DEVRAJ Vs. STATE OF CHHATTISGARH - IPC - Section 302, 201
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 423 of 2015, Judgment Date: Jul 25, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.423 OF 2015
DEVRAJ ... APPELLANT
VERSUS
STATE OF CHHATTISGARH ... RESPONDNET
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against the judgment and order dated
7th January, 2013 of the High Court of Chhattisgarh in Criminal Appeal No.
780 of 2008. The First Additional Sessions Judge in Sessions Trial No.396
of 2006 had convicted the appellant-Devraj and Dinda @ Deenanath under
Section 302 and 201 IPC and awarded imprisonment for life and to pay fine
of Rs.1,000/- each for the charge levelled under Section 302 IPC and RI for
three years and to pay fine of Rs.1,000/- each for the charge under Section
201 IPC. Four other accused were acquitted by the First Additional Sessions
Judge. The High Court in Criminal Appeal No.780 of 2008 although acquitted
the accused Dinda @ Deenanath, it confirmed the conviction of the
appellant under Section 302 IPC. The High Court has set aside the
conviction and sentence of Devraj under Section 201 IPC.
2. Aggrieved by the judgment and order of the High Court, Devraj
has come up in this appeal.
3. The prosecution case in brief is:
There existed a land dispute between the deceased Devi Prasad @
Prachar and Devraj, Dinda @ Deenanath. Devraj and Dinda @ Deenanath are
real brothers whereas deceased Devi Prasad was their cousin brother. On
26th June, 2006, after 8 p.m. when deceased Devi Prasad was going along
with one Ratan Singh Guruji in a motorcycle he was intercepted by five
persons near pakkar tree. The deceased was beaten by geda and lathi by
Devraj, Dinda and others and after killing him his body along with
motorcycle was thrown below Rakhet Pulia. The body was seen on next day
morning by a boy of village who informed the wife of the deceased.
Thereafter, First Information Report was lodged by Anita Bai at 10.15 a.m.
on 27th June, 2006. Police official came on the spot prepared death
panchnama and site plan. The statements from various persons were recorded.
The charges were framed against six accused under Section 147, 148,149, 302
and 201 IPC. The accused Sheonath, Thema @ Vishwanath, Devraj, Dinda @
Deenanath, Khoru and Dayalal were sent for trial.
4. The prosecution examined 20 witnesses and placed reliance on
various exhibits. Learned Additional Sessions Judge after examining the
statements of witnesses held charges under Section 302 and 201 IPC proved
against accused Devraj and Dinda @ Deenanath, other four accused were
acquitted by the Trial Court.
5. The Trial Court placed heavy reliance on witnesses PW.8-Ratan
Singh, PW.13-Shivlochan and PW.16-Ajar Das who were found to be eye-
witnesses. The statements of witnesses were found corroboration from other
evidence. Although witnesses PW.13-Shivlochan and PW.16-Ajar Das were
declared hostile witnesses and they were cross-examined but the Trial Court
relied on their statements having found to be truthful and worth reliance.
6. Both Devraj and Dinda @ Deenanath filed an appeal before the
High Court. The High Court vide its judgment and order dated 7th January,
2013 acquitted Dinda @ Deenanath from all the charges. However, it
confirmed the conviction of the appellant-Devraj under Section 302 IPC
while setting aside the conviction under Section 201 IPC.
7. Devraj is before us in this appeal. Only Devraj being in this
appeal, we need to confine our discussion with regard to the evidence
against Devraj only and as to whether the courts below on valid materials
and evidence were justified in convicting Devraj.
8. We have heard Shri Akshat Shrivastava, learned counsel
appearing for the appellant and Shri C.D. Singh, learned Additional
Advocate General for the State.
9. Learned counsel for the appellant in support of the appeal
contended that the courts below have relied on three eye-witnesses namely
PW.8-Ratan Singh, PW.13-Shivlochan and PW.16- Ajar Das. PW.13-Shivlochan
and PW.16-Ajar Das having been declared hostile witnesses, their evidence
could not have been relied and PW.8-Ratan Singh, another eye-witness having
not stated that Devraj had assaulted the deceased hence there was no
evidence worth name to convict the accused-Devraj. It is further contended
that even the eye-witnesses, PW.13 and PW.16 had only stated that they have
heard the voice of Devraj, the prosecution ought to have proved that
witnesses had recognised the voice of Devraj and Devi Prasad. The witnesses
have only stated that Devraj had assaulted Devi Prasad @ Prachar by Danda.
