Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1091/2010
ATTAR SINGH ..Appellant
Versus
STATE OF MAHARASHTRA ..Respondent
J U D G M E N T
GYAN SUDHA MISRA, J.
This appeal has been preferred against the judgment and
order dated 26.6.2008 passed by the High Court of Judicature at
Bombay, Bench at Aurangabad in Criminal Appeal No. 7/2007 whereby the
High Court upheld the judgment and order passed by the Sessions
Judge, Dhule in Sessions Case No. 90/2005 by which the appellant had
been convicted for an offence under Section 302, Indian Penal Code
(I.P.C. for short) and was sentenced to undergo life imprisonment
along with a fine of Rs.1,000/-. In default of payment of fine, he was
ordered to undergo simple imprisonment for three months.
2. The appellant was initially charged and tried for an
offence under Section 302 and 498-A of the I.P.C. for killing his wife
by hitting her on her head with a woodenlog as he was suspecting her
loyalty and character.
3. The specific case of the prosecution which was registered
under Section 302 and 498-A of the I.P.C. is that the appellant-
Attarsingh Barakya Pawara was residing along with his wife and 9
children at village Majanipada in Shirpur Taluk. On 22.6.2005,
the complainant-Khandu Kalu Ahire who is also the village Kotwal
received an information from one Ramesh Pawara, resident of
Majanipada and Appa Shahada Pawara, resident of Fattepur village
that the appellant Attarsing has committed murder of his wife by
hitting her with a woodenlog on her head. On receipt of this
information, the village Kotwal along with the Sarpanch Bhatu Ditya
and one Rattan Lalsing went to the appellant’s house and found the
dead body of Nagibai (deceased wife of the appellant) lying on the
floor of the house which indicated that the deceased had sustained head
injury and had bleeded profusely. The woodenlog was found near
her dead body and the appellant was also found sitting in the house.
The village Kotwal enquired about the incident and questioned the
appellant as to how his wife had died. The appellant replied that his
wife was of a loose character and, therefore, he had killed her by
hitting woodenlog on her head. He narrated the incident to other
persons accompanying the village Kotwal.
4. The village Kotwal thereafter came to the police station
at Shirpur and lodged the report of the incident (Exh.15) on the basis
of which the offence was registered vide crime No. 161/2005 under
Section 302 of the I.P.C. The police thereafter completed the
usual legal formality by reaching on the spot and as the body was
found there, inquest was also conducted and spot panchnama was also
prepared whereby the clothes of the accused containing blood stains
were seized. Woodenlog (Article No.3) which was found lying on
the spot was also seized at the time of preparation of spot panchnama.
The body of the deceased was then sent to the Government Hospital,
Shirpur where post-mortem was conducted.
5. The accused-appellant was subsequently arrested and
taken to the police station. Investigation thereafter followed in
course of which it transpired that it was the appellant who had
killed his wife Nagibai as he was suspecting her character. Charges
were then framed against the appellant under Section 498-A and 302
of the I.P.C. to which the appellant pleaded not guilty and claimed
to be tried.
6. In course of trial, the prosecution examined 12 witnesses
on the question as to whether the appellant had subjected his wife to
cruelty by giving her beating and abuses from time to time suspecting
her character. The trial court further examined the question as to
whether the accused had committed the murder of his wife Nagibai in
his house at village Majanipada and thirdly as to what other offence
he has committed.
7. The defence story set up on behalf of the appellant is
that his wife had fallen down on the floor of the house due to which
she sustained severe head injury which resulted in her death.
8. The trial court on a scrutiny of the evidence and other
materials on record rejected the defence story on the basis of the post-
mortem report as Dr. Gohil who had conducted post-mortem
categorically expressed that the head injury which the deceased Nagibai
has sustained were not possible due to fall on the ground.
9. Insofar as the charge under Section 498-A of Indian Penal
Code was concerned, the trial court held that none of the prosecution
witnesses deposed that the accused-appellant was subjecting his wife
Nagibai to cruelty by giving her beating and abuses from time to time
as alleged by the prosecution. The learned Sessions Judge recorded
that the evidence on record indicates that it was only a single
incident in which accused-appellant had assaulted his wife Nagibai
suspecting her fidelity and character as the evidence is missing that
the accused-appellant was subjecting his wife to cruelty by abusing
and assaulting her from time to time. The learned Sessions Judge thus
was pleased to hold that the prosecution had failed to prove the charge
under Section 498-A of the I.P.C. against the accused-appellant and
hence acquitted him of this charge.
