Hon'ble Arvind Kumar Tripathi,J.
(Delivered by Hon. Arvind Kumar Tripathi, J.) The present government appeal has been preferred on behalf of State against the judgment and order of acquittal dated 21.5.2003 passed by Special/Additional District and Sessions Judge, Siddharthnagar in S.T.No.43 of 1998 and 43-A of 1998 arising out of Case Crime No.31 of 1996, under Section 302 IPC, P.S. Pathra Bazar, District Siddharthnagar.
The prosecution case in brief is that informant Ram Shanker Chaudhary cousin of deceased Ram Kishore lodged first information report at police station Basi. Subsequently, it was transferred at police station Pathra Bazar and was registered as Case Crime No.31 of 2006. The allegation was that while buffalo of deceased Ram Kishore S/o Bhagwati Kurmi R/o Ramvapur Bhaiya, P.S. Pathra Bazar was returning after grazing her leg touched the cot belonging to the accused respondent Devi Das, which was lying in front of his house and joint of cot was damaged. Due to that altercation took place in between wife of deceased Ram Kishore and Devi Das. Due to that reason on 5th May, 1996 at about 9.00 P.M. accused respondent Devi das, Phool Chand and Dhruv Chand Kurmi came at the door of the deceased and again started abusing. On exhortation of accused respondent Dhruv Chand Kurmi deceased Ram Kishore was caught hold by accused respondent Phool Chand and accused respondent Devi Das with intention to kill assaulted with knife at stomach of Ram Kishore. Informant immediately reached after receiving information regarding the incident. Wife of Ram Kishore, his son Raju, Nephew (Sister's son) Cheena, Gaudi and Shri Chand of the same village were present on the spot, who had seen the incident, gave information regarding the said incident. They took injured Ram Kishore in a tractor trolly, for medical aid, at Titauly hospital. Since the treatment could not be provided there, hence he was taken to Government Hospital, Basi. There at Basti, medical aid was given by the doctor. However, considering his serious condition he was referred to district hospital, Basti. He was taken to District Hospital, Basti, where was got admitted in the hospital and treatment was being given. His condition was serious. Thereafter, written information was given at Police Station Kotwali, Basi on 6.5.1996. The first information report was lodged on 6.5.1996 at about 3.10 P.M. On 7th May, the information was given regarding death of deceased Ram Kishore hence the case was converted under Section 302 IPC. Thereafter Panchnama was prepared and the body was sent for post mortem examination. He was medically examined on 6.5.1996 at 5.00 A.M. by the P.H.C., Basi District Siddharthnagar. According to medical examination report six injuries were found on person of deceased Ram Kishore _;
1. linear abrasion 16 cm. Right side chest about 12 cm. below to right axila.
2. linear abrasion 8 cm. upper part of the abdomen in middle.
3. linear abrasion 4 cm. in right palm about 3 cm. Below right thumb.
4. linear abrasion 2 cm. in right thumb.
5. 5 abrasion 0.5 x 0.5 cm. outside right thumb
6. stabbed wound 3 cm. X 2 cm x covity deep lower part of the abdomen about 3.5 cm below to umblicus profusion of intestine was coming out.
According to post mortem report, dated 7.5.1996 conducted at 4.P.M., by doctor A. K. Sharma, following five injuries were found.
1. incised penetrating wound 4 cm. X 3 cm. portending mid of abdomen 5 c.m. below umblicus
2. incised wound 2 cm. X 0.2 cm. X skin deep on the right palm 5 cm. Below writst joint.
3. incised wound 0.4 cm. X 0.2 cm skin deep on the right palm 8 cm. below the wrist.
4. abrasion 14 cm. X 0.4 cm. on the abdomen 3 cm. above umblicus.
