Karan Singh vs State of Chhattisgarh

Sunil Kumar Sinha, J.

Appellant - Karan Singh has been convicted u/s 302 read with Section 34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/- with default sentence of R1 for three months. The judgment and findings have recorded by the Sessions Judge, Ranker, district - Uttar Bastar, Ranker, Chhattisgarh in Sessions Trial-110 of 2008 on 5th November, 2008. The facts, briefly stated are as under:-

2.1 Deceased - Surjuram was younger brother of the appellant. Sohan Singh (absconding accused) is son of the appellant. The case of the prosecution it that, on 26.12.2006 at about 8 p.m., the appellant and his son - Sohan Singh came to the house of the deceased and assaulted him by clubs. When the deceased fell down in the courtyard of his house, the appellant took a stone (of about 8-10 kg) and threw it on the skull of the deceased. The deceased sustained multiple serious injuries and succumbed to those injuries.

2.2 The incident was witnessed by Jugotin Bai (PW-1), Fagibai (PW-6) and Prabha (PW-5). The Merg intimation (Ex. P/1) and First Information Report (FIR - Ex. P/2) were lodged by Jugotin Bai (PW-1).

2.3 The Investigating Officer reached to the place of occurrence, gave notice (Ex. P/5) to the Panchas and prepared inquest (Ex. P/6) on the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. R.K. Shreemali (PW-8). He found following injuries on the dead body of the deceased:-

(i) Lacerated wound on the entire left portion of the face; the face was completely disfigured having fracture on the left mandible bone;

(ii) There was fracture over the nasal bone;

(iii) There were fractures over the left Zygomatic bone which has caused disfiguration;

(iv) Bruise of 3" 2" on the right clavicle bone; There was another bruise of 3" 2" near the same area;

(v) Bruise of 1 1/2" on the middle of the chest;

(vi) Bruise of 13" x 3" on the right thigh;

(vii) Bruise of 10" x 3" just below the above injury on the thigh; and

(viii) Bruise of "on the Hypochondrial region.

2.3. On internal examination it was found that there was fracture over the sternum bone. There were fractures on the right 3rd and 4th ribs, due to which right lung was ruptured. There was also an injury of 6" x 1/4" on the liver. The liver was ruptured. According to the autopsy surgeon, all the injuries were ante-mortem and the cause of death was excessive haemorrhage on account of the above injuries ant it was homicidal in nature. The post-mortem report is Ex. P/11.

2.4 In further investigation, the appellant was taken into custody and his discovery statement Ex. P/8 was recorded u/s 27 of the Evidence Act. One stone of 8-10 kg was seized at his instance vide seizure memo Ex. P/9.

2.5 Jugotin Bai (PW-1) is mother of the deceased. Fagibai (PW-6) is wife of the deceased and Prabha (PW-5) is daughter of the deceased. All these witnesses turned hostile on trial. However, in cross-examination by the Public Prosecutor, Fagibai (PW-6) and Jugotin Bai (PW-1) supported the case of the prosecution.

2.6 Learned Sessions Judge relying on their testimonies and also relying on the circumstance of extra judicial confession, convicted and sentenced the appellant as above.

Hence this appeal.

Shri O.P. Sahu, learned counsel for the appellant has mainly contended that almost all the eyewitnesses had turned hostile and they has not supported the case of the prosecution; the evidence of extra judicial confession was shaky. Therefore, the conviction based on the said evidence cannot be sustained.

On the other hand, Ms. Smitha Ghai learned counsel for the State has opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard counsel for the parties.

We shall firstly note down the principles relating to hostile witnesses.

In Bhajju @ Karan Singh Vs. State of M.P., , it was held as follows:-

"Regarding the admissibility and probative value of the testimony of hostile witnesses, normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded u/s 161 Cr.P.C., the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for grating leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.

It is settled laws the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154, Evidence Act, enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution."

Further, in Lahu Kamlakar Patil and Another Vs. State of Maharashtra, , it was held vide paras-15 to 17 as under:

"15. It is settled in law that the evidence of a hostile witness is not to be rejected in toto. In Rameshbhai Mohanbhai Koli and Others Vs. State of Gujarat, , reiterating the principle, this Court has stated thus: (SCC p. 117, paras. 16-17

"16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny there of. (Vide Bhagwan Singh Vs. The State of Haryana, , Shri Rabindra Kumar Dey Vs. State of Orissa, , Syad Akbar Vs. State of Karnataka, and Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, .

In State of U.P. Vs. Ramesh Prasad Misra and another, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra, , Gagan Kanojia and Another Vs. State of Punjab, , Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., , Sarvesh Narain Shukla Vs. Daroga Singh and Others, and Subbu Singh Vs. State by Public Prosecutor, ."

