HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil KumarSinha and Hon'ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.977 of 1995 Bajrang alias Beersingh versus -^. State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- R.S. Sharma Judge Hon'ble Shri Sunil Kumar Sinha. J.: o-yr^- Sd/- Sunil Kumar Sinha Judge Postfor/3 -09-2011 Sd/- R.S. Sharma Judge ^, -s^ '~ ,^^. ^ ^ ^ I A^-^i^ 1 1 j ^y -'•^^;^ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.:Hon'ble Shri Justice Sunil KumarSinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.977 of 1995 Appellant versus Respondent Bajrang alias Beersingh, son of Raisingh, aged 42 years, resident of Village Kortha, P.S. Korbi, District Bilaspur (Madhya Pradesh) (now Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Present: Shri Abhay Tiwari, counsel for the appellant. Shri Ashish Shukla, Government Advocate for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on i^ September, 2011) Per Radhe Shvam Sharma, J.: This appeal is directed against the judgment dated 30-6-1995 passed by 4 Additional Session Judge, Bilaspur in Session Trial No.464/1992. By the impugned judgment, appellant Bajrang alias Beersingh has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: Deceased Mansingh son of Yadunathsingh and appellant Bajrang alias Beersingh son of Raisingh were residing in Village Kortha. The deceased was issueless. The appellant is nephew of the deceased. Amarsingh (PW-1) and Dharamsingh (PW-2) are brothers of the appellant. Musammat Indrakunwar (PW-3) is wife of ..^^-.... '• ;""y"'^ Amarsingh (PW-1) and Musammat Lachhmaniyabai (PW-4) is widow of the deceased. Deceased Mansingh and Raisingh were brothers. Raisingh had four sons. The deceased, being issueless, had maintained appellant Bajrang alias Beersingh. A partition ofthe land had already taken place between deceased Mansingh and Raisingh. The appellant used to ask the deceased to give his share in the land. On this account, the appellant often used to commit Marpeet with the deceased. On the fateful day, i.e., 6-10-1992, at about10- 11 P.M., the appellant and his wife Jagsiyabai came to the house of the deceased and asked the wife of the deceased to go with them for a drink of liquor. The appellant and his wife stayed at the house of the deceased in the night. At about 4 A.M., the appellant and his wife took the deceased to the house deliberately. In the morning, when Lachhmaniyabai (PW-4), widow of the deceased, had taken the bulls out for grazing and Jagsiyabai, wife of the appellant, had also gone out ofthe house, the appellant started quarreling with the deceased and they came out of the house. At that time, having seen the quarrel, Jagsiyabai went to call her brother-in-law (Devar- husband's brother). In the meantime, the appellant assaulted the deceased with Gecfe (a piece of wood). Due to the Gecfe blow, the deceased fell down in front ofthe house ofAmarsingh (PW-1) and he died. Village Kotwar Baluram (PW-8) lodged First Information Report (Ex.P-13). Merg Intimation (Ex.P-13B) was also recorded. The investigating officer reached the place of occurrence, gave notice (Ex.P-4 and P-5) to Panchas and prepared inquest (Ex.P-6) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Primary Health Centre, Podi Uproda. .^-1- €) Post mortem examination was conducted by Dr. M.M. Deodhar (PW- 9), who gave his report Ex.P-15A. Plain earth,blood stained earth were seized vide Ex.P-9 and a geda (rpiece ofwood) was also seized vide Ex.P-10. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Katghora, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the 4 Additional Session Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Abhay Tiwari, learned counsel for the appellant argued that in the instant case, there was no independent eye-witness. Musammat Lachhmaniyabai (PW-4) is the wife of the deceased. She has not witnessed the incident. Her evidence is not reliable. Musammat Indrakunwar (PW-3) has also not witnessed the incident. Therefore, the evidence of Indrakunwar (PW-3) and Lachhmaniyabai (PW-4) cannot be based for conviction. The independent witnesses have not supported the prosecution case, therefore, the appellant deserves to be acquitted. 4. On the contrary, Shri Ashish Shukla, learned Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge, does not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of the session case. The conviction of the accused appellant under Section 302 of IPC is based on the testimony of the Indrakunwar (PW-3) and Lachhmaniyabai (PW-4). 6. It is not disputed that Lachhmaniyabai (PW-4) is widow of the deceased and Indrakunwar (PW-3) is daughter-in-law of the deceased. Both these witnesses are near relatives of the deceased. But, Indrakunwar (PW-3) is also the sister-in-law (younger brother's wife) of the appellant. So far as the relationship is concerned, it is not a factor to effect the credibility of the witness and even the relative witnesses would not conceal the actual culprit and make allegation against the innocent person. Foundation is to be laid if plea of false implication is made. There is no hard and fast rule that family members can never be true witnesses to the occurrence and they will always depose falsely before the Court. It will always depend upon the facts and circumstances of the case. Such evidence cannot be ignored or thrown out only because it comes from a person closely related to the victim. Therefore, we have to adopt a careful approach and analyze the evidence to find out whether the evidence of Indrakunwar (PW-3) and Lachhmaniyabai (PW-4) are cogent and credible. 