Mahar Singh @ Maahar Singh v. State of Chhattisgarh

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).

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.

Prosecution in order to prove its case, examined as many as 11 Page-3 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.

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.

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. Page-4

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.

Heard learned counsel for the parties and perused the material available on record.

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.

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 along with 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.

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 had not prepared food. Thereafter, he along with elderly people of the village went to the house of the appellant and found his wife lying Page-5 dead there.

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.

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.

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.

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- 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 Page-6 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.

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; Page-7 iv. An extra-judicial confession attains greater ported by a chain of cogent circumstances and prosecution is further corroborated by other evidence; v. For an extra-judicial confession to be the basis of conviction, it should not suffer from any material inherent discrepancies and 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 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.

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 witnesses were inimical to the appellant or having any animosity against the appellant. Page-8

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.

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.

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.