JUDGMENT
(20/03/2019) Per : Smt. Anjuli Palo, J :-
Appellants have filed this appeal being aggrieved by the judgment dated 22.07.2009 passed by the Third Addl. Sessions Judge to the Court of District and Sessions Judge Satna in Session Trial No. 194/2007 whereby the appellants have been convicted under Section 302 read with Section 34 of IPC and sentenced to undergo life imprisonment with fine of Rs. 200/-. In default of payment of fine, further RI for 3 months.
2. During the pendency of the appeal, appellant/accused- Munnalal Choudhary died. Hence, this appeal is being prosecuted by appellants-Kaushal Choudhari and Nandkishore.
3. In brief, the prosecution case is that on 02.05.2007 at
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about 11:10 pm, Santlal (since deceased) was taking/ dinner at his house while his brother Brijlal (PW-2) went to betel shop. After sometime, Brijlal started shouting, 'they are killing me'. Hearing his screams, Santlal and his wife Ramdulari (PW-1) reached on the spot and saw that Brijlal was being beaten up by appellant Kaushal and other co-accused persons. Appellant Kaushal was armed with a sword while Nandkishore had a rod. When Santlal and Ramdulari tried to intervene, accused persons started assaulting them. Kaushal inflicted blow of sword on the head of Santlal while other accused persons assaulted him with the rod and lathi. Santlal died due to the head injury. FIR was lodged by Ramdulari (PW-1) at police station Kolgawa, District Satna. After investigation, police filed charge- sheet against the appellants and other accused persons under Sections 147, 148, 149, 323, 324, 506, 307 and 302 of IPC.
4. After committal of the case, learned trial Court framed the charges under Section 302 in alternate Section 302/149, Section 307 in alternate Section 307/149 and Section 323 of the Indian Penal Code against the appellants. Appellants abjured guilt and pleaded
"innocence".
5. Considering the prosecution evidence on record, learned trial Court came to the conclusion that deceased Santlal died due to coma as a result of head injury caused by appellant Kaushal with a sword. Appellants and other co-accused persons also inflicted
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injuries to injured eye-witnesses Ramdulari (PW-1) and Brijlal (PW-
2) in furtherance of their common intention. The trial Court acquitted co-accused Foolan from all the charges levelled against him. Co-accused Ramu and Brijkishore were acquitted from charges under Section 302 (in alternative 302/149), Section 307 (in alternative 307/149) and Section 323 of IPC. Appellants Munnalal (since deceased), Kaushal and Nandkishore were convicted under Section 302 read with Section 34 of IPC and co-accused Ramu and Brijkishore were convicted under Section 324/34 of IPC.
6. Against the aforesaid judgment of conviction of the trial Court, appellants Munnalal Choudhary, Kaushal Choudhari and Nandkishore have filed this criminal appeal.
7. Appellants have challenged the findings of the Trial Court on the grounds that the trial Court has wrongly relied on the testimony of Ramdulari (PW-1) and Brijlal (PW-2). There are many contradictions and omissions in their statement. They are interested witnesses. Further that, they have not specifically stated against the appellants as to which weapon was used by whom. Seizure witnesses have not supported the prosecution case. Appellants further alleged that from the testimony of Dr. P.D.Agrawal (PW-6), it is apparently clear that the prosecution witnesses falsely stated against the appellants. The appellants also alleged that they have no intention to cause death of the deceased (Santlal). All of a sudden, he
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came on the spot and tried to intervene to rescue Brijlal and received injury on his head. Learned counsel for the appellant has not challenged before us that deceased Santlal sustained incised wound of 3 cm x bone deep on the right side of the head. The injury was caused by hard and sharp object.
