Partly allowed

Jugu Jain @ Vijay Kumar Jain v. State of Chhattisgarh

Chhattisgarh HC8 Aug 2012CRA/282/2007

Case brief

AI extract

What is this about?

The High Court partly allowed an appeal against a conviction under Section 302 IPC. The court set aside the murder conviction and sentenced the appellant to ten years rigorous imprisonment under Section 304 Part I IPC, finding the act fell within Section 300 exceptions due to sudden quarrel and rage.

What did the court decide?

Conviction under Section 302 IPC set aside; convicted under Section 304 Part I IPC and sentenced to rigorous imprisonment for 10 years.

Jugu Jain @ Vijay Kumar Jain Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2012)

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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D.8.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble^Shri Justice Raclhe Shyam Sharma

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Criminal Appeal No.282 of 2007

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Jugu Jain @ Vijay Kumar Jain versus State of Chhattisgarh

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JUDGMENT FOR CONSIDERATION

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Sd/>• Sharma Judge

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Hon'bleShri Sunil KumarSinha, J.:

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^2-e-jiSSd/SunUKumarSinha Judge

Postfor g"-08-2012

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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D.B.: Hon'ble Shri SuniLKymar Sinha and Hon'ble Shri Radhe Shvam Sharma, JJ,

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Criminal Appeal No.282 of 2007

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Appellant

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Jugu Jain @ Vijay Kumar Jain, S/o Babulal Jain, aged about 50 years, R/o Borai, P.S. Pulgaon, Distt. Durg At present R/o Bharkapara, P.S. City Kotwali, Distt. Rajnandgaon (C.G.)

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versus

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Respondent State of Chhattisgarh

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Present:

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Shri Vivek Sharma, counsel for the appellant. Shri Rajendra Tripathi, Panel Lawyer for the State/respondent.

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CrimirLal Appeal undeLSection_374{2) of the Code of Crimina! Procedure.

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JUDGMENT

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(Delivered on'g^'August, 2012)

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Per Radhe Shyam Sharma, J^:

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This appeal is directed against judgment dated 13-03-2007 passed by Sessions Judge, Rajnandgaon in Sessions Trial No.75/2006. By the impugned judgment, accused/appellant Jugu Jain @ Vijay Kumar Jain has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine, to further undergo simple imprisonment for 4 months.

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Case of the prosecution, in brief, is as under:-

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Appellant Jugu Jain @ Vijay Kumar Jain was Jeth (elder brother of husband) of deceased Alka Jain. Deceased Alka Jain was mother of Ankush Jain (PW-17). On 04-06-2006, at about 8 a.m.,

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Ankush Jain (PW-17) went to the roof to spread wet clothes so as to dry them, but he did not get wire there. He asked his mother (the deceased) about the wire which was already there since long. The deceased went to the appellant and enquired about the wire. The appellant, saying that the deceased used to quarrel daily, he will not leave her, brought a Tangiya (axe) from his house and assaulted with it on the head of the deceased, due to which, the deceased became unconscious. Ankush Jain (PW-17) called his maternal uncle (Mama) Ashok Kumar Jain (PW-3). Ankush Jain (PW-17), Ashok Kumar Jain (PW-3) and Omprakash Sahu (PW-4) took the deceased ,to Government Hospital, Rajnandgaon. Dr. Anil D. Mahakalkar (PW-14) treated the deceased. He informed the Police Outpost, Government Hospital, Rajnandgaon. Police reached the hospital. Ankush Jain (PW-17) lodged Dehati Nalishi (Ex.P-21) on 04-06-2006 itself at about 9:50 a.m. The deceased died during treatment. Merg Intimation (Ex.P-8) was recorded. First Information Report (Ex.P-25) was also registered on the same day in Police Station, City Kotwali, Rajnandgaon. The Investigating Officer reached the District Hospital, Rajnandgaon, gave notice (Ex.P-6) to Panchas and prepared inquest on the dead body of the deceased. The dead body of the deceased was sent for post mortem examination to Government Hospital, Rajnandgaon. Dr. R.R.Mandale (PW-12) conducted autopsy on the dead body of the deceased and gave his report (Ex.P-12) in which he found—

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i) stitched wound 3" long vertical over the frontal region on skull ii) stitched wound 1" long over the left wrist joint iii) abrasion 1X1 cm on pelvic bone

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Compound fracture of frontal region on skull was present. He opined that the cause of death was injury on frontal head and excessive haemorrhage.

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In further investigation, spot map (Ex.P-3) was prepared by ASI R.K.Meravi (PW-19). Another spot map (Ex.P-4) was prepared by Patwari Tulsidas Vaishnav (PW-11). Blood stained axe, plain soil and blood stained soil were seized vide Ex. P-7. The appellant was arrested on 14/06/2006 vide Ex.P-10. At the instance of the appellant, blood stained baniyan and lungiwere seized vide Ex.P-9. The seized articles were sent to Forensic Science Laboratory, Raipur for examination. Report (Ex.P-26) was received therefrom.

