^-.^ o HIGH COURT OF CHHATTISGARH, BILASPUR D.B. Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha. J. CRIMINAL APPEAL No.1245 of 2002 ^ Puran Gosai Vs. State of Chhattisgarh JUDGMENT For consideration A Sd/- Sunil Kumar Sinha Judge Hon'ble Shri Justice Raieev Gupta J- ^y^ Sd/- Chief Justice i. PostforJudgment •.^/OQ/2008 Sd/- Sunil Kumar Sinha Judge ^ ^ HIGH COURT OF CHHATTISGARH. BILASPUR D.B. Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. CRIMINAL APPEAL No.1245 of 2002 APPELLANT RESPQNDENT Puran Gosai, s/o Budhram Gosai, aged about 25 years, R/o Village Dumartoli, Narayanpur, Distt. Jashpur(C.G). Vs^ State ofChhattisgarh, through Police Station P.S.H. Officer, P.S.H. Seetapur, Distt. Surguja (C.G). APPEAL U/S 374(2) OF THE CODE OF CRIMINAL PROCEDURE Appearance: Smt. Meena Shastri, counsel forthe appellant, Shri Praveen Das, Deputy Govt. Advocate/A.P.P. for the State. JUDGMENT -.08.2008) ^ Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) The appellant, Puran Gosai, has filed this appeal against the judgment ofconviction and order of sentence dated 02.8.2002 passed by the 4 Additional Sessions Judge, Ambikapur, in Sessions Trial No.339/2001 whereby he has been convicted u/ss 450/34, 302/34 & 120- Bof IPC and sentenced to undergo R.l. for 10 years and to pay a fine of Rs.1000/-, in default of payment of fine, to further undergo R.l. for 3 months; imprisonment for life and to pay a fineof Rs.1000/-, in default of payment of fine to further undergon R.l. for six months; and R.l. for six months, respectively, with a further direction to run the sentences concurrently. 7 Cr.A.No. 1245/2002 (DB) ^^ (^. '<-v ^' (2) The case of the prosecution is that in the intervening night of 28/29th of June 2001, the deceased namely Ranthu Puri, his wife Neera Bai (co-accused) and daughter Rita Das (P.W.10) were sleeping in their hutment in village Belgam. At about 12.00 in the mid night, Rita Das heard some noise and she woke up. She saw that 3 persons with covered faces were sitting over the body of his father; one of those persons was pressing her father's neck while one of the assailants was on the chest and the other one has pressed his legs so that he may not move or make resistance. Her father died in the hutment. After the death of her father, in the torch light, she could see the face of one of the assailants as the artificial beard which he had put on his face, fell down. The assailants ran away from the house. Thereafter, her mother made hue and cry. The first information report, Ex.P.6, was lodged by Rita Das (P.W.10) in the concerned police station on 29.6.2001 at about 8.35 a.m. This first information report was registered against 3 unknown persons as the informant did not mention the names of the assailants. Later on, a merg intimation Ex.P.7 was also recorded at the instance of Rita Das (P.W.10) which also contains the above details, but the names of the assailants were not mentioned in the merg intimation. (3) During the course of investigation, the inquest on the body of the deceased was prepared and the dead body was sent for post mortem examination. The post mortem was conducted by a team of 3 doctors, who opined that the cause of death was asphyxia and suffocation by throttling and it was homicidal in nature. The post mortem report is Ex.P.3. After some time, the appellant Puran Das was arrested by the Police and was putto test identification parade conducted on 04.7.2001, in which, he was duly identified by Rita Das (P.W.10). The Police filed charge sheet ijl^pr;:%^r|^^^!m^ ":v:w"^ Cr.A.No. 1245/2002 (DB} ^ against two persons only, namely accused/appellant Puran Gosai and Neera Bai (wife ofthe deceased). (4) The learned Sessions Judge, after recording evidence of the prosecution witnesses, convicted and sentenced the accused appellant as aforementioned. However, the accused Neera Bai was acquitted. The conviction of the appellant is based on thesole testimony of Rita Das (P.W.10) who was an eye witness to the incident and atso a witness to the Test Identification Parade which was conducted on 04.7.2001, in which, she duly identified the accused/appellant. (5) Learned counsel for the appellant argued that Rita Das is the daughter of the deceased, therefore, she is an interested witness and her sole testimony cannot be relied on. She also argued that this witness has disclosed the name of the appellant in her court evidence, whereas, she did not mention his name either in the F.1.R. or in the merg intimation; therefore, the omission on the part of this witness proves fatal to the prosecution. Thirdly, she argued that it comes in the evidence that the accused appellant was the maternal uncle of this witness and he was frequently visiting their house, therefore, the Test Identification Parade, in the facts and circumstances ofthiscase, is of no use to the prosecution. (6) On the other hand, learned State Counsel opposed these arguments and supported the judgment passed by the trial Court. (7) We have heard learned counsel for the parties at length and have also perused the records ofthe Sessions Trial. (8) So far as the argument relating to interested and relative witnesses is concerned, it has been held by the Apex Court in the matter of Rizan and another-Vs- State of Chhattisaarh. throuah the Chief Secretary, /y^ r '^ B^ \^^^ CrA.No. 1245/2002 CDB) L Govt. of Chhattisaarh. Raipur. AIR 2003 S.C. 976, in para 6, that the relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such a case, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. (9) Relying upon the decision of the Apex Court in State of U.P. -Vs- Paras Nath Sinah and others AIR 1973 S.C. Pa.1073. the Division Bench of the Kerala High Court also held in the matter of Sahadevan Raian and others -Vs- State of Kerala. 