3^^Tf?;TW ^T^H^T ^yNr ./-.-<' 3^^TPTT^T, ^tw^, f^TOy TOW ^w""""^-^-".^0^.^...,^l 200^ an^nra^ (1i?f3^T) ^im^f^sn^r APPELLANTS: ^rafe^^wff ^ fe^T^R ^^rRp7^?r Gyan Singh, Son of Chainsai Kawar, Age 30 years. Jhakadi alias Muneshwar, Son of Chainsai Kawar, Age 29 years. Both are cultivator, resident of Village Rajpuri, P.S. Lakhanpur, District Sarguja -Vfersus- RESPONDENT: State of Chhattisgarh, Through P.S.Lakhanpur. (Criminal appeal uncfer Section 374 (2) ofthe Cr.P.C.) D.B.: - Hon'ble Shri LC. Bhailoo & Hon'bte Shri Sunil KuhiarSinha. JJ. 26-7-2007:- Shri J.S. Baraik, couns^l for the appellante. Shri D.K. Gwalre, Additional Public Prosecutor for the State/ respondent. Oral judgment dicteted L.C. Bhadoo. J. lon Dais. This appeal is directedjagainstthejudgment of conviction and order of sentence dated 31-1-2002Jpassed by the 1st Additional Sessions Judge, Ambikapur in S.T. No.319/^000 whereby learned Additionat Sessions Judge after holding ^iei|i^cu$?d/appellants guilty for commission of GRPRJ— 3'^ST ^l^l^^, y»Tn-M41<S, fsl^t^^i *IWdl <b^|cb WI, 200 3Tit?T'CRR? ( 4G<f^<^) ^n^rM^w^ '^ff3n^Tlsh^icb ^ffence under Section 302 read ^ommitting the murder of Kan Rai, indergo imprisonment for life & to ^ayment offine to further undergo R.l '5^TTW?Tf??T 3n^?T v^ith Section 34 of the I.P.C., for Isentenced each of the accused to p^y a fine of Rs.1,000/-, in default of for 6 months. hahd. The case of the prosecution, ?.30 p.m. Nirmal Kumar was at his ^ame to his house and informed Iherefore, he along with Kenda K^ igricultural field, he saw from 10<|] iccused persons as to why they are Ihakadi was holding lathi in his ^ccused Gyan Singh was attacking fhey rushed towards them, accused | "he matter was reported by Nirma| itation Lakhanpur. Station House irime under Section 302 read fntimation Ex.P/2was given by Nirmaf |For scene of occurrence and Ideceased Kan Rai. Halka Patwari linvestigating officer seized plain soil rf occurrence under Ex.P/6. IEx.P/7. One bamboo stick was se|; 1/Vhile in the police custody, px.P/8, in pureuance of that, spad^ |Ex.P/9. While in the police custod)f, wifli prepa|red Slee^ers accusbd '.; 'T^ CM^if<n<flTi iTPR^ff^ 'feT^t <F»i<^i< '^^tRpTan^T ih brief, is that on 24-8-2000 at about re|sidence, at that time,Kenda Kumhar |im that Kan Rai is being beaten, ^mhar went to Sita Jhorikha Khar meter and shouted towards the t^eating Kan Rai, at that time accused 1. He stopped attacking Kan Rai. <vith spade. After seeing them when \Qyan Singh and Jhakadi ran away. Kumar under Ex.P/1 in the Police (pfRcer, Police Station registered the Section 34 of the I.P.C. Merg Kumar. The investigating ofRcer left inquest Ex.P/4 on the body of Iprepared the site plan Ex.P/5. The »ndblood stained soil from the place of Kan Rai were seized under |zed from the place of occurrence. Gyan Singh gave memorandum was seized at his instance under laccused Jhakadi gave memorandum ^. GRPI 3^T-=?TRT^T, ^^WTS, f^RTy ^T^T^^H^ ^T^^ff^r ^qi^- GRPRJ-] ^Wv{l fhW^h' WT. 200 3iT^1r T^w (^fg^r) ^iTW^f^r 3ii^r Ex.P/10, in pureuance of that, Ex.P/11. Broken pieces of lathi Gh^f^4)i ^i^<viT ^ ft^ ^f^pT ^-sTRpT^n^r at his instance lathi was seized under were seized under Ex.P/12. The body of the deceased was sent for post-mortem examination under Ex.P/23-A to the Primafy Healtti Centre, Lak|ianpur where Dr. Vedram Singh (PW-10) conducted post-mortem and pijepared post-mortem report Ex.P/23. He opined that cause of death wa^ excessive haemorrhage due to rupture of lung. After comptetion ofthe ir^ the accused persons in the Co^ where learned 1st Additional fransfer. Ivestigation, charge sheet was filed against ^rt of Chief Judidal Magistrate, Ambikapur, who in turn committed the ca^e to the Sessions Judge Ambikapur from Sessions Judge received the case on The prosecution in or^er to establish the charge against the accused pereons e^mined 1p witnesses. Statements of the accused persons were recorded underj Section 313 Cr.P.C. in which they denied material appearing againstth^m m the prosecution evidence, stated that they are innocent and have be|&n falsely implicated in the crime. However, they examined DW-1 Bachan pam in theirdefence. Learned 1st Additiona|l Sessions Judge after hearing learned counsel for the respective pa^ties convicted and sentenced the accused persons as aforesaid. We have heard Shri J.