8. As per Dr. U.S.Thakur (PW-10), right temporal bone of the deceased was broken which was about 4 cm long. Extra-dural hematoma was also present there which covered the entire right parietal temporal region. Brain membrane was ruptured and the main organs were congested. Both chambers of heart were empty. According to doctor, deceased died due to coma which occurred due to head injury to him within 24 hours of the postmortem. MLC report (Ex. P/14) and postmortem report of the deceased (Ex. P/19) clearly establish that the head injury of the deceased was fatal and homicidal in nature and sufficient to cause death in ordinary course of nature. We find that Dr. U.S.Thakur (PW-10) duly corroborated the testimony of eye-witnesses
9. As stated by eye-witnesses Ramdulari (PW-1)-wife of the deceased and Brijlal (PW-2)-younger brother of the deceased, the injury caused to the deceased is by appellant-Kaushal using sword and not by any other person. Presence of the aforesaid eye-witnesses on spot remains unchallenged and found trustworthy, hence seems reliable. They are close relatives of the deceased and their conduct
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appear natural. Due to some minor contradictions, their testimony cannot be discarded.
10. As per Ramdulari (PW-1) just after the incident, she brought her husband (Santlal) to her house and informed the police telephonically. Thereafter, police immediately reached on the spot and brought Santlal to the police station.
11. K.P.Tripathi (PW-11), corroborated the testimony of Ramdulari. He desposed that on 02.05.2007, Ramdulari along with her husband Santlal and brother-in-law Brijlal came to police station and lodged FIR Ex. P/1. At that time, Brijlal (PW-2) and Ramdulari (PW-1) were also injured. Hence, K.P.Tiwari (PW-11) brought them to District Hospital Satna. His statement is also remain unchallenged. Ramdulari (PW-1) and Brijlal (PW-2) were injured eye-witness. They sustained some simple injuries as established by Dr. P.D.Agrawal (PW-6). Due to the injuries sustained by them, their presence on the spot is found reliable and trustworthy.
12. In case of Bhagirath vs. State of Madhya Pradesh AIR 2019 SC 264, the Hon'ble Supreme Court has relied upon the case of
Abdul Sayeed vs. State of MP (2010) 10 SCC 259) with regard to the reliability of the testimony injured eyewitness wherein it was held that :
"The law on the point can be summarised to the effect that the testimony of the injured witness
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is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
13. Learned counsel for the appellant further alleged that, Ramdulari (PW-1) and Brijlal (PW-2) are close relatives of the deceased and their testimony is not corroborated by any other witness independent. Hence, conviction cannot be based on it. We are not inclined to accept the said contentions and disbelieve their testimony. As per Section 134 of the Indian Evidence Act, any fact can be proved by sole eye-witness, no specific number of witness is prescribed to prove a fact. In case of Prithipal Singh and Ors vs. State of Punjab & Anr. (2012) 1 SCC 10 : (2012 AIR SCW 594), the Supreme Court held as under :
"49. 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. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or 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
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whether 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."
14. So far as the contention that Ramdulari and Brijlal being interested witness, is concerned, the Hon'ble Supreme Court in case of Smt. Shamim vs. State (GNCT of Delhi), AIR 2018 SC 4529
has held as under:
"In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit. We see no reason why the same principle cannot be applied when such a witness deposes against a closely related accused. According to normal human behavior and conduct, a witness would tend to shield and protect a closely related accused. It would require great courage of conviction and moral strength for a daughter to depose against her own mother who is an accused. There is no reason why the same reverse weightage shall not be given to the credibility of such a witness."
15. Shakhadhar Dwivedi (PW-13) stated that he recovered a sword on the memorandum (Ex.P/3) of appellant Kaushal and prepared seizure memo Ex. P/8. Looking to the nature of injury, though it is a case of single injury over head by means of sword, the
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case of appellant-Kaushal is duly covered within ingredient of the offence punishable under Section 302 of IPC, because appellant- Kaushal intentionally and forcefully by using sharp cutting weapon (sword) inflicted fatal injury, due to which deceased-Santlal died within few hours of receiving the injury. Thus, his case does not fall under any of the Exceptions of Section 300 of the IPC.
