t ^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BBNCH CORAM: HON'BLE MR. T.P. SHARMA & HON'BLB MR. MANINDRA MOHAN SHRIVA8TAVA. JJ. APPBLLANT (Injail) Criminal Appeal No. 58^/2004 Balram, S/o Laxminath, aged about 22 years; Occupation Tractor- Driver, R/o viUage Badra, P.S. - Kondagaon, District Bastar-CentraI (Madhya Bastar) (C.G.). Versus RESPONDENT State of Chhattisgarh. CRIMINAL APPEAL UNDBR SECTION 374(21 OF THB CODB OF CRIMINAL PROCEDURB, 1973. Present- Ms. Sonali Bose, Advocate for the appellant. Mr. Ashish Shukla, G.A. for the State/respondent. c ORAL-JUDGEMENT (Passedon 08/11/2010) The following iudgment ofthe Courtwas passed bv T.P. Sharma. J:- 1. Challenge in fhis appeal is to the judgnient of conviction and order of sentence dated 15/4/2004 passed by Special Judge (S.C./S.T. Act), Bastar at Jagdalpur in Sessions Trial No. 493/2003 whereby and where under after holding fhe appellant guilty for commission of ofifence of culpable homicide amounting to murder of 10 years aged cNld Anand Das, grievous hurt to Sukkibai and simple hurt to Halal, Mehatarin & Tarun, convicted the appellant under Sections 302, 325 & 323 of the Indian Penal Code and sentenced imprisonment for life & fme ofRs. 2000/-, in default of \ ^ c: payment of fine amount additional ngorous unprisonment for 1 year, rigorous imprisonment for 3 years and fine of Rs. 500/-, in default of payment of fine amount additional rigorous imprisonment for 6 monfhs and rigorous imprisonment for 9 months and fine of Rs. 200/-, m default of payment of fme amount additional rigorous imprisonment for 2 monfhs respectively. Conviction is impugned on the ground fhat witliout any iota of evidence sufficient for conviction of the appeUant, Court below has convicted and sentenced the appellant as aforementioned and fhereby committed an Ulegality. As per case of the prosecution, on fateful day of 17/4/2003 at about 3:00 P.M. appeUant was using filthy language and quarreUng wifti Mehatarin, Tarun & Halal, he assaulted Mehatann, Tarun & Halal. The mother of deceased Anand Das i.e. PW1 Mahnani saw the incident and tried to escape from place of tfae incident along wifh his son Anand Das (since deceased) with a view to save him but on account of previous enmity, appeUant snatched chUd Anand Das from PW1 Malmani and assaulted him by stick over his head and other parts of the body. Anand Das died on fhe spot instantaneously. Again, appellant assaulted Sukkibai and caused fracture of her leg and also assaulted Mehatarin, Tarun & Halal. Marg intimation was recorded vide Ex. P-6. First Infonnation Report was lodged vide Ex. P-5. Investigating ofiicer left for scene of occurrence and after summoning fhe witaesses vide Ex. P-7. Inquest over ttie dead body of Anand Das was prepared vide Ex. P-8. Dead body of Anand Das was sent for autopsy to R.N.T. Hospital, Kondagaon vide Ex. f( 1 I l v^ ^^^ | ^. -^^-- :" '^-^si^ (iii) P-9. PW12 Dr. R.K. Sii^h conducted autopsy vide Ex. P-14 and found following injuries:- (i) Abrasion of9 x 3 x 1 c.m. and 9x1x3 c.ni. over left side ofchest. (u) Abrasion of3 x 2 x 1 c.m. over right elbow joint. (iii) Fracture on occipital bone of3x 2 x 2 c.m. was found. Mode of deatti was shock and death was homicidal in nature. Injured Sukkibai was also sent for medical examination. She was examined by PW8 Dr. O.P. Parakh vide Ex. P-3 and found following injuries:- (i) Lacerated wound below fhe right knee of 5" x 4" x 2", bone under beneath was visible. Contusion below right knee of 4/3" was found, Fracture on tibia and fibula bone was found. Injury No. 1 was grievous in nature. Radiological examination was also conducted vide Ex. P-4. Fracture on left tibia bone was found. Plain and Blood stained soU was recovered from fhe spot vide Ex. P-2. Spot map was prepared vide Ex. P- 10. Injured Mehatarin, Tarun & Halal were examined by PW12 Dr. R.K. Singh vide Exs. P-15, P-16 8s P-17 and simple injuries were found over their bodies. One stick was seized from fhe appellant vide Ex. P-1. Statements of the witnesses were recorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in short the Code'). Affcer completion of the investigation char^e sheet was ffled before Judicial Magistrate First Class, Kondagaon who in tum committed fhe case to fhe Court of Sessions, Jagdalpur from where leamed Special Judge (S.C./S.T. Act), Bastar at Jagdalpur received the case on transfer for trial. 7. In order to prove the guilt of the appellant/accused prosecution exainined as many as 12 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency aad false implication is claimed. 8. After affording an opportunily of hearing to the parties leamed Special Judge (S.C./S.T. Act), Bastar at Jagdalpur convicted and sentenced fhe appellant as aforementioned. 