Jahar Lal vs State Of Chhattisgarh

This appeal is directed against the impugned judgment of conviction and order of sentence dated 26/04/2014 passed by 3rd Additional Sessions

Judge, Ambikapur in Sessions Trial No.14/13 whereby and whereunder, the appellant has been held guilty of commission of offence under Section 302

IPC and sentenced to life imprisonment with fine of Rs.500/- (in default of payment of fine, additional R.I. of three months).

Prosecution story as unfolded from the records of the case and impugned judgment is that merg in Ex.P/2 was recorded by the Station House

Officer of police station â€" Sitapur on the information given by Shivpati (PW1) regarding death of Shivram. Merg intimation recorded that Shivram

was strangulated to death by the appellant â€" Dilram who is the son of the deceased. Upon receipt of information and intimation of death, FIR in

Ex.P/1 was recorded by Station House Officer on the information of Shivpati (PW1). According to the FIR, at about 5 PM in the evening,

appellant/accused -Dilram came to the house where Shivram resided. The accused entered into quarrel with his father â€" Shivram. Shivram scolded

Dilram regarding mismanagement of the affairs of paddy store situated in the agriculture field and Shivram left the place of quarrel and went inside

the room. The appellant / accused followed him in his room, caught him there and then strangulated him to death. After recording FIR, the Station

House Officer proceeded to the scene of occurrence i.e. residence of Shivram, where inquest over dead body was prepared in the presence of the

witnesses. The dead body was sent for post mortem and Dr.G.R.Kurre (PW7) conducted post mortem and prepared report in Ex.P/9. The

Investigating Officer conducted investigation and upon completion of investigation, filed charge sheet before the Judicial Magistrate, who in turn,

committed the case for trial. On the basis of material contained in the charge sheet, learned Trial Court framed charge of commission of offence of

murder under Section 302 IPC against the appellant. The appellant having abjured guilt, was tried. In order to prove its case, the prosecution examined

as many as nine witnesses. Thereafter, the appellant was examined under Section 313 CrPC in respect incriminating evidence and circumstances

appearing against him in the evidence led by the prosecution. The appellant came out with simple denial and said that he has been falsely implicated

and he has not committed any offence. No defence witness was examined.

Relying upon the evidence led by the prosecution, learned Trial Court held the appellant guilty of commission of offence and sentenced as described

above.

Assailing the correctness and validity of impugned judgment of conviction and order of sentence, learned counsel for the appellant vehemently

argued and submitted that the entire case of the prosecution is based on the sole testimony of eye witness and interested witness â€" Smt. Shivpati

(PW1) who happened to be the wife of Deepak Kumar, younger brother of the appellant. It is argued that a clear suggestion was given to this witness

that the witness had a strong reason to falsely implicate the appellant because if the appellant is convicted, the entire property left by Shivram-the

deceased, will go to the hands of the husband of Shivpati. Except Shivpati, there is no other eye witness of the incident, therefore, it would not be safe

to convict the appellant on the sole testimony of the interested witness. The next submission of learned counsel for the appellant is that even if it is

accepted that Shivram died in the course of quarrel between him and the appellant, it would not amount to a case of murder but at the most, a case of

culpable homicide not amounting to murder. According to learned counsel for the appellant, there was a quarrel going on between the appellant and his

father and the witnesses have said that the appellant was drunk. There is no evidence to show that there was any serious animosity going on between

the father and the son since long. All of a sudden, in the course of quarrel, the deceased sustained injury which led to his death. The appellant did not

use any dangerous weapon and he only strangulated the deceased which was only an overt act committed because of sudden and grave provocation

given by the father to his son blaming him for not doing his work properly. Provoked by this allegation, the appellant deprived of power of self control,

strangulated his father without knowing the consequences of the same. Therefore, the conviction of the appellant may be altered to one under Section

304, Part II IPC and as he has already undergone almost more than half of the sentence, the sentence may be reduced to the period already

undergone.