17. So far as appellant-Nandkishore is concerned, Ramdulari (PW-1) and Brijlal (PW-2) stated that he inflicted blows of rod on the deceased. Dr. P.D.Agrawal (PW-6) found contusion of 2"x1" on left shoulder and another contusion of 10"x1.5 cm on right side of lower back and swelling on the middle of right thigh on the body of the deceased. All these injuries were caused by hard and blunt object.
18. Learned counsel for the appellant submitted that prosecution has failed to prove that the aforesaid injuries were caused to the deceased by appellant-Nandkishore in furtherance of common intention with appellant-Kaushal. He has placed reliance on the case of Rajesh Kumar vs. State of Himachal Pradesh (2008) 15 SCC 705, wherein the Supreme Court has held as under:
"12. It is to be noted that according to the prosecution case Surjit Singh was armed with drat and appellant with danda and Surjit Singh hit the deceased with the drat. So far as the appellant is concerned he was carrying a lathi and had assaulted on non-vital parts of the body. The Doctor had noticed five injuries except the incised wound on the scalp which are attributable to the assault done by danda on non vital parts. The
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Doctor's evidence was to the effect that the injury No. 1 was the fatal one. Though the aforesaid aspect cannot always be the determinative of question as to whether Section 34 IPC has application, yet in the present case we find that Adesh Kumar (PW 14) took away the lathi from the appellant and threw it out. Thereafter the only role played according to the prosecution witnesses is that he was running. He did not pick up the lathi which had been thrown up by PW-14 and the prosecution witnesses have accepted that he did nothing thereafter except running. In that view of the matter there is substance in the plea of learned counsel for the appellant that Section 34 has no application so far as Section 302 is concerned.
13. "17 Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in
Ashok Kumar v. State Of Punjab . (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same
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or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
18. As it originally stood, Section 34 was in the following terms:
"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."
19. In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in
Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).
20. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. The above position was highlighted recently in Anil Sharma and Others v. State of Jharkhand [2004 (5) SCC 679], in Harbans Kaur v. State of Haryana [2005(9) SCC 195] and Amitsingh Bhikamsingh Thakur v. State Of Maharashtra . [2007(2) SCC 310].
14. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the
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contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard. The appellant has to be convicted on the basis of injuries inflicted by him. According to us the appropriate conviction would be under Section
326 IPC and custodial sentence of three years would meet the ends of justice."
19. The facts of the above case are similar to the case of appellant-Nandkishore in the present case. Appellant-Nandkishore did not inflict any fatal blow on any vital part of the body of the deceased, though, he was armed with rod which is a deadly weapon but considering the nature and size of injuries on the shoulder and back of the deceased, in our considered opinion, the case of appellant-Nandkishore is duly covered under the purview of offence punishable under Section 324 of IPC. Section 324 of IPC reads as under :
"324. Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
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20. Hence, we are inclined to convert the offence of the appellant-Nandkishore from Section 302/34 of Section 324 of IPC.
21. Accordingly, the appeal filed by appellant-Nandkishore
is partly allowed. His conviction and sentence under Section 302/34 of IPC is hereby set aside and he is acquitted from the charge under Section 302/34 of IPC. He is convicted under Section 324 of IPC.
He was in custody since 06.05.2007 for about two and a half years. He is awarded jail sentence to the extent already undergone which is more than two years and five months. He is on bail. His bail bonds are discharged.
22. However, looking to the facts and circumstances of the case, in our considered opinion, learned trial Court has rightly convicted the appellant-Kaushal under Section 302 of IPC and awarded proper sentence to him. Accordingly, appeal filed by
appellant-Kaushal is hereby dismissed.
23. Copy of this judgment along with its record be sent to the Court below for information and compliance.
(J.K.MAHESHWARI) (SMT. ANJULI PALO)
JUDGE JUDGE
vidya
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