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Wednesday, February 15, 2017

whether the conviction of the appellants under Section 302 IPC is sustainable. = the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.= had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken “undue advantage” or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.= In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS. 206-207 OF 2017

ARJUN AND ANR. ETC. ETC.                          ..….Appellants

                                   Versus

STATE OF CHHATTISGARH                                       ……Respondent


                               J U D G M E N T

R. Banumathi, J.

These appeals arise out of the judgment and order  dated  30.08.2013  passed
by the High Court of Chhattisgarh in Criminal Appeal  Nos.111  of  2008  and
100 of 2008 whereby the High Court affirmed the conviction and  sentence  of
life imprisonment imposed by the trial Court on the appellants.

2.    Briefly stated case of the prosecution is that on 19.11.2006 at  about
9:45 a.m., deceased Ayodhya Prasad @ Rahasu had gone to his field  alongwith
Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout  (PW-7)  and  Makunda
Raout (PW-8) to cut tree with the help of the above  persons  which  was  on
his land in village Ghatmadwa.  At that time,  the  appellants-accused  came
to the field and they stopped the deceased and his  labourers  from  cutting
the tree. Deceased Ayodhya Prasad @ Rahasu told the appellants that  he  was
the owner of the tree, therefore, he was cutting the tree which resulted  in
quarrel between the parties.  The appellants  assaulted  the  deceased  with
katta, gandasa and stone.  The deceased fell down and sustained injuries  on
his head and his brain matter came  out.   He  was  taken  to  Bilaspur  for
treatment but he died on the way to the hospital.

3.    Shivprasad (PW-6), brother of the deceased  lodged  the  complaint  in
Police Outpost  Gidhouri.    Based  on  the  complaint,  FIR  (Ex.P-16)  was
registered in Police Station Bilaigarh.  PW-10,  the  Investigating  Officer
reached the place of occurrence and took up the  investigation.   After  the
inquest, the body was sent for autopsy. The  post-mortem  was  conducted  by
Dr. Harnath Verma (PW-12) who gave the Post Mortem Report   (Ex.P-26).   Dr.
Verma  opined  that  the  death  of  the  deceased  was  due  to   excessive
haemorrhage and injury to the head.

4.    PW-10, the Investigating Officer  arrested  the  appellants  from  the
Gidhouri Bus Stand and recorded their statements under  Section  27  of  the
Evidence Act.  Disclosure statement of the appellants led to  the  discovery
of iron katta (cutting object), gandasa and stone weighing   12.5  kg  which
were seized from Lalaram @ Bhagat, Arjun and Padumlal  respectively.   Sando
baniyan and full-pant of  appellant  Lalaram  @  Bhagat  were  also  seized.
Seized articles  were  sent  to  Forensic  Science  Laboratory,  Raipur  for
chemical examination vide Ex.P-23. After completion  of  the  investigation,
chargesheet was filed against  the  appellants  in  the  Court  of  Judicial
Magistrate, First Class Balodabazar, who, in turn,  committed  the  case  to
the Court of Session, Raipur, from where it  was  received  on  transfer  by
Second  Additional  Sessions  Judge,  Balodabazar,  District   Raipur,   who
conducted the trial.

5.    In order to prove its case, prosecution examined  as  many  as  twelve
witnesses.  Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli  Raout   (PW-7)
and Makunda Raout (PW-8) are  the  eye-witnesses,  PW-6  Shivprasad  is  the
complainant and brother of the deceased Rahasu.  Constable  Gandlal  (PW-4),
Constable M.R. Sinha (PW-9) and Constable Bhojram (PW-11) were  involved  in
recording the statement  and  collection  of  evidence,  PW-10  Deen  Bandhu
Uaikey is the Investigating Officer and  PW-12  Dr.  Harnath  Verma  is  the
doctor who conducted the post-mortem.  The  accused  were  questioned  under
Section 313 Cr.P.C about the incriminating evidence and  circumstances,  the
accused denied all of them.  The accused pleaded that the  deceased  Ayodhya
Prasad attempted to take possession of the land  of  the  accused  by  force
and, therefore, they acted in self-defence of their body  and  property.  To
substantiate their defence plea, the  accused  have  examined  DW-1  Shrawan
Kumar and DW-2 Dwarika Prasad.