5. Abrasion semilunar 16 cm. X 0.3 cm on the right lateral aspect of chest 7 cm. outer to the right nipple.
The cause of death was due to haemorrhage and shock. The Investigating Officer after spot inspection prepared the map and recovered articles were sent for chemical analysis. After concluding the investigation charge-sheet was submitted under Section 302 IPC. Thereafter, against accused respondent Dhruv Chandra Kurmi and Phool Chandra the charge was framed under Section 302/34 IPC and against Devi Das charge was framed under Section 302 IPC. They denied the charges and pleaded for trial. Since accused respondents Devi Das was absent in the Court, hence by order dated 23.3.2002 the trial was separated as Sessions trial No.43 of 1998. Both the Sessions Trial were decided jointly by a common order. The prosecution has examined Ram Shanker Chaudhary, (son of maternal uncle of deceased) informant, as P.W. 1, Gaudi as P.W. 2, Prema Devi (wife of Ram Kishore deceased) as P.W. 3, Ram Raj (Bhanja) P.W.4, Jokhan @ Raju (son of deceased) as P.W. 5 as witnesses of fact. Doctor A. K. Sharma, who conducted the post-mortem report was examined as P.W. 6, Dr. Ravi Shanker Shukla as P.W. 7, who examined injuries and provided medical aid. Deena Nath Yadav, Investigating Officer, was examined as P.W. 8.
In defence no witnesses were examined. Ram Shanker Chaudhari, who was informant was declared hostile. Gaudi, who belongs to the same village and was mentioned as one of the eye witnesses, in the first information report, and Prema Devi wife of deceased, also became hostile. However, Ram Raj and Jokhan @ Raju, who were also eye witnesses have supported the prosecution case. Presence of Ram Raj was disbelieved by the trial court and evidence of P.W. 5 was also not believed because he was a child witness. P.W. 1 Ram Shanker Chaudhari stated that he has not seen the incident and FIR was written by him on the direction of Sub-Inspector. The dictation was given by Sub-Inspector. Hence he was declared hostile. In cross-examination he stated that his statement was not recorded by the I.O. under Section 161 Cr.P.C. and he has not given the alleged statement, which was read in the court. P.W. 2 Gaudi has stated that when the incident took place he was at his residence and he has not seen the incident. He had also stated that he had not given the alleged statement as recorded under Section 161 Cr.P.C. He was also declared hostile. P.W. 3 Prema Devi, who was wife of deceased, has also not supported the prosecution case since the matter was settled in between the parties to avoid any dispute in future. The prosecution case was supported by P.W. 4 Ram Raj @ Chheena and Jokhan @ Raju P.W. 5 (minor son of deceased Ram Kishore).
Learned AGA submitted that the trial court has committed error in acquitting the accused respondents since P.W. 1, P.W. 2, P.W. 3 have not supported the prosecution case. The trial court has committed error in disbelieving the statement of P.W. 4 and P.W. 5, who had also seen the incident hence the judgment and order of acquittal is totally based on conjecture and surmises because the presence of the P.W. 4 and P.W. 5 was disbelieved without any cogent ground. There was light of lantern and dhebri and the accused persons, who belong to the same village, were recognized by the witnesses. There was no reason of false implication by P.W. 4 and P.W. 5. The P.W. 4 was resident of different village. He further submitted that it was a pre-planed incident because earlier quarrel took place between accused respondent Devi Das and Prema Devi wife of deceased. Even civil litigation regarding the land was going on in between Devi Das and deceased Ram Kishore. On exhortation of Dhruv Chandra, Phool Chandra caught hold deceased Ram Kishore and accused respondent Devi Das assaulted with knife causing grievous injury. Subsequently, Ram Kishore succumbed to the injuries during treatment. Hence judgment of acquittal dated 21.5.2003 is liable to be set aside and accused respondents are liable to be convicted and sentenced under Section 302 IPC. Mr. Sanjay Shukla, Advocate, who is representing the case on behalf of the accused respondents no.1 and 2, Dhruv Chandra Kuarmi and Phool Chandra, was also asked by the court on 13.10.2008 to appear as Amicus Curiea on behalf of accused respondent no.3 Devi Das, since he was not in a position to engage any counsel. He submitted that in the present case, the alleged eye witnesses P.W. 1, P.W. 2 and P.W. 3 have not supported the prosecution case including Prema Devi wife of the deceased and presence of Ram Raj P.W. 4 was doubtful since his name was not mentioned in the FIR to show his presence on the spot, at the time of incident. P.W. 5 was a child witness, who was aged in between 10 to 11 years at the time of incident. There was every possibility of tutoring him. It appears that he was not present on the spot and subsequently he reached in the village because he had gone to different village to the house of his aunt (Bua). There was no light at the place of incident and without sufficient light it was not possible to recognize the culprits. It appears that some other person assaulted to him and due to enmity accused respondents were named in this case. The accused respondents were falsely implicated. Even the wife of the deceased has not supported the prosecution case, who was declared hostile. Since the view taken by the trial court is one of the possible and reasonable view hence no interference is required in the judgment and order of acquittal.