It has not been proved that injury by Danda, if any, was sufficient to kill
Devi Prasad. The Doctor in his evidence has stated that injuries which were
sustained by Devi Prasad could be possible by an accident. Thus, the
prosecution failed to prove beyond reasonable doubt that it was Devraj who
killed Devi Prasad @ Prachar. There was contradiction between the
statements of eye-witnesses, which has not been adverted to by the courts
below.
10. Learned Additional Advocate General appearing for the State
supporting the judgment of courts below contended that incriminating
evidence on the record are sufficient to convict the accused-Devraj. All
the eye-witnesses have proved the presence of accused-Devraj. The evidence
of PW.13 and PW.16 was wholly reliable and even if they were declared
hostile witnesses their examination-in-chief and the cross-examination does
not in any manner weaken the evidentiary value of their evidence that
Devraj assaulted Devi Prasad on the late evening of 26th June, 2006.
Several witnesses have testified that there was land dispute between
deceased-Devi Prasad and Devraj and there being animosity between Devi
Prasad and Devraj there was a motive to kill the deceased. The judgment of
the Trial Court is based on correct appreciation of evidence. The High
Court also having examined the statements of witnesses and having come to
the conclusion that there was sufficient material on record to convict
Devraj there is no ground for interference by this Court in exercise of
jurisdiction under Article 136 of the Constitution of India. It is well
settled that this Court shall not reappraise the evidence and interfere
with concurrent findings of facts recorded by the courts below which are
sufficient for upholding the conviction of the accused.
11. We have considered the arguments made by the learned counsel
appearing for the parties and perused the records. The original records of
the Trial Court produced before us including the statements of witnesses
have also been perused by us.
12. In the present case the deceased-Devi Prasad was going along with
Ratan Guruji from his house on a motorcycle on Panchayat Road at about 8
p.m. Deceased left his house on a motorcycle with Ratan Singh Guruji as
pillion rider for dropping Ratan Singh at village Chendra. On the Panchayat
Road near pakkar tree, the deceased was intercepted and was asked to stop
the motorcycle by five persons. The quarrel took place between the deceased
and his interceptors. The witnesses have specially mentioned that Devraj
and Dinda @ Deenanath were present on the spot and Devraj hit and gave
lathi blows on deceased. The witnesses who saw the deceased being assaulted
are Ratan Guruji, Shivlochan and Ajar Das. It is useful to re-capitulate
the statements of the above eye-witnesses. Ratan Singh-PW.8 has stated that
he had gone to Devi Prasad's house and after 8 p.m. he along with Devi
Prasad left his house on a motorcycle and as soon as they reached at some
distance from his house five persons were standing near the pakkar tree.
Those persons got the vehicle stopped. Dinda came towards him (Ratan
Guruji), he was having a torch and switched on the torch. In the meanwhile,
a person ran from back side with a stick and spoke “kill him, what are you
looking' and he gave stick blow to Devi Prasad. On receiving injury Devi
Prasad ran towards back side crying “save save”. Ratan Singh further stated
that Shivlochan came on the spot and told him to come with him as there was
risk there. PW.8-Ratan Singh further stated that there was a land dispute
between Devi Prasad and Dev Raj.
13. Shivlochan-PW.13 is a witness whose house is situated near the place
where Devi Prasad was stopped. The Exhibit No.P.7 which is a site plan
prepared at the spot clearly indicates the house of Shivlochan is at
indication mark No.5. Shivlochan in his statement has stated that he knew
both the accused-Devraj and deceased-Devi Prasad. Shivlochan belongs to the
same village Sayar Rai of which accused and deceased belonged. In
examination-in-chief, Shivlochan stated that he was returning to his house
from his sister's house when he saw the deceased-Devi Prasad near pakkar
tree. Devraj came from the front and some dialogues entered between them.
Thereafter, Devraj assaulted Devi Prasad by wood or stone. Thereafter, Devi
Prasad started running. The witness was cross-examined on behalf of the
accused and in his cross-examination he stated that he heard the voice of
Devraj who was saying “Maro Sale Ko” and it was Devraj who hit the Devi
Prasad @ Prachar and Prachar shouted “Bachao Bachao” which he heard.
