WW,WW,W WT W CV:AV'MK%Q$W 200‘ WW (W) > > Hon’ble ShriSunilK a Sin a JJ. 23-7-2007:- appellanls. snn Ashish Shulda, A respondent. r‘ M Oral judgment dictated an ais. This appeal is directed of sentence dated 19‘" July, S T No53/2000 whereby le med Special Judge after holding accused! appellants namely, aulat & epal guilty for commission of offence under Section 302 of the IP‘ ‘ re d With Section 3 (2)(v) of the SCIST Act, (Criminal appeal und er Section 374 (2) of the Cr.P.C.) 9.3.: - Hon’ble shri Lc. Bha o}: & Shri Manoj Paranjpe “1th Shri V.A. Goverdhan, counsel for the dditional Public Prosecutor for the sate/ against the iudgment of conviction and order 1 passed by the Special Judge, Raipur in # D V APPELLANTS: 1. Daulatram, S/o Sadram Teli, Accused (In Jai!) I aged about 53 years. '2. Nepal Slo Tllochan Sahu, aged 45 yrs, Both R/o VII ‘ Jamjuda. PS Basna Dist Mahasamund (C.G.) ‘ u ‘ Marsus- RESPONDENT: $hte of Chhattisgarh, Through Pollce Station Basna, Distt. A Mahasamund (C.G.). @ WW,WW W Hi 200 mm (13W) ln aY Merg WW,W,W : m m ...................................................._ .W 200 WW (W) mvf’gam‘ /.—(3, lett for scene of occurrence, aftgr giw'ng notice EXP/10 to the Fanchas, prepared inquest Ex.Pl11 on the; body of the deceased. Site plan EXP/9 was prepared. Based on the rniemorandum Ex.PI4 given by Daulat Ram, as recovered under EXP/2. Based on sickle was seized funder Ex.P/3. The dead body fthe deceased was sent for postmortem examination under EXP/14 to Primary Health Centre, Basna where Dr. >Wwiiwrrw ‘ ériaimm Ex.P/5 given by Nepal, ax‘e memorandum EXP/6 given b accused Damodas, ‘ 2“ Aa§fprepared tl.L. Jfngde (PW-7) post-mortem cond re postmortem rt Ex.-PI12. on the He body opined of that the deceased muse of death was haemorrhagic shoc due to head injury. Nature is homicidal. ~- After completion of the i vestigation, charge sheet was hled against accused Daulat Ram, Nep I & Damodas in the Court of Judicial Magistrate, 1" Class, Mahasa und. who in tum committed the case to the Sessions Judge, Raipur from where learned Special Judge received the case on transfer for trial. . The prosecution in er to establish the charge against the accused persons examined 3 witnesses. ' Statements of the accused persons were recorded und r Section 313 Cr.P.C. in which they denied material appearing against em in the prosecution evidence, sated that n falsely implicated in the crime. They d e namely, \(ickram. ' they are innocent and have examined one defence wit Leamed Special Ju ge after hearing leamed counsel for the respective parties, oonv and sentenced the accused/appellants as \ \K\,\ : e aXe was recovered from him under EXP/1. Based on the memorandum e u n i XI-HC—78 wwww am‘wm aforesaid. HOWever, accused Damodas @ Damodar was convicted under ; ) Section 352 of the LP.C. We have heard Shti‘ noj Paranje with Shri V.A. Goverdhan, teamed counsel for the aplants and Shri Ashish Shukla, Additional Public Prosecutor for the Stat accused/appellants has not disputed homicidal death of the deceas . Moreover, PW-3 Bholaram. son of the deceased ahd PW-5 Narad essed the crime in question. They have stated that the accused perso s attacked the deceased with axe. The above ocular evidence is cororated by the’medical evidence of PW-7 Dr. H.L. Jangde who has state that on 21-8-2000 at about 12.30 p.m. he conducted postmortem on the r dy of the deceased. He noticed as many as 3 incised wounds and 2 la ated wounds. Injury No.1 which was on the head, beneath that injury, s ull bone was fractured. He has stated that cause of death was haemorrhge as a result of head injury. Death was homicidal in nature.’ In view o the above ocular and medical evidence, it is established that death of the ‘ Leamed counsel for eceased was homicidal in nature. As far as involvement of the accused/appellants in crime in question is concemed, leamed ounsel for the accused/appellanb argued that in this case only two esses have been examined by the prosecution as eyewitnesses i PW-3 Bholaram, son of the deceased ' and PW-5 Narad. He argued at as far as PW-3 Bholaram is concerned, he is an interested witness. 5 Narad is also an interested witness for the reason that he was an emp oyee of the deceased. He also submitted tt it has come intheir e ' ha ’ a e - e 'n rb r " n - . 