1992 CRI.L.J. 2049 that the straightforward and trustworthy evidence of relations of the deceased need not corroboration for sustaining the conviction. Such evidence cannot be discarded on the sole ground of interestedness in the prosecution case. (10) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Apex Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect Interesf in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidehce, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction canbe based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no 7 .^-^ yf'^ ^^s^ 1 wv Cr.A.No. 1245/2002 CDB) T ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The Apex Court also referred to the decision rendered in the matter of Harbans Kaurand another-Vs-State of Harvana. 2005 AIR SCW 2074, in which, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. (11) Therefore, in view of the above, it cannot be held that the sole testimony of Rita Das (P.W.10) cannot be relied on only on the ground that she was the daughter of the deceased. We are to scrutinize her evidence with due care and caution and if her evidence passes the test of credibility in appreciation by applying the above principles enunciated in various cases, the conviction can well be based on her sole testimony. (12) If we look into theevidence of Rita Das (P.W.10), it would appear that Rita Das was aged about 10 years on the date of recording of her evidence before the trial Court i.e., 17.4.2002. She admitted vide para 6 of her evidence that the appellant Puran Gosai is her maternal uncle. Vide para 7, she has stated that in the fateful night, she was steeping along with her mother on a cot and the deceased was sleeping on the floor, in the same room, when the appellant and his one associate entered into their house. The appellant pressed her father's neck whereas the second assailant -\ ^':^ /-• ^-y/ Cr.A.No. 1245/2002 fDB) was holding and sitting on his legs. Her father died on the spot. She has proved the lodging of F.1.R (Ex.P.6) as also the merg intimation (Ex.P.7.). In Para 10 of her Examination-in-Chief, she has categorically stated that she had told the name of appellant Puran Gosai to the scribes of these documents and if the name of this appellant is missing from these documents, she cannot tell the reasons. She has also deposed that the test identification parade was conducted by the Police near thepolice station, in which, she has identified the appellant Puran Gosai. In the cross examination, she admitted that she knew the appellant Puran as he happens to be her maternal uncle and was frequently vjsjting their house. In the last para of her cross examination, she has very specifically admitted that the appellant was daily visiting their house and she further admitted that, in fact, the appellant has not entered into their house in the fateful night, she had seen him in the day time, therefore, she took her name. (13) In appreciation of her evidence in light of the F.I.R. Ex.P.6 and the merg intimation Ex. P.7, we find that in these two documents, the name of this appellant is not mentioned and the witness has stated that she had told the name of the appellant on both the occasions and ifthe same is.not mentioned in these documents, she cannot tell the reasons for it. The omission of the name of the appellant in the above two documents creates a doubt on the testimony of this witness. If she had identified the appellant in the night itself that he was none else than her maternal uncle, she would have mentioned r ,,\f"-<".. //- -^. " %S(^^. ^l^^s . ^....y, ^^-"./- ^^^^ [\ ^"% f' Cr.A.No. 1245/2002 (DB) <L. his name to the Police on the earliest opportunity when she lodged the F.I.R. or on the second opportunity when a merg intimation was lodged at her instance, but the same was not done. This omission proves fatal to the prosecution and the version of this witness appears to be unreliable. That apart, when this witness has categorically admitted in clear words that in the fateful night, the appellant had not entered into their house and she had taken his name as she had seen him in the day time, there is hardly any room for this Court to further appreciate the evidence of this witness on the face of this categorical admission made by her. (14) As far as the test identification parade is concerned, that has absolutely no value in this case because if Rita Das (P.W.10) was previously knowing the assailant and she had identified him in the night as she claimed, she could have straight way mentioned his namein the F.1.R., and the merg intimation, and there was no necessity of conducting a T.1. Parade. Moreover, she has identified the appellant, who was her maternal uncle, in the T.1. Parade which according to the version of this witness was conducted by the Police itself just beside the police station and the police personnels were through out present while conducting the T.1. parade. Therefore, we are of the considered opinion that no reliance can be placed on the testimony of this witness and the conviction based upon her sole testimony cannot be sustained and the trial Court erred in law in placing reliance and convicting the appellant on the sole testimony of this witness. VY ^-~—;>" '"'^^^-<y; Cr.A.No.l 245/2002 CDB) (15) For the foregoing discussion, the judgment of the trial Court cannot be sustained and the same deserves to be set aside. (16) Accordingly, this appeal is allowed. The conviction and sentence imposed against the appellant are set aside. He is acquitted of the charges framed against him. It is stated that the appellant is in jail. He be set at liberty, forthwith, if not required in any other case. — Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge /Rao/