14. Another eye-witness PW.16-Ajar Das has been examined by the
prosecution. The house of Ajar Das is also near to the scene of occurrence
which is shown in Exhibit No.P-7 as indication mark 8. Ajar Das stated that
he knew the deceased and the accused. Deceased Devi Prasad was cousin
brother of Devraj and Dinda @ Deenanath. The quarrel had earlier taken
place between Devi Prasad and Devraj. He was returning to his house from
village Gangapur and when he was going through Panchayat Road adjoining
pakkar tree near Jam tree accused Devi Prasad had given three lathi blows
to Devi Prasad. Accused Devraj told Shivlochan that he should run away
otherwise he will also be assaulted on which he ran away. The prosecution
took permission of the Court for asking question after declaring the
witness as hostile. On which the witness again stated that he has forbidden
Devraj from beating Devi Prasad. He further stated that he had also seen
that while beating Devi Prasad, Devraj was saying that he has been tortured
throughout life. Devraj and Dinda had beaten the deceased in the night and
the dead body of Devi Parasad was found below the Rakhet Pulia in the
morning. He further stated that due to land dispute between Devi Prasad and
Devraj and Dinda, they entered into “marpeet”. In the cross-examination he
stated that he has seen accused-Devraj giving three lathi blows. However,
he does not know to whom the blows were given since it was dark. There is
overwhelming evidence on the record to prove the land dispute between
Devraj, Dinda with Devi Prasad-deceased.
15. Anita Bai-PW.7 wife of the deceased, Ratan Singh-PW.8, Shivlochan-
PW.13, Shivram-PW.18,Ram Kewal-PW.3 and Narayan Prasad-PW.10 all had stated
that there was a land dispute between the parties. Witness PW.10-Narayan
Prasad had also stated that with regard to the land dispute the leg of
Devraj was broken and there was animosity between Devi Prasad and accused-
Devraj and Dinda. The arguments which have been raised by the learned
counsel for the appellant that PW.13 and PW.16 having been declared as
hostile witnesses their evidence ought not to have been relied by the
courts below more so when Ratan Singh another eye-witness does not say that
deceased Devi Prasad was assaulted by Devraj. At this juncture it is
relevant to examine the question as to what extent evidence of hostile
witnesses can be relied by the Court while recording conviction.
16. In a three-Judge bench judgment of this Court in Bhagwan Singh v.
State of Haryana, (1976) 1 SCC 389, the witness Jagat Singh was declared
hostile. The appellant was convicted under Section 165A IPC. It was
contended that the whole case is destroyed since the witness was declared
as hostile. In the aforesaid decision the Court held that there is no
legal bar to base a conviction upon his testimony if corroborated by other
reliable evidence. Following was stated in paragraph 8:
“8. We have carefully perused the evidence of Jagat Singh, who was examined
in the trial after more than a year of detection of the case. The
prosecution could have even avoided requesting for permission to cross-
examine the witness under Section 154 of the Evidence Act. But the fact
that the court gave permission to the prosecutor to cross-examine his own
witness, thus characterising him as, what is described as a hostile
witness, does not completely efface his evidence. The evidence remains
admissible in the trial and there is no legal bar to base a conviction upon
his testimony if corroborated by other reliable evidence. We are satisfied
in this case that the evidence of Jagat Singh, but for whose prompt
assistance the case would not have seen the light of day and whose
statement had immediately been recorded by the D.S.P., is amply
corroborated by other evidence mentioned above to inspire confidence in his
testimony. Apart from that the fact of recovery of the gold coins in the
pocket of the appellant gave a seal of finality to the truth of the charge
against the appellant. If Jagat Singh had accepted the bribe he would have
been guilty under Section 161 IPC. There is, therefore, clear abetment by
the appellant of the offence under Section 161 IPC and the ingredients of
Section 165-A IPC are established against him.”
17. Another judgment which needs to be noted is Khujji v. State of M.P.,
(1991) 3 SCC 627. This Court in the above case held that merely because a
witness was declared hostile, his entire evidence cannot be treated as
effaced from the record,his testimony, to the extent found reliable, can be
acted upon. In paragraph 6 following was observed:
“6......The evidence of PW 3 Kishan Lal and PW 4 Ramesh came to be
rejected by the trial court because they were declared hostile to the
prosecution by the learned Public Prosecutor as they refused to identify
the appellant and his companions in the dock as the assailants of the
deceased. But counsel for the State is right when he submits that the
evidence of a witness, declared hostile, is not wholly effaced from the
record and that part of the evidence which is otherwise acceptable can be
acted upon. It seems to be well settled by the decisions of this Court —
Bhagwan Singh v. State of Haryana,(1976) 1 SCC 389, Rabindra Kumar Dey v.
State of Orissa,(1976) 4 SCC 233 and Syad Akbar v. State of
Karnataka,(1980) 1 SCC 30, — that the evidence of a prosecution witness
cannot be rejected in toto merely because the prosecution chose to treat
him as hostile and cross-examined him. The evidence of such witnesses
cannot be treated as effaced or washed off the record altogether but the
same can be accepted to the extent their version is found to be dependable
on a careful scrutiny thereof.....”