Doctor A. K. Sharma, who conducted the post mortem, stated that, had a proper treatment been given, within time, the life of deceased Ram Kishore could have been saved.
In alternate the defence of the counsel for the accused respondent was that even if the prosecution case was admitted only one knife blow was given by accused respondent. Devi Das and other have not assaulted hence there was no intention to kill hence case of the prosecution will not go beyond section 304-II.
In rejoinder learned AGA further submitted that P.W. 4 and P.W. 5 have fully supported the prosecution version. They were reliable witnesses and except some minor and negligable discrepancies, there was no contradiction in their statement.
In view of the fact prosecution has fully proved, the case beyond reasonable doubt and in view of fact the accused respondent Devi Das is liable to be convicted under Section 302 IPC and accused Dhruv Chandra and Phool Chandra are liable to be convicted under Section 302 read with Section 34 IPC as they went with the common intention to kill decease Ram Kishore since there was enmity with accused respondent Devi Das and accused respondent Dhruv Chandra and Phool Chandra and they were aware that the knife injury caused to deceased Ram Kishore was likely to cause death.
In the present case, informant Ram Shanker Chaudhary, P.W.1, Gaudi, P.W.2, and Smt. Prema Devi, P.W. 3 wife of deceased Ram Kishore, were declared hostile. She has not supported the prosecution version. It is well settled that merely because the witnesses were declared hostile, the entire evidence will not be wiped out if otherwise reliable and corroborate the other evidence adduced by the prosecution.
From perusal of statement of Prema Devi, P.W. 3, wife of deceased, it is clear that she did not support the prosecution case because there was compromise in between the parties and hence she was declared hostile. However, it is well settled that the statement of hostile witnesses, which corroborate the statement of other witnesses and support the prosecution case can be considered and relied for conviction. In the present case, Smt. Prema Devi, P.W.3, wife of deceased Ram Kishore, denied the incident of quarrel in between her and accused respondent Devi Das. She also stated that she was not aware, who came at door of her house at about a 9.00 PM. However, in cross-examination she stated that no antagonism remained. She stated that compromise has taken place in between her and accused respondents and due to settlement she did not want to give evidence against them. According to her, she gave such statement purposely so that no quarrel and dispute take place in future. Further according to statement of her son Raju @ Jokhan, who was aged about 14 years, she was living along-with accused respondent Phool Chandra like his wife for last two and half years. When she started living along-with Phool Chandra, then he left his house and went to the house of his uncle (Phupha) at village Gulriya, P.S. Bashi. The accused respondents wanted to kill him. The accused respondents also threatened the witness not to depose against them.
The trial court disbelieved the presence of witnesses Ram Raj @ Cheena, P.W. 4, as his presence was found to be doubtful. The trial court has recorded finding that name of Ram Raj, P.W.4 was not mentioned in the FIR. Though according to him he was present at the time of incident and he had seen the incident. He also took injured to hospital along-with other witnesses. This observation of trial court appears to be incorrect and against the record because according to statement of Raju @ Jokhan, son of deceased Ram Kishore, witness Ram Raj, was also known as Cheena. He has clearly stated that the incident was seen by him, her mother, Prema Devi, Cheena @ Ram Raj, P.W.4, who was Bhanja of deceased (son of sister of deceased.). His name was clearly mentioned in the first information report as cheena. According to first information report wife of deceased Ram Kishore, son of deceased Raju, Bhanja cheena were present there when informant reached at the place of incident. Apart from that other villagers Gaudi and Sri Chandra also reached there. They took deceased Ram Kishore on tractor trolly to hospital. Witnesses, Ram Raj @ Cheena, who is Bhanja of the deceased and son of the deceased Jokhan @ Raju have fully supported the prosecution case.
