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Judgment
Rakesh Saksena, J.—Appellants have filed this appeal against the judgment dated 31.1.2003, passed by Second Additional Judge to the court of First Additional Sessions Judge, Chhindwara, in Sessions Trial No. 121/2001 convicting them under Sections 302/34 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 1000/-. In short the prosecution case is that appellants, who happened to be Gond Adiwasi people, suspected that their pitcher of Lahan (Country liquor) was stolen by Gunthu @ Mangal Singh (deceased). On 11.3.2001, at about 9.00 am, they caught hold of Gunthu and carried him to the temple of Lord Hanuman for swearing, but appellant Chunnu put a Gamcha (towel) around his neck and appellant Gauli taking a stick of the flag assaulted him. Appellant Balwant and Annu also assaulted him with sticks. Balwant, Annu and Chunnu ran away, but Gauli continued to beat him. When Gunthu fell down, Gauli also ran away. Incident was witnessed by Mujru (PW-1) and Saman Singh (PW-2), the brothers of Gunthu. As a result of injuries, Gunthu died at the spot. Mujru (PW-1) went to Police Station, Damua and lodged first information report (Ex. P/1) at 9.40 am.
After recording Murg intimation report (Ex. P/2), police reached at the spot and in presence of witnesses conducted inquest proceedings vide memorandum Ex. P/9. Investigating officer sent the dead body for postmortem examination to Community Health Centre, Damua where Dr. Girish Chourasiya (PW-3) performed the postmortem examination.
In the course of investigation, police prepared spot map, seized blood stained earth, a stick and a pair of plastic shoes from the spot.
After arrest of the accused persons, on the information of appellant Gauli and Chunnu, police seized blood stained shirt and a clothe from their possession. Seized articles were sent to Forensic Science Laboratory for chemical examination.
After completion of investigation, charge sheet was filed and the case was committed for trial.
During trial, appellants denied the charges and pleaded false implication because of enmity and suspicion. They also examined Kunwarlal (DW-1) in their defence.
Learned trial judge relying on the evidence of eyewitnesses Mujru (PW-1), Saman Singh (PW-2) and the medical evidence of Dr. Girish Chaurasiya (PW-3) held the appellants guilty, convicted and sentenced them as aforesaid.
Aggrieved by their conviction and sentence, appellants have filed this appeal.
Smt. Durgesh Gupta, learned counsel for the appellants, submitted that the learned court below misappreciated the evidence of witnesses and committed error of law in holding the appellants guilty. Both the eyewitnesses examined in the case were brothers of deceased. Since their evidence was discrepant and contradictory, it was unworthy of reliance. In the alternative, learned counsel submitted that since the incident had occurred suddenly without premeditation on the part of appellants, their conviction u/s 302/34 of the Indian Penal Code was not justified. At the most, they could have been held liable for the offence u/s 304-I or II of the Indian Penal Code. On the other hand, Shri Amit Pandey, learned Panel Lawyer, submitted that the evidence of eyewitnesses was reliable and the court below committed no error in holding the appellants guilty of the charge u/s 302 of the Indian Penal Code. No interference was called for in the impugned judgment of conviction.
We have heard the learned counsel for the parties and perused the evidence on record carefully.
It has not been disputed that deceased met with homicidal death. After recording first information report (Ex. P/1) lodged by Mujru (PW-1), investigating officer Akhil Verma (PW-8) went at the spot and conducted inquest proceedings. He recorded inquest memorandum (Ex. P/9) describing the injuries found on the body of deceased. He referred the dead body of deceased for postmortem examination to Community Health Centre, Damua where Dr. Girish Chaursiya (PW-3) conducted autopsy. Dr. Girish Chaurasiya deposed that on postmortem examination he found following injuries on the body of deceased.
Lacerated wound on right ear..
Abrasion on right side of neck going up to anterior part below the level of thyroid cartilage size 2 cm x 9 cm. Reddish black colour. The injury was forming an incomplete circle.
Lacerated wound on chest right side of the level of 6th to 8th ribs. Size 3 cm x 2 cm. Multiple abrasions present at surrounding area of the wound and other parts of chest. Size 2 cm x 3 cm. Reddish brown in colour.
Lacerated wound on right maxillary region. Size 1� x 2 x 3 cm (deep in muscles and tissues).
Lacerated wound on head on right temporal region. Size 4 cm x 2 cm underlying skull basis. Depressed fracture present.
On internal examination, doctor found a depressed fracture of skull on right temporal region. Blood was present in the meninges and the brain. 7th & 8th ribs were fractured. There was a laceration of liver on the right anterior and superior side.
In the opinion of doctor, the cause of death of deceased was injury to brain which caused cardio respiratory arrest. Injury to liver had caused excessive haemorrhage. All the injuries were ante-mortem in nature and were caused 4 to 12 hours before the examination. Injuries were caused by hard and blunt object and were homicidal in nature.
From the above evidence, in our opinion, it stood established that deceased died of a homicidal death.
