HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Corarn: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. Chandrakar, JJ'. Criminal Appeal No. 559 of 2004 7 Dhan Singh .S/o Dasru Muriya, aged about 35 years, labourer R/o \filiage Hiramandla P.S. Kondagaon, District Bastar (C.G.) , u f Versus Respondenf ‘ State of Chhattisgarh (CR‘IMWAL APPEAL UNDER SECTION 374 (2)0F THE CODE OF . « CRIMINAL PROCEDURE, 1973) Appellant/ (in Custody) Present:— , Mr. N.K. Chatterjee, counsel for the appellant. Mr. J.A. Lohani, Panel Lawyer for the State. * ORAL JUDGMENT (Passed on 18“ July, 201 1) Per T.P.Sharma, J.:- ' 1. Challenge in‘ this appeal is to the judgment of conviction & order of sentence dated 28.04.2004 passed by the Sessions Judge, Bastar at Jagdalpur. in Sessions Trial No.§25/2003, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of offence of homicidal death amounting to murder of Balkuv Ram (since deceased) convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as a aforementioned and thereby committed illegality. 7 As per case of prosecution, on fateful day of 17.01.2003 at 8.00 a.m. unfortunate deceased Balku Ram was cutting wood in his field where \ ’ Gurudeo‘ (PW/3) and Kumar (PW/4) sons of the deceased were also i, present. Present appellant was holding bow and shot arrow upon i i i t i \ V. t . deceased Balku Ram, caused injuries over his chest, forehead and near the eye of Balku Ram. Thereafter, appellant fled from the spot where he was standing and shot 'arrow by bow. Deceased Balku fell down and died. Thereafter, Gurudeo (PW/3) went to Ghasia Ram (PW/2) and informed the samer‘rThey went to the police station and IOdged F.I.R. vide EXP/3. Merg intimation was given vide Ex.P/4. investigating officer left for scene of occurrence, after summoning the witnesses vide Ex.P/9, inquest over dead body of deceased was prepared vide EXP/8. Spot map was prepared vide Ex P/l3 Blood stained and plain soil were - seized Vlde Ex P/10 Arrows removed from the body of deceased Balku Ram and bloods stained clothes were seized vrde Ex P/11 Dead body was sent for autopsy to R.N.T. Hospital, Kondagaon vrde Ex.P/1A. Dr. R.K. §ingh (PW/1) conducted autops vide Ex.P/1 and found following InjlJI'IESI- i) One arrow inserted on left side of skull just distance of 2 cm. from left eye ii) One arrow inserted over left srde of chest iii) injuries as result of arrow found over chest of 9 cm in depth and 3 ‘/2 cm Width Parts of the heart were ruptured. Injuries were dangerous in nature. Both arrows were taken out. iv) Death was homicidal in nature. '. During course of investigation, appellant/accused was taken into custody. He made disclosure statement of bow vide EXP/5 and the same along with remaining arrows were recovered at the instance of the appellant vide Ex.P/6. Seized articles were sent for chemical examination vide Ex.P/1 4. .,‘ . Statements of the witnesses were recorded under Section 161 of the . Code of Criminal Procedure (for short the ‘Code‘). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate 15‘ Class, Kondagon, who in turn committed the case to the Court of Sessions, Bastar at Jagdaipur for trial. . in order to prove the guilt of the accused/appellant, prosecution has examined as many as eight witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where y @3 he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in questions . After providing opportunity of hearing to the parties, learned Sessions Judge, convicted & sentenced the appellant as aforementioned. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. . Learned counsel for the appellant vehemently argued that conviction is substantially based on evidence of Gurudeo (PW/3) and Kumar (PW/4), relative witnesses, who have not seen the incident and not seen the fact that appellant was shot arrows but they have seen that the appellant was moving from one place. He was holding bow and arrows, which is normal a in the forest area by trible society residing in forest area. He also submits that evidence of aforesaid witnesses are not sufficient for drawing inference that present appellant has cause aforesaid injuries, resulted into instantaneous death of deceased. 10. On the other hand, learned panel lawyer for the State opposed the petition and submits that conviction is substantially based on evidence of Gurudeo (PW/3) and Kumar (PW/4) who were present on the spot. They have seen the incident. They are close relative of the deceased. Their evidence cannot be discarded on the ground that they are close relatives of the deceased. Evidence adduced on behalf of prosecution is sumcient for drawing inference that appellant has caused homicidal death r amounting to murder of deceased Balku Ram. 11.ln order to appreciate the argumentsa‘dvanced on behalf of the parties, we have examined the evidence available on record. 12.ln the present case, homicidal death as a result of fatal injuries found over the vital part of body of the deceased Balku Ram has not been substantially disputed onbehalf of the appellant, even othewvise same is also established by the evidence of Dr. R.K. Singh (PW-1) and autopsy report Ex.P/t that death of deceased Balku Ram was homicidal in nature. 13.As regards complicity of the appellant in crime in question is concerned, conviction of the present appellant is substantially based on evidence of . ‘ Gurudeo (PW/3) and Kumar (PWI4), sons of the deceased Balku Ram. As per their evidence they were present on the spot and they have seen the incident. When deceased was cutting wood, appeiiant caused first injury by arrow shot to him. Thereafter, they shouted and saw that the appellant caused second injury by arrow shot over the chest of deceased . Balku Ram, thereafter, appellant fled from the spot where he was standing. Evidence of Gurudeo (PW/3) and Kumar (PW/4) are well corroborated from the F.l.R. report Ex.P/3 lodged by Ghasiya Ram (PW/2) which inspire confidence and trustworthy and is sufficient for draxvifng inference that present appellant has caused homicidal death of deceasedBalku Ram. Defence has cross-examined these witnesses at length but has not been able to elicit anything in their cross-examination to discard their testimony. Gurudeo (PW/3) is the child witness aged about 12 years. ‘The Court after satisfying itself that whether the child” witness is able to answer the questions put to him, has examined him. Gurudeo (PW/3) and Kumar (PW/4) are relative witnesses i.e. sons of the deceased but their evidence cannot. be discarded only on the ground of relationship, inter alia. The relative are the last person reluctant to spare the real culprit and to implicate an innocent person falsely. While dealing with the question of reliability of relative witnesses the Supreme Court in the matter of Dalip Singh and other Vs. The State of Punjab has held that a witness is normally to be considered independent unless he or she springs from sources which‘are likely to be tainted. Para26 of ‘ the said judgment reads as under:- “26. A witness is normally to be considered independent unless 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. 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 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 .§‘ “a .’.’../ “w (”It‘s “J made to combat what is so often put forward 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.” 14.- As regard the question of intenslon is concerned, present appellant has V caused two fatal injuries by arrow shot over head and chest resulting into rupture of heart which is sufficient for drawing inference that present appellant has caused death of deceased with intent to cause his death. ‘ 15. After appreciating the evidence available on record, the learned ‘ 1 a Additional Sessions Judge has convicted and sentenced the appellant as aforén‘ientioned. t 1 ‘ ‘ - i 16. On close scrutiny of the evidence adduced behalf of on of the prosecution, we do not find any illegality or infirmity in convicting'and sentencing the appellant. 17. Consequently, the appeal being devoid of merits is liable to be I dismissed and is hereby dismissed. >\\‘ T.P. Sharma R'N'Chandmkar . Way ' k Judge r r. Judge 7'