Criminal Appeal No.239 of 1998

21st October, 2002

Petitioner Counsel: Mr. RAJENDRA DAGA
Respondent Counsel: Mrs. JOG

JUDGMENT

D.D. SINHA, J. :- This appeal is directed against the judgment and order of conviction dated 22.5.1998 passed by the Additional Sessions Judge, Nagpur, in Sessions Trial No.142 of 1989, whereby the appellant/accused is convicted for the offence punishable under Section 302 of Indian Penal code and is sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for one month.

2. Mr. Daga, learned counsel, for the appellant contended that in the instant case, the prosecution mainly relied on the evidence of alleged material witnesses, i.e. P.W.1 Kalpana, P.W.2 Kamlabai and P.W.3 Pramod as well as on the evidence of P.W.6. Dr. Jivtode apart from the other evidence adduced by the prosecution. Mr. Daga, learned counsel, contended that in the instant case the prosecution utterly failed to prove the motive. It is submitted that the accused is the cousin brother of deceased Ishwar. The relationship between the accused and the deceased Ishwar was cordial and there was no occasion for the accused to commit the murder of his cousin brother Ishwargiri. It has come in the evidence that at the relevant time the deceased Ishwar was taking his meals at his own residence and the accused entered into the house saying, "Doctor Saheb mujhe bachao (Doctor save me)". It is contended that the deceased Ishwar was known as Doctor in the village since he was treating the villagers and was also giving Ayurvedic medicines in case of fever etc. Mr. Daga,learned counsel, further submitted that it is impossible in the given set of circumstances to even imagine that the accused who was seeking help from his elder brother would launch a murderous assault on him and commit his murder.

3. Mr. Daga, learned counsel, further submitted that all the material witnesses are blood relatives of deceased Ishwargiri. It is submitted that P.W.1 Kalpana is the daughter, P.W.2 Kamlabai is the widow and P.W.3 Pramod is the son of the deceased. It is contended that all these witnesses are interested witnesses and, therefore, their testimony ought not to have been accepted by the trial Court in absence of any independent corroboration coming forward from the independent witnesses. However, this aspect has not been properly appreciated by the trial Court and, therefore, the conviction based on the testimony of interested witnesses who had a positive interest in the prosecution ought not to have been accepted by the trial Court.

4. Mr. Daga, learned counsel, alternatively contended that even if if it is presumed that the incident, as alleged by the prosecution, had taken place even then it is not possible to hold that the prosecution has succeeded in proving the guilt of the accused for the offence charged. It is submitted that if the accused really would have intended to commit a murder of deceased Ishwar then in that event the accused would have given successive blows on the person of the deceased. However, in the instant case, there is a solitary blow given by the accused and, therefore, the prosecution did not succeed in proving the case for the offence punishable under Section 302 of Indian Penal Code and the punishment ought to have been awarded for a lesser offence, in any case not under section 302 of Indian Penal Code. The learned counsel, therefore, contended that the judgment and the order of conviction passed by the trial Court is not sustainable in law.

5. The learned Addl. Public Prosecutor, Mrs.Jog, on the other hand, supported the judgment and finding of conviction of the trial Court and contended that there are three eye witnesses to the incident in question namely P.W.1 Kalpana, P.W.2. Kamla and P.W.3 Pramod. It is submitted that the testimony of all these witnesses is totally consistent and corroborates all the material particulars of the prosecution case. It is contended that the testimony of these witnesses is corroborated by medical evidence and, therefore, the prosecution has succeeded in proving the offence charged and the trial Court was justified in convicting the accused for the offence punishable under Section 302 of Indian Penal Code.

6. We have given our anxious thought to the various contentions canvassed by the respective counsel and also considered the evidence on record of the material witnesses, i.e. P.W.1 Kalpana, P.W.2 Kamlabai, P.W.3 Pramod and P.W.6. Dr. Jivtode.

