HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble Shri Justice Radhe Shyam Sharma 1 1 ¢ i l l I 1 \ l ‘ Criminal Agpeai No.88 of 1996 Heera Sai and another vel‘SUS dh State of Maya Pradesh (now State of Chhattisgarh) JUDGMENT 3 Post for ‘i‘j L, -1 2-2011 ” ”If Sdl- R.S. Sharma Judge HIGH COURT OF CHHATTISGARH AT BILASPUR w Sinqle Bench: Hon’ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.88 of 1996 Present: Shri Ravi Kumar Bhagat counsel for the appellants S‘hri M.P.S.Bhatia, D'eputy Government Advocae for the State/respondent. Criminal Appeai under Section 374g) of the Code of Criminal Procedure JUDGMENT (Delivered on 5H December,2011) o“ This appeal is directed against the judgment dated 6-1—1996 passed by Additional Sessions Judge, Baikunthpugi, District Surguja in Sessions Trial No.36/1994. By the impugned judgment, accused persons/appellants Heera Sai and Ranjit have been convicted under Section 304 Part ii of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years each. ‘zwx 2. Case of the prosecution, in brief, is as under: On 7—9-1992, at about 4 P.M., Richak (deceased) was cleaning leather (skin) near his house. At that time, appellant Heera t A‘ppeHants 1. Heera Sai, son of Ranjit Harijan, aged about 32 years, 2. Ranjit, son of Jhimal Harijan, l aged about 50 years, i Both residents of Village ‘_ Keshgawan, Police Station Sonhat, District Surguja (MP) (Now Chhattisgarh) V. versus Respondent State of Madhya Pradesh (now State of Chhattisgarh) through Police Station Sonhat, District Surguja 2 Sai was abusing his wife. The deceased prevented appeliant Heera $ai from abusing. On this account, appellant Heera Sai assaulted the deceased with a Lathi on the head. Appeilant Ranjit had also come there. He also assaulted the deceased. Thedecea’sed sustained injuries on the head and fell down. Blood oozed out of the nose and mouth of the deceased. Subhagiyabai (PW—4), wife of the deceased shouted. Having heard her shout, Bhagwan (PW-1), Dharmjit (PW-2), Sukhial (PW—6) reached there. The appellants fled fromthere. Bhagwan (PW—1) lodged First Information Report (Ex.P— 1i) and Merg intimation (Ex.P-13) was also recorded. The investigating Officer reached the place of occurre‘rlice, gave notice (EXP-4) to Panchas and prepared inquest (Ex.P-5) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Primary Health Centre, Sonhat vide Ex.P—14. Post mortem examination was conducted by Dr. S.K.Gupta (PW-10), who gave his report (Ex.P-19), in which he opined that cause of death of the deceased was excessive haemdrrhage due to fracture df skull and, it was homicidal in nature. In further investigation, plain earth and blgod stained earth Were seized vide Ex.P-8. Memorandum stateément (Ex.P-2) of appellant Ranjit was recorded under Section 27 of the Evidence Act on 9-9-1992 and at his instance, a Danda was seized vide Ex.P—3. Memorandum statement of appellant Heera Sai was recorded vide Ex.P-6 and at his instance; a piece‘of wood was seized vide Ex.P-7. Shirt of the appellant Heera Sai was also seized vide Ex.P—9. Spot-— Map (Ex.P-12) was prepared by P'atwari Dayashankar Shandilya (PW-8). The seized articles were sent for chemical examination to ‘5) )4? Director, Forensic Science Laboratory, Sagar vide Ex.P-17 and a report EXP-18 was received. In the FSL report (EXP-18), article A — b ood stained soii, article E — Kathari, article F — petticoat and article Q G — Towel were found stained with blood. After completion of the investigation, charge-sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Baikunthpur, who, in turn, committed the case to the Court of Session, Ambikapur, from where it was received on transfer by the Additional Sessions Judge, Baikunthpur, who conducted the trial and convicted and’sentenced the appellants as mentioned above. A 3.1 Shri Ravi Kumar Bhagat, learned counsel for the appellants argued that there was no any independent eyewitness. Subhagiyabai (PW—4) is widow of the deceased and Bhagwan (PW- 1) is son of the deceased. Bhagwan (PW—1), Dharmjit (PW—2) and Sukhlal (PW—6) did not witness the incident. The evidence of Subhagiyabai (PW-4) is full of contradictions. She is highly interested witness. Therefore, the conviction of the appellants cannot be based on the sole-testimony of Subhagiyabai (PW—4). 