'xxiHc—7s @ mam (W) mmamr ‘ Pg: WWW ‘WW ‘ $aimm the adjoining $1d but they havge not been examined. Therefore, merely on the evidence of these interested witnesses the accused persons cannot be convicted. He also argued that PW-5 Narad has stated that he saw that the accused persons yve e carrying lathis whereas, there is no iathi injury on the body of the dec ased. PW-3 Bholaram has stated that the accused persons had attack with axe. Therefore, there is contradictory evidence with regard to we on of offence, as such being interested witnesses, and also on accou of this contradiction their evidence is not Aworth reliance. ‘ On the other hand, l arned counsel for the State/respondent supported the judgment of the ial Court. ' As far as argument o leamed counsel for the appellants that witnesses are related witnes es, therefore, their eVidence cannot be believed is concemed law on epointis wellsettled The Apex Courtin the matter of Rlzan and anoth r vs State of Chhattlsgarh through the Chief Secretary, Govt. of C hattlsgarh Rarpur, reported in AIR 2003 SC 976 In para 6, held tha “the relationship is not a factor to affect credibility of a witness lt is re often than not a relation would not conceal actual culpnt and ma e allegations against an Innocent person Foundation has to be laid If p 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 an credible." ‘ Relying upon the decisi n of the Apex Court in State of U.P. Vs. Paras Nath Singh and omers lR 1973 sC pg. 1013, the Division Bench of the Kerala High Court also h ld in the matter of Sahadevan Rajan and WI. m W 200 t o l x17Hc—7s EW,W,W W W W 200 5mm (W) ammémm mm Wm $31W§mé$r WWW #g’ . others vs. State of Kerala 1 392 Cri.L.J. 2049 that “the straightforward and trustworthy evidence e relations ‘of the deceased need not corroboration for sustaining t e conviction. Such evidence cannot b discarded on the sole ground interestedness in the prosecution case." J In the case of Namde Vs. State of Maharashtra, reported in ‘“ 2007 AIR SCW 1836, the Ape Court held that “a witness who is a relative of deceased or victim of the c me cannot be characterized as ‘interested‘. The term 'inte‘rested’ postul that the witness has some direct or indirect ‘interest‘ in having th accused somehow or other convicted due, to animus or for some othe obiique motive," The Apex Court also observed that 'a close relative cannot be characterized as an ‘interested' witness, He is a ‘natural’ ss. His evidence, however, must be scrutinized carefuliy. lf on s ch scrutiny, his evidence is found to be intrinsically reliable, inherently robable and wholly trustworthy, conviction can be based on the ‘sole’ mony of such witness. Close relationship of witness with the deceased victim is no ground to reject his evidence. On the contrary, close relativ of the deceased would normally be most reluctant to spare the real cul rit and falsely implicate an innocent one. The Apex Court also referred to the decision rendered in the matter of Harbans Kaur and another v . State of Haryana 2005 AIR SCW 2074, in which, it was held that there is no proposition in law that reiatives are to be treated as untruthful witne 'ses. On the'contrary, reason has to be is raised to show that the witnesses had reason to shield the actual cul rit and falsely implicate the accused. The Apex Court further ruled that e testimony of the solitary witness can be basis for conviction; Neither legislature nor the judiciary mandates a e t ' e XI-HC—78 0;? mw,mm that there must bé particular number of witnesses to record an order of conviction against the ao d. Out legal system has always laid emphasis on value weight a d quality of evidence rather that on quantity multiplicity or plurality of Witn ses lt is therefore, open to a competent /Court to fully and comp y rely on a solitary witness and record convrctlon. Conversely. it ma acquit the accused in spite of testimony of “‘s‘éveral witnesses if it is not atisfied about the quality of evidence. The bald contention that no co on can be recorded in case of a solitary eye-witness, therefore, has n force and must be negatived. If we péruse evidence fthese eyewitnesses, PW-3 Bholaram, son " of the deceased, has stated at on the fateful day he along with his father went to the agricultural field. hey were weeding grass from the standing crop of groundnuts, at that t accused Daulat and Nepal came carrying axe in their hands. Accused Damodas came carrying sickle in his hand who chased him in order to ttack him with sickle, but he ran away. At that time, Naracl was worki in the held. Both the accused. persons attacked his father With axe. Thereaher, he came to the house. He informed Parshuram. He ng with Parshuram went to Devri and informed his‘uncle Dhoop Sin h. PW-5 Narad has stated that at about 2 p.m. he was working in the tield. He saw that accused Daulat was attacking the deceased with a e on his back, at that time, Nepal was also with Daulat. Daulat attacked 2-3 times with axe on his body. Nepal was saying 'attack, attack'. a result of axe injury, Uttam fell down. Being frightened he came to is house. Bhola was also present on the place of the incident and he essed the incident. In cross-examination of these witnesses. defence h s not been