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After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Rajnandgaon, who, in turn, committed the case to the Court of Sessions Judge, Rajnandgaon, who conducted the trial and convicted and sentenced the appellant as mentioned above.

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Shri Vivek Sharma, learned counsel for the appellant argued that Ankush Jain (PW-17) is solitary eye witness; he is child and tutored witness; his evidence is not cogent and reliable; therefore, the conviction cannot be based on the evidence of a child witness.

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Alternatively, he argued that the appellant was provoked by the deceased; there was exchange of abusive words between the appellant and the deceased; even after admitting the entire case, the appellant would not be liable for punishment under Section 302 of the IPC; instead, he would be liable for punishment under Section 304ofthelPC.

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On the other hand, Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment,^{submittedthattheconvictionandsentenceawardedto} the appellant do not warrant any interference by this Court.

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We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No.75/2006.

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The conviction of the appellant is mainly based on the testimony ofAnkush Jain (PW-17).

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Ankush Jain (PW-17) deposed that the appellant is elder brother of his father and the deceased was his mother. On the date of incident, at about 7-7:30 am, he and his mother (the deceased) were present in his house. The deceased went to the house of the appellant and enquired about the wire. A quarrel took place between them. The appellant assaulted the deceased with a Tangiya. The deceased sustained injury on her head. Blood oozed out of the injury. He further deposed that he called his maternal uncle (Mama) Ashok Kumar Jain (PW-3). He and Ashok Kumar Jain (PW-3) took the deceased to Government Hospital, Rajnandgaon. He^further deposed that at about 1-1:30 pm, the deceased died during treatment. He further deposed that at the time of incident, the appellant was residing in front of the house of the deceased.^He further deposed that police came to the hospital and^helodged Dehati Nalishi (Ex.P-2-).

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In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, it was held that "A child witness, if found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. In other words, even in the absence of oath, the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihopd of being tutored." The same view has been further reiterated in Nivrutti Pandurang Kokate and others v. State of Maharashtra, AIR 2008 SC 1460.

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In State of Madhya Pradesh vs. Ramesh and another, (2011)^{4SCC786,theHon'bleSupremeCourtheldasfollows:}

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"7. In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 : 1952 Cri LJ 547, this Court examined the provisions of Section 5 of the Oaths Act, 1873 and Section 118 of the Evidence Act, 1872 and held that (AIR p.55, para 7) every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age,^extremeold age, disease whether of body or mind or any^other cause ofthe same kind. There is always competency in

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fact unless the court considers otherwise. The Court further held as under: (AIR p.56, para 11)

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"11. .... It is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, 1 think, be gathered from the circymstances when there is no formal certificate."

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In Mangoo v. Stete of M.P., AIR 1995 SC 959 : 1995 Cri LJ 1461, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

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In Panchhi v. State of U.P., (1998) 7 SCC 177 : 1998 SCC (Cri) 1561 : AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that

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"the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child,his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to

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be swayed by what others tell him and thus a child witness is an easy prey to tutoring" (SCC p.181, para 11)

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In Nivrutti Pandurang Kokate v. State of Maharashtra, (2008) 12 SCC 565 : (2009) 1 SCC (Cri) 454 : AIR 2008 SC 1460, this Court dealing with the child witness has observed as under: (SCC pp.567-68, para 10)

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"10.....'....7..... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.'"

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The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The Court may ascertain his suitability as a witness by

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putting questions to him and even if no such question had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. (Vide Himmat Sukhadeo Wahurwagh v. State of Maharashtra, (2009) 6 SCC 712).

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In State of U.P. v. Khshna Master, (2010) 12 SCC 324 : (2011) 1 SCC (Cri) 381: AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the court that something had gone wrong between the date of incident and recording evidence ofthe child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."

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In IVIohd. Kalam vs. State of Bihar, (2008) 7 SCC 257, the Hon'ble Supreme Court held as follows:

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"7. In Panchhi v. Stete of U.P., (1998) 7 SCC 177, it was observed by this Court that the evidence of a child

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witness cannot be rejected outright but the evidence must be evaluated carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. The court has to assess as to whether the statement of the victim before the court is the voluntary expression of the victim and that she was not under the influence of others."

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Ashok Kumar Jain (PW-3) deposed that his Bhanja Ankush Jain (PW-7) came to his house and told him that the appellant has assaulted the deceased. He rushed the place of occurrence and the deceased was taken to the hospital immediately for treatment. He further deposed that the deceased had sustained injury on her head. The injury was caused with an axe. Smt. Sushma Jain (PW-16) deposed that Ankush Jain (PW-17) came to her and told that the appellant assaulted the deceased. She further deposed that Ankush Jain (PW-17) told her that a quarrel had taken place for the wire on which clothes were spread for drying.