^ D.K. Gwalre, Additional Pitbljcl i. Baraik, counsel for the appellante and Shri Prosecutor for the State/respondent. ~3:S^ •^l-qi^'q, y>Tti^^|<S, |c)(?l>|y^< Hl^<ylj sh^lch* W^ 200 ^?T^T^;IW "OT? ^^t ^Ni<=f> ^J ?n^?r ^TBR (i|c<f^<^) ^WS^R <H^n ^iT^T stat^d pa^rts Learned counsel for th< homiddal deatti of the deceasec namely, Sukwaro Bai has accused/appellants namely, Gys husband in the agricultural field. Gyan Singh was attacking with| sustejned injuries on various of the ear and head. The abo\ medical evidence of PW-10 D< 25-8-2000 he conducted the p<| There were 5 lacerated woun< shoulder and scapular region. deceased. On opening the bo<j the teft side were firactured. Bolj was full of blood. Injuries we( homicidal in nature. Report is medical evidence, it is estab| homicidal in nature. As far as invohirementl question is concerned, leamed] that in this case all the witnes^es deceased, have turned hostil^. being wife of the deceased. Inj She reached after the jncidfe»nt ."^*. GRPRJ chi^I<ri<ili ^i+i^f ^ ft^i'^R^K ^^T^T^T^F i^ accused/appellants has not disputed Moreover, PW-3, wife of the deceased ttiat on the fateful day she saw that |in Singh and Jhakadi were attacking her I Jhakadi was attacking with lathi whereas, jspade, as a result of which her husband of the body. Blood started oozing out (^e ocular evidence is corroborated by the Vedram Singh who has stated that on ^st-mortem on the body of the deceased. |s on the head, near ear, left eye, right Fhere were bruises on the back side of the |y, it was found that 3rd, 5th and 6th ribs of lungs were mptured. Cavity of the chest ante mortem in nature and death was Ex.P/23. In view of the above ocular and lished that death of the deceased was of the accused/appellants in crime in ;ounsel for the accused/appellants argued except PW-3 Sukwaro Bai, wife of the Sukwaro Bai is an interested witness fact, she had not witnessed the inddent. took plafce. Therefore, on the sole n-^;t- ^~c^ ^WW^, W^\W\<c, fsf<»l>iy^< ^??^T^T'f?;TW ^T^? 3?i^F iRW 1 Nl^dl *N(cb" ^[.200 ^W ^^ (^^<^) ^'Kli^T ^f^a^TT^T chl^f<n<i)i ^H<^T^ f^st Tfe^jT '^3ffOT^n^T testimony of interested witness ^ie accused/appellants have wrongly been held guilty. On the other hand, lear|ied counsel for the State supported the judgment of the trial Court. Having heard learned c|ounsel for the parties, we have perused evidence. It is true that in tiiis case eyewitness PW-1 Nirmal Kumar and R/V-2 Dhaluva have tumed h|ostile and they have not supported the prosecution case. As far as Si|kwaro Baj is concerned, admittedly, she is wife of the deceased and sh| 3 has claimed hereelf to be eywvitness. Being sole witness as also wif^ of the deceased her testimony has to be scrutinized with care and cir^umspectjon in order to ascertain as to whether her testimony is worpi reliance and inspire confidence of the Court. As far as law relating to|relative witness is concemed, in number of cases the Apex Court has he(d that testimony of relative witness cannot be rejected merely on the gr^ynd that he is an interested witness, but evidence of such witness jhas to be scrutinized with care and cjrcumspection. The Apex Court in the Chhattisgarh, through the matter of Rizan and another vs. State of Chief Secretary, Govt of Chhattisgarh, Raipur, reported in AIR 2003 JSC 976, jnpara 6, held that "the relationship is not a factor to affect credibjlity of a witn6ss.It is more often than not a relation would not conceal actual culprit and make allegations against an GRPRJ- ^"f.' ; ^^ ^?