18. The above propositions have again been reiterated by this Court in
Vinod Kumar vs. State of Punjab, (2015) 3 SCC 220, where in paragraph 31
following has been stated:
“31. The next aspect which requires to be adverted to is whether testimony
of a hostile evidence that has come on record should be relied upon or not.
Mr. Jain, learned senior counsel for the appellant would contend that as PW-
7 has totally resiled in his cross-examination, his evidence is to be
discarded in toto. On a perusal of the testimony of the said witness, it is
evincible that in examination-in-chief, he has supported the prosecution
story in entirety and in the cross-examination he has taken the path of
prevarication. In Bhagwan Singh V. State of Haryana, (1976) 1 SCC 389, it
has been laid down that even if a witness is characterized has a hostile
witness, his evidence is not completely effaced. The said evidence remains
admissible in the trial and there is no legal bar to base a conviction upon
his testimony, if corroborated by other reliable evidence. In Khuji @
Surendra Tiwari V. State of Madhya Pradesh,(1991) 3 SCC 627, the Court
after referring to the authorities in Bhagwan Singh (supra), Rabindra Kumar
Dey V. State of Orissa,(1976) 4 SCC 233 and Syad Akbar V. State of
Karnataka,(1980) 1 SCC 30, opined that the evidence of such a witness
cannot be effaced or washed off the record altogether, but the same can be
accepted to the extent it is found to be dependable on a careful scrutiny
thereof.”
19. The evidence of a witness who has been declared hostile can be
relied if there are some other material on the basis of which said evidence
can be corroborated. More so, that part of evidence of a witness as
contained in examination-in-chief, which remains unshaken even after cross-
examination, is fully reliable even though the witness has been declared
hostile.
20. It is relevant to note that the trial began against six accused
persons. Shivlochan-PW.13 in his examination-in-chief took the name of
Devraj alone who was stated to have assaulted Devi Prasad. Shivlochan
did not mention in his examination-in-chief about the presence of other
accused which may be a reason for the prosecution to get the witness
declared as hostile. It is, however, relevant to note that even in the
cross-examination the witness repeated that he heard Devraj saying “Maro
Sale Ko” who had assaulted Devi Prasad and Devi Prasad @ Prachar cried
“Bachao Bachao”. The factum of assault by Devraj was throughout maintained
by the witness. Thus, even though witness was declared as hostile witness
his evidence so far as the role of Devraj is unshaken. Similarly, evidence
of Ajar Das-PW.16, where in his examination-in-chief he stated that accused
Devraj gave three lathi blows to Devi Prasad which was seen by him. The
witness further stated that Devraj threatened him to run away otherwise he
shall also be assaulted. Even after the witness was declared hostile he
maintained his stand that he forbidden Devraj from assaulting Devi Prasad.
He further stated that he saw Devraj and Dinda assaulting Devi Prasad in
the night and on the next day the dead body was found below Rakhet Pulia.
The witness further stated that due to land dispute Devraj and Dinda had
assaulted Devi Prasad. In cross-examination he voluntarily stated that he
had seen the accused giving three lathi blows. Further, he stated that he
did not see that whom he has beaten because it was dark. The statement in
cross-examination in no manner dilute the value of the evidence. It was
Devi Prasad who received injury whose dead body was found next day
morning. The statement that it was Devraj who gave three lathi blows
obviously referred to lathi blow to Devi Prasad-deceased. Thus, we conclude
that in spite of witnesses PW.13 and PW.16 having been declared as hostile
witnesses their evidence that Devraj assaulted Devi Prasad is unshaken and
has rightly been relied by the courts below in recording conviction.
21. As noted above Ratan Guruji was pillion rider along with deceased-
Devi Prasad and after they proceeded from the house of Devi Prasad on the
motorcycle after some distance near pakkar tree they were stopped by five
persons. The vehicle was got stopped by those persons they asked as to who
is sitting behind, upon this Devi Prasad said that Ratan Guruji of Chandra
was sitting. Then Dinda came towards them having a torch with him. Ratan
Guruji stated that one person came from behind with geda and shouted “maro,
kya dekh rahe ho” and he assaulted Devi Prasad with geda. Devi Prasad on
being assaulted ran towards back side and shouted “bachao bachao”. Thus,
statement of Ratan Guruji of assault on Devi Prasad when read with the
evidence of PW.13 and PW.16 clearly indicates that it was Devraj who had
assaulted Devi Prasad which caused death of the deceased.
