00 p.m. The FIR was lodged on the same day at about 6.45 p.m., i.e., after 2.45 hours of the incident. Distance between Village Manpahari and Police Outpost Junapara is about 10 Kilometres, therefore, there is no delay in lodging the FIR. It appears that the FIR was lodged promptly.

Evidence of Relative and Interested Witness:

In the instant case, it is not disputed that Prem Bai (PW-6) is the sister and Ishwari (PW-8) is the daughter of the deceased and, therefore, they are relative witnesses.

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.

19....... 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:

xxxxx xxxxx xxxxx

(i) xxxxx xxxxx xxxxx

(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, 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......

In Waman and Others Vs. State of Maharashtra, 5, 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.....

19...."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,

Prem Bai (PW-6) deposed that in the year 2004 in the month of Savan, she had gone to her maternal house at Village Manpahari. On the date of incident, she had gone to the house of her another brother Mitthu Satnami. When she was sitting in the house of Mitthu Satnami, she heard noise of some quarrel from outside the house of Mitthu Satnami. She came out of the house and saw that the appellant was assaulting the deceased with tabbal. The deceased was requesting the appellant not to assault him. But the appellant continued to assault the deceased. The deceased sustained injuries on his head, face and ring finger. When she tried to save the deceased, the appellant assaulted her also. She sustained injuries on her both hands. She further deposed that she narrated the incident to Rukmani (PW-9-wife of the deceased) and Kailasha Bai (PW-7). She lodged the First Information Report (Ex. P-8) and thereafter she was sent for medical examination.

Dr. G.S. Dau (PW-5) deposed that he examined Prem Bai (PW-6) and gave his report (Ex. P/6), in which he found (i) incised wound, 10 cms x 7 cms on the left forearm 1/3rd upper post part and (ii) incised wound, 7 cms x 1 cm on the right arm lateral part. The above injuries were caused by a sharp cutting object.

From perusal of the evidence of Prem Bai (PW-6) and Dr. G.S. Dau (PW-5), it appears that Prem Bai (PW-6) also sustained injuries in the same incident, therefore, her presence at the place of occurrence is not doubtful.

Smt. Kailasha Bai (PW-7) deposed that on the date of incident, at about 4 P.M., she had gone to the house of Laldas to make demand of Ox. At that time, Laldas, Gendu, Piha and Kadar were taking the deceased and asking him not to go to make complaint against the appellant to the father of the appellant. The deceased told her that the appellant had bit in his hand, therefore, he will make a complaint. She asked the deceased to go on the next day. She further deposed that the deceased stood up in the verandah of the house of the appellant for making complaint. The appellant was standing in his house armed with tabbal He asked the deceased to come out and said that he will assault him. She requested the appellant with folded hands not to assault the deceased. The appellant asked her to move out from there and further said that otherwise he will kill her. The appellant tried to give tabbal blow to her. She caught the tabbal. The appellant got the tabbal extricated from her and assaulted the deceased with the same.

Kumari Ishwari (PW-8) deposed that the appellant and the deceased were quarreling with each other. The deceased told her that the appellant had bitten him on his hand regarding which he was going to make complaint. Thereafter, the appellant had assaulted the deceased with the tabbal which struck on the neck and eye.

Prem Bai (PW-6) and Kailasha Bai (PW-7) specifically deposed that the appellant assaulted the deceased with the tabbal. Dr. Sagar Shukla (PW-15) also deposed that he found injuries on the face and head of the deceased and a fracture on his occipital bone. There is no material contradiction in the statements of Prem Bai (PW-6), Kailasha Bai (PW-7) and Ishwari (PW-8). The evidence of above three witnesses are corroborated by medical evidence as also by FIR (Ex. P-8). Therefore, the evidence of Prem Bai (PW-6), Kailasha Bai (PW-7) and Ishwari (PW-8) are cogent and reliable.

In the instant case, the prosecution has adduced the evidence of extrajudicial confession also.

Extra-judicial Confession:

In Gura Singh Vs. The State of Rajasthan, the Hon''ble Supreme Court observed as follows:

It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, , this Court again in Maghar Singh Vs. State of Punjab, held that the evidence in the form of extra judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh and Others Vs. State of M.P., this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra-judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand Vs. State of Himachal Pradesh, , this Court held that an unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged u/s 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in Baldev Raj Vs. State of Haryana, After referring to the judgment in Piara Singh and Others Vs. State of Punjab, this Court in Madan Gopal Kakkad Vs. Naval Dubey and Another, 4, held that the extra-judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.

In Aftab Ahmad Anasari Vs. State of Uttaranchal, the Hon''ble Supreme Court observed as follows:

Though extra-judicial confession is considered to be a weak piece of evidence by the courts, this Court finds that there is neither any rule of law nor of prudence that the evidence furnishing extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The evidence relating to extra-judicial confession can be acted upon if the evidence about extra-judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused.