7. The prosecution case in a nut shell is as follows :

The incident in question took place at about 1-00 p.m. in the house of the deceased Ishwargiri. At that time the deceased was taking his meal in the Kitchen. Kamlabai (P.W.2) after serving the meal to deceased Ishwargiri was sitting near the door of the chhapri. Pramod (P.W.3), son of deceased, was also taking meal along with the deceased. At that time the accused came inside the house from the land and uttered, "Doctor saheb mujhe bachao" (Dr.save me). The deceased made enquiry as to what happened. The accused told him that the police were looking for him. The deceased asked the accused to take meal and told him that they would discuss the issue thereafter. The accused then told the deceased that he wants to go for urination and for that purpose he went out of the house. When the accused returned inside the house he had a gupti and with the said gupti he gave blow on the chest of the deceased Ishwargiri. Deceased Ishwargiri raised shouts "Are Bapre Mar Diya". The accused thereafter ran away from the spot. The gupti was inside the chest of the deceased. The deceased himself had removed the gupti from the chest and came in the chhapri. People in the locality had gathered in the chhapri (small verandah) of the house. The deceased Ishwargiri was then taken to Mayo hospital where he was declared dead.

8. On the backdrop of the above referred case of the prosecution, it would be appropriate for us to consider the evidence of these three witnesses. Kalpana (P.W.1) in her examination-in-chief has disclosed all the material particulars of the prosecution case and her ocular testimony has not been shattered in the cross-examination so as to discredit her substantive evidence. There are no material contradictions or omissions in the evidence in order to affect her ocular testimony. Her presence at the relevant time was most natural, being a daughter of the deceased, and therefore she had an opportunity to witness the incident. The evidence of this witness, in our opinion, is most natural and free of doubts and corroborates the material particulars of the prosecution case.

9. As far as Kamlabai (P.W.2) is concerned, it has come in her evidence that the deceased Ishwargiri was having meal in the Kitchen and her son Pramod (P.W.3) was also having his meal along with his father. It has also come in her evidence that Kalpana (P.W.1) was present in the kitchen. This witness has heard the shouts raised by deceased Ishwargiri. This witness has seen the accused running away from her house immediately after the shouts were raised by her husband. On hearing the shouts, this witness rushed towards her husband and asked him as to what has happened. Her husband told her that accused Vilasgiri had given a blow by gupti on his chest and he himself removed the said gupti. Another brother of deceased Ishwargiri was also present in the court-yard of the house who also made enquiries from deceased Ishwargiri as to what has happened. To that, deceased Ishwargiri informed him that he was assaulted by Vilasgiri. In the cross-examination of this witness, nothing has been brought on record by the defence in order to discredit the testimony of this witness. There are no material contradictions or omissions in the evidence of Kamlabai (P.W.2), who is also a most natural witness and whose presence at the relevant time is very natural. While appreciating the evidence of this witness, we find it truthful since there was an occasion for her to tell the police that she has personally witnessed the incident as she was at home at the relevant time. However, this witness has stated only what she has seen at the time of the incident and not tried either to exaggerate or introduce falsehood in the prosecution case. The evidence of this witness, in our opinion, also corroborates the material particulars of the prosecution case and establishes the presence of the accused at the relevant time. Taking into consideration all these aspects, in our view, her evidence is acceptable and truthful.

10. So far as the evidence of Pramod (P.W.3), who is the son of the deceased, is concerned it has come in his evidence that at the relevant time he was also having his meal with his father in the kitchen. So his presence on the scene of offence is natural. This witness in his examination-in-chief has specifically stated that at the relevant time he had seen the accused taking out the gupti and giving a blow by the same on the chest of his father deceased Ishwar. It has further come in the evidence of this witness that his father raised shouts and hearing those shouts, his mother Kamlabai (P.W.2) came inside the kitchen. At that time, his father Ishwar informed Kamlabai (P.W.2) that the accused Vilasgiri had given the blow by gupti. His father thereafter went in the chhapri and he himself removed the gupti from his chest. The defence has conducted a cryptic cross-examination of this witness and there is absolutely nothing brought on record in order to discredit the ocular testimony of this witness. This young boy of 12 years of age had no occasion to falsely implicate his own real uncle in the crime in question, particularly when there is hardly anything on record to demonstrate the aspect of enmity either between the deceased and the accused or between the family of deceased and accused. There are no material contradictions or omissions in the evidence of this witness. Taking into consideration the totality of the circumstances, in our opinion, the evidence of this witness also corroborates all the material particulars of the prosecution case.

