HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Aggl No. 345 of 2006 APPELLANT Ramnaresh Singh 5/0 Jageshwar Singh (In Jail) Khairwar, Meghuli, Police Age 35 Shtion years. Ramanujganj, Rlo Vinage J Disn. Surguja (CG). ‘ Versus RESPONDENT State of Chhattisgarh. thtough P.S. Ramanujganj. Distt. Surguja (CG). 1 miminal WI ugder Section 3890f Criminal Proceduge Codg, 1973 DB: Hon’ble Shri Justice T.P. Shanna ~ * & Hon’bie Shri Justice N. K. Agarwal, JJ S Present : Shri Anénd Pandey, Advocate for appeilant. V Shii Rakesh Jha, Deputy Govt. Advocate for the State. in... ORAL JUDGMENT (Passed on 23“ day of February, 201 O) Per T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 13.03.2008, passed by the llnd Additional Seeaions Judgefg (F.T.C.), Ramanujganj, Surguja, in Sessions Trial No. 131I2002, whereby & whereunder learned llnd Additionai Sessions Judge, after holding the It: appellant guilty for the offence punishable under section 302 of the Indian Penal Code, sentenced to undergo imprisonment for life. 2‘. Judgment is impugned on the ground that without there being credible evidence to connect the appellant in the crime in question, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief. is that both the parties were inimioal' terms. On the fateful day of 16.02.2002 at about 9 AM,’ deceased Hasnu was present at toned (open place), Akshay and Munna came by bicycle and . assaulted l-lasnu. At the time of incident, other co-accused came and also assaulted Hasnu by iron chain (Seekad), stick and heavy wooden club. When the deceased fell down, they fled away from the spot. Anuilah Ansari (PW-8) lodged FIR vide Ex. P117, took the injurad to Police Station Ramanujganj where Hasnu died; Merg. lntimationhwas recorded vide EXP/29. The Investigating Officer proceeded for the scene of occurrence and after summoning the witnesses, inquest over the dead body of deceased Hasnu was prepared. Dead body of the deceasedwae sent for autopsy to Community Health Centre. Ramanujganj evide Ex. PI31. Autopsy was conducted by Dr. PR. Ratre vide Ex.PI28-A and found following ¢ Injunes2- Contusion and abrasion over lelt hand size 4 cm. :a cm, 2 cm x 4 cm and 6 cm x3 cm. ii) Contusion below left thumb size 6 cm x 3 cm. *iii) ContuSion over right arm and forearm size 3cm x 3cm. iv) Abrasion over left leg size 4 cm x 2 cm. v) Abrasion over left knee 3cm. x 3 cm. vi) Abrasion over left thighs cm. x 3 cm. vii) Contusion over left side of back linear 5cm x 3cm. viii) Abrasion with contusion over right side of back 47cm. x 2cm. ‘ ‘ ix) Lacerated’wound over scalp size 5 cm x 1cm x 1cm- x) Lacerated wound over scalp size 6 cm x1'crn x1 cm; . xi) 'Contusion over left side of sceip size c cm x 2 cm. 4. Ail external injuries and intemai injuries of lungs and large intestine were ante mortem. Extemal injuries were simple and death was homicidal in natm’e . Plain soil and bloodstained soil, were recovered from the spot vide Ex. PI5. Sealed cloth of the deceased was seized vide Ex. P/2. spot map was prepared by the Patwari vide Ex. P/3. Akshay Kumar was taken into custody. He made disclosure statement of cycle and lron chain (Seekad) vide Ex. P/7. Cycle was recovered from Akshay Kumar Singh (Ex. P/10), Ajit Kumar was also taken into custody, and made disclosure-statement of heavy wooden club (Genda) vide Ex. PI8. the same was recovered from Aiit Kumar vide Ex. P11 1. Bloodstained clothsofappellant was recoveredfrom v5 i) Ramnaresh Singh vide ExJP9. Cloth of Ajit Kumar was movered Vida ExJP-22. Cloth of deceased was recovered videEx. P/32. Other co- " accused Akshay Kumarwas examined by Dr. B.R. Sharma Ex. P/29 and found one burn injury present mocking of forearm skin size 6 cm x 3 cm. Seized articles were eent for chemical analysis vide Ex./P34. Statement of witnesses were recorded under SecEon 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First ‘Cfass, Ramanujganj, who in turn, committed the case to the Sessions Judge, Ambikapur, from where the llncl Additional sessions Judge (F.T.C.). R§manujganj,‘ received the case on transfer for trial. In order tc prove the guilt of the appellmt/aceused, the prosecution has examined as many as 33 witnesses. Statements cf the accused/appellant were also recorded under Section 313 of the Code where he denied the , circumstances appearing against him and ciaimed innocency and faiso- implication. After affording opportunity of hearing to the parties, the llnd Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. We have heard Shri Anand Pandey, counsel for the appellantvand Shri Rakesh Jha, Deputy Govt. Advocate for the State/respondent and perused the judgment impugned as also record of the Court below. 