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Judgment
The challenge in the present appeal is to a judgment dated
27.3.2006 passed by 5th Additional Sessions Judge, Jabalpur convicting the
present appellant for an offence punishable under Section 302 of I.P.C. and vide
separate order sentencing him to undergo life imprisonment and fine of
Rs.1,000/-. In the event of default of payment of fine, he was further ordered to
undergo three months rigorous imprisonment.
An first information (Dehati Nalisi) was given by Shiv Kumar
Thakur S/o Khalak Singh at 2:25 noon on 19.6.2005 in respect of an
occurrence, which had taken place earlier between 11:45 to 12:00 noon. On the
basis of such statement Ex.P-1, FIR (Ex.P-15) was recorded by Shri R. K.
Saraf, Station House Officer, Katangi. The statement is that he is residing in
village Baksvahi along with his parents. At about 11:30 in the afternoon, he
was coming to village Baksvahi from his fields when he saw Munna Singh - the
accused/appellant armed with Tabbal (Axe). He was abusing the daughter of
uncle Saheb Singh saying that he has taken revenge of his brother and has killed
Narendra Singh and what anybody wants to do let him do. Then he along with
his father, Prahlad Kotwar and Nandu Singh went to the place of occurrence
and saw his grandfather (Nana) was lying dead in the pool of blood. Then he
and Kotwar went to Kaijori. Thereupon, the police came. The statement is that
he stated that his grandfather has been killed by the accused Munna to take
revenge of murder of his brother Madan.
On the basis of such statement, PW-11 Raj Kumar Saraf started
investigation by taking into possession the dead body vide memo Ex.P-6; the
dead body was sent for postmortem examination vide memo Ex.P-8; site plan
was prepared vide memo Ex.P-3; he also took in possession the blood-stained
earth and sample earth vide memo Ex.P-5. The accused was arrested on
19.6.2005 and on interrogation he accepted his involvement in the offence and
disclosed that he can get the axe recovered by which he killed Narendra Singh
Lodhi. He can also get recovered the clothes which he was wearing at the time
of occurrence; lying concealed in his house. Such statement under Section 27 of
the Evidence Act was recorded in writing vide memo Ex.P-2 and thereafter, one
cotton Kurta having blood stains, one white colour Pajama having two blood
stains, one cotton towel (Gamchha) having numerous blood stains and one iron
axe having blade of 4 inch were taken in possession vide memo Ex.P-4. The
clothes of the deceased were sealed separately by the doctor who conducted the
postmortem and kept in a parcel vide memo Ex.P-10. The articles taken in
possession were sent for examination to Forensic Science Laboratory, Sagar.
The report of F.S.L. is Ex.P-14.
Dr. Kalpana Choudhary PW-5 conducted the postmortem on the
dead body of the deceased Narandra Singh aged 70 years. The postmortem
report is Ex.P-14. The following injuries were found on the person of the
deceased:-
"1. Incised wound present right fronto parietal region extending upto occipital region. Size of wound 6"x 1?"x ?". Corresponding bones that is frontal parietal temporal bone was cut; 2. Incised wound over right shoulder 1"x 1/2" x 1/4". Corresponding bone that is clavicle was cut; 3. Incised wound over dorsal aspect of right wrist joint 1"x 1/2" x 1/2" deep structured into wound there is cut 2 corresponding bone lower end of radius cut."
As per the opinion of the doctor, all injuries were ante mortem and
were caused by sharp edged weapon. This witness has opined that the injury
No.1 was sufficient in natural course to cause death. The cause of death is
haemorrhagic shock resulting from severe head injury caused by sharp weapon
and death is homicidal in nature.
After completion of the investigations, the accused was made to
stand trial. During trial, the author of FIR, PW-1 Shiv Kumar was declared
hostile by the Public Prosecutor, but, he admitted that the initial statement Ex.P-
1 was given by him and was recorded, as disclosed by him.
The father of PW-1 Shiv Kumar is PW-10 Khalak Singh, son-in-
law of the deceased. He admitted in his cross examination that son of Narendra
Singh was arrested in the case of murder of Madan, brother of the accused. On
account of such fact, the appellant was having grudge against Narandra Singh.
PW-2 Virendra is resident of village of the accused and the
deceased. He deposed that he had seen accused Munna hitting the deceased. He
deposed that he was in his home at about 12:00 to 1:00 noon on the date of
occurrence in a house which is adjoining to the house of Narendra. The noises
were coming from the house of Narendra Singh. He guessed that fight is going
on. When he reached the house of Narendra Singh, he found that accused
Munna was going out after hitting Narendra Singh. An axe was in the hand of
Munna. His clothes were stained with blood. He was threatened by Munna but
he ran away. He also deposed that Madan brother of Munna was killed 7 to 8
years ago. In the said incident of murder, Sukhlal, son of deceased Narendra
was arrested, but he was later on acquitted by the Court. He deposed that at the
time of causing of death Narendra Singh, the appellant was saying that he has
taken revenge of death of his brother. The witness was again called for cross
examination on 02.12.2005. To a pointed question, the witness deposed that
when he saw the accused, he had an axe in his hand. In respect of the threats
given to him by the accused, he stated that he had told the police official, but, if
they have not written, he cannot explain the reason for not writing it. He further
deposed that he had disclosed to the police that Munna had run away from the
place of occurrence but why the police has not recorded this fact, he cannot give
any reason. Thus, the said witness has fully supported the prosecution version
of the manner of occurrence.