10. Insofar as the second charge is concerned as to whether
the accused-appellant is the author of the head injury of the
deceased, the testimony of the daughter of accused-appellant Mangibai
was held to be significant for even though Mangibai had turned
hostile, her testimony revealed that on the day of the incident, her
father was running behind her mother with a woodenlog for beating her.
On witnessing this incident, she started weeping and came out.
Thereafter, her father closed the door and only her father and mother
were inside the house. Immediately thereafter, her mother Nagibai was
found lying injured in a pool of blood inside the house and the accused
also was there. It was, therefore, held that this circumstance
indicated that it is the accused-appellant who had assaulted his wife
and caused her death. It was further held, that though the panch
witness Mangibai is a hostile witness, such portion of the hostile
witness which is worth believing and which is supported by other
circumstances can be used and relied upon by the prosecution in view of
well-settled legal position. The Sessions Court thus on a scrutiny
and analysis of the evidence accepted the prosecution version based
on the evidence on record that the accused-appellant had committed
the murder of his wife by hitting her with a woodenlog in his house
and recorded a finding in the affirmative to the effect that it is the
accused-appellant who committed the murder of his wife-Nagibai in his
house at village Majanipada. Thus, the appellant succeeded in securing
an order of acquittal in his favour in so far as the charge under
Section 498-A of the Indian Penal Code is concerned, but suffered
conviction and sentence of imprisonment for life for offence under
Section 302 of the I.P.C. for the charge of murder of his wife.
11. The appellant feeling aggrieved with the conviction
and sentence preferred an appeal before the High Court of Bombay Bench
at Aurangabad, but the High Court confirmed the view taken by the trial
court on all aspects including the charge under Section 302 of the
I.P.C.
12. Assailing the judgment and order passed by the Sessions
Court as also the High Court which concurrently upheld the conviction
of the appellant under Section 302 I.P.C., the counsel for the
appellant first of all attempted to demolish the case of the
prosecution in its entirety by submitting that the conviction and
sentence imposed on the appellant was not fit to be sustained on the
testimony of the daughter Mangibai as she had not supported the
prosecution version totally due to which she had been declared
hostile. Hence, it was first of all contended that the testimony of
the hostile witness could not have been relied upon for recording
conviction of the appellant.
13. We have meticulously considered the arguments advanced
on this vital aspect of the matter on which the conviction and
sentence imposed on the appellant is based. This compels us to
consider as to whether the conviction and sentence recorded on the
basis of the testimony of the witness who has been declared hostile
could be relied upon for recording conviction of the accused-appellant.
But it was difficult to overlook the relevance and value of the
evidence of even a hostile witness while considering as to what
extent their evidence could be allowed to be relied upon and used by
the prosecution. It could not be ignored that when a witness is
declared hostile and when his testimony is not shaken on material
points in the cross-examination, there is no ground to reject his
testimony in toto as it is well-settled by a catena of decisions
that the Court is not precluded from taking into account the
statement of a hostile witness altogether and it is not necessary to
discard the same in toto and can be relied upon partly. If some
portion of the statement of the hostile witness inspires confidence,
it can be relied upon. He cannot be thrown out as wholly unreliable.
This was the view expressed by this court in the case of Syed Akbar
vs. State of Karnataka reported in AIR 1979 SC 1848 whereby the
learned Judges of the Supreme Court reversed the judgment of the
Karnataka High Court which had discarded the evidence of a hostile
witness in its entirety. Similarly, other High Courts in the matter of
Gulshan Kumar vs. State (1993) Crl.L.J. 1525 as also Kunwar vs. State
of U.P. (1993) Crl.L.J. 3421 as also Haneefa vs. State (1993) Crl.L.J.