^^T^[W ^?^?^r ICTT^ ^! T^^PTT^T, w^tw^, l^roy Ni*(di y»Nl<!b' sn^n^g? (^SI^T) ^'^w^rfi'^v^^T ^ 200 ^raf^N ^wif ^r"^ T^?R ^'3T^T3^ innocent person. Foundation h^is to belaid if ptea of false implication js made. In such a case, the Cojurt has to adopt a careful approach and analyze evidence to find out wh^ther it is cogent and credible." Relying upon the dedsi< Paras NathSingh and others of the Kerala High Court also h others vs. State of Kerala I! and tmstworihy evidence corroboration for sustaining discarded on Ihe sole ground of the Apex Court in State of U.P. Vs. IR 1973 SC pg. 1073, the DMsion Bench sld in the matter of Sahadevan Rajan and |92 Cri.LJ. 2048 that "the straightfbrward relations of the deceased need not conviction. Such evidence cannot be interestedness in the prosecution case." In the case of Namde|:> Vs. State of Maharashtra, reported in 2007 AIR SCW 1835, the Ape^ Court held that "a witness who is a relative of deceased or victim of the cr|me cannot be characterized as 'interested'. The term 'interested' postulajtes that the witness has some direct or indirect 'interest' in having th^ accused somehow or ofter convicted due to animus or for some othe|r oblique motive." The Apex Court also observed that a close relativ^ cannot be characterized as an 'interested' witness. He is a 'natural' ^tness. His evidence, however, must be scrutinized carefully. If on ^uch scrutiny, his evidence is found to be intrinsically reliable, inherentl^ probable and wholly trustworthy, conviction can be based on the 'sole' t€|stimonyof sych w'rtness. Close relationship of witness with the deceasedjor victim is no ground to reject his evidence. On the contrary, close relatife of the deceased would normally be most reluctant to spare the r^al cjulprit and falsely implicate an innocent one. The Aoex^ourt alsofjefeFNd to; the decision rendered in the matter of GRPRJ s-c^^^mw^^^ft^^^^^j^ "^N^T ^h^sh' ""^L !200 ^T^r^^ ^^lp^r) ^i^r^T^t^r <^T^^?TI^TW ^ *l^f<rt^H -HIWf^fetzl <R,i^|< ^'3:ffm3i7^r Harbans Kaur and another vs. St^ite of Haryana 2005 AIR SCW 2074, in which, it was held that there is n^ be treated as untruthful witnessesj proposition in law that relativesare to On the contrary, reason has to be shown when a plea a partiality is r|aised to show Uiat the witnesses had reason to shield the actual culprit ajnd falsely jmplicate theaccused. The Apex Court further ruled that the t^stimony of the solitary witness can be basis for conviction. Neither the (egislature nor the judiciary mandates that there must be particular numl^er of witnesses to record an order of conviction against the accused. Cfiminal Justice system has always laid emphasis on value, veracity an<jl quality of evidence rather that on quantity, multiplidty or plurality ofjwtnesses. It is, tiierefore, open to a competent Court to fully and con^ptetely rely on a solitary witness and record conviction. Conversely, if may acquit the accused in spite of testimony of several witnesses if evidence. The bald contention thal of a solitary eye-witness, therefore| In the light ofthe aboveprirj scrutinize the evidence of PW-3 3 |it is not satisfied about the quality of no conviction can be recorded in case has no force and must be negatived. iciple laid down by the Apex Court, if we ukwaro Bai,she has stated that on the fateful day her husband after takirjg lunch took cow to the field for grazing. When he was in the field and c<^v was grazing, one Gudia and one girl came and informed that accusedj Gyan Singh and Jhakadi are attacking her husband, therefore, she rujshed towards the field and saw that accused Gyan Singh and Jhakadj were attacldng her husband with spade and lathi. After seeing her, Gya(i Singh said that if shewill