9911796707
TMI Blog2023 (3) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... a, this Court, normally would not interfere with the concurrent findings of fact, except in very special circumstances or in the case of a gross error committed by the courts below. Only where the High Court ignores or overlooks crying circumstances and proven facts or violates and misapplies well established principles of criminal jurisprudence or refuses to give benefit of doubt to the Accused persons, etc., would this Court step in to correct the legally erroneous decisions - this Court, while considering the evidence on record took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the Accused, arrived at the conclusion that the presence of the Accused was admitted. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the Accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence - It is true that a suggestion has no evidentiary value but this proposition of law would not hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... always is that it is a case of murder but the Accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. It is assumed that this would be a case of murder and it is for the Accused to show the applicability of the Exception - On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is convincing that no case is made out by the Appellants to interfere with the impugned judgment and order of the High Court - appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the prosecution that the Appellants herein had dangerous weapons in their hands in the form of a sword and sickle. The deceased Abbas Baig suffered serious injuries on his body and ultimately succumbed to such injuries. 4. A first information report was lodged on 2.04.2002 by the PW 1 at around 2 a.m. i.e., just within three hours from the time of the incident. The deceased Abbas Baig having suffered serious bleeding injuries was taken to the hospital in a rickshaw owned by the PW 3, namely, Nasir Khan. The deceased upon reaching the hospital was declared dead. 5. The FIR Exh. 8 lodged by the PW 1 viz. Asgar Shaikh reads thus: I Ajgar Ibrahim Shaikh aged 22 years, Occupation Turner, residing at 54 BP/251 Lohia Nagar, slum area, Pune. I hereby lodge my complaint as under: I am residing at the aforementioned address with my mother, father and sister. I have been working as a turner past three years in the workshop owned by Abdul Wahab Shaikh situated at Guruwar Peth, Pune in the name of New Quality Instruments. Yesterday, i.e., on 1.4.2001, I left my house at 9.00 AM for reporting at the workshop. I worked out at the workshop for whole day and came back at 7.00 PM. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to the forensic science laboratory for chemical analysis. All the four Accused were arrested by the police. The clothes of all the Accused were collected and sent to the FSL. The dead body of the deceased was sent for post mortem. While the Appellants herein were in police custody, they are said to have made statements on their own free will and volition that they would show the place where they had concealed the weapons of offence i.e. the sickle and the sword. Ultimately, the discovery panchnamas were drawn in presence of the panch witnesses. The statements of various other witnesses were recorded by the police. 7. At the end of the investigation chargesheet was filed for the offence punishable Under Section 302 read with Section 34 of the Indian Penal Code, in the Court of the learned Magistrate. The learned Magistrate committed the case to the Court of Sessions as the offence was exclusively triable by the Court of Sessions. 8. The Trial Court framed the following charge vide Exh.8. The translated version of the charges framed against the Appellants are quoted below: 1) That you Accused Nos. 1 to 4, on 01.04.2001, at about 11.45 P.M. or thereabout, at Plot No. 54/BP, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andekar- Ex. 18 (8) PW 8 Mubarak Baig- Ex. 21 (9) PW 9 Mahendr Arokade- Ex. 22 (10) PW 10 Baba Shaikh- Ex. 38 10. The following pieces of documentary evidence were adduced by the prosecution: (i) Inquest Panchnama (ii) Post mortem report (iii) Spot Panchnama (scene of offence panchnama) (iv) Arrest and Personal search (v) Seizure of clothes of complainant (vi) Seizure of clothes of deceased 11. After completion of the oral as well as the documentary evidence of the prosecution, the statements of the Appellants herein Under Section 313 of the Code of Criminal Procedure (for short, 'the CrPC') were recorded in which the Appellants herein stated that the complaint was a false one. They further stated in their written statement Under Section 313 of the Code of Criminal Procedure that they were workers of one Hindi Ekta Mandal. On 09.03.2001, tension mounted between the Hindus and the Muslims as some people from the minority community damaged the idol of Ganesh. A report with the police was lodged in that regard. In such circumstances, the witnesses deposed falsely against them. 12. At the conclusion of the trial, the learned Trial Judge convicted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode by giving benefit of Exception 4 to the Section 300 of the Indian Penal Code. SUBMISSIONS ON BEHALF OF THE STATE 19. Mr. Abhikalp Pratap Singh, the learned Counsel appearing for the State of Maharashtra, on the other hand has vehemently opposed this appeal submitting that no error not to speak of any error of law can be said to have been committed by the High Court in dismissing the appeal thereby affirming the order of conviction and the consequence sentence passed by the Trial Court. 