Mahar Singh @ Maahar Singh vs State Of Chhattisgarh
2022 Latest Caselaw 3681 Chatt

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                                                               NAFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                    Judgment Reserved on 19/04/2022
                    Judgment delivered on 13/06/2022

                            CRA No. 873 of 2017


   Mahar Singh @ Maahar Singh, S/o Shri Mangia Ram, Aged About 45
    Years, R/o Navagaon, Police Station Maanpur, District Rajnandgaon,
    Chhattisgarh.                                        ---- Appellant
                                   Versus
     State of Chhattisgarh, Through Police Station Maanpur, District-
      Rajnandgaon, Chhattisgarh.                     ---- Respondent

For Appellant : Shri Ajay Mishra, Advocate

For Respondent/State : Smt. Deepti Shukla, Panel Lawyer

Hon'ble Shri Justice Gautam Chourdiya

CAV JUDGMENT

1. This appeal is filed under Section 374 (2) of Code of Criminal

Procedure, 1973 against the judgment of conviction and order of

sentence dated 01.06.2016, passed by the Sessions Judge,

Rajnandgaon (C.G.) in Sessions Trial No.75/2015, whereby the

appellant Mahar Singh @ Maahar Singh stands convicted and

sentenced as under:-

Conviction Sentence

Under Section 304 Part-II of Indian R.I. for 10 years.

Penal Code

2. Case of the prosecution, in brief, is that Adursay (PW/8) lodged merg

(Ex.P/10) on 29.07.2015 in police station Manpur at about 10.15 Hrs.

to the effect that on 28.07.2015 at about 3 pm the accused assaulted Page-2

his wife namely Bishay Bai with club (lathi) for not preparing food as a

result of which she died. Thereafter, vide Ex.P/11 FIR was registered

bearing Crime No. 58/2015 under Section 302 of IPC and

investigation was conducted by the Investigating Officer (PW/11).

3. Vide Ex.P/4 inquest report (Naksha Panchayatnama) was prepared in

the presence of witnesses. Spot maps were prepared by Patwari vide

Ex.P/6 & by police vide Ex.P/7. Post mortem vide Ex.P/1 was

conducted by PW/1 Dr. Mohan Lal Tikam, Medical Officer, Community

Health Center, Manpur. The autopsy surgeon noticed wound of size

2x1/5x1/5 inch present below the left knee joint and multiple lacerated

wounds at left side of the chest wall (precardial region), whole back,

waist and whole hip. In his opinion, the cause of death was cardial

respiratory arrest due to internal laceration at heart, both lungs and

spleen. According to the Dr. Mohan Lal Tikam, the injuries were

caused by hard and blunt object and most probably, the death may be

homicidal in nature. Vide Ex.P/15 the accused was arrested by police

on 29.07.2015 at about 15.30 Hrs. Vide Ex.P/8 memorandum

statement of accused was recorded and vide Ex.P/9 bamboo club &

Harra wood were seized from the house of the accused. Vide Ex.P/12

clothes of the deceased were also seized by the police. The seized

articles were sent for chemical examination to forensic laboratory.

Vide Ex.P/16 human blood was found on samples 'B' & 'C' i.e Saree &

petticoat of the deceased but the same was not found on samples A1

& A2 i.e. clubs, seized from the accused. After completion of

investigation, charge-sheet was filed by the police u/s. 302 of IPC and

learned trial Court framed charge u/s 302 of IPC against the appellant,

who denied the same and prayed for trial.

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4. Prosecution in order to prove its case, examined as many as 11

witnesses i.e. PW/1 Dr. Mohan Lal Tikam, PW/2 Ramesh, PW/3

Rajaram, PW/4 Chain Singh, PW/5 Dharan Singh, PW/6 Dilip Aachla,

PW/7 Maksudan Tembhurkar, PW/8 Adursay Kodope, PW/9 Gannu

Ram, PW/10 Sulen Deshlahre and PW/11 Mukesh Yadav. Statement

of the appellant was also recorded u/s 313 of CrPC where he denied

the incriminating circumstances appearing against him in the

prosecution case, pleaded innocence and false implication. In his

defence, he stated that he informed about the death of his wife to

Rajaram and Gannu Ram but did not tell them as to how she died. He

states that when he returned to his home at 4 pm, he found his wife

lying dead in the courtyard, thereafter, he took her inside the home

and thereafter only went to inform about the same to Rajaram and

Gannu Ram on the next day. However, no witness was examined or

any evidence adduced by him in his defence.