9. Ms. Sonali Bose, leamed counsel for the appellant and Mr. Ashish Shukla, G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. 10. Leamed counsel for fhe appellant vehementiy argued that alfhough prosecution has examtned eyewitnesses and injiired witnesses but their evidence does not inspire confidence and brustworthy. Prosecution has utterly fafled to proof motive of culpable homicide amountmg to murder of 10 years aged child Anand Das. PW1 Malmani, PW2 Sukkibai, PW3 Sagaibai, PW4 Tanm (injured), PW5 Mehatarin (injured) & PW6 Halal (injured) are relative and interested witnesses therefore their evidence requires strict scrutiny before placing any reliance. 11. On the ofher hand, leamed Govt. Advocate for the respondent/State opposed fhe appeal and submits that conviction of ftie appellant is based on direct evidence of eyewitaesses PW1 Malmani, PW2 Sukkibai, PW3 Sagaibai, PW4 Tarun, PW5 Mehatarm & PW6 Halal. Out of aforesaid witnesses PW2 Sukkibai, PW4 Tamn, PW5 Mehatarm & PW6 Halal are injured witnesses, their presence at fhe time of incident cannot be doubt. sr- E^vidence adduced on behalf of ttie prosecution is sufiicient for conviction of the appeUant 12. In order to appreciate the argument advanced on behalf of fhe parties, we have examined the evidence adduced on behaAfoftheprosecution. 13. In the present case, homicidal death as a result of fatal injury found over the head of deceased Anand Das has not been substantially disputed on behalf of the appellant. On the oftier hand, otherwise also estabUshed by the evidence ofPW12 Dr. R.K. Singh and autopsy report Ex. P-14. Deafh was homicidal in natLire. Appellant has also not disputed simple mjury to mjured Mehatarin, Tarun & Halal and grievous injury to Sukkibai on the other hand, otherwise also estabUshed by the evidence ofPW12 Dr. R.K. Singh and medical reports Exs. P-15, P-16 & P-17 and evidence of PW8 Dr. O.P. Paraldi, medical report Ex. P-3 85 X-Ray report Ex. P-4. 14. As regard fhe complicity of fhe appeUant in crune in question, conviction of the appeUant is based on evidence of PW1 Malmani, PW2 Sukkibai, PW3 Sagaibai, PW4 Tarun, PW5 Mehatarm & PW6 Halal. PW2 Sukkibai, PW4 Tarun, PW5 Mehatarin & PW6 Halal are injured witaesses. Definitely, all witnesses are relative witnesses but their evidence cannot be discarded on fhe ground of relation even otherwise relative are last person to spare real culpnt and to implicate falsely innocent person. 15. While dealing wifh the question of rclative witnesses, in the matter of Ashok Kumar Chaudhary fi» Ors. v. State of Biharl_Supreme Court has held ttius:- ' 2008 AIRSCW 3739 ,-.v^^ 6 '^-•'<^^'??;?tB 16. 17. ".^,.,,..,it wiU be erroneous to lay down as a rule of universal application fliat non-examiaation of a public witness by itself gives nse to an adverse iaference agaiast fhe prosecution or that the testiinony of a relative of fhe victuxi, which is ofhenvise credit-worfhy, cannot be reUed upon iinless corroborated by pubUc witaesses. Insofar as fhe question of credit- worthiaess of the evidence of relatives of fhe victim is concemed, it is well settled fhough the Court has to scrutini^ such evidence wifh greater care aad caution but such evidence caanot be discarded on the sole ground of their iaterest m fhe prosecution. The relationsbip per se does not affect fhe credibillty of a witness, Merely because a witoess happens to be a relative of fhe victmi of fhe crime, he/she caanot be charactenzed as an "interested" witaess. It is tdte that the term "interested" postulates fhat fhe person conceraed has soine direct or iadirect mterest ia seeiag that ttie accused is somehow or fhe ofher convicted either because he had sonie aoimus wifh the accused or for soxne ofher obUque inotive". While dealing wifti the same question, in ftie matter of Dalip Singh and Others v. The State of Punjab2 Supreme Court has held fhat relative witnesses are the persons reluctant to spare the real culprit and falsely implicate an innocent person, but in case of emnity close relatives have a tendency to exaggerate or add facts which may not have been stated to them at aU to implicate and to ensure conviction of fhe accused persons. WhUe dealing wifh the same question, in fhe matter of Sharad Birdhichand Sarda v. State of Maharashtra3 Supreme Court has held that close relatives of fhe AJR 1953 SC 364 AIR 1984 SC 1622 c ^ 18. victim have tendency to exaggerate or add facts, Court should examine their evidence witti great care and caution. Para 48 of the judgment of fhe Supreme Court in fhe above cited case reads thus:- <<48, Before discussing fhe evidence of fhe witaesses we ni^ht inention a few prelmunaiy remarks against the background of which fhe