r~' <-'" HI6H CQURT OF Cr'immQl Aweai No.214 of 1994 DIVISTON BENCH: CorQm: HON'BLEMR-T.p.sMARMA B HON'BLE ^R.R.L.JHANWAR, JJ. ChhinnibJ and another Versys The State of AA-P. (Now C.^.) JUDeMENT FOR Sd/- T.P. Sharma Judge Hon'hje Mr,R,L,Jhanwar, J- ,) Sd/- R.L. Jhanwar Judge 1:-- Post for Judgment on : 21/4/2010 .-3 . <- Sd/- T.P. Shanna Judge '^, '¥f\ :^ 1 '"°l"t ^HH^- COURT OF CHMATTIS64RH AT Crlminal Annegj No.214 of CorQm; HON<BLEMRT.p.s'HARMA & MON'BLE MR.R.L.JHANWAR.JJ. APPELLANTS 1. Chhlnnijal Son ofJagdeyAdholia aged 40 years, resident of Manjoor Paharr' P,S* Sipat - Dlstt 8jia5pur M*P. (now C^) '2. bhaniram ©Mchesh Son of Barawam PalBi, aaed about 26 years, resident of vjitage Khapri, P.5. AAastoon, Dlstrjct BJScspurM:P,(nowC.a) V'ersus RESPON&ENT The Stete of MP. (NowC.S.) (CRMINAL APPE^L UNOER SECTTON 374 (2) OF THE CODE OF CRIMINAL PftOCEDUftE, 19735 Present^- ' ' / ' ; : ' - Miss Sudha Agrawd, counse! for the appeHants. Mr^Sudhlr B'ajpai, Dy* Soyernment Advocate for the State/respondent. JU&6MENT : -' (Deiivered on 21st Aprii, 2010) The Judgment of the. Court was deHysrsd by T.P.ShQrma. J.'~ 1. Chaiienge In this appea! is to the judgman^ of conviction & order of sentence datsd 10.2.1994 passed by th®3rd Adaitlo,2ia3 Ssssions.Judgs, BJlsspur in Sessions Cass No.300/91, whersby .^ whereuRdsr isarned 3 .Addi'tiona! "Sessions Judge after-holdlng the appetbnts guilt^ for the commission of culpabie homlcide. omounting to murder of .Chamar ^Singh and his wife Smt-Manmati cnd com'missjon of robbery convjcted the appeibnts under Sections 302 & 392 of the Indian Penal Cod^ and sentenced them to undergo Imprisonmerit for llfe & rigorou^ Jmprisonment for seven year< and 1?1 r^ ^' to pay fineof Rs.. 5000/-,.in defauit ofpayment of flne to further undergo rjgorous imprisonment for .1 i years. ?. Conviction is impugned on the ground that without there being any credibie and clinchlng evidence sufflciant for conviction of the appeiiants, the Court below ho.s 'convlctBd and scntenced the cppellants as aforementioned and the^cbv co^tir^jttBd i!!€OQ!itv.. 3. Case of whe prosecutjon, in brlef, Is that appcliant No«l, brother-in-bw of Chamar .Sin^h and hls friend visitcd the house of Chamar Singh.on 7.2.91, they stayed in the house .of Chamar Slngh. At night both the appelbnts were •sleeping in' the house of Chom^r Singh., Deceased Chamar Sinsgh and Monmati were a!so sieeplng in thelr house.. In the jntervening nlght of 7/8-2-91, both the appeilants kiiled Chamar Singh and Manmati and commjtted robbery of their ornaments and money and fled from the house. Materna! grandson of ChamQr Singh nameiy, Monoj Kumcr Patel (PWM4), son .of Chomar Singh nameiy, Mo.dhavr'am (PWS"6), wife of MQdhav, Singh Smt-Shokuntabbal (PW-5), who were present in the house, have SBen the inddcnt. Both the cppeibnts fied from the spot. &€ubiPatei ^W-1)w€nt to the.poiice statlon and bdg^d the F<I.e- vlde Ex.P/L Investigating officer troceedcd for the scene of occurrence and after sysT^monin9 the witncsses vjde ExsP/21 ond P/22, jnquest over the dead bodies of deceased Chamar and decBased Manr^otj werc DrcDcred vidc Exs.P/23 ond P/24. bead bodles were sent for autopw to &istrlct Rospi'tyxV Bibspur. .br-yinay Kumar 9upta (PW-12) conducted outopsy over body of Chamar Singh vide ExP/30 and found fo!!owing injuries/ i) IncJsed wound over bQck of head of &'cm- x' 2 cm. x 10 cm. and muscies, bbod vesscls and trocheo. were found cut; ii) Incised wound'of 3 cm. x 2 cm.x 5 cm. over bebw first Injury and muscles and b'lood vesseb ^ere found cut; iH) Incised wound of 3 cm. x 1 cm- x 3 c^. bebw flrst injury; iv) Tndsed wound on the rlght side of the neck of 8 cm. x 3 cm. x 15 cm- ond cerotic/cervical vcr'tebra and csophcigus were fount cut; @ v) Incised wound on the neck of 6 cm, x 2 cm- x 5.cm. and musctes •were found cut; vi) Incised wound over ieft side of head.oflO crr^ x 2 cm. x 6 cm.; vli) Incbed wound near theaforesaid 6Tn injury of 8 cm..x 2 cm. x 10 cm. ond muscles and blood vesseis were found cut; viii) Incised v<.'oursd nsor 7th Ihjury of 4 cir.. x 1 i cw. x 5 csr>. and muscbs were found cut; Mode of death was shock as a result of injury over the neck nnd head ond. death was homjclda! in natyre.. b^.VinQy Kumar Supta (PW-12) dso conducted autopsy over dead body of deceased Mnnrnatl vlde Ex.P/31 and found folbwing injuries; i) Inclsed wound of 12 cm. x 5 cm.- x 12 cm- on the right side of the neck onc! trachcc, biood vesseis, cervlc<ii bone, ster'nyi^ mastroid my^cles were found cut; •iJ) ^ Incised ^ound of 3 cm.. x 1 cm. 5 cm- over sub mandibular region; jji) Incised wound over the neck of 12 cm^ x 4 cm.. x bone deep. ond neck of bone was found cut; iv) Incised wound of 8 cm.x 2 cm. x bone deep'over the back and bone of bo.ck were found cut; v) ' Incised wound of 5 cm.. x 1 cm.> x muscle deep,injury WQS found on splnai ccird and spina! card was found ait; Mode of deoth wos shock and death was homicldd in nature. Broken pieces of bangles were seized from the spot vide Ex?/2. Bbodstained & pbin ^oli were selzed from the spot vjde'ExsP/3 and P/5. One bbodstciined axe was seized from the spot vjcSe. Ex?/4. Bbods'hiined bet sheet was seized from the spot vicie Ex»P/6. ^mcha was selzed from tHe spot vide Ex-P/7. Spot map wa^" prepared by investigating officer vlde Ex-P/8. Patwori o!so prepared sppt vide Ex,.P/9- During the course of -investlgation, appelSant Chlniial wa< taken into cu.stody, he made disclosure statement of neckbce, kardhan ond other orna^ents vide Ex.D/ll- Appeibnt Chinlb! iced the aforesaid orno.mants after ^taking out the from paddy grass stock and sama were 'selzed vide Ex.P/12.. One wrist watch, currency 4 '^ notes/one shawl .dhoti, suit, lungi, sarl Qnd receipts were seized from appejlont Chjnila! vjde Ex-P/13. Acaised Ghoniram was taken into custody, he r^ade dlsciosure stQl^ment. of siivBr ornament Nagmori vide ExP/14- Accused bhQnir^im took the poiice to shop of Jagprasad $onl .at. Baloda who Nagrpori ond receipt booR, sar?le were ^eized vide Ex-P/15» Ornaments were identifled by Madhavram and Shakuntab Bai vlde Ex.P/10- Clothe^ of accused Chiniial and Dhoniram wers seized vide Exs..P/i6and P/17. Rs.756/- and other cbthes were.seized from accused Dhoni^am vide Ex;P/l8- Another 'co-accused Mehottar was taken into custody, he made dlscbsure stotement of cbthes and ornaments vide Ex-P/19. He produced orncments, wrist watch, cbthes and currenq^ notes which were sei^ed vide^ Ex,P/21. Nolls of accused DhanirQm & Chinibi were cut and seized vlde •ExsP/26 & P/2Z Clothes of the deceased ofter ajtopsy were selzed vjde Ex-P/28. Seized articies were sent for chemica! examinatlon,. 