An appeal was preferred by the appellant against the judgment and order dated 16.2.2008, passed by Additional Sessions Judge, in Session Trial No.87 of 2007 (State vs. Prakash) arising out of Case Crime No.678 of 2006 under Section 302, 323, 324 IPC, whereby the accused was convicted and awarded sentence under Section 302 IPC for life imprisonment and fine of Rs.10,000/-. The appellant was further convicted and sentenced under Section 323 IPC for six months RI and further convicted and sentenced under Section 324 IPC for one year RI.

The facts giving rise to this appeal were that complainant-Ram Khelawan submitted written-report at Police Station-Ghatampur, stating therein that on 18.12.2006, he heard the noise of screaming from the side of field. On hearing the screaming, he and his cousin, Shiv Raj, ran towards that direction and saw that his elder brother Prakash was attacking on his own wife-Phoolkali with spade. They saved both the children, during which, Shiv Raj and daughter of Prakash, namely, Goldi, also sustained injuries. He brought injured Phoolkali for treatment, but she died.

A case was registered at police station under Sections 302 and 323 IPC. Investigating Officer arrested the accused-Prakash and on his pointing out made recovery of spade. Charge-sheet was submitted against accused appellant-Prakash under Sections 302, 324 and 323 IPC.

Court heard Ms.Shweta Pandey, learned Amicus Curiae appearing for the appellant, learned AGA for the State and perused the record. Learned counsel for the appellant submitted that appellant was falsely implicated in this case. It was strongly argued that all the prosecution witnesses of fact had turned hostile. No witness had supported the prosecution case. It was also submitted that antemortem injuries, shown in postmortem report, were not sufficient to cause death of the deceased. It was submitted that appellant was not arrested on the spot and prosecution could not establish any motive to commit the crime by appellant. Motive was absolutely silent. She also argued that false recovery of spade was made by Investigating Officer to strengthen the prosecution case and recovered spade was in fact planted by the police. Appellant is languishing in jail for more than 14 years.

Per contra, learned AGA submitted that appellant was named in FIR as single accused and it was very important to note that the FIR of this case was lodged by appellant’s real younger brother. It was submitted that FIR was lodged very promptly nearly about two hours after the occurrence. Therefore, there was no reason for false implication of the appellant. Learned AGA further submitted that the spade, which was used in commission of crime, was recovered by Investigating Officer on the pointing out of the appellant. It was argued that antemortem injuries found in postmortem, could be inflicted to the deceased with the weapon like spade, if it was used from reverse-side. In this way, medical evidence also corroborated the prosecution version. Lastly, it was submitted that no doubt, witnesses of fact had turned hostile, but they had become hostile due to being close relative, i.e., brother and daughter etc. The learned trial court had rightly appreciated the evidence on record and convicted the accused.

It was contended by the defence that prosecution could not establish the motive of crime, but this was the case of direct evidence and in case of direct evidence, motive losses importance. Hence, absence of motive does not affect the prosecution case adversely. Perusal of the record showed that in this case, prosecution had produced three witnesses of fact, namely, Ram Khelawan, Shiv Raj and Silta (daughter of the accused). All these three witnesses have turned hostile. It is settled law that testimony of hostile witnesses cannot be thrown away merely on the ground of being hostile.

Hon’ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat [(1999) 8 SCC 624] held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.

In Ramesh Harijan vs. State of UP [(2012) 5 SCC 777, Hon’ble Supreme Court has also held that it is settled legal position 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.

In State of UP vs. Ramesh Prasad Mishra and another [1996 AIR (Supreme Court) 2766], Hon’ble Apex Court held that evidence of a hostile witnesses would not 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. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole and relevant part thereof, which are admissible in law, can be used by prosecution or the defence.

Court scrutinized the evidence of hostile witnesses very meticulously and had also gone through the findings recorded by learned Trial Judge. FIR was very promptly lodged at police station just after two hours of incident, in which the complainant named appellant-Prakash and he was single accused named in the FIR. There was no reason to falsely implicate the appellant by his real brother. Ram Khelawan although had turned hostile, but in examination-in-chief, he had stated that written-report was written by Raj Kumar, but he had written it on his dictation. Although, he has further stated that it was not read over to him, but this statement cannot be believed in the light of evidence of scribe.