2125 have held that it is not necessary to discard the evidence of
the hostile witness in toto and can be relied upon partly. So also,
in the matter of State of U.P. vs. Chet Ram reported in AIR 1989 SC
1543 = (1989) Crl.L.J. 1785; it was held that if some portion of the
statement of the hostile witness inspires confidence it can be relied
upon and the witness cannot be termed as wholly unreliable. It was
further categorically held in the case of Shatrughan vs. State of
M.P. (1993) Crl.L.J. 3120 that hostile witness is not necessarily a
false witness. Granting of a permission by the Court to cross-examine
his own witness does not amount to adjudication by the Court as to the
veracity of a witness. It only means a declaration that the witness
is adverse or unfriendly to the party calling him and not that the
witness is untruthful. This was the view expressed by this Court in
the matter of Sat Paul vs. Delhi Administration AIR 1976 SC 294. Thus,
merely because a witness becomes hostile it would not result in
throwing out the prosecution case, but the Court must see the relative
effect of his testimony. If the evidence of a hostile witness is
corroborated by other evidence, there is no legal bar to convict the
accused. Thus testimony of a hostile witness is acceptable to the
extent it is corroborated by that of a reliable witness. It is,
therefore, open to the Court to consider the evidence and there is no
objection to a part of that evidence being made use of in support of
the prosecution or in support of the accused.
14. While examining the instant matter on the anvil of the
aforesaid legal position laid down by this Court in several
pronouncements, we have noticed that the support rendered by the
daughter Mangibai approving the incident should be accepted as
reliable part of evidence in spite of she being a hostile witness. The
witness Mangibai’s evidence pushes the accused with his bag to the
wall and the accused is obliged to explain because her evidence shows
that the accused was the only person in the company of the deceased
soon before the death. The defence of the accused that Nagibai’s
injury was a result of fall is ruled out by medical evidence and the
details available of the location in the panchnama of offence. The
courts below thus have rightly drawn some support from the reports
of the chemical analysis since all the articles of the victims and
clothes of the accused are found having blood stains of human blood
group A. This was in view of the fact that the results of the analysis
for determination of the blood group of the victim and accused were
conclusive when blood sent to phial was analysed. Thus, the
evidence of the daughter of the deceased coupled with other material
as also evidence of other witnesses i.e. Ramesh, Khandu, Bhatu and
Makhan, provided a complete chain and the prosecution successfully
proved that the incident occurred in the manner and the place which was
alleged. In fact, the accused in answer to questions under Section 313
Cr.P.C. has admitted his presence at the place of occurrence where
his wife Nagibai was lying injured and dead on the floor. However,
we do not wish to be understood that the failure of the defence could
be treated as success of the prosecution since the conviction cannot be
based only on the replies given by the accused, but these replies may
be considered as support to the special knowledge of the accused and
this lends sufficient weight to the evidence of the daughter of the
deceased and other attending circumstances. The trial Judge, in our
view, has rightly placed reliance upon the evidence of Mangibai, the
daughter of the victim and the accused when she candidly supported the
prosecution story when she stated as follows:-
“When my mother had sustained head injury, my father was there
only i.e. near my mother. He was near the oven. He was
talking loudly.
It is true that my father hit her with a wooden log and
therefore she ran to the kitchen. It is true that my father
immediately ran after her. I started weeping. It is true that
thereafter my father closed the door from inside.”…………………
15. Thus, we are of the view that the evidence of Mangibai
who was declared hostile supported the prosecution case in her cross-
examination and, therefore, the courts below do not appear to
have fallen into any error in accepting part of the evidence of
Mangibai and the retracted confession of the witness Mangibai cannot
be accepted to the extent that her evidence in support of the
prosecution version was fit to be ruled out. The retracted statement
of Mangibai stands fully supported by the evidence of other witnesses.
Thus, the material on record along with the evidence of the
prosecution witnesses leads to only one inference that the accused-
appellant was the author of the injury suffered by the victim and we
have rightly been convinced that the accused and the accused alone
inflicted fatal injuries upon the person of victim Nagibai. We are,
therefore, clearly of the view that in so far as the incident of
killing of the deceased Nagibai is concerned, the courts below have
rightly held that she was killed by her husband-appellant in the manner
which has been alleged by the prosecution.