come close, she will also be attacked. She;ra|jsed cries on vrfiich Nirmal, Kenda, Ram GRPRJ- XI-RC—78 ^TliRT ?FT f<-li<=h 'cf^T -3T[^T ^)^J<=h 3:^cT ^rqTo^, ^Tfl-y-KS, (sl^l'H^ ^ill^dl ^NIcb "W^ 200 3nt?T ^(^ (13^P^) '^TTW^rf^f ^IT^T accusled arld p41ice Rlai je^p thle Bai, Jagat, Keebar and and Kenda asked the accused persons ran away| husband sustained injuries husband was taken near survive, as Gyan Singh should be taken to the brought a cot, on that Kan brought in order to take husband was put in the je^p, stated that field was in thei agricultural field between accused persons have was in their possession whe^ the name of grandfather, has withstood examination, defence has discredit evidence ofthis crime. There is nothing in of the place of occurrence frt>m possible for her to reach assault being made by the argument advanced by without foundation. There \i to show that she had not Kumar and PW-2 Dhaluvai cross-examihation n<>t witftess thle ch!<LlF<n<i1l TTPTOf ^fe^l' ipsl^K '^'^rRpTOT^r Rarhbeechar came on the scene. When Nirmal pereons as to where they are running, the towards the north side. She saw that her t>n the ribs, back, leg, head and mouth. Her Ffeepal tree, he was saying that he will not Jhakadi have attacked him, therefore, he station. Thereafter, Jagat came, who was taken towards the road. One jeep was her |iusband to the police station. By the time her je^p, he died. In cross-examination, she has |r possession. There was dispute regarding accused persons and her husband. If the obta|ned any decree, she is not aware. The land whef-eas, the accused persons obtained decree in bu^ they had not given possession. This witness of the defence counsel. In cross- been able to elicit any drcumstance which regarding her presence or witnessing the h^r cross-examination to establish that distance her residence was so much that it was not place after receiving mformation regarding ^ccused persons on her husband. Therefore, lea|'ned counsel for the accused/appellante is nothing m cross-examination of this vwtness : wHhessed the crime. It is true that PW-1 Nirmal have turned hostile, but testimony of this '^ <$-^ •^1<410<4, ^Tfi'y-'KS, ?sf<?!>iy^< si^r^^n?? 'd^T^?I^T ^qw W^vi[ <b*4|ch' Wl. 200 ?^?r 1ti^^ (45<l^<^y) ^mw^rfNa^r RA/-1 Nirmal Kumar, in tha' chi^f<n4-i ^H^T ^ ft^" <f^^i< '^3tRi?T3^T witness—is consistent. Moreo^er, first information report was lodged by first Jnformation report, it has been categorically mentioned that (he accused persons had attacked the deceased. The distance betwejen the plac^ of occurrence and the police station is 5 km, incident took ()lace at 2.30 p.m. and on the same day within a period of2 hours 15 mijnutes first information report was lodged in the police station Lakhanpur. |ln the said report, names of the accused persons, weapons witti which|tfiey attacked the deceased, have been specifically mentioned, theref^re, first information report supports the version of PW-3 Sukwaro Bai. that as far as finding of the tria| persons in ttie crime in questior^ herefore, we are ofthe considered opinion Court regarding complicity of the accused js concemed, it is fully established. Leamed counsel for t|ie accused/appellante argued that it is admitted position that there v^ agricultural field. The accuse) as djspute between the parties regarding d persons obtained decree in their favour regarding agricultural field on w|hich thedeceased had possession. As per the evidence ofjDW-1 Bachan Ram, process server of the District Court, Ambikapur, he h the decree regarding posses^ as categorically stated that in pursuance of ion of the land in CMI Suit No.33-A/77 he went on the spot, the possess|on was handed over, at that time, Kan Rai 'was not present on the site. fherefore, there was dispute regarding land between the parties. The dec^ased was not handing over the possession to