On the other hand, learned State counsel supports the judgment of conviction and order of sentence and submits that the evidence of Shivpati is

reliable, trustworthy and corroborated by the medical evidence of homicidal death. It is next submitted by learned State counsel that what has been

stated by Shivpati only shows that there was a simple, trivial incident of hot conversation between father and the son which could not be said to be

something amounting to sudden and grave provocation so as to say that the appellant, as a reasonable mind, was likely to be provoked so much so as

to lose his self control. Learned State counsel further highlighted that it is not a case that all of a sudden, under a provocation, some injury was inflicted

which led to death whereas, it is a case where the father left the spot of quarrel and went to the room and the appellant followed him and caught him

there and then pulled him down and strangulated his neck with so much pressure that neck bone was broken and Shivram died of strangulation.

Therefore, conviction does not warrant any interference. FIR in Ex.P/1 and merg intimation in Ex.P/2 has been proved by convincing and reliable

evidence of Shivpati (PW1) and Station House Officer and Investigating Officer of the case T.R.Nagwanshi (PW9). Both have proved their

signatures on the FIR (Ex.P/1) and Merg Intimation (Ex.P/2). Moreover, while Shivpati (PW1) clearly states that FIR and merg intimation was given

by her and it was recorded as per her information, T.R.Nagwanshi (PW9) states that on the basis of information given by Shivpati (PW1), report was

recorded. In both these documents, the story is that the appellant came to the house where Shivram was residing with his younger son â€" Deepak

and daughter-in-law â€" Shivpati and there were heated altercation between the two and thereafter, Shivram went inside his room and the appellant

followed him and then caught hold of him, strangulated his neck so much so that Shivram died of Asphyxia.

Case of the prosecution rests mainly on the eye witness account of Smt. Shivpati (PW1) who is the daughter-in-law of the deceased and sister-in-

law of the appellant. She is the wife of Deepak Kumar, younger brother of the appellant. The appellant and Deepak both are the sons of Shivram.

Shivram, at the time of incident, was residing with his younger son â€" Deepak Kumar. Shivpati (PW1) stated that on 14/11/2012, the appellant had

come along with his family in the house and they took lunch on the festive occasion of Diwali. After lunch, the appellant went to his house and then

again at about 4 PM, he came back. At this juncture, her father-in-law -Shivram asked the appellant as to why he was not shifting paddy to the store,

on which, the appellant replied that paddy was reaped on that day itself and after it dries up, it will be shifted to the store. Thereafter, Shivram scolded

the appellant that the appellant does not keep the store in clean condition. On this allegation, the appellant started quarreling with his father. The

witness further deposes that at this stage, her father-in-law Shivram stated that he cannot overcome the appellant and went inside his room. The

appellant, however, followed his father and he also went to the room and again there was some quarrel. Hearing the quarrel, she left her work and

went inside the room where she saw that the appellant was strangulating his father-in-law with both his hands. She asked the appellant to leave him

but the appellant pulled down his father on the floor and strangulated him to death. In her cross examination, she has admitted that the appellant was

intoxicated. She has denied suggestion that the appellant and Shivram were scuffling with each other. She has reaffirmed the fact in the cross

examination that the appellant was strangulating his father. She further explains that on a very trivial issue, her brother-in-law got excited and

strangulated her father-in-law to death. Prior to the said incident, there was no dispute between the father and the son. She has denied suggestion that

she is falsely implicating the appellant to ensure his conviction so that her husband succeeds to the entire landed property.