10. Leamed counsel appearing for'the appellant'vehementiy argued that the present case is based on the evidence of eyewitness before whom the deceased has made dying declaration. Bod! the parties were inirnical tenns, therefore, the witness is not reliable. Further. the appellant ts in custody since 20.02.2002 and has complew more than-8 years of the sentence. Therefore, at‘the worst his act may be offence punishable under Section 304 Part i of the lndian Penal Code. 1'1 . On the other hand, Ieamed State counsel supported the judgment impugned and argued that the prosecution has proved-its case beyond ail shadow of doubt and the present appellant was the mastermiadbehlnd the instant case and has committed the offence. 12. In order to appreciate the contendons of the parhes, we have examined the evidence available on record. in the present case, homieidai death of the deceased Hasnu as a result of injury is not substantially disputed byvme appeliant, even otherwise it is also'established by the evidence of Dr. PR. Rage vide ExP/28-A which reveal that 12 injuries over the body of deceased‘has not examined by the doctor who conducted the-autopsy but has e§amined by Dr. BR. Ratre (PW-33) who was assisting the doctor at ‘ the time of autopsy. Injuries prescribed under autopsy report were reveals that death was homicidal. in nature. As regards the complicity of theaeeused/appeilant in the crime in question, the prosecution has examined evidence of Nenku’ Ansari W5),{¢ eyewitness Anuilah Ansari (PW-8), Ramjan Ali (PW-1 3) and Baearat (PW- 25) before whom the‘deceased made dying decimation. , NankuAnsari (PW-5) has deposed inhis evidencehat Hasnu and Jaisingh were going towards West. At that‘time, Aieehey Kumar and Munna oame and assaulted Hasnu and Jaisingh. Appellant Ramnaresh also came from another side and assaulted Hasnu by stick. When Hasnu feit down men ails the accused assaulted to Hasnu and cause irreparable injury.. He further, . deposed that Akshay Kumar repeatedly assaulted Hasnu by throwing cycle over Hasnu and thereafter they tied: away from the spot. Before reaching Hospital at Ramanujganj, Hasnu died. AnuliahAnsari (Pwe) has also deposed-in para 4 of his evidence that injured Hasnu made dying declaration to him that Akshay Kumar and' Munna assaulted him and afterwards the appellant and othet do-accused- g ,e came and also assaulted him and the appellant was having Seakar (iron Chain). 16. Ramjan Ali (PW-1 3) and Basarat (PW-25) have corroborated the evidenw of Anullah Ansari.v(PW-8). The prosecution has examined 32’witn‘esses but: other witnesses has not been supported the mse of prosecutioneand hostile. Rest witnesses are relative. lt appears that the part ofstatement is notwcorreot but only on the groundrrthat omission and oontradiction are examined or the fact that part of'statement is not conect, their evidence cannot be discarded. Even otherwise, relah've :vof a person would be reluctant to spare the real culpritrand implicate an innocent person falsely. Theic evidence‘req‘uired minor scrutiny. Defence hascross examined Nanku Ansari (PW-5), Anullah Ansari.(PW-8), Ramjan Ali (PW-13) and Basarat (PW-25) in detail. 17. in the present case, there are some discrepancy and exaggetationin the I statements. of aforesaid witnesses, but only on the ground: of exaggerations, omissions and-contradictions, their evidences cannotbe» discarded. Maxim falsus in uno felsus. in omnibusrcannot be applied mechaniwily as it is not appiicable in lndia. Statementsof the witnesses cannot be discarded on the ground of exaggerations, omissions and contradictions. The Court is requiredtoseparate-the grains of acceptable, truth from the chaff of exaggerations and improbabilities, whhh cannot be safely ’or prudently accepted and acted upon. While dealingswi'th the same question in the matter of Laxmanand others y. Statevof Maharashtra? it has been held by the Supreme Court'thatvwitnosses cannotbebranded as liars in toto and their testimony rejected. outright even if parts of their- statements are demonstrable incorrect or douhtful. Reievant portion reads as under: ‘x 1 AIR 1974 sc 308 "Before we discuss the evidenca further, we may observe that Professor Munsterberg in’ a book called ”On‘thb Witness ‘ Stand“ (p.51). “Law and the Modem Mind“ (see: 1949 ed. R106) gives instanoesv of experiments conducted by enacting sudden unexpected preplanned episodes before persons who were men asked to write down, soon anerwards, what they hadseen and heard. The, aamdim" result was: ‘Words were put Into the mouths of men who had been silent spectators during the whole short episode actions were. adnbuted to the chief pameipans of which not the slightest trace existed and essential par$ of the tragic-comedy were ‘ completely eliminated from the memory of a number of witnesses Hence, the Professor concluded "We never know, or imagine" Witnesses can not therefore be branded as liars t. r; in toto and their testimonyrejected outright even if parts of their statements are demonstrably incorrect or doubtfut. The astute judge can separate the grains of acceptablextruth from the chaff of exaggerations and improbabilities‘which cannot t be safely or prudently accepted or acted upon It is sound commonsense to refuse to apply mechanically. In assessmg the worth of necessanly Imperfect human teshmony, the maxrm “falsus in uno falsus In omnibus“ 18. While dealing with the question of reliability of relative-witness the Apex, Court in the matter of Dalip Singh and others v. The State of Pnnjabz has. held that a witness isnormalty to'be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 ofme said, judgment reads as under:- “26. A witness is nonnaliy to be considered independent uniess he or shesprings from sources which’arezlikely te be tainted and that usualiy means unless the witness. has » cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily. a close relation would be the last to screen the real culprit and falsely implicate, an innocent person. It is true. whenfeelings runhigh andthere is personal cause for enmity, that there is a tendenw to‘drag r in an innocent person against whom a witness has agrudge along with the guilty, but foundation must bellaid for such a cntlclsm and die mere fact of relationship far from being a foundation is often a sure guarantee of tuth However we: are not attempting any sweeping generalmatron Each me must be iudged on its own facts Our observatlons are only made to combat what is so often putforward in- cases before us as a general rule of prudence There Is no such general rule Each case must be Imted to and be govemed by its own facts “ 2 AIR 1953 SC 364 » 7 x 19. The above evidence is sufficient for drawing inference §1at the appellant has also caused injuries and homicidal death of the deceased Hasnu. 'Fhe evidence relating to dying declarau'onv made by the injured inspires - confidence and trustworthy and thesame are safeto reiy. 20. After affording, opportunity of hearing to the parties, the ilnd Additional , Sessions Judge has, convicted. and sentenced. thei appellant as aforementioned. The evidence of these witnesses on the case would reveal that firstb] Alashay Kumar and Munna were assaulting the injured. bywthrowing cycle over the decéhased but the present appellant who came later and also assaiérlted Hasnu by stick, no specific injuries caused by the appellant has been proved by the. prosecution. Even the prosecution has not proved that whether the injury caused by the appellant was fetal or not, or found over the interior part of Hasnu. 22. Admittedly, after the incident took place, the appellant and other co- accused fled away and Hasnu was alive for about 8 hours. No fetal injury or grievous injury was found over the body of Hasnu but he died as a result of cumulative effect of the injuries. The aforesaid evidence shows that the appellant was having some dispute with the deceased, he assaulted the deceased, but in absence of fetal injury, it difhcult to hold that the appellant has caused homicidal, death amounting to murder of deceased. His acts does not travel beyond Section 304 Part l of the Indian Penal Code. While convincing the appellant, the court below has not consideted the case property and thereby committed illegality, in convicting the appellantzunder Section 302 of the indian Penal Code. The judgment impugned is. not sustainable under the law and it requires modification. 23. in the result, the appeal is partly allowed. Judgmentimpugned. is partly modified and instead of conviction under Sech’on 302 of the lndian Penal Code, the appellant is convicted under Section 304 Part l ofthe‘lndiaPenal ’i‘ u“! l *im 21. ode. The present appellant is in custody from 20.02.2002 §ll today for more than about 8 years. Custodial period of the appellant is sufficient sentence under Section 304 Part i of the Indian Penal Code. Accordingly, instead of imprisonment for life, the appellant ls sentenced imprisonment of custodial period i.e. about more than 8 years. He be released, if not C required in any other case. sly. g! ‘ Sd/- ' "I‘.P. SHARMA- *Ng Judge l" N. K.Agarwal i Judge