,,^]» "!!%Sj /y^ •"i'., ;.u'^o^ HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma.J.I APPELLANTS RESPONDENT Criminal Appeal No. 442 of 2007 Girdhari and others VERSUS State of Chhattisgarh Post for pronouncement ofthe judgment on ]^-11-2008 Sd/- T.P,Sharma Judge dS!assx°s"-', ;B^I<"a~@ " I 1 sv ^^ ^ ft '^ ^ HIGH COURT OF CHHATTISGARH ATBILASPUR FSB: Hon'ble Mr.T.P.Sharma.J.I APPELLANTS RESPONDENT Criminal Appeal No. 442 of 2007 1. 2. 3. VERSUS Girdhari son of Shri Bachcha Ram aged about 40 years Deen Bandhu son of Kamal Singh Yadav, aged about 35 years Lalit Chauhan son of Rahso Chauhan aged about 40 years All are resident of village Kathani P.S. Pussaur, Tahsil and District Raigarh, CG. State of Chhattisgarh through Police Station Pussaur, District Raigarh (Chhattisgarh). Shri Ashok Kumar Dixit counsel for the appellants. Shri Sameer Behar PL for the respondenVState. CRIMINAL APPEALJJND^R^ SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (Deliveredon^l 1.2008) Thisappeal is directed against the judgment of conviction and order of sentence dated 5.5.2007 passed by Additional Sessions Judge, Raigarh, in Sessions Trial No. 1/2007 convicting the accused/appellants for an offence punishable under section 304 (II) of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for 10 years and pay fine of Rs. 500.00, in default to undergo additional rigorous imprisonment for two months. 2. Since other connected Criminal Appeal No. 542/2007 filed by accused/appellant Lalit Chauhan who is one of the appellants in Criminal %. V/ '^^- Appeal No. 442/2007, has been disposed of as unnecessary vide order dated 5.8.2008, no further order is necessary. 3. The judgment has been challenged on the ground that without there being any cogent and reliable evidence against the accused/appellants, the trial Court has committed an illegality in convicting and sentencing them as mentioned above. 4. Case of the prosecution in brief is that on 27.8.2006 deceased Pavitro Yadav of village Tarda took the cycle of accused/appellant Deen Bandhu and since he did not return it to him, all the three accused/appellants went there and assaulted him with hands, fists, kicks, chappals and club. Thereafter they took him to village Kathani and assaulted him there also. When Pavitro Yadav became unconscious, they brought him to his house and left there. On 29.8.2006 he died as a result of injuries caused to him. Thereafter village Panchayat was convened in which accused Girdhari and Deenbandhu were also called and on being asked they made extra Judicial confession to have assaulted Pavitro Yadav along with accused Lalit. Merg intimation Ex. P-24 was given on 30.8.2006 and FIR Ex. P-17 was recorded on 29.8.2006. Inquest Ex. P-1 was conducted. Dead body of Pavitro Yadav was sent for post mortem examination vide Ex. P-26 to Community Health Centre, Pussour where Dr. V.S. Rathia (PW-20) conducted the post mortem and submitted report Ex. P- 26-A opining the cause of death to be hemorrhage and shock due to rupture of liver and that death was homicidal in nature. Accused Girdhari and Deen Bandhu were taken into custody on 30.8.2008 and accused Lalit was taken into custody on 31.8.2008. On the basis of disclosure statement of accused Girdhari Ex. P-4, one club (bamboo stick) was recovered vide Ex. P-7. Disclosure statement of accused Deenbandhu Ex. P-5 led to recovery of plastic chappal vide Ex. P-8 and that of Lalit Ex. P-5 led to recovery of plastic 2~'*1^. 3>- chappal and frame of Hero cycle vide Ex. P-9. Document containing extra judicial confession Ex. P-3 was seized from Satyannand Rawat vide Ex. P-10. Spot map Ex. P-11 was prepared. Cycle was seized from one Purna Kumar vide Ex. P-12. Spot map was prepared by Patwari vide Ex. P-20. 5. After recording the statements of the witnesses and completing the investigation charge sheet was filed in the Court of Chief Judicial Magistrate, Raigarh, who in turn committed the case to the court of sessions from where Additional Sessions Judge, Raigarh received the same on transfer for trial. 6. In order to prove the guilt of the accused/appellants the prosecution has examined as many as 20 witnesses. Statements of the accused persons were recorded under section 313 of the Code of Criminal Procedure in which they have denied the material appearing against them in the prosecution case and pleaded their innocence and false implication in the case. 7. After affording due opportunity of hearing to the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. 8. Heard counsel for the parties and perused the material available on record including the judgment impugned. 