6.    Having considered the evidence of the witnesses and the  defence  plea
and  the  material  placed  before  it,   the  trial  court  held  that  the
appellants acted with common intention to  commit  the  murder  of  deceased
Ayodhya Prasad and found that the prosecution has proved the  guilt  of  the
accused beyond reasonable doubt and convicted the appellants  under  Section
302 IPC or 302/34 IPC and sentenced each of  them  to  undergo  imprisonment
for life and imposed fine of Rs.20,000/- and in default of payment  of  fine
to undergo rigorous imprisonment for two years.  Aggrieved  by  the  verdict
of conviction, the accused-appellants Arjun and Lalaram  together  filed  an
appeal and accused Padumlal filed a separate appeal before the  High  Court.
The High Court after hearing  the  counsel  for  the  parties  affirmed  the
conviction of the appellants  and  sentence  imposed  by  the  trial  court.
Aggrieved by the conviction and sentence imposed  on  them,  the  appellants
are before us in these appeals by way of special leave.

7.    Learned counsel for the appellants submitted that the name of  accused
Arjun has  never  found  mention  in  the  evidence  of  witnesses  and  the
prosecution has failed to prove his presence at the place of  incident.   It
was further submitted that the eye  witnesses  have  named  only  Padum  and
Lalaram and not Arjun and thus, his conviction  under                Section
302/34 IPC was unsustainable in the eyes of law. It was contended that  PW-6
Shivprasad is the real brother of the deceased and it  would  be  unsafe  to
base conviction on such an interested testimony. It is also the case of  the
appellants  that  mere  recovery  of  gandasa  from  accused  Arjun   cannot
establish his guilt as it is normal that most of the  farmers  have  gandasa
in their possession and mere recovery without establishing its  use  defeats
the case of the prosecution.

8.    Per contra, the learned counsel for  the  State  submitted  that  even
though PW-6 Shivprasad is the brother  of  the  deceased,  his  evidence  is
supported by other evidence and  also  the  recovery  of  weapons  from  the
appellants. It was further submitted that even though prosecution  witnesses
Bajrang Manjhi (PW-1), Borri Verma (PW-2),  Gilli  Raout(PW-7)  and  Makunda
Raout (PW-8) were treated hostile, their evidence establish the presence  of
the accused and their overt act of surrounding  the  deceased  and  to  that
extent,  corroborate  the  version  of  PW-6  Shivprasad.   It  was  further
submitted that considering the nature of weapon used by the  appellants  and
the manner of attack, the trial court as well  as  the  High  Court  rightly
convicted  the  appellants  under      Section  302  IPC  and  the  impugned
judgment warrants no interference.

9.    We have heard learned counsel for the parties at  length  and  perused
the impugned judgment and the materials placed on record.

10.   Shivprasad PW-6 is the real brother of the deceased. PW-6 has  deposed
in his evidence that on 19.11.2006 at about 8:45 a.m., his  brother  Ayodhya
Prasad @ Rahasu had gone to the field for cutting of  trees  alongwith  four
labourers who are eye witnesses i.e. PWs 1, 2, 7 and 8 and at that time  A1-
Lalaram, A2-Padumlal and A3-Arjun came there  with  katta  and  gandasa  and
surrounded the deceased quarrelled with him and prevented him  from  cutting
the tree.  The accused told the deceased that they are  the  owners  of  the
land and questioned him as to  why  he  was  cutting  the  tree.   When  the
deceased replied that he was the owner of the tree and he had the  right  to
cut the tree, there was  wordy  altercation  between  the  accused  and  the
deceased and the accused attacked him with the  weapons  they  had,  namely,
katta, gandasa and a stone.  The deceased sustained injuries  on  his  head,
neck, back and abdomen and fell down on the field. He further  deposed  that
he witnessed the incident from near the shop and the  distance  between  the
shop and the place of occurrence is 15 to 20 feet and due to  fear,  he  did
not go near.

11.   Shivprasad (PW-6) is the brother of  the  deceased,  his  relationship
with the deceased does not affect  the  credibility  of  the  witness.  Only
because PW-6 is related to the deceased that may not by itself be  a  ground
to discard his evidence. Where the prosecution case rests upon the  evidence
of a related witness, it is well-settled that  the  court  shall  scrutinize
the evidence with care as a rule of prudence and not as a rule of  law.  The
fact of the witness being related to the victim  or  deceased  does  not  by
itself discredit the evidence.