According to P.W. 4, Ram Raj when buffalo of deceased Ram Kishore was returning after grazing, the cot of accused respondent Devi Das was damaged by leg of the buffalo.Then altercation took place in between the accused respondent Devi Das and wife of deceased Ram Kishore. Thereafter, wife of deceased Ram Kishore went to Khalihan and disclosed the factum of quarrel to deceased. Subsequently accused respondents Devi Das, Phool Chandra and Dhruv Chandra came in front of the house of deceased. They started abusing Ram Kishore. When Ram Kishore objected why they were abusing then accused respondent Devi Das assaulted with knife. According to him co-accused Phool Chandra and Dhruv Chandra caught hold Ram Kishore then Devi Das assaulted with knife. According to Raju @ Jokhan, son of deceased, on exhortation of accused respondent Dhruv Chandra, Phool Chandra caught hold his father Ram Kishore and accused respondent Devi Das attacked with knife. First assault was at chest, however, no injury was caused and the second assault was at stomach then his father fell down. Thereafter, the accused respondent run away from the spot. The incident was seen by him, her mother and Cheena @ Ram Raj. Hearing the cry witnesses Gaudi, Sri Chandra and others reached on the spot. The incident took place at about 9. P.M. At the time of incident there were flaming Lantern and dhebri. From tractor trolli his father was taken to Government Hospital, Titauly where it was advised by the doctor that since his condition was serious hence they should take him to Bansi Hospilal. Thereafter, by a jeep he was taken to hospital at Bansi and he was examined. From Bansi, he returned to his house, along-with one relative. Next day in the night the dead body was brought. He was only issue of his parents. There was no brother as suggested by the defence. After death of his father the five bhiga land, which was in the name of his father, was mutated in his name, which was given on Batai. He has also stated that there was threat to his life from the accused respondent hence he started living along-with Phupha at village Gulriya, P.S. Bashi.
At the time of statement recorded before the trial court Raju @ Jokhan was aged about 14 years and the statement was recorded on 3.11.1999 after more than three years. As the date of incident is 5.5.1996 hence at the time of incident he was about 10-11 years old.
According to P.W. 4 Ram Raj @ Cheena, there was light of Diya in the house and he was taking meal inside the house and his maternal uncle deceased Ram Kishore was taking his meal outside the house when incident took place the deceased Ram Kishore was sitting on cot.
According to P.W. 5 Jokhan @ Raju when accused respondent reached there and incident took place his father could not eat and he was at his door i.e. outside house. Even in cross-examination he has stated that Cheena @ Ram Raj, he and his mother lifted his father and other witnesses also reached on the spot. He was taken to hospital by tractor trolly. The tractor owner was one Chaudhary of the same village and Cheena went to bring tractor and trolly. Thereafter, he was taken to hospital and from there he was taken to Bansi, hospital by jeep. From Bansi he returned to his village. Hence there was minor dispcrepencies in the statement of P.W.5 and P.W.4. According to P.W.5, only Phool Chandra caught hold Ram Kishore. However, according to P.W.4, Cheena @ Ram Raj, the deceased was caught hold by both Phool Chandra and Dhruv Chandra.
