Madhya Pradesh High Court
Siyadeen @ Bhakada Kol vs The State Of Madhya Pradesh on 7 August, 2018
Equivalent citations: AIRONLINE 2018 MP 874
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. CRA. No.1180/2009
Parties Name Siyadeen @ Bhakada Kol
vs.
State of M.P.
Date of Judgment 07/08/2018
Bench Constituted Justice Sujoy Paul &
Justice Rajeev Kumar Dubey
Judgment delivered by Justice Sujoy Paul
Whether approved for reporting Yes
Name of counsels for parties Appellant: Ms. Seema Pandey, Amicus
Curiae.
Respondent: Shri A.P. Singh, Government
Advocate
Law laid down 1. Related witness:
The evidence of a related witness cannot be
discarded if it is otherwise creditworthy. The
evidence of a witness cannot be discarded
solely on the ground of his relationship with the
victim of the offence.
2. Injured witness :
The testimony of a witness to the occurrence
who has himself been injured in the incident is
considered to be very reliable, as he is a witness
that comes with inbuilt guarantee of his
presence at the crime scene and is unlikely to
spare his actual assailant in order to falsely
implicated someone.
3. Intoxication as defince-Section 85 I.P.C.
When the act of drinking is purely his own act,
such person cannot be given benefit of Section
85 I.P.C.. Such person cannot be permitted to
take advantage of his own wrong.
Significant paragraph numbers 11, 19, 27, 28 & 31
(JUDGMENT)
07.08.2018
As per: Sujoy Paul, J.
This Appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short called as "Cr.P.C.") is directed against the
-:- 2 -:-
CRA. No. 1180 of 2009judgment of conviction dated 19.05.2009 under Sections 307 and 302 IPC and order of sentence for the said offences for 10 years and RI for life respectively, with fine and default stipulation.
2. Draped in brevity, the story of prosecution is that on 8.10.2008 (Wednesday) at around 12:30 p.m., complainant Putti Bai (PW/1) came out of her house to call certain girls to invite them for a feast ('Kanya bhojan'). In midway, the complainant was stopped by appellant who abused and threatened her. The complainant objected and; in turn, the appellant threatened her with a knife. The complainant tried to escape and ran towards her house. She was followed by appellant and in front of house of Deoraj the appellant could caught hold of the complainant and attacked her by knife because of which her left wrist, left and right thighs got knife injuries. There was bleeding from the said wounds and the complainant cried to save herself pursuant to which her father Mahajan Kol came out from his house and tried to save the complainant. The appellant left the complainant and attacked at Mahajan's chest with the knife. Mahajan fell down on the road then appellant threw a stone on the head of Mahajan because of which Mahajan died at the spot. The appellant fled away from the place of incident.
3. The complainant with her cousin Harideen went to the Police Station, Chandia at around 13:05 p.m. and informed about the incident on the strength of which FIR Exh. P/2 was recorded.
4. The injured witness Putti Bai(PW/1) was sent to Primary Health Centre, Chandia for treatment. The spot map and dead body's panchnama Exh. P/4 were prepared. The dead body of Mahajan (hereinafter referred to as 'the deceased') was sent to Primary Health Centre, Chandia. The appellant was arrested by Exh. P/8 and his memorandum statement Exh. P/5 was prepared. The knife used in the incident was seized by P/6. Similarly, spot map Exh. P/1 was prepared and the stone used for killing the deceased was seized as P/2. The clothes of deceased were seized by PW/6 and were sent for examination by letter Exh. P/16. In turn, the matter was committed
-:- 3 -:-
CRA. No. 1180 of 2009to the court of competent jurisdiction for trial which was registered as Sessions Trial No.347/2008.
5. The appellant denied the charges in toto and contended that he has been falsely implicated by the court below. The court below framed four issues and came to hold that the charges against the appellant are found proved beyond doubt.
6. Ms. Seema Pandey, learned Amicus Curiae raised threefold contentions. Firstly, the complainant Putti Bai was daughter/relative of the deceased and; therefore, her statement is not trustworthy. Secondly, by taking this court to the statement of prosecution witnesses including the complainant, it is urged that the appellant at the time of incident was under
the influence of liquor and; therefore, he deserves a sympathetic treatment. Thirdly, in view of nature of incident and the injuries caused, the offence under Section 307 and 302 may be converted into offence under Section 304 Part-I of IPC.