oral statements are to be considered. AU persons to whom the oral statements are said to have been niade by Maaju when she visited Beed for fhe last time, are close relatives and firiends of the deceased. In view of fhe close relationship aad affection aay person m fhe position of the witness would naturaUy have a tendency to exaggerate or add facts which may not have been stated to fhein at aU. Not fhat fhis is doue consciously but even uuconsciously fhe love aad afiFection for fhe deceased would crcate a psychological hatred agaiiist the supposed Hiurderer aad, therefore, fhe Court has to examin.e such evidence wifli very great care aad caution. Even if fhe witoaesses were speakiag a part of the trufh or perhaps fhe whole of it, fhey would be guided by a spidt of revenge or nemesis agaiast tiae accused person and ia this process certaia facts which may not or could aot have been stated may be imagined to have been stated unconsciously by the witiiesses ia order to see fhat the oflTender is punished. This is huinaa psychology and no one can help itw, As per law propounded by the Supreme Court in the aforesaid matters, the Court is required to anatyze the evidence of relative witness, injured witness and interested witness wifti great care and caution. PW2 Sukkibai, PW4 Tarun, PW5 Mehatarm 85 PW6 Halal are injured witnesses, which secure fheir presence at the time ofincident. PW1 Malmani, mother of 10 years aged chUd Anand Das (since deceased) has ^ ^ 19. 20. deposed in her evidence that appellant assaulted PW4 Tarun, PW5 Mehatarin 85 PW6 Halal then with a view to save her 10 years child Anand Das, she left the spot and proceeded for her house with her child but appellant snatched her child Anand Das and assaulted him by stick over his head and back thereafter, appellant went to her house and also assaulted PW2 Sukkibai and caused fracture upon her leg, he also assaulted PW4 Tarun, PW5 Mehatarin 8s PW6 Halal by stick. As a result of fatal injuiy her son Anand Das died on the spot instantaneously. Defence has cross- examined this witness at length, she has denied the suggestion in Para-4 of her cross-examination fhat while appellant was tiying to assault her, at that time her son received injuries. She has specifically and categorically deposed in her evidence that appellant has snatched her 10 years aged child Anand Das and has caused repeated injuries resulting into his instantaneous death. PW2 Sukkibai, PW3 Sag^ibai & PW4 Tarun have also substantially corroborated ftie evidence of PW1 Malmani. PW2 Sukkibai, PW4 Tarun, PW5 Mehatarm & PW6 Halal have categorically deposed in their evidence fhat appellant has assaulted fhem by stick and caused grievous injuries to Sukkibai and simple injury to Tarun, Mehatarin & Halal. Evidence of these witnesses substantially corroborated by ofher eyewitness PW3 Sagaibai who was also present on fhe spot. Defence has cross-examined fhese witnesses at lengfh but has not been able to Ulicit anyfhing to discredit ftieir testimony, their evidence inspire confidence and trustworthy. After appreciating the evidence available on record leamed Special Judge (S.C./S.T. Act), Bastar at y Jagdalpur has rightly amved at a finding tfaat appellant has caused homicidal death of Anand Das, grievous hurt to Sukkibai and sunple injury to Mehatarin, Tarun & Halal. Finding is based on credible, clinching and legal evidence sustainable under the law. 21. As regard the motive for commission of offence is coneemed, motive is only aid m criminality and loses its importance. In case of direct evidence, even otherwise motive can be inferred on the basis of nature of injmy, part of the body where uijmy was caused, weapon used and other like circumstances. 22. In the present case, as per evidence of PW1 Malmani, mofher of deceased Anand Das fhat while she was saving her child, appellant snatched her child and has caused repeated injuries to him. As a result of injury her son Anand Das died on the spot instantaneously thereafter, he went to her house and assaulted to Sukkibai aad caused grievous hurt and caused simple hurt to Mehatarm, Halal & Tarun shows grave intention and motive of the appellant for commission of culpable homicide amoiuiting to murder of Anand Das and causing grievous injury to ofher injured persons. This is not a case where appellant has caused injury without premeditation or caused injury all of a sudden on spur ofmoment. 23. On close scrutiny of fhe evidence, we do not fmd any illegality in the finding of the Court below warmnting any interierence in exercise of appellate jurisdiction. Consequently, crimmal appeal is devoid ofmerits, same is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- Manindra Mohan Shrivastava Judge f^