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Dr. Anil D. Mahakalkar (PW-14) deposed that on 04-06-2006, he was posted as a Medical Officer (Emergency) at District Hospital, Rajnandgaon. He further deposed that on 04-06-2006, Alka^Jain (deceased) was brought to Government Hospital, Rajnandgaon for medical examination. He examined injured Alka Jain and gave his report (Ex.P-15) in which he found-

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i) incised wound irregular margin on skull (parietal region), ii) defused swelling 3" X 2" on parietal^region of skull^and iii) incised wound 1" X Vi' skin deep on left wrist.

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Dr. Anil D. Mahakalkar (PW-14) deposed that, he sent information to Police Outpost, Government Hospital, Rajnandgaon at about 8:15 am vide Ex.P-16. He further deposed that Alka Jain died in the hospital during treatment.

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The date and the time of the incident was 04-06-2006 at about 8 am and Dehati Nalishi (Ex.P-21) was recorded on the same day at about 9:50 am. Dehati Nalishi (Ex.P-21) was lodged by Ankush Jain (PW-17). In Ex.P-21, name of the appellant is mentioned as assailant.

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The incident took place at about 8 am. The deceased was taken to Government Hospital, Rajnandgaon immediately and Dr. Anil D Mahakalkar (PW-14) sent information to Police Outpost at 8:15 am. Thereafter, the Investigating Officer reached the hospital and Dehati Nalishi (Ex.P-21) was lodged by Ankush Jain (PW-17) immediately. Ankush Jain (PW-17) went to Ashok Kumar Jain (PW3) and narrated him the incident immediately. Ashok Kumar Jain (PW-3)^rushedthe place^{ofoccurrenceandthenthedeceasedwas} taken to the hospital.

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We have carefully perused the evidence of Ankush Jain (PW17). He specifically deposed that on the fateful day, the appellant assaulted the deceased with the Tangiya (axe). His evidence^isduly corroborated by Ashok Kumar Jain (PW-3)^{andSmt.SushmaJain} (PW-16)^{asalsobymedicalevidence.Fromthemedicalevidence,} we find that the death of the deceased was due to injury on^frontal head and excessive haemorrhage and it was^{homicidalinnature.}

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Therefore, we do not find any infirmity in the finding recorded by the learned Sessions Judge that it was the appellant who assaulted the deceased with the Tangiya and the deceased died on account of the injury caused by the appellant.

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Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 ofthe Indian Penal Code.

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Section 304 of the Indian Penal Code provides the punishment^{forculpablehomicidenotamountingtomurder.Itdraws} a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be observed that a death must have been caused by him under any ofthe circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and^{inasuddenfightintheheatof}

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passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing.

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In Ravindra Shalik Naik and others vs. State of hflaharashtra, (2009) 12 SCC 257, the Hon'ble Supreme Court observed as follows: "Sudden quarrel and no premeditation Sudden quarrel and fight arising when accused party's bundle of cotton/grass hitting the roof of complainant and damaging the same Complainant's husband (PW 3) starting quarrel K, father-in-law of the complainant intervening and stopping quarrel S and his sons R and N (appellantaccused party) going home and coming back to spot with axe, knife and gupti and inflicting injuries on the head and abdomen of deceased K and on the hand of husband of the complainant, with intention to cause death K declared dead when taken to hospital On fats, held, appropriate conviction would be under S. 304 Pt. 1 IPC"

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In Satish Narayan Sawant vs. State of Goa, (2009) 17 SCC 724, the Hon'ble Supreme Court held as follows:

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"40. That being the well-settled legal position, when we test the factual background of the present case on the laid down by this Court in the aforesaid principles

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decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. Initially the appellant-accused also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. PW 7 in his cross-examination has categorically stated that death due to stab injury was in consequence of Injury 1 and all other injuries were superficial in nature. So, it was only Injury 1 which was fatal in nature. Factually therefore, there was only one main injury caused due to stabbing and that also was given^{onthebacksideofthedeceasedandtherefore,it} cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness."

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In the instant case, the appellant is Jeth of the deceased. On 04-06-2006, at about 8 am, the deceased went to the house of the appellant and enquired about the wire. On this, a quarrel took place between them. It appears that on account of quarrel, the appellant became enraged and thereafter the appellant, saying that the deceased used to quarrel daily, he will not leave her, brought^the Tangiya (axe) from his house and gave the axe blow on the head of the deceased.

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In the above facts and circumstances of the case, we are^of the view that the act of the appellant would fall^{withintheexception} to Section 300 of the Indian Penal Code and^{hewouldbeliablefor} punishment^underPart 1 of Section 304 of the IPC.

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For the foregoing reasons, the appeal is allowed in part. The conviction and sentence awarded to the appellant under Section 302 IPC are set aside. Instead thereof, he is convicted under Section 304 Pari: 1 of the Indian Penal Code and sentenced to undergo

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rigorous imprisonment for 10 years.

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Sd/- Sd/-
Sunil Kumar Sinha R-S. Sharma
Judge - Judge

Jugu Jain @ Vijay Kumar Jain v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jugu Jain @ Vijay Kumar Jain v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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