In State of U.P. Vs. M.K. Anthony, this Court, while explaining the law relating to extra-judicial confession, ruled that if the words spoken by the witness are clear, unambiguous and unmistakable, one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction. According to this Court, in such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon.

Kanhaiyalal (PW-3) deposed that he was sitting in the courtyard of his house alongwith Kartikram and Rajju. At about 4.30 P.M., the appellant, having a tabbal with him, came to his house. The appellant said that he had killed the deceased with the tabbal and asked him to take him to police station. Saying this, the appellant went towards the talab (tank). He further deposed that after sometime, Mitthu Satnami, weeping, came to him and told that the appellant had killed the deceased. He went to the place of occurrence and saw that the deceased was lying dead there.

Homan Prasad (PW-14) deposed that the appellant came to his house with a tabbal and said that he had murdered the deceased. The tabbal which was in possession of the appellant was stained with blood. Having feared, he entered inside his house. After sometime, Prem Bai (PW-6), the sister of the deceased came there. She was also injured. She said him that the appellant had assaulted her and had killed the deceased.

In light of the above enunciation of law, we are of the view that on the date of incident itself, the appellant had made confessional statement before Kanhaiyalal (PW-3) and Homan Prasad (PW-14). These two witnesses had no motive to falsely implicate the appellant. Therefore, the evidence adduced by the prosecution regarding extra-judicial confession is reliable and can be based for conviction.

Inspector Naveen Shankar Choubey (PW-19) deposed that he recorded the memorandum statement of the appellant vide Ex. P-13 and at the instance of the appellant, he seized the tabbal vide Ex. P-11. He further deposed that he sent the seized articles to FSL, Raipur for chemical examination vide Ex. P-25. Report (Ex-P/27) was received therefrom vide Ex-P/26. In Ex-P/27, article ''E'', i.e., tabbal was found stained with blood.

We have carefully examined the evidence of Prem Bai (PW-6), Kailasha Bai (PW-7) and Ishwari (PW-8). Their evidence are corroborated by extra-judicial confession made by the appellant before Kanhaiyalal (PW-3) and Homan Prasad (PW-14) as also by the medical evidence.

From the evidence of above witnesses, it is crystal clear that it was the appellant who assaulted the deceased with tabbal and the deceased died due to the injuries caused by him. It is also proved that the appellant assaulted Prem Bai (PW-6) with the tabbal in which she sustained simple injury. Therefore, we do not find any infirmity in the finding recorded by the learned Additional Session Judge regarding involvement of the appellant in causing injuries to the deceased and the complainant.

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 Rajnish Shrivastava, learned counsel for the appellant argued that the deceased was going to the house of the appellant for making a complaint. The appellant was provoked by the deceased. They abused each other. Therefore, the act of the appellant would not be punishable u/s 302 of the Indian Penal Code and he would be 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 Vs. State of Punjab, , 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 Arjun Yadav (supra), it is observed as follows:

In the present case, as per the case of prosecution, appellant was demanding liquor from PW/10- Kailash, son of deceased, and incident took place between them, thereafter, appellant abused deceased. Being asked he quarreled with deceased and rushed to the barber shop of PW/1- Ramesh Shrivas from where he took out scissors and caused single blow over the abdomen of deceased. These facts and circumstances show that he was not having weapon, he was quarreling after consuming liquor and during the course quarrel he suddenly rushed to the barber shop of PW/1- Ramesh Shrivas and after taking scissors he caused single blow otherwise there was no occasion for causing injury. These evidences are not sufficient to establish the fact that appellant has caused injury or homicidal death with intent to cause death of deceased but at the time of causing such injury he was having knowledge that by his act deceased may die. Evidence adduced on behalf of prosecution is not sufficient to prove the fact that appellant has committed homicidal death amounting to murder of deceased but the act attributed to the appellant squarely falls within the ambit of Section 304 Part-I of the IPC.

In the instant case, looking to the evidence of Amoldas (PW-1) and Kailasha Bai (PW-7), the appellant and the deceased were quarreling with each other. The deceased had gone to the house of the appellant for making complaint and on account of this, a quarrel took place between them again and the appellant assaulted the deceased with the tabbal. It is, however, crystal clear that the appellant had no any animosity against the deceased and he was involved because of some altercation took place between them. According to medical evidence, only one injury was found on the head of the deceased which was a fracture. Other injuries were superficial injuries. It is difficult for us to hold that the appellant gave the blow in question with the intention of causing murder of the deceased, 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 his act was punishable under Part II of Section 304 IPC. For the foregoing reasons, the appeal is allowed in part. The conviction and sentence awarded by the learned trial Judge u/s 324 IPC are affirmed. 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. Both the sentences shall run concurrently.