11. Apart from the ocular testimony of the prosecution witnesses, the medical evidence adduced by Dr.Krishnarao Jivtode (P.W.6) also supports the prosecution case. Dr. Jivtode (P.W.6), who conducted the post mortem examination on the dead body of deceased Ishwar, found the following injuries :

(i) Stab wound left side of chest 4 ICS x ½" mid line to left nipple and 3 & ½" latteral to laternal border of sternum, size 1" x ½" x cavity deep, vertically oblique, diverted above downward and inward.

The internal injuries which were noticed by the doctor are :

(i) pericardium : injured in the line of wound corresponding to external injury no.1 of col. No.17 of the post mortem report.

(ii) Heart : stab wound right anterior ¾" x ½" x cavity deep. Vertically oblique corresponding to injury no.1 of col.no.17.

(iii) Large vessels : Stab wound on pulmonorary artery, main trunk ¾" x ½" through and through.

The Doctor has opined that deceased Ishwargiri has died because of shock and haemorrhage and injury no.1 along with internal damage was sufficient to cause death of the deceased in the ordinary course of nature. The evidence of the medical officer corroborates the evidence of the prosecution witnesses. Nothing has come in the cross-examination of the medical officer to discredit his testimony.

12. It is no doubt true that the material evidence consists of Kalpana (P.W.1), Kamla (P.W.2) and Pramod (P.W.3) and all these witnesses are closely related to the deceased. However, that by itself is not sufficient to discard their testimony on the ground that they are interested witnesses. It must be borne in mind that merely because the witnesses are closely related their testimony cannot be brushed aside unless and until there is something on record to show that the witnesses are having a definite and positive interest in seeing that the prosecution succeeds. We cannot lose sight of the fact that the incident has taken place in the house of the deceased inside the kitchen and it is impossible in a situation like this to witness such incident by the persons residing even adjacent to the house of the deceased. On the other hand, the inmates of such house are the most natural witnesses whose presence on the scene of offence is most natural. It is not in dispute that the accused was the younger cousin brother of deceased Ishwargiri and there is nothing on record even to suggest that there was even some kind of bitterness or animosity between the accused and the deceased. In absence thereof, it will be difficult to reconcile with the situation that the prosecution witnesses without any rhyme or reason wanted to falsely implicate the accused. In our considered view, the testimony of these three witnesses cannot be brushed aside merely because they are closely related to the deceased, apart from other reasons particularly when their evidence corroborates all material particulars of the prosecution case. The contention canvassed by Mr. Daga, learned counsel for the appellant in this regard, in our opinion, cannot be sustained.

13. No doubt, this is a case of solitary blow of gupti given by the accused on the person of the deceased which has resulted in the death of the deceased. That does not necessarily, in all circumstances, reflect that the accused never intended to kill the deceased. The intention entertained by the accused at the time of assault can be gathered on the attending circumstances, such as nature of weapon used by the accused at the time of assault, placement of injury on the person of the deceased, the force used by the accused while inflicting such injury and the damage caused to the person of the deceased by such injury. These are the broad parameters which normally should be kept in mind in order to consider the intention entertained by the accused at the time of the commission of the offence. In the instant case, the weapon which is used is undoubtedly a deadly weapon, i.e. gupti, the placement of injury is also on the vital part, i.e. chest and the damage done to the internal organs due to the said injury, in our considered view, would show that the accused did intend to cause such bodily injury which in the ordinary course of nature would cause death and, therefore, the offence which is committed by the accused, in our view, is punishable under Section 302 of Indian Penal Code.

14. In the instant case, there is direct evidence of Kalpana (P.W.1) and Pramod (P.W.3). These two witnesses are the eye witnesses to the incident in question. It is well settled that when the prosecution case rests on the evidence of eye witnesses, motive has little importance in such a situation. Motive assumes importance when the prosecution case rests on circumstantial evidence, since it is one of the important circumstances in the chain of circumstances required to be unfolded and proved by the prosecution. However, as already observed hereinabove, for want of specific motive it is not possible to discredit the ocular testimony of the prosecution witnesses. Hence, the contention canvassed by Mr. Daga, learned counsel, in this behalf cannot be accepted.

15. For the reasons stated hereinabove, the finding of conviction recorded by the trial Court is hereby confirmed. The Appeal is dismissed.

Appeal dismissed.