’ HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.862 of 1990 APPELLANTS: 1. Shriram s/o Samol Bayar aged 30 (In Jail) years, 2. Bisesar s/o Samol Bayar aged 23 years, Jethuram s/o Ghurauram Bayar aged 26 years, 4. Ghurauram s/o Roopsai Bayar aged 48 years, 5. Badriprasad s/o Ghurauram Byar aged 20 years, All Resident of Village Bhumiya Police chauki Hardibazar P.S. Korba Distt. i u ‘ Bilaspur (MP) (now CG) Versus The State of Madhya Pradesh (now Chhattisgarh) {Criminai appeal under Section’374 (2) of the Code of Criminal Procedure, 1973} Presen‘t: h1/lr. Abhay Tiwari, counsel for the appellants. Mr. U.K. Singh Chandel, Panel Lawyer for the State/respondent. i RESPONDENT: a Division Bench: - Hon’ble Mr. T.P. Sharma & ”lion’ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (14-12-2009) T.P. Sharma, J: - v“ 1, Challenge in this appeal is to the judgment of conviction & order of sentence dated 20-8-1990 passed by the 4‘“ Additional Sessions Judge, Bilaspur in Sessions Trial No.298/1987 whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of offence u'rTder Sections 302 & 147 of the l.P.C., sentenced the appellants including appellant No.4 Ghurauram (since deceased) to undergo imprisonment for life & R.l. for one year, respectively. The Additional Sessions Judge also convicted appellant t:a No.1 Shriram under Section 323 of the l.P.C. and sentenced him to undergo S.l. for one year. . Judgment is challenged on the ground that without any proof of intention for commission of the murder, the Court below has convicted & sentenced the appellants as aforementioned and thereby committed illegality. 3. ,During the course of appeal, appellant No.4 Ghurauram died. 4. Case of the prosecution, in brief, is that on the fateful day of 14-7-87 at ; about 7 p.m. the appellants assaulted Chiburam (since deceased), their relative, with sticks as a result of which Chiburam fell down and died instantaneously. ‘The matter was reported on second day at Outpost Hardibazar of Police Station Korba vide Ex.P—19. The investigating officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-3, prepared inquest over the dead body of Chiburam vide Ex.P-4. The dead body was sent for autopsy vide Ex.P- 20 to Primary Health Centre, Korba and the autopsy was conducted by Dr. G.L. Wadhwani (PW-6) vide Ex.P-20A who found following injuries. - A. Abrasion 4 cms. x 3 cms. over left scapular region. Contusion over right side of back, multiple of different sizes. Contusion 10 cms. x 8 cms. over right side of ldwer abdomen. v5 Contusion over right frontal region 4 cms. x 2 cms. Contusion 8 cms. x 4 cms. over right parietal & temporal region of head. On internal examination, extradural haematoma 4 cms. x 4 cms. was found over right parietal, region, membrane congested on right side and rightkidney was completely lacerated & swollen. Presence of huge amount of blood in the abdomen was also found. OlTIUw 5. Spot map was prepared by the Patwari vide Ex.P-2. Bloodstained & plain soil were recovered from the spot vide Ex.P-5. Bloodstained cloth of the deceased was recovered from wife of the deceased vide EXP-6. Accused Bisesar was taken into custody, he made discloser statement of O stick vide Ex.P-8 and the same was recovered at his instance vide Ex.P- 9. Accused Ghurauram also made discloser statement of stick vide Ex.P-1O and the same was recovered at his instance vide Ex.P-11. AcCused Badriprasad made discloser statement of stick vide Ex.P—12 and the same was recovered at his instance vide Ex.P—13. Accused a Shriram made discloser statement of stick vide Ex.P-14 and the same was recovered at his instance vide Ex.P-15. AccusedJethuram made discioser stateme‘nt of stick vide Ex.P-16 and the same was recovered at his instance vide EXP-17. Blood stained cloth was recovered from accused Bisesar vide EXP-18. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. Seized articles were examined by the doctor. Kamia Prasad (PW—3), injured, also sustained injury and he was examined by Dr. Kamal Kishore Airy (PW-1) vide Ex.‘P-1 who found abrasion on the person of Kamla Prasad. ’i 6. After completion of investigation, charge sheet was tiled before the Court of Chief Judicial. Magistrate, Bilaspur, who in turn, committed the case to v‘ the Court of Sessions, Bilaspur, from where the 4‘“ Additional Sessions Judge, Bilaspur received the case on transfer for trial. $1 7; ln order to prove the guilt of the accused/appellants, the prosecution has examined as many as ten witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. They have also examined Kiran Kumar (DW—1), Thanuram (DW—2) & Brijlal Pandey (DW-3) in their defence. Thanuram (DW—2) has deposed that up after hearing the sound of quarrel he came out from his house, but he has not seen anything. Other two defence witnesses have proved the Rojnamcha and non-availability of dak book. 8. ¥Afte‘r affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellants in the aforesaid manner. 