5. The trial Court, considering overall material available on record by the

impugned judgment convicted and sentenced the appellant as

mentioned in para-1 of this judgment.

6. Learned counsel for the appellant submits that impugned judgment is

per se illegal as the trial Court did not appreciate the omissions and

contradiction in the statements of the witnesses. The prosecution has

failed to prove its case against the appellant beyond reasonable

doubt. The post-mortem report shows that only single injury was found

on the body of the deceased and also no human blood was found on

the seized clubs from the appellant.

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7. On the other hand, learned State counsel supports the impugned

judgment and submits that trial Court after due appreciation of the

entire oral and documentary evidence on record has rightly convicted

and sentenced the appellant by the impugned judgment which needs

no interference by this Court.

8. Heard learned counsel for the parties and perused the material

available on record.

9. PW/1 Dr. Mohanlal Tikam examined the deceased on 29.07.2015 vide

Ex.P/11 at about 2.30 pm. According to him, deceased was slim lady,

there was blood stains on her saree & petticoat. He noticed wound of

size 2x1/5x1/5 inches below the left knee joint and multiple lacerated

wounds on left chest wall at pre-cardial region, entire back, waist & hip

region. In his opinion, the cause of death was cardio-respiratory-arrest

due to internal laceration at heart, both lungs and spleen. According to

Dr. Mohan Lal Tikam, the injuries were cause by hard and blunt object

and most probably, the death may be homicidal in nature.

10. PW/2 Ramesh is the witness to inquest report Ex.P/4. He states that

on the next day of incident Rajaram Patel informed him that the

appellant told to Rajaram Patel that the appellant killed his wife.

Thereafter, he alongwith Rajaram Patel, Atursay, Gannu Ram others

went to the house of the appellant and on being asked, the appellant

disclosed that he killed his wife by assaulting her with lathi (club) as

she had not prepared food.

11. PW/3 Rajaram, states that while he was working in his field, the

appellant came there and disclosed that he has killed his wife as she Page-5

had not prepared food. Thereafter, he alongwith elderly people of the

village went to the house of the appellant and found his wife lying

dead there.

12. PW/8 Adursay, PW/9 Gannu Ram have also stated that the appellant

made extra judicial confession before them that he killed his wife by

assaulting her with club as she had not prepared food. In cross-

examination, these witnesses (PWs-2, 3, 8 and 9) have remained firm

and supported the prosecution case.

13. PW/4 Chain Singh is a hearsay witness. PW/5 Dharam Singh brother

of the appellant is witness to spot maps i.e. Exs.P/6 & 7. He states

that when he returned to his home in the evening, his wife informed

him that the appellant has killed his wife. PW/6 Dilip Aachla,

Panchayat Secretary, is a witness to memorandum Ex.P/8 and

seizure (Ex.P/9). However, this witness has turned hostile and not

supported the prosecution case.

14. PW/7 Maksudan Tembhurkar, Patwari, prepared the spot map i.e.

Ex.P/6. PW/10 Sulen Deshlahre, police constable is a witness to

seizure memo Ex.P/12 whereby petticoat and saree of the deceased

were seized. PW/11 Mukesh Yadav, Inspector, conducted

investigation and duly supported the prosecution case.

15. Admittedly, the present case is based upon the extra judicial

confession made by the appellant before PWs-2, 3, 8 and 9. Before

adverting to the facts and evidence of the present case, it would be

apposite to consider the legal position in respect of the extra-judicial-

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confession. In the matter of Sahadevan and another Vs. State of

Tamil Nadu, (2012) 6 SCC 403, the Supreme Court held as under:

"14. It is a settled principle of criminal jurisprudence that

extra-judicial confession is a weak piece of

evidence. Wherever the Court, upon due

appreciation of the entire prosecution evidence,

intends to base a conviction on an extra-judicial

confession, it must ensure that the same inspires

confidence and is corroborated by other prosecution

evidence. If, however, the extra- judicial confession

suffers from material discrepancies or inherent

improbabilities and does not appear to be cogent as

per the prosecution version, it may be difficult for the

court to base a conviction on such a confession. In

such circumstances, the court would be fully justified

in ruling such evidence out of consideration.