4. On the contrary, Shri M.P.S.Bhatia, learned Deputy UR Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence aWarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 1.7x ' 5. l have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of the sessions case with utmost circumspection. The conviction of the accused/appellants under Section 304 Part ll IPC is based on the testimonies of Subhagiyabai (PW-4), Bhagwan (PW-1) and Sukhial «PW—6). 4 w g L 6. It is not dispyted that Subhagiyabai (PW-4) is widow of the deceased and Bhagwan (PW—1) is son of the deceased and they are deceased’s nearest relatives. Mereiy because the witnesses are i rieiated to the compiainant or the deceased, their evidence cannot be w»- thrown out. If their evidence is found to be consistence and true, the i i fa‘ct‘of being a relative cannot by itself discredit their evidence. In ther words, the relationship is not a factor to affect the credibility of o i a witness and the Courts have to scrutinize their evidence l rineticulously with a little care. Z. Subhagiyabi (PW-4) deposed that on the fateful day, at about 4 P.M., she and her husband (the deceased) were washing leather (skin) near their house under a Bargad tree. At that time, appellant Heera Sai was abusing'his wife. The deceased prevented appellant , , ll-leera Sai from abusing. On that account, appellant Heera Sai assaulted the deceased with a Lathi on the head. Appellant Ranjit had also come there. He also assaulted the"deceased. Her v?‘ l husband (the deceased) fell down and sustained injuries on the i head and back. She shouted. Having heard her shout, Bhagwan (PW-1), Dharmjit (PW-2), Sukhlal (PW—6), one Munnalal, one Antu l and one Ramkumar reached there. The appellants went near their 1.7.x] house. 8. Bhagwan (PW-1) deposed that on screaming of his mother Subhagiyabai (PW-4), he, running, came from the agricultural field to ‘ > @ l l l l his house. He saw that the appellants were fleeing after committing Marpeetwith Danda. Sukhlal (PW—6) deposed that on hearing shout near the houses of appellant Ranjit and deceased Richak, he went there He was told there by Subhaglyabal (PW 4) that ‘appellant l-leera Sal had assaulted the deceased He further deposed that at at tlme the appellants were standing In front of the door of thelr use and appellant Heera Sal was havrng a Danda In his hands nd appellant RanJIt was havrng an umbrella m his hands r. 9.‘ ‘ The incident took place on 7-9-1992 at about 4 P.M. and FIR (Ex P 1) was lodged on 7 9 1992 at about 6 P M which was Within A two hours of the Incudent The distance between Police Station Sonhat and Village Keshgawan is 10 kilometres. it appears that the FIR (EX.P-1) was lodged promptly. In the FIR (Ex.P-1), Bhagwan (PW—1) has lodged the report to the effect that Richak was washing Nat leather (skin) near his house. Appellant Heera Sai was abusing his ‘wife. The deceased prevented him from abUsing. On this, appellant Heera Sai assaulted the deceased with a Danda and appellant Fkanjit had also come there and he also assaulted the deceased with a Danda. His mother Subhagiyabai (PW-4) shouted. Having heard her shout, Bhagwan (PW-1), Dharmjit (PW-2), §gkhlal (PW—6) and one Antu reached there. The appellants fled from there. 10. Subhagiyabai (PW 4) narrated the incident to Bhagwan (PW- 1) Sukhlal (PW 6) and Dharmjit (PW 2) immediately Bhagwan (PW-1) and Sukhlal (PW-6) corroborated the eVIdence of Subhagiyabai (PW—4). Since the FIR (Ex.P-1) was lodged promptly and it contains names of the accused persons/appellants as z a“ 1 -# gA @ agsailants, therefore, the evidence of Subhagiyabai (PW-4) appears to‘ be trustworthy. 11. Dr. S.K.Gupta (PW-10) deposed that on post mortem examination of dead body of the deceased he found fracture on Ieft frontal bone. He deposed that cause of death of the deceased was excessive haemorrhage due to fracture of skull and it was homicidal in nature. “’i i i ‘12. The evidence of Subhagiyabai (PW—4) is well corroborated by : u v medical evidence. There is no materiai on record to show that i i subhagiyabai (P.W—4) had any motive to implicateithe appellants falsely. s 13. i have perused the evidence of Subhagiyabai (PW-4) with utmost circumspection. Her evidence is cogent and trustWorthy and duly corroborated by the medical evidence. 14‘. For the foregoing reasons, i do not find any infirmity in the- finding recorded by the trial Court that it was none else but the appellants who inflicted injuries on the skull of the deceased with the Lathi and the deceased died on account of the injuries caused by them. 15. Consequently, the conviction and sentence awarded to the appellants are affirmed. The appeal deserves to be and is hereby Ev) diSmissed. Sd/- R.S. Sharma Judge