The scribe of FIR, Raj Kumar had been produced. He has stated in his examination-in-chief that report of occurrence was written by him on the dictation of Ram Khelawan and he had written verbatim whatever was dictated by him. In his cross-examination, Raj Kumar had stated that he had written above report at police chauki on the dictation of police-inspector. Learned trial court had very well scrutinized the factum of writing of FIR and came to the conclusion that it was clear that first information report was written by Raj Kumar on the dictation of complainant-Ram Khelawan. At the cost of repetition, it is very pertinent to mention that there is no reason on record for false implication of accused-appellant by his real brother. More importantly, appellant is named in the FIR as single accused. Hence, it transpires that Ram Khelawan was the eye-witness of the incident. That is why he has named his brother Prakash in the FIR and at the time of deposition before learned trial court, he turned hostile to save him.

Shiv Raj is cousin of complainant. It is said that on hearing the screaming, he also ran towards the place of occurrence. Although, Shiv Raj had also turned hostile, but injury sustained by him shows that he was present at the place of occurrence and as stated in the FIR, he sustained injury while trying to save the deceased from the clutches of accused-appellant. The daughter of appellant, Kumari Goldi died before she could depose. In this way, the injuries of above injured persons established the fact that the incident, as alleged in the FIR, took place and while trying to save the deceased from the attack of appellant, they sustained injuries. Although, Shiv Raj has stated that he got injury by falling, but this statement cannot be believed in view of the above circumstances. Learned trial court has rightly opined that a person can tell a lie, but not the circumstances.

Court was convinced that learned trial court has rightly held that inquest report was prepared and punch gave opinion that deceased Phoolkali died due to inflicting the injuries with spade by Prakash. Complainant-Ram Khelawan has also signed the inquest report and Bhola has also signed, who is the witness of recovery of spade. This witness, namely, Bhola had stated that police called him at police chauki and sought his thumb impression on a plain paper. He has denied recovery of spade in his presence, but in this way, however, he has admitted his thumb impression on recovery memo. Learned trial court has very rightly appreciated the fact that there is no signature or thumb impression of accused-Prakash on inquest report. It showed that accused appellant was not present at the time of preparation of inquest report of the deceased while deceased was his wife. His real brother Ram Khelawan, the complainant and Bhola, etc., were present, but accused was not present; meaning thereby that he had fled away from there. It is very strong circumstance against the appellant.

Death of deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four-corners of murder or culpable homicide not amounting to murder. Therefore, Court was considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC.

In State of Uttar Pradesh vs. Mohd. Iqram and another, [(2011) 8 SCC 80], the Apex Court has made the following observations in paragraph 26, therein:

“26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought-forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and, therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial-court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable.”

Considering the evidence of these witnesses and also considering the medical evidence including postmortem report, there was no doubt left about the guilt of the present appellant. However, the question which falls for consideration was whether on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 IPC should be upheld or the conviction deserves to be converted under Section 304 (Part-I) or (Part-II) of the Indian Penal Code.

The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions.

A person commits culpable homicide if the act by which the death is caused is done. Subject to certain exceptions, culpable homicide is murder is the act by which the death is caused is done.

In the internal-examination on the body of the deceased, the spinal cord and ribs were found fractured. Right lung and liver also found injured. The doctor opined that deceased died due to excess bleeding from antemortem injuries. Therefore, it was established that deceased died due to excess bleeding of internal injuries sustained by her. Having analyzed the antemortem injuries, court reached to the conclusion that appellant used the spade to attack the deceased from reverse-side because deceased sustained two injuries of contusion. There was no injury of incised wound. Hence, spade was used from reverse side, which showed that appellant was not having any intention to kill the deceased, but certainly he had knowledge that his act was likely to cause death.

The Court was of the considered opinion that the offence would be punishable under Section 304 (Part-I) IPC.

It appeared that the death caused by the accused was not intended and the injuries were though sufficient in the ordinary course of nature to have caused death, the accused had no intention to cause death, therefore, the instant case falls under the Exceptions 1 and 4 to Section 300 IPC. The appeal was liable to be allowed in part. Appellant was held guilty for commission of the offence under Section 304 (Part-I) IPC instead of offence under Section 302 IPC along with other offences punishable under Sections 323 and 324 IPC.

Hence, the conviction and sentence awarded to the appellant for the offence under Section 302 IPC was converted into the offence under Section 304 (Part-I) IPC and appellant was sentenced under Section 304 (Part-I) IPC for 14 years rigorous imprisonment and fine of Rs.5,000/-. The appellant will undergo further simple imprisonment for one year in case of default of fine. Sentence awarded under Sections 323 & 324 IPC will remain intact. All the Sentences will run concurrently. Accordingly, the appeal was partly allowed.

Reference:

https://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do

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