The trial court has disbelieved the evidence and acquitted on the ground that P.W.4 Ram Raj was not named in the first information report though it was stated that he was present on the spot. According to P.W. 7, doctor Ravi Shanker Shukla, who has examined injuries, the injury no. 6 might have been caused by ballam. However, he further stated that it was possible that injury might have been caused by knife. According to the A.K. Sharma, who conducted the post-mortem report, the injury No. 6 might have been caused by Ballam. It was version of the first information report that injury was caused by knife and the same was supported by the witnesses in their statement. Hence there was no reason to disbelieve the statement of eye witnesses merely on the ground that one of the doctor has suggested that injury could have been caused by Ballam. It has wrongly been mentioned in the judgment by the trial court that according to statement of P.W. 5 at about 8.00 P.M. his father after taking meal was sitting at outside the house and the incident took place at 9.00 P.M. In the statement of Raju it has not been mentioned that his father has already taken meal, rather in cross-examination it was stated that he could not take his meal when accused respondent reached there, abused and assaulted. According to Ram Raj he was sitting, for taking meal outside the house. However, it has not been mentioned that he has finished his meal. According to P.W. 4 and P.W. 5 the incident took place at about 9.00 P.M. outside the house. As far as the other injuries are concerned, there were minor injuries of abrasion and superficial incised wound as well as scratched. The injury No. 6 on abdomen, was cause of death, which was caused by knife. It was also considered that wife of the deceased has not supported the prosecution case and she was declared hostile but there was reason behind that. It was clearly stated by her that the matter was settled in between the parties and according to her own son she started living along-with one of the accused Phool Chandra as his wife. It is clear from her statement that the incident took place as she has not denied the participation of the accused respondent and communication of the offence. It was also ground of acquittal that there was no sufficient light and it was difficult to identify the accused as well as the weapon by which the injury was caused. The presence of Ram Raj at the time of incident was also held to be doubtful by the trial court though there is no inconsistency in the statement of P.W. 4 Ram Raj and P.W. 5 Raju barring few minor discrepancies. This was also observed by the trial court that at one place it was stated by Raju that when the dead body came in the morning he returned from house of his Phupha. He was at the house of his Phupha and returned in the morning hence it appears that he was not present in the village. Merely on this ground he cannot be disbelieved because from Bansi when deceased was referred to medical hospital he returned to his house. Deceased Ram Kishore succumbed to injuries in the way to hospital. Then they directly returned with the dead body in the night. According to P.W. 4 Ram Raj @ Cheena and according to Raju son of deceased they were present in the night when the dead body was brought. It appears that the dead body was sent for post-mortem and the same was brought again on the next day in the morning after post mortem. Hence merely on that ground it cannot be said that P.W. 5 was not present at his house. The name of Ram Raj @ Cheena was mentioned in the FIR as Bhanja of the deceased. According to P.W. 5, Ram Raj (Bhanja) of the deceased came two days before the incident and was staying there. As far as the light is concerned, the accused respondents were belonging to the same village and they were well known to the witnesses. There was light of lantern and Dhibri at the house of deceased hence it cannot be said that there was no sufficient light to identify the co-villagers, with whom before the incident some quarrel took place.
Statement was recorded after three years of the incident hence it is not unnatural if there is some minor inconsistency in the statement of witnesses. However, as far as the evidence of child witness is concerned apparently inconsistency in deposition cannot be accepted, however, as observed by the Apex Court in the case of Bhagwan Singh and others Vs. State of M.P. AIR 2003 SC 1088 if it appears that there was possibility of child witness of being tutored the court should be careful in relying on his evidence. In State of Karnataka Vs. Shantappa Madivalappa and others 2009 AIR SCW 2737 it was observed by the Apex Court that evidence of child witness not to be discarded parse. The conviction can be based on the evidence of child witness if he is found competent to depose and his evidence is found reliable.
In case of Dattu Ram Rao Sakhare and others Vs. State of Maharashtra 1997 (5) SCC 341, it was held by the Apex Court 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 and credibility thereof would depend on 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 witnesses and there is no likelihood of being tutored. It was further observed that if after careful scrutiny of his/her evidence, the court comes to the conclusion that there is an impress of truth in it, there is no absolute obstacle in the way of accepting the evidence of child witness.
It is well settled that the evidence of child witness can be relied on for conviction, if after careful scrutiny found that his statement is reliable. However, in the present case, there is no sole evidence of child witness P.W. 5 but the same is also corroborated with the statement of P.W. 4 whose name was mentioned in the FIR. As Cheena, who is known as Cheenak @ Ram Raj and it has wrongly been mentioned in the judgment that name of P.W.4 Ram Raj was not mentioned in the FIR though his presence was shown on the spot. Mother of P.W. 5 became hostile since there was settlement in between the parties. Since not only the matter was settled between the parties but she started living along-with co-accused Phool Chandra as wife. Hence, in view of facts and circumstances, there was no reason of false implication by P.W. 4 and P.W. 5. and barring few minor discrepancies and inconsistencies there was no such discrepancies or inconsistencies in the statement of P.W. 4 and P.W. 5 which belie their statement. They have fully supported the case of the prosecution. In view of the facts and circumstances, it is clear that the view taken by the trial court is against evidence and the same is perverse.
