The High Court dismissed an appeal against conviction under Section 304 Part-I IPC. Relying on circumstantial evidence, medical testimony, and the appellant's failure to explain the occurrence and absconding conduct, the Court upheld the trial court's finding of culpable homicide not amounting to murder.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 767 of 2017
---- Appellant
Versus
---- Respondent
For Appellant : Mr. Ashutosh Shukla, Advocate For Respondent/State : Mr. Ajay Pandey, G.A.
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Order on Board
15/04/2024
| CONVICTION | SENTENCE | PUNISHMENT IN DEFAULT OF PAYMENT OF FINE |
|---|---|---|
| Under Section | 7 years R.I. and fine | 3 months additional |
| 304-I of I.P.C | of Rs. 100/- | imprisonment. |
deceased Ambika Prasad @ Thunki Sarthi were friends and
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resident of same village. The deceased Ambika Prasad had borrowed some cash amount from the appellant. On 07.02.2015, both of them had gone to the matrimonial house of the sister of appellant Ujiyar Singh, both of them were in drunken condition and some dispute arose between them with respect to the money transaction and in the said condition the appellant strangulate the neck of the deceased and throw the grinding stone on the head of the deceased which was lying there, by which the deceased died. The merg was intimated to the police by Kotwar Samaylal on which the merg intimation Ex.P-7 was recorded. The inquest of the dead-body of the deceased was prepared vide Ex.P-2 and the dead body was sent for its postmortem to Government Hospital, Prem Nagar where PW-16 Dr. G.L. Miri has conducted the postmortem of the dead-body of the deceased and gave the report Ex.P-31. After the postmortem the doctor has found injuries on the body of the deceased and opined that the cause of death of Ambika Prasad to be blockage of wind pipe (right and left bronchus) by blood and the mode of death to be asphyxia, duration to be within 36 to 38 hours. Nature to be homicidal with depend on circumstantial evidence of police officer. FIR Ex.P-8 was registered on 07.02.2015 for the
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offence under Section 452 and 302 of IPC. The grinding stone stand with blood like stains was seized from the spot vide seizure memo vide Ex.P-4. Blood stain and plain soil and slipper of the deceased was also seized vide seizure memo Ex.P-5. The cloths of the deceased was also seized vide seizure memo Ex.P-6. Spot map Ex.P-9 was prepared by the police and Ex.P-13 was prepared by the Patwari. Query was made from doctor who conducted the postmortem through the document Ex.P-24 which has been replied by the doctor and the document Ex.P-24 itself. Another query was made by the doctor vide Ex.P-25 which has been reply vide Ex.P-32 that the injuries found on the body of the deceased could have been caused by the grinding stone seized from the spot. The seized blood stain and plain soil, Slipper, grinding stone and cloths of the deceased was sent for FSL examination to Regional FSL, Ambikapur from where the report Ex.P-28 was received, according to which the blood was found on blood stain soil, slippers of the deceased, grinding stone seized from the spot and also the cloths of the deceased. The appellant was arrested on 08.01.2016 and his memorandum statement Ex.P-3 was recorded. The statement under Section 161 of Cr.P.C of the witnesses have also been
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recorded and after completion of investigation charge-sheet has been filed against the appellant for the offence under Section 302, 450 of IPC before the learned Chief Judicial Magistrate, Surajpur on 08.02.2016. The case was committed to the Court of learned Sessions Judge, Surajpur. The charge for the offence under section 302 of IPC was framed by the learned Sessions Judge, Surajpur. The appellant denied the charge and claimed trial.
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are reliable and the learned trial Court has rightly convicted him. The impugned judgment and conviction of sentence is absolutely justified which needs no interference.
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below at thyroid cartilage continuous to 2 c.m above at mid clavicle portion, 14 c.m long and 4 c.m wide at left side at neck and 1 c.m wide and at bruise red in colour.
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to be homicidal with depend upon circumstantial evidence.
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habit of consuming liquor excessively. He admitted that he has not seen the any incident of assault made by the appellant on the deceased Ambika Prasad. When he has taken the deceased to the Hospital doctor has informed that he has already died and informed it to the police. Being the Kotwar, he informed the incident to the police.
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vivid that on the date of incident the appellant and the deceased were roaming together in the village after consuming liquor. They had gone to the house of Somarsay where the dead body of the deceased was found in injured condition. When both of them were together just before the incident, the dead body was found of one person of injured condition, the other (the appellant) has to explained the circumstances under which the deceased was found dead and received injuries on his body but in the present case the appellant has not explained any circumstance under which the injuries have been found on the body of the deceased and therefore, the learned trial Court has rightly considered that the appellant is failed to discharge his burden and failed to explained the circumstances which was in his special knowledge as provided under Section 106 of the Indian Evidence Act, 1872.