Recently, in Bhajju @ Karan Singh Vs. State of M.P., , a two-Judge Bench, in the context of consideration of the version of a hostile witness, has expressed thus: (SCC p. 341 para. 35)

"35...Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded u/s 161 Cr.P.C., the prosecutor, with the permission of the court, can pray the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution."

In Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), , while discussing about the evidence of a witness who turned hostile, the Bench observed that his evidence to the effect of the presence of accused at the scene of the offence was acceptable and the prosecution could definitely rely upon the same."

It is, thus, clear that the evidence of the prosecution witnesses, who have been declared hostile cannot be rejected in toto. Their evidence cannot be washed off from the record. However, the same can be accepted to the extent their version is found to be dependable on the careful scrutiny of their evidence.

Jugotin Bai (PW-1) is mother of the appellant and the deceased. She was residing along with the deceased. In her examination-in-chief, she denied to witness the incident. She deposed that when she came out from the house, she saw that her son Surjuram (majla ladka, the deceased) was lying near the door of their house. She could not see as to who assaulted him. She was declared hostile by the Public Prosecutor and was allowed to be cross-examined. In her cross-examination, she admitted vide para-5 that, the two accused persons had come to their house in the night. They were armed with clubs. They were abusing the deceased and thereafter, they started assaulting him by the clubs. Though, further, she denied the suggestion that the stone was thrown on the face of the deceased by the appellant, but she admitted that the deceased had died on account of the beatings given by the accused persons. She also admitted in para-6 of her cross-examination that her daughter-in-law, Fagibai (PW-6) and granddaughter Prabha (PW-5) were also present at the time of the incident.

Fagibai (PW-6) is wife of the deceased. In her examination-in-chief, she completely denied the incident. She was also declared hostile and was allowed for cross-examination by the Public Prosecutor. In her cross-examination, she admitted the entire incident. She admitted in clear words that in the fateful night, she was present in the house when the accused persons called her husband (deceased). As soon as her husband came out from the house, the accused persons attacked over him by clubs, and when he fell down after receiving the injuries, the appellant took a stone and threw it on him, due to which, he died.

She further admitted that, she had witnessed the entire incident and it is true that her relatives had said her that when the appellant would come out from the jail he would look after them and would maintain them, therefore, looking to the future of her children, she denied the incident in her earlier version, but she later on deposed what she had also stated before the police.

We note that in further cross-examination by the defence, she remained intact on her above evidence, in which she has supported the case of the prosecution. She denied in the cross-examination by the defence that there was no light in the house. She deposed that there was sufficient light by electricity (bijli) in her house. She denied that the lights were off and she also denied the suggestions that she could not see the assailants, and re-ascertained that the assailants were Sohan (absconding accused) and Karan Singh (appellant herein).

So far as Prabha (PW-5) is concerned, she has not at all supported the case of the prosecution.

In appreciation of the evidence of Fagibai (PW-6) and Jugotin Bai (PW-1), we find that evidence of Fagibai (PW-6) was corroborated by the evidence of Jugotin Bai (PW-1) in material principles. Fagibai (PW-6) is wife of the deceased and Jugotin Bai (PW-1) is mother of the deceased. The entire evidence of Fagibai (PW-6) would make it clear that in the night, the two accused came to their house and they firstly assaulted the deceased by using clubs and when the deceased fell down in the courtyard of the house, Karan Singh (appellant) took a stone and threw it on the face of the deceased, who sustained above injuries and succumbed to those injuries.

The incident took place in a remote village, therefore, presence of these witnesses in their own house at about 8-8.30 p.m. cannot be doubted. The appellant and the deceased both were real brothers and the accused persons were well known to the witnesses. There was sufficient light (electricity) in the house. Therefore, there was no chance of mistaken identity.

We are of the view that, in the above facts and circumstances of the case, the learned Sessions Judge was fully justified in relying on the testimony of Fagibai (PW-6).

The Sessions Judge has also relied on the evidence of extra judicial confession. According to Karbari (PW-7), in the next morning a village panchayat was convened, in which the appellant and his son, Sohan were present and they made confession that they had assaulted the deceased in the night by clubs and when the deceased fell down and was alive, a stone was thrown to kill him.

Karbari (PW-7) is not a hostile witness. He was put to cross-examination by the defence. Nothing material could be brought in his cross-examination on the point of extra judicial confession. Thus, the case of the prosecution was also supported by the circumstance of extra judicial confession made by the appellants in village panchayat. On due consideration of the entire facts and circumstances of the case, we find no infirmity in the judgment and findings recorded by the Sessions Court. The appeal is liable to be dismissed and is hereby dismissed.