7. Per contra, Shri A.P. Singh, learned Government Advocate supported the impugned judgment and contended that the prosecution has led credible evidence which is supported by medical evidence. The charges are found proved beyond reasonable doubt. The necessary ingredients for attracting Section 304 Part-I are not available in the present case. The appellant was under the influence of liquor, cannot be a ground to either exonerate him or deal with him in a lenient manner.
8. No other point is pressed by the learned counsel for the parties.
9. We have heard the parties at length and perused the record.
10. The learned amicus curiae attacked the statement of P.W.-1 on the ground that she is daughter/relative of the deceased and, therefore, being an interested witness, her statement is not trustworthy. It is noteworthy that the complainant/P.W.-1 herself was injured and her statement was supported by
-:- 4 -:-
CRA. No. 1180 of 2009eye-witnesses, namely, Sukhya Bai (P.W.-2), Anju (P.W.-3) and Harideen (P.W.-4). Their depositions are in tune with the story narrated by P.W.-1. Thus, the said statement cannot be brushed aside solely on the ground that P.W.-1 is daughter of the deceased.
11. This is trite law that merely because a witness is a relative, her statement cannot be discarded if otherwise it is creditworthy. The Apex Court in catena of judgments opined that if statement of a related witness has substance and could not be demolished, it cannot be disbelieve solely on the ground that it is a statement given by a relative.
12. In Dalip Singh vs. State of Punjab (AIR 1953 SC 364), it has been observed as under:
"25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54 : 1952 Cri LJ 547] ."
In the said case, it has also been further observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a
-:- 5 -:-
CRA. No. 1180 of 2009criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
13. In this context, it is requisite to quote the observations made by the Apex Court in State of Punjab vs. Jagir Singh (1974) 3 SCC 277, which reads as under:
"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
14. In Hari Obula Reddy vs. State of A.P., (1981) 3 SCC 675. the Apex Court has ruled that evidence of interested witnesses per se cannot be said to be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduce a passage from the said authority:
"13. ... an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
15. In State of U.P. Vs. Naresh, 2011 (4) SCC 324, the Apex Court held as under:
-:- 6 -:-CRA. No. 1180 of 2009
"29. A mere relationship cannot be a factor to affect credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] ,Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] andBalraje [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211])."
16. In Kanhaiya Lal Vs. State of Rajasthan, 2013 (5) SCC 655, the Apex Court held as under :
"23...............When relatives, who are alleged to be interested witnesses, are cited by the prosecution, it is the obligation of the court to scrutinise their evidence with care, caution and circumspection. In the case at hand, the entire occurrence took place in and around the house of Purshottam. Five people had been done to death. In such a circumstance, it is totally unexpected that other villagers would come forward to give their statements and depose in the court. It is to be borne in mind that Ram Narayan, Sarpanch of the village, solely on the basis of suspicion, had seen to it that five persons meet their end. Such a situation compels one not to get oneself involved and common sense give consent to such an attitude. Thus, no exception can be taken to the fact that no independent witness was examined. As far as the relatives are concerned, Radhey Shyam, PW 1, is the brother of the deceased; Ram Lal, PW 2, is the brother of Radhey Shyam; Panna Bai, PW 3, is the mother of Purshottam and Nirmala Bai, PW 5, is his wife; and Anita, PW 5; Badribai, PW 8; Manisha, PW 9 and Kaushalya, PW 10, are also close relatives and these witnesses have been cited as eyewitnesses."
17. In Jodhan Vs. State of M.P., 2015 (11) SCC 52, the Apex Court held as under:
-:- 7 -:-CRA. No. 1180 of 2009
"22. As per the evidence brought on record, the incident had taken place near the house of the deceased and the witnesses. The criticism that has been advanced against these witnesses is to the effect that they are interested witnesses and hence, their version does not deserve acceptance is sans merit, for they are the witnesses who were there at the spot and sustained injuries. They are close relatives and they have stood firm despite incisive cross-examination. There can be no cavil over the proposition that when the witnesses are related and interested, their testimony should be closely scrutinised, but as we find, nothing has been elicited in the cross- examination to discredit their version. On a studied scrutiny of their evidence, it can be said with certitude that they have lent support to each other's version in all material particulars. There are some minor contradictions and omissions which have been emphasised by the learned trial Judge. The High Court has treated the said discrepancies and the minor contradictions as natural. That apart, their evidence also find support from the medical evidence and the initial allegations made in the FIR. The High Court has opined that there is no inconsistency in their version and on a perusal of the said evidence, we find there is absolutely no inconsistency which will compel a court of law to discard their version. The learned trial Judge, as is evincible, has attached immense emphasis to such omissions and contradictions which, according to the High Court, with which we concur, are absolutely insignificant and trivial. It is also perceived that the learned trial Judge has given notable stress on the fact that the accused persons and the informant were on inimical terms due to non-voting by the informant's party in their favour. In our considered opinion, in the present case, the same cannot be a ground for not placing reliance on the eyewitnesses who have supported the prosecution version."