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after about eleven months and his conduct is admissible under Section 8 of the Indian Evidence Act 1872, which gives presumption of the guilt of the appellant he has not explained his non-presence in the village for about eleven months.
of witness and held that:-
12.1. Shivaji Sahabrao Bobade v. State of Maharashtra²: (SCC p. 801, para 8)
"8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the post-mortem certificate. Certainly, the court which has seen the witnesses depose, has a great advantage over the appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial Judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful naiveté and clever equivocation, manipulated conformity and ingenious inveracity of persons who swear to the facts before him. Judge draws his conclusions not so much on the of the witness while on oath but upon general where a on expert evidence, the court of appeal is in as good a position to dubiety Never directness probabilities and on expert evidence, the court of appeal is in as good a position to assess or arrive at Legitimate conclusions as the court of first instance. Nor can we make a fetish of the trial Judge’s psychic insight.”
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12.2. Bharwada Bhoginbhai Hirjibhai v. State of Gujara we make a fetish pp. 222-23, para 5)
“5……We do not consider it appropriate or permissible to enter a reappraisal or reappreciation of the evidence in the context of minor discrepancies painstakingly highlighted by the learned the appellant. Overmuch importance cannot be attached to counse discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to photographic memory and to recall the details of an incident. It as if a video tape is replayed on the mental screen
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3)The powers of observation differ from person to person. one may notice, another may not. An object or emboss its image on one person's mind, whereas it might unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work the spur of the moment at the time of interrogation. And one c expect people to make very precise or reliable estimates in matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession of short time span. A witness is liable to get confused, or mixed when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by himperhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
12.3 . Appabhai v. State of Gujarar: (SCC pp. 246-47, para 13)
“13…….The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of
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memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J. speaking for this Court in Sohrab v. State of M.P.5 observed: [SCC p. 756, para 8: SCC (Cri) p. 824, para 8]
8.... This Court has held that falsus in uno, falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.…"
12.4 State of Haryana v. Bhagirath: (SCC pp. 100-01, paras 8-11)
"8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression 'reasonable doubt' is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge.
“It is difficult to define the phrase "reasonable doubt". However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
'The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason,
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entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.'
‘6……….The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
12.5. Leela Ram v. State of Haryanas: (SCC pp. 532-33, paras 9-10)
"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are dimension, the same should not be used to jettison the wilnesses of a material evidence in its entirety. Incidentally, corroboration of evidence with mathematical embellishment, cannot be expected in criminal cases. Minor there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies not to bliterate an reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony. In para 10 of the Report, this Court observed: (SCC pp. 514-15)
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the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable i would not be proper to per to reject the evidence on the ground of mino variations or infirmities in the matter of trivial details. Even hones and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention an reproduction differ with individuals.'
‘24. When an eyewitness is examined at length it is qu possible for him to make some discrepancies. No true witness possibly escape from making some discrepant details. Perhaps untrue witness who is well tutored can successfully make testimony totally non-discrepant. But courts should bear in mind it is only when discrepancies in the evidence of a witness are incompatible with the credibility of his version that the cour justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between statements of the same witness) is an unrealistic approach for judicial scrutiny.
This Court further observed: (SCC pp. 656-57, paras 25-27)
‘25. It is a common practice in trial courts to make ou witness for contradictions from the previous statement of a confronting him during cross-examination. Merely because there w inconsistency in evidence it is not sufficient to impair the credit of the witness, No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an But a reading of the section indicate that all inconsistent statements are not sufficient to impeach indicate credit of the witness. The material portion of the section is extracted below:
“155. Impeaching credit of witness- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him-
(1)-(2) * * *
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"
26.A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to "contradict" the witness.
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case the PW-11 Jyotram have stated in his deposition that there was dispute between the appellant and the deceased with respect to money transaction which has been supported by Mahaveer PW-17, who is also stated that there was a dispute between the appellant and the deceased with respect to the money transaction. Therefore, the motive has also been found proved to commit the incident by the appellant.
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the case the conviction of the appellant and sentenced can
not be said to be unjustified and considered it to be in accordance with the law.
Sd/-
( Ravindra Kumar Agrawal ) Judge
Vaishali
3 issues framed by the court
Whether the death was homicidal in nature.
Whether the appellant's involvement in the offence is established through circumstantial evidence.
Whether the conviction under Section 304 Part-I IPC and sentence are justified.
Colour shows how this judgement treated each authority
State of Karnataka vs. SuvarnammaRelied on¶63
2015(1) SCC 323 · Who else cites this
Shivaji Sahabrao Bobade v. State of MaharashtraReferred¶65
Shivaji Sahabrao Bobade v. State of Maharashtra
Bharwada Bhoginbhai Hirjibhai v. State of GujaraReferred¶68
Bharwada Bhoginbhai Hirjibhai v. State of Gujara
Appabhai v. State of GujaraReferred¶77
Appabhai v. State of Gujarar
State of Haryana v. BhagirathReferred¶82
State of Haryana v. Bhagirath
Leela Ram v. State of HaryanaReferred¶92
Leela Ram v. State of Haryanas
State of U.P. v. M.K. AnthonyReferred¶93
State of U.P. v. M.K. Anthony
Rammi v. State of M.P.Referred¶97
Rammi v. State of M.P.
3 provisions across 2 enactments
Ujiyar Singh S/o Devprasad
State of Chhattisgarh through Police Station Premnagar, District Surajpur, Chhattisgarh
Ravindra Kumar Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