16. However, learned counsel for the appellant next submitted
that the offence alleged to have been committed by the accused-
appellant ought to be brought down within the ambit of Section 304 Part
II of the I.P.C. as there was only a single blow inflicted by the
accused-appellant which is clear from the narration of incident by
the daughter of the accused and deceased-Nagibai which shows that the
accused was alone with the victim within the house and the accused
did not kill his wife with a pre-meditated mind but the incident
took place in a fit of anger due to the fact that he was suspecting
his wife. It was, therefore, submitted that the accused in fact had
no intention to kill his wife as the death had occurred on account
of a single blow which was not the result of a pre-plan or pre-
meditation. In support of the submission, he relied upon the judgment
and order of this Court in the case of State of Punjab vs.
Bakhshish Singh & Ors. (2008) 17 SCC 411 which also had relied on the
judgment in the case of Anil Sharma & Ors. vs. State of Jharkhand,
(2004) 5 SCC 679, Harbans Kaur vs. State of Haryana, (2005) 9 SCC 195,
Amitsingh Bhikamsingh Thakur vs. State of Maharashtra, (2007) 2 SCC 310
and this Court had been pleased to hold that :
“In all cases, it cannot be stated that when only a single blow
is given, Section 302, IPC is made out, yet it would depend
upon the factual scenario of each case, more particularly the
nature of the offence, the background facts, the part of the
body where injuries were inflicted and the circumstances in
which the assault is made” that the offence under Section 302
IPC is not made out.”
In view of the aforesaid observation, learned counsel submitted that
offence under Section 302 I.P.C. in the instant matter also cannot be
held to have been made out as the deceased had sustained a single
blow alleged to have been inflicted by the appellant. Learned
counsel for the appellant taking further assistance from the
observation of the Supreme Court in the matter of State of Punjab vs.
Bakhshish Singh (supra) submitted further that the past history
about the relations between the appellant and the deceased goes to
prove that they did not have any strained relations. In fact, they
had absolutely normal relations and had nine children out of the
wedlock and it was only on the spur of the moment when the
appellant abused suspecting the character of deceased Nagibai and
beat her with a stick unintentionally that the incident happened. In
support of his argument, he relied on the case of Pannayar vs. State
of Tamil Nadu by Inspector of Police (2009) 9 SCC 152 wherein this
Hon’ble Court held that absence of motive in case of circumstantial
evidence is more favourable to defence.
17. The arguments advanced by learned counsel for the
appellant-accused when tested in the light of the evidence led by the
prosecution while considering whether the charge under Section 302
could be scaled down to Section 304 Part-II, we have already
examined the circumstances in which the deceased had been killed and
hence it could be noticed that the deceased Nagibai and accused-
appellant although had been leading a so-called normal family life
along with their nine children, the fact remains that the appellant-
husband had been suspecting his wife’s character and nurturing deep
rooted grudge over a period of time. However, the evidence does
further indicate that on the date and time of incident, the
appellant had not indulged in pre-planning the incident in any
manner so as to eliminate his wife by killing her. The evidence of
other witnesses also indicated that the incident of beating had not
happened in the past and the daughter of the accused and deceased-
Mangibai also deposed that there were heated exchange of words
between the couple on the date of incident and the appellant-accused
heaped abuses on his wife and then picked up a woodenlog in a fit of
anger by which he hit the deceased as a result of which she
sustained head injury and bleeded profusely which lead to her death.
18. Thus the appellant although do not appear to have killed
his wife by planning out the whole incident in a methodical manner, yet
the evidence disclosed that he was nurturing a grudge against the wife
over a long period of time and on the date of the incident when the
husband started to abuse his deceased wife alleging her of loose moral
and character, the accused-husband gave vent to his deep seated
grudge by hitting her with such intensity that he did not bother
about the consequence of his action. But it cannot be overlooked or
ignored that the intensity with which he hit his wife after abusing
her is indicative of the fact that he was not oblivious of the
consequence which would have resulted from his violent act of
beating his wife with a log of wood. Thus, it will have to be
inferred that he had sufficient knowledge about the consequence of
his heinous act at least to the extent that it was sufficient in the
ordinary course of nature to cause death of his wife. He was thus
fully aware of the consequence that this would result in a serious
consequence and in fact it did result in the said manner since the
wife died as a result of the injury inflicted on her. In fact, when
the village Kotwal reached the incident, the deceased did not even
expressed any remorse for what he had done to his wife nor he
appeared to be repentant of the incident. This clearly reflects
his state of mind that he committed the crime with full knowledge to
kill his wife Nagibai on account of his deep seated grudge which he
was carrying since long. Therefore, the submission of the counsel
for the appellant that the charge under Section 302 I.P.C. should be
converted into one under Section 304 Part-II I.P.C. is fit to be
rejected and accordingly we do so.