The statement of this witness regarding the whole incident is quite natural and no material contradiction and omission has been pointed out in her

testimony so as to raise any doubt with regard to trustworthiness. The entire story of the incident as narrated by this witness in the Court is

substantively the same as given by this witness at the time of merg intimation and lodging of FIR and it cannot be said that there are serious

contradictions with regard to time, place and the manner in which the incident took place. Submission of learned counsel for the appellant that the

evidence of this witness ought to be discarded because she happens to be an interested witness is erroneous in law and liable to be rejected. As a

matter of legal proposition, the testimony of witness is not liable to be discarded and disbelieved only on the ground of the witness being an interested

one. In appropriate circumstances, however, the Court may look for corroboration. The sole eye witness of the present case is not only related to the

appellant but also the deceased. She happens to be the wife of the younger brother of the appellant. There is no reason why she should falsely

implicate her brother-in-law by giving false statement in the Court. It is to be noted that in the present case, FIR and merg intimation was lodged on

the very next day of the incident. The incident happened at 5 O' Clock in the evening and FIR lodged at 10 AM in the next morning. So is the case

with merg intimation (Ex.P/2). An attempt has been made to impeach the credibility of this witness by giving her suggestion that witness has falsely

implicated so that upon conviction of the appellant, the entire property may go in the hands of her husband â€" Deepak, younger brother of the

appellant and son of the deceased. This bald suggestion, without any material, cannot be made a basis to disbelieve the testimony of the eye witness.

The ocular testimony of the witness otherwise is fully corroborated from the medical evidence of the doctor. The doctor who conducted the post

mortem clearly recorded in his post mortem report (Ex.P/9) that cause of death is likely to be Asphyxia due to air ways obstruction owing to throttling,

which is homicidal in nature. This doctor has been examined by the prosecution as PW7. The doctor has proved the post mortem report prepared by

him. The apparent look of the dead body when it was brought before the doctor was stated by the doctor before the Court as below â€

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The aforesaid evidence given by the doctor has remained uncontroverted in his cross examination and the suggestion that such symptoms could be

found in the case of heart attack has been denied. The doctor has emphatically denied the suggestion that the death was not caused due to Asphyxia.

From the post mortem report, nature of injury and evidence of doctor, it is clear that Shivram died due to throttling. He was strangulated to death. The

hyoid bone was found broken which only proves that the deceased was strangulated with great pressure so much so that hyoid bone in the neck was

broken. The evidence, therefore, leaves no manner of doubt that present is

a case of homicidal death.

The argument that present would be a case covered by exception-I of Section 300 IPC, cannot be accepted by us on the face of the evidence on

record regarding the background of the incident and the manner in which the appellant caused injury. The evidence of Shivpati (PW1) is that there

were hot conversations between the appellant and his father -Shivram with regard to management of agriculture activities. Before the dispute could

take bigger shape, the father withdrew by stating that he cannot overcome the appellant. That means the father intended the conversation to come to

an end. Not only this, he left the place where heated conversation was going on and went inside the room. The appellant, thereafter, followed his

father and also went inside the room. According to Shivpati (PW1), when she came inside the room hearing the noises, she saw that the appellant was

strangulating his father and she asked the appellant to leave his father but he pulled his father down to the floor and then strangulated. This entire

incident cannot be said to be a case where the appellant committed an overt act deprived of the power of self control by some grave and sudden

provocation causing death of his father. Mere hot altercation, without anything more, in the facts and circumstances of the present case, do not qualify

as a case of sudden and grave provocation. In order to make out a case of culpable homicide not amounting to murder by application of exception -I,

there has to be provocation and such provocation has to be “sudden and graveâ€. Further, every kind of provocation is not sufficient to bring it

within exception -I. Trivial quarrel and heated conversations are not sufficient to give a colour of sudden and grave provocation. Present is a case of

trivial issue of maintenance of paddy store. Though there was heated conversation between the father and the son, the father withdrew from

conversation and left the place stating that he cannot overcome his son and went inside the room. The appellant then followed his father, went inside

the room, pulled him down and strangulated to death. How could this be said to be a criminal overt act of sudden and grave provocation. We are

convinced on the face of the evidence before us that the essential ingredients of sudden and grave provocation are totally absent in the present case.

In the result, we do not consider the present case to be a case of culpable homicide not amounting to murder but a case of murder. Accordingly,

conviction of the appellant for commission of offence under Section 302 IPC is not liable to be interfered with. Therefore, the appeal fails and is

hereby dismissed.