18. In Ram Chander Vs. State of Haryana, (2017) 2 SCC 321, the Apex Court held as under:
-:- 8 -:-CRA. No. 1180 of 2009
"33. The submission of the learned counsel for the appellants that since Guddi (PW 9) was in close relation with the deceased persons, she should not be believed for want of evidence of any independent witness, deserves to be rejected in the light of the law laid down by this Court in Dalbir Kaur v. State of Punjab [Dalbir Kaur v. State of Punjab, (1976) 4 SCC 158 : 1976 SCC (Cri) 527] and Harbans Kaur v. State of Haryana [Harbans Kaur v. State of Haryana, (2005) 9 SCC 195 : 2005 SCC (Cri) 1213], which lays down the following proposition: (Harbans Kaur case [Harbans Kaurv. State of Haryana, (2005) 9 SCC 195 : 2005 SCC (Cri) 1213] , SCC p. 198, para 7) "7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused."
34. In Namdeo v. State of Maharashtra [Namdeo v. State of Maharashtra, (2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773], this Court further held: (SCC p. 164, para
38) "38. ... it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
19. It is equally settled that the statement of an injured witness carries more weight than the statement of an ordinary witness. In the present case, the injured witness is a person who herself has received injuries arising out of the same incident and; therefore, her presence and her statement is on a higher footing qua the statement of an ordinary witness. The prosecution has meticulously established that the injuries sustained by Putti Bai (PW/1) were arising out of the same incident and assault by the appellant. In this regard,
-:- 9 -:-
CRA. No. 1180 of 2009the Supreme Court in the case of State of Maharashtra Vs. Tulsiram, (2007 Cri.LJ 4319) opined that if witnesses are injured witnesses, their statements should be given due importance. In 2011 (6) SCC 288 (Brahm Swaroop Vs. State of U.P.), the Apex Court held that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of the crime and is unlikely to spare his actual assistant (s) in order to falsely implicate someone. The said principle is recently followed by Supreme Court in 2017 (13) SCC 585 (Chandrasekar Vs. State). It was poignantly held that criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise.
20. Interference of this Court is also prayed for on the ground that the appellant was under the influence of liquor at the time of incident. This point requires serious consideration. In Rex v. Meakin [(1836) 173 ER 131 :
7 Car & P. 295] Baron Alderson referred to the nature of the instrument as an element to be taken in presuming the intention in these words:
"However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if he had used a different kind of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party."
21. Patteson J., observed in Regina v. Cruse and Mary his wife [(1838) 173 ER 610 : 8 Car . which is as under:
"It appears that both these persons were drunk, and although drunkenness is no excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to
-:- 10 -:-CRA. No. 1180 of 2009
form any intention at all, and yet he may be guilty of very great violence."
22. Coleridge J., in Reg. v. Monk house [(1849) 4 Cox CC 55], which is as under:
"Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention. Such a state of drunkenness may no doubt exist."
23. A plain reading of the judgment in Monk house (supra), it is clear that burden is on the defence to establish/prove that the degree of intoxication was such because of which he could not prevent himself from committing the act in question.
24. Interestingly, the Apex Court in AIR 1956 SC 488 (Basdev Vs. State of Pepsu) considered Section 86 of IPC and did not accept the excuse and incapacity of the accused on the ground that he was under influence of liquor. It was held that such incapacity as would have been available to the accused as a defence and so the law presumes that he intended the natural and probable consequences of his act. Since accused had failed to prove such incapacity, the Court came to hold that he intended to inflect bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death.
25. Section 85 of Indian Penal Code was again considered by the Apex Court in 2006 (13) SCC 116 (Bablu Vs. State of Rajasthan) and the Apex Court held as under:
"11. Section 85 IPC deals with act of a person incapable of judgment by reason of intoxication caused against his will. As
-:- 11 -:-CRA. No. 1180 of 2009
the heading of the provision itself shows, intoxication must have been against his will and/or the thing with which he was intoxicated was administered to him without his knowledge. There is no specific plea taken in the present case about intoxicant having administered without the appellant's knowledge. The expression "without his knowledge" simply means an ignorance of the fact that what is being administered to him is or contains or is mixed with an intoxicant."