9. It is argued on behalf of the accused/appellants that the prosecution has utterly failed to adduce any credible evidence to connect the accused/appellants with the crime in question which is sufficient to warrant conviction. Extrajudicial confession said to have been made by the accused/appellants is not voluntary. Reliance is placed on the decision of Madhya Pradesh High Court in the matter of Baboli Singh v. State of M.P. in which it has been held that the prosecution is required to prove the common intention in causing the death and in absence of such proof, the accused ' 1980MPWN242 ,.^3^%. £f'^'ws& 'l<2i. K <b I'l ~1% t? Wassim.^ 'f>, ^f K Ite^.^ '>3iE^*ff' -4- cannot be convicted under section 304 (II) read with section 34 of the Indian Penal Code. However, they can be convicted under section 323 of the Indian Penal Code. 10. On the other hand counsel for the respondent/State supported the judgment impugned and submitted that the prosecution has proved its case beyond all shadow of doubt and the conviction rests of the ocular evidence, dying declaration and the extrajudicial confession made by the accused/appellants which calls for no interference in this appeal. 11. Thus homicidal death of Pavitro Yadav is not disputed. Even otherwise it is established by the evidence of Shiv Prasad (PW-1), Visambhar (PW-2), Satyanand (PW-3), Devraj Patel (PW-4) and Yasoda (PW-8) wife of deceased have stated that Pavitro died as a result of injuries sustained by him. Dr. V.S. Rathia (PW-20) has stated in his evidence that on 29.8.2006 he conducted the post mortem on the body of deceased and found crush injury on the right portion of his head in the size of 4 x 3 c.m. and near the second and third rib over the chest lacerated wounds were there in the size of5 x 1 % c.m. Lacerated wound near the right elbow in the size of 3 x 2 c.m. was also found. Lacerated wound near the scapular region in the size of 4 x 2 c.m. was found. He opined that the cause of death of shock and hemorrhage due to rupture of liver and death was homicidal in nature. 12. Evidence of extrajudicial confession is a weak type of evidence and the prosecution is required to prove that the accused has made the same voluntarily and without any threat or inducement. Likewise, the Court is also required to scrutinize the evidence of dying declaration because it does not have the opportunity of being put to cross examination. Y ^ W- 7 ;? ^-Si& % f! '':?E>^-:-,.r-.-;^'"' <r- 13. In order to establish the complicity of the accused/appellants in the crime in question 1 have examined the evidence adduced by the prosecution. Shiv Prasad (PW-1) is not an eyewitness as he had just heard the appellants assaulting Pavitro, Vishambhar (PW-2) has also stated the same thing in his evidence. He has not supported the case of the prosecution and therefore he has been declared hostile. Satyanand (PW-3) has stated that his brother Nityanand informed him that Pavitro died as a result assault made by the accused persons. Thereafter Panchayat meeting was convened in which accused persons were also called. Accused Girdharhi and Deenbandhu came in the said Panchayat and confessed their guilt. Devraj Patel (PW-4) has stated that Pavitro died as a result of assault but he has not supported the factum of extra judicial confession. Prosecution has declared him hostile. Tikeshan (PW-5), Achyut (PW-6) and Rajaram (PW-7) have only stated that deceased took the cycle of accused Deen Bandhu and did not return it to him. Yasoda (PW-8), the wife of ttie deceased has stated that accused persons assaulted her husband with club and shoe. When she tried to intervene, accused told her that her husband had taken his cycle and then they took him to village Kathani. Thereafter, at about 12 o'clock in the night they dropped him near her house. There were injuries on the back, leg and head of her husband and on the next day he died. Nityanand (PW-15), brother of the deceased has stated in his evidence that accused Girdhari and Deen Bandhu came to his house and woke him up. They told him that Pavitro had taken their cycle but on inquiry he was not disclosing. After leaving Pavitro in the verandha of his house they went away. Thereafter, he took Pavitro inside the house who was unconscious at that time. At about 7-8 a.m. when Pavitro regained consciousness, on being asked he told him that on the pretext of taking cycle accused/appellants assaulted him with club, kicks and Chappals and took to village Kathani and having assaulted him there also they brought ' ¥:'B>88';' -&- him back to his house and left there. On Tuesday at about 