able to elicit any circumstance c e i l l n i i , n o m n § ‘ m m Hi 200 Mm (W) mam wa‘mm \ ‘1 ‘ WW(mm _Q—’ WWW‘w’rm $WW ~xl—Hc—78 WW,W,W Wm W 200 m’m (mm) 1 r :Q‘WT‘ W $3M ‘_%‘ $ aim m“ ‘yaan’wmf‘awi'w? WWifsém ? which makes evidénce of theise witnesses unreliable or untrustworthy. PW-3 Bhoiaram is the son of deceased and his presence on the scene of occurrence cannot be doub ed in view of his evidence. Moreover, the incident said to have taken ace at 4 p.m., this witness reported the matter in the police station at 'p.m. which is at a distance of 12 km. as 3 per the evidence of PW-3 Bh laram, in the hrst instance, he went to the . Villagekfrom there he went to viilage Devri to inform his uncle and from l there he along with Dhoop Sin h and Parshurafh went to the police station l Basna to lodge the report. herefore, looking to the evidence of this } witness, report was lodged with all promptness in which he has \. categorically mentioned the which he has stated in his evidence. l Perusal of the evidence of th e two‘witnesses reveals that PW.5 Narad has stated that only accused Daulat attacked me deceased with axe whereas, PW-3 Bholaram, son of the deceased, has stated that both the accused attacked the deceas d with axe. ln the circumstances, both witnesses are consistent on th attack made by Daulat whereas, as far as attack made by Nepal is conce ned, that has not been corroborated by the evidence of PW-5 Narad. Th refore, we are of the considered opinion. that there is no consistency th regard to the attack made by Nepal, therefore, Nepal is entitled f r beneht of doubt. Evidence of PW-3 Bholaram, son of the dec ased and PW-5 Narad further nnds corroboration from the fact th axe in question, weapon of offence, was recovered at the instance of a used Daulat, as’ per the evidence of PW-9 Dinesh Sharma, even thouh covery witnesses have tumed hostile but there is no reason before this rrt to disbelieve evidence of this witness. Moreover, their evidence als tinds corroboration'from the medical :e l i u XI-HC—78 mW,WW,W ® Wm m 200 mm (W) ! mm am WW“ ’mg “g a“ wm%r wam‘m ‘ evidence, as PW-7‘Dr. H.L. iJangde, who conducted postmortem on the 1 body of the deceased, has stated that there were 3 incised wounds and 2 ‘ Iacerated wounds on the body of the deceased, these injuries could be tcaused by axe. Therefore, evidence of PW-3 Bhoiaram, son of the deceased, is corroborated recovery of axe, weapon of offence and ; medical evidence of Dr. H.L. angde. Non-examlnatton of th persons who were working rn the adjoining feld does not affect the pros ution case because In the nrst Instance It is ‘common knoMedge that m t of the time neighbours do not want to interfere in the dispute of oth rs. At the same time, they remain reluctant n to become witness. In the se 0nd place, the eyidence of PW-3 Bholaram, ‘son of the deceased and PW 'Narad is reliable. it is settled principle that quality of evidence is to be se n and not the quantity. For the foregoing reas ns we are of the considered opinion that as far as accused Daulat Ram Is concemed there rs legal and cogent evrdence regarding hrs rnvo ment In the cnme In question Therefore tindlng of the tnal Court co g him under Section 302 of the l.P.C. Is based on legal evidence. W do not tind any illegality or infirmity in the judgment to that extent. As as accused Nepal is concerned, as PW-5 Narad has not stated that he in fact attacked, therefore, he is entitled for benefit of doubt. His convicti n under Section 302 of the l.P.C. cannot be sustained. As far as convicti n of the accused persons under Section 3 (2)(v) of the SC/ST Act, 1 9 is concerned, there is not an iota of ‘ evidence available on reco that the accused persons attacked the deceased on the ground and or the reason that the deceased belongs to “a b n n r r v Barve a ST, therefore, conViction of the accused persons under Section 3 (2)(v) of the SC/ST Act, 1989 cannot biz sustained. In the result: (I) Appeal in respect of sed Nepal succeeds. Conviction and sentence imposed upo him under Section 302 of the IPC read with Section 3(2)(v) of th SCI$T Act, 1989 are set aside. He is acquitted of the said c arge. He is stated to be in detention since 20‘" August, 2000. the efore, he be set at liberty forthwith unless required to be detained in any other case. (ii) Appeal in respect n accused/appellant Daulat as regards conviction and sente imposed upon him under Section 302 of the l.P.C. is dismissed. Sentence imposed upon him including that of hne under this sect n is maintained. However, his conviction under Section 3(2)(v) the SC/ST Act, 1989 is set aside. He is u XI-HC—78 10 WT m m; 200 anamvm (We?) i mmw am Wwm mmm mmd‘wm emm acquitted of the said ch rge. Sdl- Sd/J L.c.BHADoo SUNIL KUMAR SINI-IA W Judge Judge