26. A Division Bench of this Court in AIR 1960 MP 242 (Jethuram Shukhra Nagbanshi Vs. State of M.P.) has also considered Section 85 IPC. The Division Bench with profit quoted the Great Philosopher Aristotle who said that such a man deserves double punishment, because he has doubly offended, viz in being drunk to the evil example of others, and in committing the crime of homicide. And this act is said to be done ignoranter, for that he is the cause of his own ignorance: and so the diversity appears between a thing done ex ignorantia, and ignoranter.
27. In the case of Jethuram Sukhra Nagbanshi (supra), the Division Bench further held that the act of drinking was his own act for which the immediate force was his own free will. The act of persuasion could not and did not make the act of drinking the act of anybody else than the doer's. But if a person were put in fear of immediate physical clanger and then made to drink, the act cannot be said to be his. Similarly, when he is bound hand and foot and then the intoxicant is literally poured down his throat, the mere reflex act of swallowing cannot make the drinking of the intoxicant his own act performed out of Iris own free will.
28. If the evidence on record is examined on the anvil of principles laid down in the said judgment, it will be clear that the defence has not discharged the burden to show that the incapacity of the appellant because of intoxication is of that degree where he can claim any benefit. It cannot be forgotten that the drinking is purely his own act and he cannot be permitted to take advantage of his own wrong. Thus, we do not see any merit in this contention.
-:- 12 -:-
CRA. No. 1180 of 200929. As per medical report, the injuries of P.W.1 were as follows:
Injury No.1:- One incised wound on upper left arm. Wound was oblique.
Size of wound 3x1.3c.m. x 8 c.m. deep.
Injury No.2:- One incised wound on above lateral part of right thigh.
Wound was red and oblique. Size of wound was 4cm x .7 cm deep x 2.5 cm wide.
Injury No.3:- One incised wound on upper and back side of right thigh.
Wound was red and oblique. Shape of wound was spindle. Size of wound was 3.5cm x .5cm wide x .7cm.
Injury No.4:- One incised wound on lateral part of left hand index finger.
Wound was red and oblique.
Size of wound was 1.3cm x .4cm wide x .3 cm.
30. P.W.5 (Dr. Ashish Pandey) entered the witness box and opined that the injuries in the body of P.W.-1 were simple in nature. No grievous injury was found on any vital part of the body of P.W.-1. Thus question cropped up is :
whether the appellant can be held guilty of Section 307 IPC ? In our considered opinion, since simple injuries were caused on the non-vital parts of the body, it cannot be said that the appellant is guilty under Section 307 IPC. Thus, the Court below has erred in holding the appellant as guilty of offence punishable under Section 307 IPC. Indeed, he must be held guilty for committing an offence punishable under Section 324 IPC. We deem it proper to modify the judgment to this extent.
31. On the basis of aforesaid analysis, in our considered opinion, the Court below has rightly held the appellant was guilty of offence punishable under Section 302 IPC. However, the Court below has erred in holding the appellant as guilty under Section 307 of IPC. Thus, the impugned judgment to this extent stands quashed and modified. The appellant shall undergo a sentence of two years without fine for committing the offence punishable under Section 324 IPC. The prosecution has objectively and beyond reasonable doubt established that bodily injuries were present on the body of the deceased. It was clearly proved that there was an intention on the part of the appellant to inflict those injuries to deceased-Mahajan. The injuries, by no stretch of imagination, can be said to be accidental or unintentional. This
-:- 13 -:-
CRA. No. 1180 of 2009cannot also be said that the intention was to cause some other kind of injury. Since the aforesaid ingredients were duly established by leading credible evidence, we find no reason to interfere in the impugned judgment so far the appellant is held guilty of offence under Section 302 IPC.
32. In the result, the appeal is partly allowed. The judgment of the Court below dated 19.05.2009 is set aside to the extent the appellant was held guilty under Section 307 IPC. The conviction and sentence stands modified under Section 324 IPC and he will undergo a sentence of three years for this modified punishment. Needless to emphasis that both the punishments shall run concurrently.
(Sujoy Paul) (Rajeev Dubey)
JUDGE JUDGE
YS/mohsin/Biswal
Digitally signed by SHIBA
NARAYAN BISWAL
Date: 2018.08.08 11:37:39 +05'30'