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ALLAHABAD HIGH COURT
(D.B.)
R. B. Lal and R. K. Shukla, JJ.
Madho Ram Shakya -Appellant
versus
State of U.P. - Respondent
Criminal Appeal No. 131 of 1982
Decided on 27.9.1983
Shri G. S. Rajala, Advocate - For the Appellant.
Dy. G. A. - For the State.
IMPORTANT POINT
When a hostile witness does not refute the prosecution story but is silent with regard to a material part of it, the court can place reliance on his testimony, to the extent that it is consistent with the case of the prosecution.
Headnote:(i) Indian Penal Code 1860, Section 302 and Indian Evidence Act 1872, Sections 154 and 155 - Hostile witnesses-Appellant convicted for the murder of his wife by the Sessions Judge under Section 302 Indian Penal Code-Appellant has appealed to High Court against this conviction.
Question:
Can the prosecution place reliance on the testimony of witnesses who have turned hostile? (Yes)
Held even in a criminal prosecution when a witness is cross-examined and contradicted by the party tailing him, his evidence cannot as a matter of la w be treated as washed off the record. It is for the Judge of fact to decide whether the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. (Para 15)
(A.I.R. 1976 S.C. 294 applied)
(ii) Indian Evidence Act 1872, Sections 154 and 15S-Hostile witnesses - The son and neighbour of the accused are the two hostile witnesses to the prosecution case.
Question:
Should the Court on facts rely on the testimony of these witnesses? (Yes)
(Paras 18 and 19)
(iii) Indian Penal Code 1860, Section 84 - Defence of insanity-No plea of insanity made by the accused witnesses allege insanity to him prior to the occurrence
Question:
Is the defence of insanity available to the appellant? (No) (Para 23)
(iv) Criminal Procedure Code 1973 Section 294 - Endorsement of documents - Ten documents of the prosecution endorsed by the defence under Section - 294 Criminal Procedure Code 1973 - These documents included the inquest papers, site plan and Memo of recovery of blood - As a result the investigation officer was not examined by the prosecution.
Question:
When important documents of investigation are endorsed by the defence, is the trial of the accused vitiated due to non-examination of the investigation officer? (No) (Para 24)
(v) Indian Penal Code 1860 Sections 302 and 304 Part II - Sessions Judge convicted appellant under Section 302 Indian Penal Code.
Question:
Is the accused guilty of the offence of murder? (No)
Held the fact that accused did not use sharp edge of Phawara to cause injuries strongly suggests that the accused had no intention to cause death of deceased. The act of the accused amounts to culpable homicide not amounting to murder. (Para 26)
(vi) Indian Penal Code 1860 Section 304 Part II-Sentencing Police - Accused in jail since March 1981 and is living in jail as a convict since October 1981-The ends of justice are met if the sentence of the accused is reduced to the period of imprisonment already undergone. (Para 27)
Result:
The conviction of the accused is altered from Section 302 Indian Penal Code to Section 304 Part II Indian Penal Code-His sentence is reduced to period of imprisonment already undergone-Appeal partly allowed.
JUDGMENT
R. B. Lal, J. - This appeal is directed against the judgment and order dated 10-11-81 passed by the Bird. Additional Sessions Judge, Farrukhabad convicting the appellant Madho Ram Shakya of an offence under section 302 Indian Penal Code and sentencing him to undergo imprisonment for life.
2. The prosecution case in brief was that the appellant and his elder brother Girvar Lal were living in separate portions of the same house in village Mubarakpur. The Barotha which was exit for both the portions was, however, joint. The appellant was insisting on partition of the Barotha but the partition could not take place. On 13-3-81 in the morning the appellant became enraged and began to demolish the Barotha with a spade. His son Om Prakash (PW-2) stopped him from doing so. At this the appellant rushed towards Om Prakash who ran away on account of fear. Smt. Ram Kunwari wife of the appellant and mother of Om Prakash, was present in the house of Hotey Ram which was nearby and came out to see if the appellant was assaulting her son. She proceeded towards her house. The appellant ran towards her in anger holding the spade and she ran back towards the house of Hotey Ram. The appellant felled the woman near the door of the house of Ram Datt and gave Phawara blows to her from its blunt side. This occurrence took place at about 8.30 a.m. and was seen by Jwala Prasad, Niranjan Lal and Prahlad besides Om Prakash. These persons challenged the appellant and he ran away to the north of the village carrying the spade. Ram Kunwari sustained a bleeding wound at the back of her head and died some time later.
3. Om Prakash got a report of the occurrence written by Anokhey Lal (PW -5) and sent it to the police station Shamsabad which was two miles away through Komil, village Chaukidar. The report was lodged at the Police station the same day at 11.30 a m. and a case was registered. The postmortem examination on the dead body of Ram Kunwari was performed by Dr. K. K. Agrawal (PW-l) at Fatehgarh on 14-3-81 at 11.30 a.m. The police investigated the case and submitted charge-sheet against the appellant.
4. The appellant admitted that on 13-3-81 at about 8.30 a.m. he was demolishing the joint Barotha but he denied the other allegations of the prosecution. He said that Om Prakash and other witnesses were not present at that time. He denied to have given blows to his wife from the blunt side of spade. The appellant did not adduce any evidence in defence.
5. The Trial Judge came to the conclusion that the prosecution evidence made out a case of murder against Madho Ram appellant and he, therefore, convicted and sentenced him as mentioned earlier.
6. The report of the post-mortem-examination on the dead body of Smt. Ram Kunwari is Ex. Ka-1. The deceased was about 40 years old and of average built, Rigor-mortis was present in the lower extremities and had, partially passed off from upper extremities. The doctor found the following ante-mortemexternal injuries on the dead body:
1. Lacerated wound 'L' shapped 2½' x ¾” x bone deep on the back of scalp, 8" above the first cervical vertebra. There was fracture of occipital bone underneath.
2. Contusion 3" x 2½” on the left cheek.
3. Abraded contusion 1½” x 1" on the back of left side of chest. 1” outer to midline and 7” below the shoulder.
Internal examination revealed fracture of occipital bone. Membranes and brain were also lacerated.
7. In the opinion of the doctor, death was due to shock, haemorrhage and coma as a result of ante-mortem-injuries. The doctor estimated the probable time since death at about one day.
8. In his statement Dr. Agrawal said that injury no. 1 was sufficient in the ordinary course of nature to cause death. The deceased might have died on 13+81 at about 9 or 9.30 a.m. All the injuries were caused by some bunt weapon and could be caused by the handle of a spade or by back side of the iron portion which is on the handle. The doctor denied the defence suggestion that injury No. 1 cou