7. Indrakunwar (PW-3) deposed that on that day her uncle father-in-law Mansingh (the deceased), brother-in-law (jeth), accused/appellant Bajrang and sister-in-law Qethani) Musammat jageshisa Bai came to her house and asked for liquor. On saying u 'v^&% %.. Ife^ •^^^^^ ^l ^ that liquor is not available, they started quarreling. A quarrel took place between accused Bajrang and deceased Mansingh. Thereafter she had gone to call her husband, who had taken buffalo for grazing. She and her husband came to their house. She saw that deceased Mansingh was lying dead in front of her house. Accused Bajrang was not present there. 8. Musammat Lachhmaniyabai (PW-4) deposed that one day, at about 12 midnight, accused Bajrang and his wife came to her house and took her for drinking liquor. From there, all of them had gone to the house ofAmarsingh (PW-1). Next morning, when she heard that her husband Mansingh (the deceased) had died, she had gone to see him at the place of occurrence. She saw that dead body of her husband was lying in front of the house of Amarsingh (PW-1). Injuries were present on the head and waist of the deceased. Blood was oozing out. She came to know about murder of the deceased with a Lathi. She also came to know that murder of the deceased was committed by accused Bajrang. There was a dispute of agricultural field-Sacf/' between her husband Mansingh and accused Bajrang. 9. Amarsingh (PW-1) deposed that in the morning when he came back to his house after grazing of buffalo, his wife Musammat Indrakunwar (PW-3) told him that the deceased and the appellant are quarreling and she asked him to pacify them. He had gone to the place of occurrence, but the deceased had died near his house. Injuries were present on the head, hand and leg of the deceased and blood was oozing out. He thereafter told the incident to his ^. 6 brother and other residents of the Basti. He had also told that the deceased had died. He had gone to Chowki Korbi to report the incident along with Kotwar. He had reported the incident in the Chowki. 10. Indrakunwar (PW-3) specifically deposed that the deceased and the appellant were quarreling with each other. Having seen the quarrel, she had gone to call her husband and when she came back to her house, she saw that the deceased was lying dead in front of her house. The evidence of Indrakunwar (PW-3) is unchallenged in cross-examination. Lachhmaniyabai (PW-4) stated that at about12 Midnight, the appellant took her husband (the deceased) for drinking liquor and in the early morning her husband was found dead. There is no reason why would they falsely implicate the accused/appellant. The time gap between the point of time when the accused/appellant and the deceased were last seen together alive and the deceased was found dead is so small. The appellant did not give any explanation in this regard. In these circumstances, it is established that the accused/appellant is the author of the crime. 11. Dr. M.M. Deodhar (PW-9), who conducted autopsy found lacerated wound 1" x 1/2" x bone deep over the right side of the scalp and fracture on the right temporal and parietal bone. Death of the deceased was due to shock resulting from head injuries. The evidence of Indrakunwar (PW-3) and Lachhmaniyabai (PW-4) are corroborated by the medical and circumstantial evidence. 12. We find that the death of the deceased was due to shock as a result of head injuries and the death was homicidal in nature. Therefore, we donot find any infirmity in the finding recorded by the learned Additional Sessions Judge that it was the appellant who caused the injury on the body of the deceased with latti and the deceased died on account of the injuries caused by the appellant. 13. The deceased being issueless had maintained appellant Bajrang and the appellant used to ask the deceased to give his share of land. On this account, the appellant assaulted the deceased and gave latti blow on his head. The injuries, which deceased Mansing suffered clearly shows that latti was used by the appellant with a considerable force and the injuries were caused on the vital parts of the body. The manner in which the appellant assaulted the deceased, severity of the blow he dealt against the deceased and the part of the body which he selected for giving such blowwould show that he had an intention to commit murder of the deceased. Therefore, we are of the considered opinion that in the above facts and circumstances, the act of the appellant would not be falling under any exception to Section 300 of the IPC and the present cannot be said to be culpable homicide not amounting to murder. 14. For the foregoing reasons, we do not find any substance in the appeal, which deserves to be and is accordingly dismissed. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge Bini