12.   In Mano Dutt and Anr. vs. State of Uttar Pradesh (2012) 4 SCC  79,  in
para (33), this Court held as under:-
“33. The court can convict an accused on the statement of  a  sole  witness,
even if he was a relative of the deceased and  thus,  an  interested  party.
The condition precedent to such an order  is  that  the  statement  of  such
witness should satisfy the legal  parameters  stated  by  this  Court  in  a
catena of judgments. Once those parameters are satisfied and  the  statement
of the witness is trustworthy, cogent and  corroborated  by  other  evidence
produced by the prosecution, oral or documentary, then the court  would  not
fall in error of law in relying upon the statement of such  witness.  It  is
only when the courts find that the single eyewitness is a wholly  unreliable
witness  that  his  testimony  is  discarded  in  toto  and  no  amount   of
corroboration can cure its defect. Reference in this regard can be  made  to
the judgment of this Court, in Anil Phukan v. State of Assam  (1993)  3  SCC
282.”


We find no reason to discard the evidence of PW-6 for the sole  reason  that
he is related to the deceased and that he is an interested witness.
13.   To bring home the guilt  of  the  accused,  prosecution  has  examined
Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout  (PW-7)  and  Makunda
Raout (PW-8), the labourers who accompanied the  deceased  for  cutting  the
trees.  In his evidence, PW-1 Bajrang Manjhi stated that he alongwith  Borri
Verma (PW-2), Gilli  Raout  (PW-7)  and  Makunda  Raout   (PW-8)  went  with
deceased Ayodhya for cutting the trees at about         7:00-8:00  a.m.  and
the deceased showed them three trees to be cut.  PW-1  further  stated  that
while they were cutting the tree, the  appellants  Padum  and  Lalaram  came
there and questioned them about cutting of tree and asked them to  go  away.
PW-1 further stated that the appellants Lalaram and Padum were  having  iron
knife and they surrounded the deceased.  PW-1 further  stated  that  out  of
fear, he and other labourers namely, Borri Verma (PW-2), Gilli Raout  (PW-7)
and Makunda Raout (PW-8) ran away from  the  scene  and  after  about  20-25
minutes they came to know that Ayodhya Prasad  was  murdered.  To  the  same
extent, is the evidence of  Borri  Verma  (PW-2),  Gilli  Raout  (PW-7)  and
Makunda Raout (PW-8).

14.   All the four eye witnesses have corroborated that  the  accused  Padum
and Lalaram were present. Further, according to PW-8 Makunda Raout,  accused
Padum and Lalaram were present and immediately  on  fleeing  away  from  the
spot, PW-8 Makunda Raout after some distance turned back and saw that  there
were three accused persons standing surrounding the deceased.  The  presence
of two accused in the beginning and later on joining of  the  third  accused
Arjun is what falls from the evidence  of  PW-8.  Evidence  of  PW-8,  thus,
corroborates the evidence of PW-6 as to the presence of three accused.

15.   Though the eye witnesses PWs 1, 2, 7 and 8 were treated as hostile  by
the prosecution, their testimony insofar as  the  place  of  occurrence  and
presence of accused in the place of the incident and  their  questioning  as
to the cutting of the trees and two accused surrounding  the  deceased  with
weapons is not disputed.  The trial court as well as the High Court  rightly
relied upon the evidence of PWs 1, 2, 7 and 8 to the above  said  extent  of
corroborating the evidence of PW-6 Shivprasad. Merely because the  witnesses
have turned hostile in part their evidence cannot be rejected in  toto.  The
evidence of such witnesses cannot be treated as effaced altogether  but  the
same can be accepted to the  extent  that  their  version  is  found  to  be
dependable and the court shall examine more cautiously to  find  out  as  to
what extent he has supported the case of the prosecution.

16.   In Paramjeet Singh alias Pamma vs. State of Uttarakhand (2010) 10  SCC
439, it was held as under:-
“16. The fact that the witness was declared hostile at the instance  of  the
Public Prosecutor and he was allowed to cross-examine the witness  furnishes
no justification  for  rejecting  en  bloc  the  evidence  of  the  witness.
However, the court has to be very careful, as prima  facie,  a  witness  who
makes different statements at different times, has no regard for the  truth.
His evidence has to be read and considered as a whole with a  view  to  find
out whether any weight should be attached to it. The court  should  be  slow
to act on the testimony of such a witness;  normally,  it  should  look  for
corroboration to his testimony. (Vide State of Rajasthan v.  Bhawani  (2003)
7 SCC 291.)

17. This Court while deciding the issue in Radha Mohan  Singh  v.  State  of
U.P. (2006) 2 SCC 450 observed as under: (SCC p. 457, para 7)
“7. … It is well settled 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  witness  cannot  be
treated as effaced or washed off the record altogether but the same  can  be
accepted to the extent his version is found to be dependable  on  a  careful
scrutiny thereof.”