the accused party. On the Ijateful day, the accused persons went to the disputed field where the dece4sed was grazing cow. There they attacked him. Iniyries inflicted fcyjtll e accused persons. as per the medical ^•^.,.,li GRPRJ Brf TS^ «^1-^10^, ^Tfi-M^KS, (s|<7'>)^^< ^ 10 Nl^dl sb*<l<*' -^ 200 3^3?T XRR? (l^clf^^) ^n^r^RT R^ 'TOT WSRT )s»i+iicti ^ ^WI^R <lf^a ^Rff^T ^vidence.Were on head, face and on| njuries were found to be simple ex^ CM^t<n<fli TyTIT?ff "^ 'fe1(^t <Fyi^i< ^)'3TRm'3^?T various parts of the body. All those »ptchest injury, beneath that injury, ibs were found fractured. Unfortuna|tety, facture of ribs proved fatal and ^\ey eritered Jungs. Lungs were pur^ctured. The deceased survived for ^ome time. From the place of occurr^nce he was taken near Peepal tree, |rom there he was taken on cot near flie road and from road he was put in |he jeep. In the jeep, he succumbed t4 the injuries. Therefore, it cannot be [uled out that when the deceasedwa|s lifted and was taken near Ihe free, ^rom there to road, from there to jee p, broken ribs might have damaged ings that proved fatal. In view of t(ie above facts, in the first instance, lere was dispute between the parti^s regarding land, the accused party |ittacked the deceased, head injuries| were not grievous, chest injury and ir injuries were also not grievo<|is, only ribs were fractured, which lierced into lungs that proved fatal, t^ ?refore, looking to the nafaire of | Iispute, it cannot be inferred from| sersons had attacked the deceased mowledge that the manner in whicl ic deceased died on account of that, njuries and the background of the the above facts that the accused with Intention to cause his deatti. -lowever, the manner in which t(ie accused persons attacked the teceased, it can safely be inferr^d that the accused pereons had \i they attack©dthe deeeased, they Tiay likely to cause his death, ther|efore, offence against the accused sersons under Section 304 Part-11 <tf ttie IPC was made out. We are brtified in our view by the decision|of the Apex Court in the matter of Karam Singh vs. State of Punjabl[eport^l in 1994 SCC (Cri) 64. The acts of that case were that accu^ed attacked Nahar Singh. In the |)rocess, he sustained laceratect;^ ^,^-^ f2A6— und,on the head. There was no ^,""f. V.,,, •:. f246—2/2007—50,000. XI.HC—78 ^i^T^Tf^W ^s?T '3TI^T 5h^i<^ ^' ^N^ 3^^ ^l^ll^, ^Tfi^ji<s, Ri<^wy 11 NS^dl <bNl<sh '"^ 200 Barve 3?T^?r ^w (^fl^<^) '^?T^R ^riN 3?r^r corresponding internal inju)' contusions on the chest anc( the ribs which caused his fracture of ribs could have in| Court held that under thesel appellant intended to caus^ unfortunately proved to offence punishable under accused was made out. Tht thatcase. Therefore, death befatel shall be entitled for set off sentence imposed upon themj. chl^fd4)r1 "HTR^Tf '^_ftlst <Fsi<^« ^T'3?RFr'sn^r y, as in the present case. There were injury Nos. 5 to 7 resulted in the fracture of The doctor in that case admitted that fairn caused rupture of liver and spleen. The circumstances, it is difRcult to hold that the injuries to the liver and the spleen which I. The Court held that in the circumstances, >ection 304 Part II of the IPC against the facts of the present case is also similar to convic^ion and sentence imposed upon the awused persons under Section 302/3ft ofthe I.P.C. cannot be sustained. In the result, the appejal partly succeeds. Conviction and sentence imposed upon the accuse<(/appellants under Section 302 read with Section 34 ofthe I.P.C. are s^t aside, instead thereof, each ofthe accused is convicted under Section 3Q4 Part-11 read with Section 34 ofthe \PC and sentenced to undergo R.l. fc|r 7 years. As per the record, the accused persons are in detention sincje 26-8-2000 till date. The accused persons of the above detention period against the Sd/- L.C, Bhadoo Judge Sd/- SunilKumarSinha Judge