22. Learned counsel for the appellant has further contended that injury
given by danda cannot be said to be sufficient for death of a person and
there is no evidence to indicate that the injury caused by Devraj was
sufficient for death. He further submitted that Dr. K.P. Vishwakarma-PW.20,
in his statement stated that injuries which were found in the person of
Devi Prasad-deceased could have been received in an accident. We have gone
through the statement of Dr. K.P. Vishwakarma-PW.20 and the postmortem
report. The Doctor-PW.20 in his statement after referring to the injuries
received by the deceased has clearly stated that only some of the injuries
could have been caused by accident.
23. Dr. K.P. Vishwakarma in his statement has stated that the cause of
death is head injury caused to the deceased. Thus, there is Doctor's
evidence that all the injuries which were found on the person of the
deceased could not have been caused due to the accident that is falling
below Rakhet Pulia.
24. There being clear evidence of stopping of the motorcycle near pakkar
tree and ensuing quarrel and assault on Devraj the theory of accident as
sought to be suggested by the learned counsel for the appellant is wholly
unreliable. The details in the Panchnama of the dead body and position of
the dead body as stated by Anup Shai Rajwade, Inspector of Police-PW.11, in
his statement completely bely the theory of accident. In the examination-in-
chief he stated about the injuries, further stated that in between both the
legs, between the thigh one white bottle of one litre having half bottle of
liquor was kept and at a distance of 4 ft. the motorcycle was there key of
which was put on a stone. He further stated that motorcycle was not
damaged since only back light was damaged which indicates that motorcycle
was brought and thrown in the water. The manner in which liquor bottle was
kept between the thigh of dead body and glass of back light of the
motorcycle alone being damaged does not support the theory of accident.
Thus, there are more than one reasons for rejecting the theory of accident
and there was evidence to prove that the deceased was assaulted and
murdered and thereafter body and the motorcycle was brought and put below
the Pulia. Both Trial Court and the High Court have referred to and relied
on sufficient evidence for convicting the accused. We, ourselves after
going through the evidence relied on by the courts below for convicting the
accused, are of the opinion that the prosecution has successfully proved
beyond reasonable doubt that it was accused who had caused homicidal death
of the deceased.
25. We are also conscious that the jurisdiction which this Court
exercises under Article 136 has its own self-imposed restrictions. It is
sufficient to refer to this Court's decision reported in Ganga Kumar
Srivastava v. State of Bihar, (2005) 6 SCC 211, where this Court after
referring to various decisions has laid down certain principles for
exercising the power of this Court under Article 136. It is useful to refer
to paragraph 10 of the judgment, which is :
“10. From the aforesaid series of decisions of this Court on the exercise
of power of the Supreme Court under Article 136 of the Constitution
following principles emerge:
(i) The powers of this Court under Article 136 of the Constitution are very
wide but in criminal appeals this Court does not interfere with the
concurrent findings of fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of fact given
by the High Court, if the High Court has acted perversely or otherwise
improperly.
(iii) It is open to this Court to invoke the power under Article 136 only
in very exceptional circumstances as and when a question of law of general
public importance arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution fell short of the test of
reliability and acceptability and as such it is highly unsafe to act upon
it.
(v) Where the appreciation of evidence and finding is vitiated by any error
of law of procedure or found contrary to the principles of natural justice,
errors of record and misreading of the evidence, or where the conclusions
of the High Court are manifestly perverse and unsupportable from the
evidence on record.”
26. To the similar effect, another judgment of this Court reported in
Alamelu v. State, (2011) 2 SCC 385, where this Court held that even though
the powers of this Court under Article 136 are very wide, but in criminal
appeals, this Court would not interfere with the concurrent
findings of facts, save in very exceptional cases. Following was laid down
in paragraph 19:
“19. We have considered the submissions made by the learned counsel for the
parties. Before we embark upon an examination of the evidence, we may point
out that even though the powers of this Court under Article 136 of the
Constitution are very wide, but in criminal appeals, this Court would not
interfere with the concurrent findings of facts, save in very exceptional
cases. In an appeal under Article 136 of the Constitution, this Court does
not normally appreciate the evidence by itself and go into the question of
credibility of witnesses. The assessment of the evidence by the High Court
is accepted as final except where the conclusions recorded by the High
Court are manifestly perverse and unsupportable by the evidence on record.
Keeping in view the aforesaid principles, we have examined the findings
recorded by the courts below.”
27. On the principles as laid down by this Court for exercise of
jurisdiction under Article 136, we are satisfied that the findings recorded
by the courts below from the evidence on record fully justify the
conviction of accused. The findings recorded by the courts below can
neither be said to be perverse nor contain any such illegality which
may render the findings not reliable.
28. We thus do not find any merit in this appeal. The appeal is
dismissed.
......................J.
( S.A. BOBDE )
......................J.
( ASHOK BHUSHAN )
NEW DELHI,
JULY 25, 2016.