20. He would submit that there is no good reason to doubt the ocular version of the eyewitnesses, which has come on record. He further submitted that was no good reason for the eyewitnesses to falsely implicate the Appellants herein in the alleged crime. 21. The learned Counsel submitted that no case is made out to bring the case within the ambit of Exception 4 to Section 300 of the Indian Penal Code. He vehemently submitted that as many as nine injuries were inflicted on the body of the deceased by dangerous weapons like sickle and sword. The Appellants herein can be said to have taken undue advantage and acted in a cruel manner. 22. In the last, the learned Counsel appearing for the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. 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 two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. 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. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded. 27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njury inflicted by Appellant No. 1 Accused. By canvassing such last argument, it emphasized on behalf of the Appellant that the death of Abbas was caused due to the injury at serial No. 9 in the Post Mortem report and as such the Appellant Accused No. 1 could not be held responsible for the death of Abbas, further argued. 10. While dealing with such arguments, on behalf of the Appellants as mentioned above, we have carefully gone through the substantive evidence of P.W. 1 and 2 and also of the incidental witness, corroborating the major part of the events i.e. P.W. No. 3 and it must be said that immediately after reaching Lohianagar Police Chowki a complaint was lodged by P.W. 1 and by that time said Abbas was also brought to the Police Chowki and was subsequently referred to Sasoon Hospital for treatment, however, declared, dead on admission. It is also in the substantive evidence of P.W. 1 that he and P.W. 2 attended the Sasoon Hospital along with police yadi for getting treatment, it is a factual position that there is no medical certificate brought on record by the prosecution regarding injury sustained by P.W. Nos. 1 and 2 and as such factual position prompted the Sessions C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did feel that I was being assaulted without any reason. Abbas was screaming while he was being assaulted.... 33. We are of the view from the aforesaid that the suggestions put by the defence counsel in the cross-examination of the eyewitnesses establishes the presence of PW 1 Asgar Shaikh at the scene of offence and the factum of assault could also be said to have been admitted. The reply to the suggestions answers the submission canvassed by the learned Counsel for the Appellants that PW1 Asgar Shaikh should not be believed or relied upon as there is nothing on record to indicate that he was an injured eyewitness. The defence could be said to have admitted the presence of PW Asgar Shaikh. When the aforesaid part of the cross-examination of PW1 Asgar Shaikh was brought to the notice of the defence counsel, he submitted that a suggestion put by defence counsel to a witness in his cross-examination has no evidentiary value and even if the same is incriminating in any manner would not bind the Accused as the defence counsel has no implied authority to admit the guilt of the facts incriminating the Accused. 34. According to the learned Counsel such suggestions could be a part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile re-appreciating the evidence on record, this Court noticed that in the cross-examination of the PW 4, Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the Accused persons at the time of the incident. This Court taking into consideration the nature of the suggestion put by the defence and the reply arrived at the conclusion that the presence of the Accused namely Dharam Vir was established on the spot at the time of occurrence. We quote the following observations made by this Court in paragraphs 8 and 9 as under: 8. PW 3, Bhagat Singh, stated in his examination-in-chief that he had identified the Accused at the time of occurrence. But curiously enough, he was not cross-examined as to how and in what manner he could identify the Accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased. 9. In his cross-examination, PW 4, Sube Singh, stated that the Accused Dharam Vir, was wearing a shirt of white colour. It was suggested to him on behalf of the Accused that Dharam Vir was wearing a shirt of cream colour. In an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the Accused and this is exactly what has happened in the present case. 41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The Accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent. 42. Therefore, we are of the opinion that suggestions made to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting cross-examination with creditable skill. It is undoubtedly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has power to control the cross-examination in such cases. (See Wrottescey on cross-examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh 1996 SCC (Cri.) 316]. 