It was also considered by the trial court that I.O. has not taken blood stain, earth etc. and other articles. If there was some lack on the part of the investigating officer and even if investigation was found defective then merely on that ground, it cannot be said that the accused was innocent and further the witnesses will not be disbelieved on that ground if the prosecution has proved the case beyond reasonable doubt. It was observed by the Apex Court in case of Acharaparambboth Paradeepan and another Vs. State of Kerala 2007 AIR SCW 2140 that the defective investigation by itself may not leave to a conclusion that accused was innocent.
There are catina of decision of Apex Court that while considering the appeal against acquittal the appellate court can appreciate the evidence if the judgment is based on complete misconception as to the evidence on record, the same is perverse. It was held by Apex Court in case of Chandrappa and others Vs. State of Karnataka 2007(4) SCC 415 that appellate court has full authority to re-appreciate and reconsider the evidence in a case of acquittal baring a case where two views are possible on the evidence and one favouring the accused have been taken. However, where the judgment of the trial court is based on a complete misreading of the evidence and the view in favour of the accused was not justified and only one view with regard to the culpability of the accused was possible, the High Court would be failing in its duty if it did not interfere. The similar view was expressed in Swam Prasad Vs. State of M.P. J.T. 2007 (4) SC 337. This judgment was considered by the Apex Court in case of Himmat Sukhdev Wahurwagh and others Vs. State of Maharastra 2009 AIR SCW 3041.
The alternative argument on behalf of respondent is that even if prosecution case is admitted there was no intention to kill because only one knife blow was given and doctor U.K. Sharma, who conducted the post mortem stated that had a proper treatment been given within time the life of deceased would have been saved hence in view of the fact the case will not go beyound Section 304-II IPC.
In view of the facts and circumstances of the present case, it appears that the cot of the accused respondent was damaged by the buffalo of deceased and he came at residence of deceased for making complaint, where altercation took place and he abused and assaulted. The accused-respondent Devi Das assaulted with knife and other co-accused respondents caught hold deceased Ram Kishore. According to statement of doctor A. K. Sharma, if the proper treatment would have been given within time the life of deceased Ram Kishore could have been saved. The witnesses have taken injured immediately to hospital hence there was no negligence on their part. Though the injury was found fatal, however, if proper treatment would have been given within time then the life of deceased might have been saved.
The circumstances shows that in a heat of passion upon a sudden quarrel accused respondent Devi Das assaulted with knife. First blow did not cause any injury or superficial injury was caused and second knife blow caused injury on abdomen hence intention was to cause such injury, which was likely to cause death. Role of exhortation and catching hold was assigned to respondents Dhruv Chandra and Phool Chandra.
Hence in view of facts and circumstances and evidence adduced by the prosecution, who proved the case beyond reasonable doubt, the accused respondent no.3 is convicted under Section 304 Part-1 IPC and accused respondents no.1 Dhruv Chandra Kurmi and accused respondent no.2 Phool Chandra are convicted under Section 304 Part I read with Section 34 IPC.
Learned counsel for the accused respondents further submitted that the matter is of the year 1996 and aquittal is of the year 2003. Now the parties are living peacefully hence considering the facts and circumstances, taking lenient view, lesser punishment be awarded.
In view of aforesaid facts and circumstances, accused respondents are sentenced to 10 years rigorous impresionment and a fine of Rs.5,000/- each, failing which they have to serve out further six months simple imprisonment.
The period of sentence already undergone shall be adjusted in the aforesaid sentence for a period of ten years.
Let a warrant be issued through C.J.M., Siddharthnagar, to take the accused-respondents in custody to serve out the remaining period of sentence after adjusting the sentence already undergone.
Accordingly, the present appeal is hereby allowed.
Order Date :- 16.9.2011 Pramod