9::Welhave heard learned counsel for the parties, perused the judgment and record of the trial Court. \t 10. Learned counsel for the appellants vehemently argued that in the light of t the’evidence of eyewitnesses Kamla Prasad (PW—3), Shyambai (PW-5) and Aghnu (PW-7) — Kotwar to whom the eyewitnesses (PW-3 & PW-5) immediately informed about the incident and who went to the spot, saw the dead body of the deceased and accused/appellants Shriram & Ghurauram (since deceased) who made extra judicial confession before him that they have killed Chiburam, medical evidence of Dr. G.L. Wadhwani (PW-6), he is not disputing that the appellants have not caused injury to the deceased and the deceased has not died as a result of such injuries. But learned counsel vehemently argued that no external injury or fracture was found over the body of deceased Chiburam sufncient for causing instantaneous death. Cause of the death was lacerated wound over kidney and oozing of blood from kidney which may " be as a result of shock, shows that the appellants who were relatives of the deceased have not caused the homicidal death of the defeased / amounting to murder and-\have caused simple injury to thejdeceased. Therefore, the appellants are not liable for conviction under Section 302 r.) read with Section 149 of the l.P.C. ‘q Ag)“ @ 11.0n the other hand, learned State counsel opposed the appeal and submitted that the appellants have caused several repeated injuries over the body of Chiburam and as a result of such injuries Chiburam died instantaneously. This shows the grave intention of the appellants for committing the murder of Chiburam. 12.ln order to appreciate the arguments of the parties, we have examined the evidence adduced on behalf of the prosecution. 13.Homicidal death of Chiburam is not substantially disputed on behalf of u s the appellants, othen/vise established by the evidence of Dr. G.L. Wadhwani (PW—Q)’& autopsy report Ex.P—20A. Dr. G.L. Wadhwani (PW- 6) has deposed in‘ his evidence that one abrasion & four contusions were found over the body of the deceased and on internal examination, haematoma was found over brain, right kidney was completely lacerated and huge amount of blood was found in abdomen. injuries found over the body of the deceased were sufficient for causing death of the deceased and the death was homicidal in nature. 14.As regards complicity of the appellants in the crime in question, case of the prosecution rests on the evidence of eyewitnesses Kamla Prasad 6 (PW-3) & Shyambai (PW-5) and the extra judicialvconfession made by appellants Shriram & Ghurauram (since deceased) before Aghnu (PW-7) — Kotwar. Kamla Prasad (PW-3) — injured witness has specincally deposed that at the time of incident all the appellants were holding sticks and assaulted Chiburam.with sticks, when he tried to intervene, the appellants assaulted him with sticks on which he fled away from the spot . and informed to the Kotwar. Shyambai (PW-5), wife of Chiburam, has categorically deposed that on the fateful day she was cooking food in her house, her son Shankar & daughter Gauri came to her, they were shouting and told her that their uncles were beating their father on which she immediateiy went to the spot where the appellants were assauiting Chiburam, when she tried to intervene, appellant Bisesar pushed her and she fell down. Her husband fell down and she reported the matter to the i Police Station. 15.Defence has cross-examined Kamla Prasad (PW-3) & Shyambai (PW—5) in detail and in their detailed cross-examination, defence has not been able to elicit anything to discredit their testimony. They have categorically deposed that,the appellants are the persons .who have u . assaulted Chiburam with sticks. Aghnu (PW-7) — Kotwar has also deposed that he was informed by Kamla Prasad (PW-3), his wife & his father that the appellants had assaulted Chiburam, when he went to the spot, dead body of Chiburam was found lying stained with blood, appellants Shriram & Ghurauram (since deceased) were present there and they made extra judicial confession before him that they have killed Chiburam. ln his detailed cross—examination, Aghnu 7(PW-7) has specifically deposed that appellants Shriram & Ghurauram have made extra judicial confession before him that they have killed Chiburam. 16.Accused party and the deceased were close relatives. Shyambai (PW—5) is wife of the deCeased, as such, she is close relative of the deceased. .. Kamla Prasad (PW-3) is niece of the deceased, as such, he is also close relative of the deceased. Their evidence cannot be discarded only on .the ground that they are close relatives of the deceased. 17.9rdinarily, a close relative weuld be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the question of evidentiary value of the relative witnesses, the Apex Court in the matter 7 @w of Dalip Singh and others v. The State of Punjab1 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:- “26. A witness is normally to be considéred independent iunless he or she springs from sources which are likely to be tainted 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 culprit and falsely implicate an innocent person. lt is ‘ u - 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 criticism‘and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put fonlvard in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” u ...... it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the