HIGH COURT OF CHHATTISGARH, BILASPUR Hon‘ble Shri Sunil Kumar Sinha & ' Hon’ble Shri T.P. Sharma, J,J. CORAM: Criminal Apgeal No. 618 of 2004 ‘ Gendlal @ Kichu v. f ‘ Vs. § \ ‘ . The State of Chhattisgarh JUDGMENT For consi eration , ‘ i i ’ Sdl- ” \ Sunil Kumar Sinha ‘\ Vi. Judge t ) # l HON’BLE SHRI JUSTICE T.P. SHARMA k Sdl- 3‘ g 2 . ~ T. P. Judge Sharma §l02l2009 Post for. Judgment :/;/02/2009 // t r ‘ Sdl- Sunil Kumar Sinha I Judge \ t91:u M «v(éa‘‘ W @ HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Sunil Kumar Sinha & Hon’ble Shri T.P. Sharma, J,J. Criminal AQQeal No. 618 of 2004 APPELLANT Gendlal @ Kichu, Slo Munda Ram, " Caste- Baiga, aged about 22 years, R/o Ucherah, P.S. Janakpur, District Koriya (C'.G.) Versus REgPONDENT The State of Chhattisgarh, through g P.S. Janakpur, District Koriya (C.G.) (Agpeél under Section 374 (2) of The Code of Criminal Procedure) i r _A_Qp‘earance: i Shri Abay Tiwari, Counsel for the appellant. ‘ Shri Praveen Das, Dy. Govt. Advocate, for the State. \/, JUDGMENT (Iz.02.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Challenge is made to the judgment and order dated 29.6.2004 i passed by the Additional Sessions J‘ud'g'e, Manendragarh, District Koriya in Sessions Trial No. 357/2003, whereby, the appellant has been convicted u/s 302 IPC for commission of murder of Nanbai, and sentenced to undergo imprisonment for life and to pay a fine of Rs.200/—, in default of payment of fine to further undergo additional imprisonment ”for 2 months. A \ (2) On 10.8.2003 at about 4.00 p.m.,"the deceased was doing some work in her Khotah (place for keeping cattles) near her house. Her husband, Ramdulare (PW-2), sons Sriram (PW-3), Santosh (PW-4) and \/ l l \ l \ l 2 Criminal Appeal No. 618 of 2004 another boy namely Ramcharan (PW-5) were present there. The appenant came there with a tangia in his hands and assaulted the deceased saying that she used to defecate in his fieid. After the assault, Ramdulare (PW-2) snatched the tangia. When the tangia was snatched, ‘ the appellant took a danda, which was lying there, and again assaulted the deceased on her head, who died instantaneously. (3)3 ‘Ihe matter was reported to the police by another son of the deceased, Ramkumar (PW-1), on 11.8.2003 and a First Information Re‘port:(Ex.-P/6)-& a merg intimation (Ex.-P/7) were registered. The Investigating Officer Ieft for the scene of occurrence, prepared inquest‘ ‘ (EX.-P/2) on the body of the deceased and sent the dead body for its post-mortem to Govt. Hospital, Janakpur, where the post-mortem examination was conducted by Dr. S. Kujur (PW-9), who prepared his report Ex.-P/5. He noticed that there was a contusion over the right cheek size 4 cm x 1 1/2 cm; having dislocation of mandible bone; one contusion over 7‘“ thorax vertebrae size 3 cm x 1 cm with haematoma; there was fracture of 7‘“ vertebrae & one contusion over lateral left side of abdomen at the level of 11‘“ vertebrae size 3 cm x 1 cm. On further examination, it was found that abdominal cavity was full of blood and there was lacerated wound in the liver size 4 cm x 1A cm. Spleen was also ruptured. The Autopsy Surgeon opined that the cause of death was excessive haemorrhage due to lacerated wounds over liver & spleen and it was homicidal in nature. (4) In further investigation, site plan was prepared under Ex.-P/1; tangia & danda were seized on production of Ramdulare (PW-2) under 3 Criminal Appeal N0. 618 of 2004 Ex.-P/3 and were sent for their W examination to the concerned Doctor and a report Ex.-P/4 was obtained. (5) ' After completion of usual investigation, the charge—sheet was tiled in the Court of Judicial Magistrate, First Class, Manendragarh, who in turn,’committed the matter to the concerned Sessions Court and it was received by the Additional Sessions Judge, Manendragarh, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (6) l The conviction of the appellant is based upon the testimonies of 3 eye §witnesses namely Ramdulare (PW-2), Sriram (PW-3) and Santosh (PW-4) supported by the other evidence available on record. (7) Shri Abhay Tiwari, learned counsel appearing on behalf of the appellant, has not: disputed the homicidal death of the deceased. Moreover, it comes in the‘ evidence of PW—2- Ramdulare, PW—3- Sriram and PW-4- Santosh that the deceased was assaulted by the appellant with a tangia & danda, due to which, she sustained injuries and died on ' the spot. Dr. S. Kujur (PW—9), who noticed the above injuries, has also deposed that the death was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. $ a r l (8) Shri Abhay Tiwari argued that all the 3 eye witnesses are relatives of the deceased being husband and sons, therefore, they are interested witnesses and reliance cannot be placed on their testimonies. \ (9) 0n the other hand, Shri Praveen Das, learned Dy. Govt. Advocate, ‘ for the State opposed these arguments and supported the judgment and j order passed bythe Sessions Court. l 4 Criminal Apgeal No. 618 of 2004 (10) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (11) ‘ ln Namdeo —Vs- State of Maharashtra 2007 AIR SCW 1835, the Apex Court held that a Witness who is a relative of deceased or victim of the crime cannot be characterized as ‘interested‘. The term ‘interested’ postulates that the witness has some direct or indirect ‘interest’ in having the accused somehow or other convicted due to animus or for some other ’obliqjue‘smotive. The Apex Court also observed that a close relative cannot be characterized as an ‘interested’ witness. He is a ‘natural’ Witness. . i s His . evrdence, . however, must be scrutinized . . carefully. If on such 1 scrutiny, his evidence is found to beintrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the ‘sole’ testimony of such witness. Close relationship of witness with the deceased or victimtis no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The Apex Court also referred to the decision rendered in the matter of Harbans Kaur and another —Vs- State of Hagana, 200§§AIR scw 2074, in which, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, re‘ason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. f\\ s ”(12) Therefore, in view of the above, it cannot be held that the l\ testimonies of Ramdulare (PW-2), Sriram (PW-3) and Santosh (PW-4) l cannot be relied on, only on the ground that they were husband and sons f i ¥ 5 @ Criminal Appeal N0. 618 of 2004 'of the deceased. We are to scrutinize their evidence with due care and caution and if their evidence passes the test of credibility in appreciation by a‘pplying the above principies enunciated in various cases, the conviction can well be based on their testimonies. (13) i Ramduiare, PW—2, deposed that on the fatefui day at about 4.00 pm when his wife was pouring earth, the appellant came there carrying a l tangia‘ and started abusing his wifersaying that why they defecate in his tieldgand thereafter, he attacked over his wife with tangia. His wife receiVed injuries on waist, back and head. She fell down on the spot. He took his vfife to the house but she had died. (14) iSriram, PW-3, son of the deceased, is a child witness. He was aged‘about 8 years as observed by the Sessions Judge. He deposed that his mother was killed by appellant Gendlal. He had'seen the occurrence. Gendlal had assaulted his mother with tangia. His mother had received injuries on back and head. At that time, his father, Ramcharan (PW-5) and Santosh (PW—4) another brother were also present. ‘- (15) Similar is the evidence of Santosh (PW-4). He was aged about 7 years. He also deposed in clear words that his mother was killed by the appellant. He had seen the occurrence. The appellant had assaulted his mother by a tangia, who received injuries on back and head. gs (16) Though these witnesses, particularly PW-2, were put to lengthy h L cross examinations, but, the defence was not able to elicit any such circumstance, on which, the testimonies Of these witnesses may be doubted. These Witnesses were natural witnesses being inmates of the 6 @ Criminal Agpeal No. 618 of 2004 house where the incident took place at about 4.00 p.m. Therefore, their presence on the scene of occurrence cannot be doubted. (17) After going through the entire evidence on record, in appreciation, _ wennd that the Sessions Court has rightly relied on the testimonies of these witnesses and the conviction based upon on their such testimonies cannot be found fault with. We do not find any illegality or infirmity in the judgment and order passed by the'Sessions Court. r (18) “The appeal deserves to be dismissed and is accordingly dismissed. ‘vatti Sdl- g /l ‘1 SlunilsKumar Sinha / 1; _ Sd/- ‘ Judge ‘ l I T.P. Sharma ' i v f' Judge