19. The matter, however, do not set at rest at this stage as
the evidence on record and the surrounding circumstances compels us to
consider further, whether the offence would be made out under Section
302 I.P.C. or the same would fall under Section 304 Part-I of the
I.P.C. since the appellant-accused and his wife-Nagibai had been
married for a long time and were having nine children as also the
manner of occurrence and the circumstance under which the incident
happened does indicate that the incident of hot exchange of words
between the accused-appellant and his deceased-wife got precipitated
and as the appellant was already aggrieved of his wife suspecting
her character, he hit his wife severely with whatever was available
without caring for the consequence. Thus, the intention to kill his
wife and the knowledge that she would be killed due to the hard hit
blow by the log of wood surely cannot be ruled out. We take
assistance from the observations of this Court quoted hereinabove that
in all cases it cannot be said that when only a single blow is given,
Section 302 I.P.C. is made out. Yet it would depend upon the factual
scenario of each case more particularly nature of the offence,
background facts and the part of the body where injury is inflicted
and the circumstances in which the assault is made.
20. Taking assistance from these apt and relevant
considerations when we examined the case of the appellant, we have
noticed that the appellant was living with his deceased wife day in
and day out, but none of the witness has deposed that she was abused
and beaten earlier. Thus, there is lack of evidence that on the
fateful day the appellant-husband had the pre-meditated intention to
kill the deceased with a log of wood due to which he inflicted the
fatal blow on the deceased. The anger and frustration no doubt was
acute in the mind of the appellant on account of his suspicion which
aggravated due to hot exchange of words and abuses resulting into
loss of mental balance as a consequence of which he hit his wife
with such intensity that she died on the spot itself. In view of this
the appellant will have to be attributed with the knowledge that his
act was sufficient in the ordinary course of nature to kill the victim-
wife.
21. Thus, in our view, the accused-appellant although might
not be attributed with the intention to kill his wife, sufficient
knowledge that his act would result into killing her was
definitely there in the appellant’s mind and he in fact gave vent to
his feeling by finally killing her when he hit her with a
woodenlog to take revenge for her alleged infidelity without realising
that suspicion of her fidelity was not proved and even if it did,
that gave no right to him to kill his wife in a brutal manner by
hitting her hard enough with a log of wood with such intensity
which was sufficient in the ordinary course of nature to kill the
victim.
22. There are no dearth of incidents referred in the case laws
where the husband has gone to the extent of shooting his wife and many
a times a paramour shoots the husband or the husband shoots the
paramour on account of suspicion founded or unfounded. But if the
evidence discloses that the accused killed the victim in a pre-
meditated manner as for instance by using a firearm, the same might
be a clear case under Section 302 of the I.P.C. But the facts and
circumstances of the incident in which the appellant has been
convicted, indicate that the accused-appellant was not armed with any
weapon or a firearm. As already noticed the evidence do not disclose
in any manner that the appellant had come with a pre-meditated mind
to kill his wife, but it was only in course of hot exchange of
words and abuses which mindlessly drove him to take the extreme step
of beating his wife with a log of wood with such force and intensity
that she sustained head injury, profusely bled and finally died
on the spot.
23. We are, therefore, of the considered view that although
the conviction and sentence of the appellant might not be sustainable
under Section 302 I.P.C., it cannot also be scaled down to Section 304
Part-II I.P.C. But we are surely of the view that the appellant is
fit to be convicted and sentenced under Section 304 Part-I of the
I.P.C. in view of the evidence on record, the surrounding circumstance
and the factual scenario in which the incident occurred. We,
therefore, set aside the conviction and sentence of the appellant
recorded under Section 302 I.P.C. but convert the same under Section
304 Part-I I.P.C. Thus, we deem it fit and appropriate to
substitute the sentence of life imprisonment with a sentence of 10
years imprisonment. The appeal thus, is partly allowed. We order
accordingly.
…………………………….J
(Swatanter Kumar)
…………………………….J
(Gyan Sudha Misra)
New Delhi,
December 14, 2012
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