44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the Accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same. 45. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of rape Under Section 376 of the Indian Penal Code, the statement of the Accused contained plain denial and a plea of false implication, a subsequent suggestion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a suggestion was put to him that he had inquired with PW 1 Asgar Shaikh as to what had happened and Asgar Shaikh in turn narrated the incident to Nasir. This suggestion put by the defence counsel to the PW 3 Nasir was answered in the affirmative. This part of the evidence of the PW 3 Nasir is corroborated by the evidence of the PW 1 Asgar Shaikh. 47. The reason for referring to the aforesaid a piece of evidence is that the PW 3 Nasir Rajjak Khan (Exh. 10) could be termed as a res gestae witness. This principle of res gestae is embodied in Section 6 of the Act 1872: 6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and place. 48. In the case of Sukhar v. State of U.P. reported in (1999) 9 SCC 507, this Court noticed the position of law with regard to Sections 6 & 7 of the Act 1872 thus: 6. Section 6 of the Evidence Act is an exception to the general Rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made either during or immediately before or after its occurrence. 50. Sections 6 and 7 of the Act 1872 in the facts and circumstances of the case, in so far as, the admissibility of a statement of the PW 3 Nasir Rajjak Khan coming to know about incident, immediately from the PW 1 Asgar Shaikh that Abbas Baig had been seriously assaulted and that Asgar Shaikh had also suffered injuries and admitted by the PW 1 Asgar Shaikh in his evidence would be attracted with all its rigour. EXCEPTION 4 TO SECTION 300 OF THE INDIAN PENAL CODE 51. We shall now deal with the submission as regards the applicability of the fourth Exception to Section 300 of the Indian Penal Code. However, before we proceed to deal with the submission, it would be appropriate to look into the oral evidence of PW 7, Dr. Shrikant Suresh Chandekar, Medical Officer who carried out the post mortem of the dead body of the deceased and also prepared the post mortem report. 52. The examination-in-chief of PW 7 Dr. Shrikant, Exh. 18, reads thus: 1. On 02.04.2001 I was on duty when a dead body of Abbas Sanaulla Baig was brought to mortuary by Khadak police alongwith inquest panchnama. Accordingly, I carried out the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njury No. 9 can be caused by the sword Article No. 17 now shown to me is the same. Injury Nos. 1 and 2 were incised injuries alongwith underlined fractured bones. Injury Nos. 1 to 8 are possible by Article No. 16- sickle or Article No. 17 sword, as both are having sharp edges. Initially, I had issued the provisional death certificate. The certificate now shown to me is the same. It bears my signatures its contes are correct. It is now marked at Exhibit 20. 53. In order to appreciate the question, it will be profitable to refer to the definition of murder as provided in Section 300 of the Indian Penal Code which is quoted below: 300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,-- Fourthly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations (a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation. (b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide. (c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers. (d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder. (e) A attempts to pull Z's nose. Z, in the exercise of the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able of giving consent to his own death; A has therefore abetted murder. 54. At this stage, it will also be profitable to refer to the following observations of this Court in the case of State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. reported in (1976) 4 SCC 382 where this Court laid down the distinction between murder and the culpable homicide not amounting to murder in the following way: 12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the "intention to cause death" is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of Clause (2) is borne out by Illustration (b) appended to Section 300. 15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling Under Clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 19. Thus according to the Rule laid down in Virsa Singh case of even if the intention of Accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point. 20. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offender having taken undue advantage or acted in a cruel or unusual manner. 58. A perusal of the provision would reveal that four conditions must be satisfied to bring the matter within Exception 4: (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in the heat of passion; and; that (iv) the assailant had not taken any undue advantage or acted in a cruel manner. 59. On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. 60. We have already noticed the extent of injuries suffered by the deceased, as it appears from the deposition of the PW 7 Dr. Shrikant who carried out the post mortem. Having regard to the nature of the injuries caused by dangerous weapons like sickle and sword which, were applied on the vital part of the body, there is no escape from the conclusion that it is a case of Section 302 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