18. In Mahesh v.  State  of  Maharashtra  (2008)  13  SCC  271,  this  Court
considered the value of the deposition of a  hostile  witness  and  held  as
under: (SCC p. 289, para 49)
“49. … If PW 1 the maker of the complaint has chosen not to corroborate  his
earlier statement made in the complaint and recorded  during  investigation,
the conduct of such a witness for no plausible and tenable  reasons  pointed
out on record, will give rise to doubt the testimony  of  the  investigating
officer who had sincerely and honestly conducted  the  entire  investigation
of the case. In these circumstances, we are of the view that PW 1 has  tried
to conceal the material truth from  the  Court  with  the  sole  purpose  of
shielding and protecting  the  appellant  for  reasons  best  known  to  the
witness and therefore, no benefit  could  be  given  to  the  appellant  for
unfavourable conduct of this witness to the prosecution.”

19. In Rajendra v. State of U.P. (2009) 13  SCC  480,  this  Court  observed
that merely because a witness deviates from his statement made in  the  FIR,
his evidence cannot be held to be totally unreliable. This Court  reiterated
a similar view in  Govindappa  v.  State  of  Karnataka  (2010)  6  SCC  533
observing that the deposition of a hostile witness can  be  relied  upon  at
least up to the extent he supported the case of the prosecution.

20. In view of the above, it is evident that the evidence of a  person  does
not become effaced from the record merely because he has turned hostile  and
his deposition must be examined more cautiously  to  find  out  as  to  what
extent he has supported the case of the prosecution.”
The same view is reiterated in Mrinal Das and  Ors.  vs.  State  of  Tripura
(2011) 9 SCC 479 in para (67) and  also  in  Khachar  Dipu  alias  Dilipbhai
Nakubhai vs. State of Gujarat (2013) 4 SCC 322 in para (17).

17.   The contention of the accused is that the eye witnesses PWs  1,  2,  7
and 8 have not mentioned the  name  of  appellant  Arjun.   Appellant  Arjun
could have not been convicted, does not merit acceptance.  In his  evidence,
PW-8 Makunda Raout stated that when  they  started  cutting  trees,  accused
Padum and  Lala  came  there  and  surrounded  Ayodhya  Prasad  and  started
questioning.  After that PW-8 and other eye  witnesses  ran  away  from  the
spot.  PW-8 further stated that after some distance, he turned back and  saw
three persons surrounding the deceased. The  evidence  of  PW-8  establishes
the presence of two accused in the  beginning  and  that  Arjun  joined  two
other accused and  the  presence  of  appellant  Arjun  spoken  by  PW-6  is
corroborated by the evidence of PW-8. That apart, recovery of  gandasa  from
appellant  Arjun  is  an  incriminating  circumstance/evidence  against  the
appellant Arjun and concurrent findings recorded by the  courts  below  that
appellant Arjun was also responsible for the homicidal death of  Ayodhya  is
based on evidence.

18.   PW-12 opined that the cause of death was  haemorrhagic  shock  due  to
head injuries and the death  was  homicidal  in  nature.   Medical  evidence
corroborates the oral testimony of PWs 6 and 10.  Recovery of  weapons  i.e.
katta (cutting object), gandasa and stone from the  accused  Lalaram,  Arjun
and Padum respectively  also  substantiates  the  prosecution  version.  The
prosecution has established that the  appellants  are  responsible  for  the
homicidal death of deceased Ayodhya Prasad.

19.   The point falling for consideration is whether the conviction  of  the
appellants under Section 302 IPC is sustainable.  As discussed earlier,  the
evidence clearly establishes that while Ayodhya Prasad and  other  witnesses
were cutting the trees, there  was  exchange  of  words  which  resulted  in
altercation and during the said altercation,  the  appellants  attacked  the
deceased.  Thus, the incident occurred due to a sudden fight which,  in  our
view, falls under exception (4) of Section 300 IPC.