16. Further, in the case of Vijay Shankar Vs. State of Haryana,

(2015) 12 SCC 644, it has been held by the Supreme Court as

under:

"Principles in respect of evidentiary value

and reliability of extra-judicial confession have

been summarized by this Court in Sahadevan

& Anr. vs. State of Tamil Nadu, (2012) 6 SCC

403, which reads as under:-

           "i.    The extra-judicial confession is a weak
                 evidence by itself. It has to be examined by
                 the court with greater care and caution;
           ii.    It should be made voluntarily and should be
                 truthful;
           iii. It should inspire confidence;
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iv. An extra-judicial confession attains greater ported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;

v. For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities;

vi. Such statement essentially has to be proved like any other fact and in accordance with law."

Extra-judicial confession is a weak piece of evidence and the courts are to view it with greater care and caution. For an extra- judicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. In the case on hand, extra-judicial confession allegedly made to PW-12 does not inspire confidence and cannot form the basis for the conviction.

17. In the present case, Pws-2, 3, 8 and 9 have categorically stated that

the appellant made extra-judicial-confession before them that he

assaulted his wife with lathi twice as she had not prepared food and

as a result of such assault, she died. According to the autopsy

surgeon PW/1, the deceased suffered injury below left knee joint and

multiple lacerated wounds on left side of the chest, whole back, waist

and hip region which were caused by hard and blunt object. The

cause of death of the deceased was Cardio-respiratory-arrest due to

internal laceration at heart, both lungs and spleen. The medical

evidence of PW/1 remains uncontroverted in the cross-examination.

The evidence of PWs-2, 3, 8 and 9, finds due corroboration from the

medical evidence, and it inspires confidence of the Court. No

evidence has been adduced by the defence to show that these Page-8

witnesses were inimical to the appellant or having any animosity

against the appellant.

18. Thus, considering the overall evidence, as discussed above, in the

light of the aforesaid judgments of the Hon'ble Supreme Court, it is

clear that the appellant assaulted his wife with lathi on non vital part of

her body over a trivial dispute as she had not prepared food. As such,

the incident occurred all of sudden in the heat of passion without any

premeditation and the appellant while assaulting his wife did not act in

any cruel manner. Being so, this Court is of the opinion that the trial

Court was justified in holding the appellant guilty of the offence under

Section 304 part-II of IPC i.e. culpable homicide not amounting to

murder as though no intention of killing his wife can be attributed to

the appellant while making such assault, it can be easily inferred that

the appellant was having knowledge that such assault could result in

her death.

19. As regards the sentence, in the matter of Lakshmi Chand and

another Versus State of Uttar Pradesh reported in (2018) 9 SCC

704 the Hon'ble Supreme Court considering the fact that the incident

took place as the bullocks of the appellants strayed into the

neighbouring compound of the deceased Prem Lal who drove them

out with a lathi, appellants with accused Kashmira (since deceased)

went to the house of the deceased Prem Lal, armed with a lathi, iron

rod and knife, assaulted the deceased and when PW/1, Banarasi,

PW2, Omveer and another witnesses Rajendra Singh intervened, the

appellants scampered away from the spot, considering the act of the

appellant, the fact that the occurrence took place on the spur of the

moment, the assault was not made on a vital part of the body, the Page-9

appellant went away upon being challenged, the genesis of the

assault lay in a dispute between neighbors with regard to strayed

cattle, the occurrence had taken place long ago in 1980, reduced the

sentence of the appellant No.2 to a period of two years.

20. In the present case, considering the facts and circumstances of the

case, nature of dispute regarding food preparation giving rise to the

incident, the incident took place all of a sudden in the heat of passion

upon a sudden quarrel without any premeditation on the part of the

appellant, the manner in which the assault was made by the appellant

on the deceased, the age of the appellant at the relevant time, there is

no criminal antecedent of the appellant, the fact that the appellant has

remained in jail during trial from 30.07.2015 to 31.05.2016 and after

conviction since 01.06.2016 for about more than 6 years 10 months,

keeping in view of the judgment of the Hon'ble Supreme Court in

Lakshmi Chand (supra), this Court is of the opinion that the ends of

justice would be served if the appellant is sentenced to the period

already undergone by him.

21. In the result, the appeal is allowed in part. While maintaining

conviction of the appellant u/s 304 Part-II of IPC, his jail sentence is

reduced to the period already undergone by him. The appellant is

reported to be in jail, therefore, he be set at liberty forthwith if not

required in any other case.

Sd/-

                                                     Gautam Chourdiya
Nadim                                                    Judge