viCtim: which is othenlvise credit—worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness l l l l 1 AIR 1953 sc 364 2 2008 AIR scw 3739 l l l l 18.While dealing with the same question, the Apex Courgt in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar2 has held thus, 19.ln the matter of Mohabbatjnd Ors. v. State of M.P.3 the Apex Court has held that relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads thus, .1 3 2009 AIR SCW 1486 of the evidence of relatives of the victim is concerned. it is well settled though the Coud has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, helshe cannot be characterized as an “interested” witness. it is trite that the term “interested” postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive." “7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness. the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to dfscard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. lt is more often than not that a relation wouldknpt conceal actual culprit and make allegations against an innocent person. Foundation has torrbe laid if plea of false implication is made. in such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible." 20.In the present cae, Kala Prasad (PW-3) is the injured witness and his s m inju has been proved by Dr. Kamal Kishore Airy (PW-1) ide Ex.P-1. ry v His prsence on the spot cannot be disputed. Evidence of Kamla e Praad (PW-3) & Shyambai (PW-5) supported by the evidence of Aghnu s (P-7) are sufficient for drawing infrence that the appellants had W e assulted the deceased and as a result of the injurie sustained by the a s decased, the deceased died on the spot. .As gards the question of motive, motive only as in criminality, in case of drect evidee it loss its importance. Motiv can be inferred on the bs‘of the weapon use pt of the body effected, natur of injury and other silar circumstanes. k 22.Ad‘mittedly, five persns have assaulted the deceased. Number of external injuries were not so high, ses of injuries and their nature are iz simpl and of nomal size. Medical eidence reveals that cause of death e r v of te deceased was as a result of rupture of kidney and excessive h eed kiy bling from dne, it may be due to shock as a result of injury over the persons of the deceased. But the appellants have not caused any bone injur or substantia grievous injury. Two accused/appellants out of the» * y l five were present on th spot even after e incident, they we weeping , e th er and have admitted. their guilt. The prosecution has not adduced any evidence to show that why the appellants have caused such injuries on the person of the deceased, but it appears that there must be some family dispute and the incident took place as a result of family dispute. 2‘1 re id i nc e e ais d, ar e im c a 23.0n close scrutiny 'of the».evidence, especially absence of superhcial J grievous injury or serious injury and causing of injuries with sticks by tive persons, it appears that at the time of causing injuries, the appellants l were having knowledge that they are causing injury with intent to cause \ e o l l @3 10 death or such fatal injury, but not having definite knowledge that as a result of such injuries, death of the deceased would be sure. In the present case, in our considered view, act of the appellants does not travel beyond the scope of Section 304 Part-I of the l.P.C. ‘24.Evidence adduced on, behalf of the prosecution is also sufficient for drawing inference that the appellants have constituted unlawful assembly and? appellant Shriram has also caused simple injury to Kamla Prasad (PW-3). 25.Learned Additional Sessions Judge has convicted the appellants under , u ‘ Sections 302 & 147 of the l.P.C. and also convicted appellant Shriram under Section 323 of the l.P.C., but has not considered the most material aspect that no external fatal injury or bone injury was found over the body of the deceased and number of injuries are not so high, thereby the Additional Sessions Judge has committed illegality. o 26.0n close scrutiny of the evidence, we are of the view that the appellants have committed the offence under Sections 304 Part-l read with Section 149 & 147 of the l.P.C. and appellant Shriram has also committed the offence. under Section 323 of the l.P.C. \ ‘7‘ 27. Consequently, the appeal is partly allowed. A. Appellants Shriram, Bisesar, Jethuram & Badripr'asad are convicted under Section 304 Part-l read with Section 149 of the l.P.C. and also under Section 147 of the l.P.C. instead of Section 302 of the l.P.C. The appellants were in custody since 16-7-1987 till 13-12-2000, j thereby they were in custody for about more than tWelve years. The custodial periOd of the appellants is sufficient sentence under Section 304 Part-l read with Section 149 of the l.P.C. and therefore, they are 6 ; @s, sentenced to the custodial period already undergone by them i.e. about more than twelve years. 'B. Conviction & sentence of the appellants under Seetion 147 of the li.P.C. are affirmed. C. Conviction & sentence of appellant Shriram under Section€323 of the 11 u l:.P.C. are also affirmed. K /\ Sd/- ’ ‘3 ‘l Sd/_ . T.’ P. Sharma if l R_L' Jhanwarr r (r 3 Judge Judge Soma