3-4 a.m. Pavitro died. After death of Pavitro, he called Sarpanch of the village and in his presence accused Girdhari and Deen Bandhu admitted that Pavitro had taken their cycle and for that they assaulted him with club. Yasoda (PW-8) has admitted in paragraph 5 of the cross examination that even after her husband being assaulted by the accused persons she did not lodge the report nor did she send her elder brother in law for lodging the report. She has specifically stated that all the three accused persons assaulted her husband by stick and chappal. She has also stated that when the accused persons brought back her husband she was asleep. Nityanand (PW-15) has also admitted in his cross examination that he did not call the doctor for treatment of Pavitro. He has stated that Pavitro did not inform him that for the sake of cycle the accused persons had assaulted him. He has admitted that in his presence the accused persons did not assault Pavitro. Defence has cross examined this witness but has not been able to elicit anything which could discredit his testimony. Yasoda (PW-8) has specifically stated that three accused persons assaulted her husband and then they took him to village Kathani where also they assaulted him and thereafter they brought him back to his house and after leaving him there they ran away. 14. Admittedly Yasoda (PW-8) and Nityanand (PW-15) are the wife and brother of the deceased. Their statement cannot be discarded only on the ground that they are related to the deceased. In the matter of Bhargavan and others v. State of Keria 2 it has been held by the Apex Court that statements of the close relative cannot be a ground to reject his testimony. Relationship is not a factor to affect credibility of witness. Relevant portion reads thus: "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted AIR 2004 SC 1058 7 - and that usually 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 culpht and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a chticism and (he mere fact of relation ship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case mustbe judged on its own facts." Dealing with the identical point in the matter of Banti alias Guddu v. State of Madhva Pradesh it has been held by the Apex Court that relationship per se cannot be a ground to discard their evidence but it requires a minute scrutiny oftheir evidence. 15. In this case Nityanand (PW-15) has specifically stated that Pavitro told him that he was assaulted by the three accused persons with club, kicks and chappals. In the Panchayat meeting accused Deen Bandhu and Girdhari made extra judicial confession to the effect that they assaulted the deceased. However, factum of extrajudicial confession has not been supported by any independent source. Yasoda (PW-8) has also specifically stated that accused persons assaulted her husband even in her presence. Though they are the relatives of the deceased, they have not stated anything which shows that they are interested in falsely implicating the appeilants on account of enmity or otherwise. Relative witnesses are the last persons to spare the real culprit and falsely implicate the innocent. After careful examination of the evidence ofYasoda (PW-8) and Nityanand (PW-15) who are the relative witnesses, it is revealed that the appellants are the persons who caused injuries at different AIR 2004 SC 261 ~~s ^z :1' / % villages as a result of which deceased died. Evidence of these two witnesses is trustworthy and inspires confidence. The act of the accused/appellants in first assaulting the deceased at village Tarda, thereafter taking him to village Kathani, beating him there also and when he became unconscious leaving him in village Tarda where within 12 hours he died, clearly shows their intention. 16. In the case of direct evidence and injury over the body of the deceased, question of motive loses importance. Thus the facts of the case in the matter of Baboli Singh (supra) are distinguishable in the facts of this case. 17. After appreciating the evidence available on record the trial Court has convicted the accused/appellants under section 304 (II) of the Indian Penal Code. The judgment impugned being based on reliable and clinching evidence, does not suffer from any illegality or infirmity warranting interference in appeal. As regards sentence, considering the merciless assault made by the three accused persons on the deceased, they do not deserve any sympathy. 18. Consequently, the appeal has no substance and therefore, it is liable to meet the fate of dismissal. Appeal dismissed accordingly. Sd/- T.P, Sharma Judge c^