20.   To invoke  this  exception  (4),  the  requirements  that  are  to  be
fulfilled have been laid down by this Court  in  Surinder  Kumar  vs.  Union
Territory of Chandigarh (1989) 2 SCC 217, it has been explained as under:-
“7. To invoke this exception four requirements must  be  satisfied,  namely,
(i) it was a sudden fight; (ii) there was no premeditation;  (iii)  the  act
was done in a heat of passion; and (iv) the  assailant  had  not  taken  any
undue advantage or acted in a cruel manner. The cause of the quarrel is  not
relevant nor is it relevant who  offered  the  provocation  or  started  the
assault. The number  of  wounds  caused  during  the  occurrence  is  not  a
decisive factor but what is important is that the occurrence must have  been
sudden and unpremeditated and the offender must  have  acted  in  a  fit  of
anger. Of course, the offender must not have taken any  undue  advantage  or
acted in a cruel manner. Where, on a sudden quarrel, a person  in  the  heat
of the moment picks up a weapon which is handy and causes injuries,  one  of
which proves fatal, he would be entitled to the benefit  of  this  exception
provided he has not acted cruelly…………..”

21.   Further in the case of Arumugam vs. State, Rrepresented  by  Inspector
of Police, Tamil Nadu, (2008) 15 SCC 590,  in support of the proposition  of
law that under what circumstances exception (4) to  Section 300 IPC  can  be
invoked if death is caused, it has been explained as under:-
“9.   …….
“18. The help of Exception 4 can be invoked if death is caused  (a)  without
premeditation; (b) in a sudden fight;  (c)  without  the  offender’s  having
taken undue advantage or acted in a cruel or unusual  manner;  and  (d)  the
fight must have been  with  the  person  killed.  To  bring  a  case  within
Exception 4 all the ingredients mentioned in it must be found. It is  to  be
noted that the ‘fight’ occurring in Exception 4 to Section 300  IPC  is  not
defined in the Penal Code, 1860. It takes two  to  make  a  fight.  Heat  of
passion requires that there must be no time for the passions  to  cool  down
and in this case, the parties had worked themselves into a fury  on  account
of the verbal altercation in the beginning. A fight is a combat between  two
and more persons whether with or without weapons.  It  is  not  possible  to
enunciate any general rule as to  what  shall  be  deemed  to  be  a  sudden
quarrel. It is a question of fact and whether a quarrel  is  sudden  or  not
must necessarily depend  upon  the  proved  facts  of  each  case.  For  the
application of Exception 4, it is not sufficient to show that  there  was  a
sudden quarrel and there was no premeditation.  It  must  further  be  shown
that the offender has not  taken  undue  advantage  or  acted  in  cruel  or
unusual manner. The expression ‘undue advantage’ as used  in  the  provision
means ‘unfair advantage’.”


22.   The accused, as per the version of PW-6 and  eye  witness  account  of
other witnesses, had weapons in their hands,  but  the  sequence  of  events
that have been narrated by the witnesses only show  that  the  weapons  were
used during altercation in a sudden fight and there was  no  pre-meditation.
Injuries  as  reflected  in  the  post-mortem  report  also   suggest   that
appellants have not taken “undue advantage” or  acted  in  a  cruel  manner.
Therefore, in the fact situation, exception (4) under  Section  300  IPC  is
attracted.   The  incident  took  place  in  a  sudden  fight  as  such  the
appellants are entitled to the benefit under Section 300 exception (4) IPC.

23.   When and if there is intent and knowledge, then the same  would  be  a
case of Section 304 Part I IPC and if it is only a  case  of  knowledge  and
not the intention to cause murder and bodily injury, then the same would  be
a case of Section 304 Part II IPC.  Injuries/incised  wound  caused  on  the
head  i.e.  right  parietal  region  and  right  temporal  region  and  also
occipital region, the injuries indicate that the  appellants  had  intention
and knowledge to cause the injuries and thus it  would  be  a  case  falling
under Section 304 Part  I  IPC.  The  conviction  of  the  appellants  under
Section 302 read with Section 34 IPC is modified under Section 304   Part  I
IPC.  As per the Jail Custody Certificates on record,  the  appellants  have
served 9 years 3 months and 13 days as on 2nd March, 2016,  which  means  as
on date the appellants have served 9 years 11 months.  Taking  into  account
the facts and circumstances in which the offence  has  been  committed,  for
the modified conviction under Section  304  Part  I  IPC,  the  sentence  is
modified to that of the period already undergone.

24.   In the result, conviction of the  appellants  under  Section  302  IPC
read with Section 34 IPC is modified as conviction under Section 304 Part  I
IPC and the sentence is reduced to the period already  undergone  and  these
appeals are partly allowed accordingly. The appellants  are  ordered  to  be
released forthwith unless required in any other case.

25.   Fee of the learned Amicus is fixed as per Rules.



                                             …….…………...………J.
                                             [DIPAK MISRA]



                                             …………….……………J.
                                             [R. BANUMATHI]
New Delhi;
February 14, 2017

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