PW-3 Prahlad is witness of recovery of the articles on the basis of
disclosure statement of Munna including axe and the blood-stained earth.
PW-4 Halle Singh is the neighbour of the deceased, who came to
the place of occurrence on the noise being raised by Narendra. He has not gone
inside the house of the deceased. He has no information as to why the appellant
took the life of Narendra Singh.
PW-6 Munga Bai is the neighbour of the deceased but she turned
hostile.
PW-7 Pratap Singh is Sarpanch of the village. Hre deposed that
Munna has told him that he should not intervene in the matter between him and
Narendra. After 10-15 minutes, there was a commotion in the village in respect
of death of Narendra Singh. He stated that when Munna Singh came to him, he
had no arm in his hand. He deposed that Madan Choudhary, brother of Munna
Singh was killed and for such death Sukhlal son of Narendra Singh was
arrested.
The FSL Report Ex.P-14 has found the human blood on packets A,
C, E, F and G. The packet C, D and E are the shirt, pajama and towel of the
accused. However, on packets B and F i.e. sample earth and axe, no blood was
found.
On the basis of the evidence led by the prosecution, the learned
Trial Court convicted the appellant for an offence under Section 302 of IPC and
sentenced him to undergo life imprisonment as mentioned above.
Learned counsel for the appellant vehemently argued that the
grandson of the deceased has turned hostile and that there is no reliable and
trustworthy witness on the basis of which the appellant can be convicted. It is
also argued that the axe; the weapon of offence, has not been found to be
stained with blood or human blood and therefore, in the absence of proof of
weapon being used by the accused, the conviction of the appellant is not
We have heard learned counsel for the parties and find no merit in
the present appeal.
The son-in-law of the deceased and the grandson i.e. PW-10
Khalak Singh and PW-1 Shiv Kumar have turned hostile. PW-1 Shiv Kumar
though has accepted that the statement Ex.P-1, the basis of FIR, was made by
him. Apart from admission of the fact that statement Ex.P-1 was made by him,
the prosecution case is entirely corroborated by PW-2 Virendra, who is an
independent witness. He is resident of the village and knows the accused as
well as the deceased. He has supported the prosecution story in its entirety. In
cross-examination, he has not been confronted with the previous statement
made by him under Section 161 of Cr.P.C. Some question has been asked in
respect of omissions in the previous statement but the witness has not been
confronted with such statement. Still further, the statement made to the police is
said to have certain omissions as compared to the statement given by the
witness in Court. The omissions are not contradictions in terms of explanation
to Section 162 Cr.P.C., The question as to when the omissions can be
contradictions has been examined by the Supreme Court in S.Kaur (Smt.) vs.
Baldev Singh and others reported as (1997) 11 SCC 292, wherein it is
observed thus :
"11. We are unable to accept this submission for two reasons. Firstly, seeing the statement under Section 161 CrPC we find that the omission cannot be regarded as being a contradiction. According to the explanation to Section 162 CrPC, an omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
What is important to see is the context in which the statement under Section 161 CrPC was recorded and then to find whether the omission was such so as to regarded as a contradiction. ..........."
It is not a contradiction to the statement made to the police under
Section 161 of Cr.P.C. but an additional explanation. It is not a statement which
contradicts in any way the statement made to the police. In terms of explanation
to Section 162 Cr.P.C., an omission to state a fact or circumstance in the
statement referred to in Sub-section (1) may amount to contradiction if the same
appears to be significant and otherwise relevant having regard to the context in
which such omission occurs and whether any omission amounts to a
contradiction in the particular context is question of fact.
The eyewitness account of PW-2 Virendra is corroborated by the
postmortem conducted by PW-5 Dr. Kalpana Choudhary. The injuries on the
person of the deceased are by hard and sharp-edged weapon and could be
caused by axe. Therefore, the eyewitness account of Virendra supported by
initial version of Shiv Kumar (PW-1) i.e. Ex.P-1 stands corroborated by
medical evidence. Still further, the clothes of the accused; shirt, pajama and
towel are all having human blood. The statement of PW-2 Virendra is that axe
and clothes of the appellant were stained with blood. Recovery of blood stained
clothes is also proved by Prahlad PW-3. Since the clothes of the appellant have
been found stained with human blood, therefore, the prosecution version
deposed by PW-2 Virendra stands corroborated by scientific evidence.
At this stage, learned counsel for the appellant raised an argument
that there was no intention or knowledge of causing death of Narendra Singh.
However, we do not find any merit in the said argument as well. PW-7 Pratap
Singh has deposed that the appellant met him and told not to intervene between
him and Narendra on the date of occurrence and soon thereafter there was
commotion in the village. The appellant was not armed with any weapon at that
moment. Meaning thereby that after meeting PW-7 Pratap Singh, the accused
went to his house, picked up an axe and gave multiple blows on the person of
the deceased. Therefore, it is not a case of sudden fight but the death has been
caused having premeditation. The appellant has motive to take life of Narendra
as son of the deceased Narendra was acquitted of the murder charge of the
brother of the appellant. Such is the statement of PW-2 Virendra, PW-7 Pratap
Singh and PW-10 Khalak Singh.
In view of the above discussion, we do not find any error in the
findings recorded by the learned Trial Court, which may warrant interference in
the present appeal. Accordingly, the same is dismissed.