It is true that the case of the prosecution rested on the evidence of Mujru (PW-1) and Saman Singh (PW-2), who happened to be the brothers of deceased, but, merely on that ground their evidence cannot be rejected ought right. In such circumstances, the court is, however, expected to adopt a careful approach and analyze the evidence of such witnesses to find out their credibility. In case of Mano Vs. State of Tamil Nadu, , the Apex Court observed "The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such case, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible."
Keeping in view the above principles we examine the evidence of eyewitness Munjuru (PW-1). He stated that at about 9.00 am all the four accused persons caught hold of his brother Gunthu and carried him near the temple of Lord Hanuman. He also followed them. Chunnu tied a towel around the neck of Gunthu, and Gauli, Balwant and Annu assaulted him with sticks. Out of fear he did not go near them. As a result of injuries, Gunthu fell down. He then went to police station and lodged the report (Ex. P/1). Similar is the evidence of Saman Singh (PW-2), who reiterated that all the four accused persons came to his house and carried Gunthu near the banyan tree. Chunnu tied a towel around the neck of Gunthu and all others assaulted him with sticks. He died at the spot, then Mujru went to Police Station, Damua to lodge the report. A day before also there had been a quarrel between deceased and the accused persons.
Learned counsel for the appellants pointed out that Saman Singh (PW-2) in his police statement (Ex. D/2) did not disclose that accused persons had carried deceased from his house. She also pointed out that the facts that the cause of quarrel was a pitcher of liquor and that a quarrel had also occurred a day before the occurrence, were not disclosed by PW-2 in his police statement (Ex. D/2). In our opinion, these omissions did not affect the credibility of PW-2 since he remained firm on the fact that he saw accused persons assaulting deceased with sticks. It is also important to note that the facts which are alleged to be the omissions in the police statement were brought on record by the defence counsel in the cross-examination of the witness. If certain facts are disclosed by a witness in cross-examination by way of explanation or giving details of the occurrence, they cannot be held to be the omissions affecting credibility of the witness.
The evidence of Mujru (PW-1) stood corroborated by the evidence of Saman Singh (PW-2) and also by the first information report (Ex. P/1) lodged by him just after 14 minutes of the occurrence. Nothing has come on record to indicate that there was any past enmity or grudge on the part of witnesses against the appellants for which they could have falsely implicated them. The evidence of Dr. Girish Chaursaiya (PW-3) also lended corroboration to the evident of aforesaid eyewitnesses by stating that he found injuries on the body of deceased caused by hard and blunt objects.
After sincerely scanning the evidence of aforesaid witnesses, we find their evidence cogent, consistent and credit worthy. The evidence of defence witness Kunwarlal (DW-1) that deceased might have suffered injuries by a fall after consuming liquor and that because of old enmity Mujru might have implicated accused persons falsely, cannot be accepted since he expressed his ignorance about the occurrence and the manner in which deceased died. The learned trial judge, in our opinion, rightly held that appellants assaulted deceased as a result of which he suffered fatal injuries and died.
Learned counsel for the appellants urged that the facts and circumstances of the case indicated that appellants did not intend to commit murder of deceased. There being some dispute about a pitcher of country liquor between appellants and the deceased and, therefore, appellants carried deceased to the temple of Lord Hanuman where suddenly the incident occurred in which appellant Gauli picked up a stick of the flag and assaulted deceased. It is true that Mujru (PW-1) in the first information report mentioned that accused persons carried deceased towards the temple of Lord Hanuman after putting a towel around his neck and Gauli assaulted deceased with a stick of flag. Appellants Balwant, Annu and Chunnu ran away and Gauli kept on beating deceased. From the evidence of Mujru (PW-1) as well as of Saman Singh (PW-2) the genesis of the occurrence is not revealed since they remained away from the place where the incident occurred, but it appears that there occurred some quarrel about the pitcher of the country liquor. In these circumstances, in our opinion, it can be gathered, had appellants intended to commit murder of deceased, they could have assaulted deceased at his house itself and not carried him to the temple.
In the aforesaid circumstances, we find substance in the submission made by the learned counsel for the appellants that the incident occurred suddenly on a spur of moment in which appellants dealt stick blows to deceased causing injuries on his head and chest resulting in his death. As such, the appellants could not have been convicted u/s 302 of the Indian Penal Code, but since they caused injuries with sticks on the vital parts of the body of deceased like head and chest, it could be held with certainty that they acted with intention of causing death or causing such bodily injuries to deceased as were likely to cause his death making them liable to be punished u/s 304-I of the Indian Penal Code.
For the aforesaid reasons, the conviction of appellants No. 1 to 4 u/s 302/34 of the Indian Penal Code is modified to one u/s 304-I read with Section 34 of the Indian Penal Code and they are sentenced to rigorous imprisonment for 10 (ten) years. Appellants are said to be in custody since the time of their arrest i.e. from the month of March, 2001. They be released, if not required in any other case. Appeal partly allowed.