4. Statements of the wltnesses were recorded under Section 161 of the Code of Crlrpmal Procedure, 1973 (hereinaf+er- referyed to os 'the Code') and ofter comptetion of Jnvestjgatjon, charge sheet was fiied before the Judlcial Magistrote plrst Cbss, Blfaspur, who In turn committed the case in the Court of Sessior.s/Silaspyr, from whsrs 3 Additional Sessions Judgs, Bitepur receiyed the case on tronsfer for trial 5. Ins nrcler to prove the guilt of-the accused/appei'ants, the prosecution has examlned as many as 14 ^itnesse^. The accused/appelfants. were examlned under Scctten 313'of the Code. where they denled the circum^tei.nces appearhg agoinst them and claimed innocence and fa!se implication in the - crime in question. • 5. Aftsr prov'jdiny opportunit'/ of hsarlng to ths parties, learnsd 3 AddltsonG! Sesslons Judge whiie acquitting 'co-accused Mahettarbl convicted end Sentenced the oppelJonts ds aforementloned. -4 ,;• 7. We have heard Searned counsel for the po.rties, perused the Judgment. impugned and recordofthe Court be!ow. ' • 8. Learned counse! for the appelbnts vehementiy argued that although this Is the case of double murder but ^trict proof for the commission of offence bv thc Drosecution is ncce^SQTV. As D€F CQ.5€ of the'orosc-cution. both th€. ^pelhnts, especiolly cppe!Iant No,,l, brother-in-iaw of deceosed Chamar. Singh was havjng enmit^ wlth Chamar Singh. on account of purchasing'of some bnd, then there was no propriet^ to permit the appellants to stay in the hous^ of •Chc^o.r SinQh.by Cho^ncir S^nQh. but o.s oer thc evidence of thc prosecution, both the q)pe!!ants have vislted tfie house of.Chomar Singh, they stcyed in the night when thc offance took piace cleariy shows that the appellants were having no any inimica! terms wlth the deceased and som^body has co^r?iijtted robbery cnd inurder of the dec€<3sed In the 'intervening night of 7/8.2.1991, but the present appelhnts-hove been faiseiy implicated In the crirpe in question. Learned counse! further argued that even o14ierlwise, the case of the present oppeliants does not trave! beyond the scope of Section 304 Part II of the Indian Penal Code cnd they have suffere-d sufficientsentence- 9-0n the'o^her hand, learned St^te counse! supported l+^e Judgment and argued .thot the o.ppellants •were having inimicai tcrms wlth th? deceased persons, but deg^ee of eni^lty was not so high, Appeiiant NoJ Chiniial-was retetlve ond brother-in-Iaw of Chamar Singh and on the ground of rclcition, ChQmrxr Singh pc'r't^^ttcc! ChinHQJ eind hls'ff'tend for stoylng in hls house- Whiie Cbaniar Singh and'M^nmatl were sleeping by getting opportunity the appellants committBd bruTCJ murder of both the persons anr| comniitred robbery of thelr ornaments and. money. Learned counse! further argued that the prosecution has prloved its case by adducing clinching and credibie evidence. Considering brutai and mercjless act of the appeiiants, the appelic.nts do not deserve any syrr^pathy even in the sentence.. @? 10., In orde^ to appreclate the argument advanced on behaif of the parties, we 'Have examined thc moterh! avdlabie on record. In the'present case, homicidel deoth as a resuJt of antc-'mortem fato1 Injuries. of deceased Chamar Singh o.nd deceased Manmoti has not been ^ubstQntia'iy dbputed on behoJf of the appeilants/on the pther hand, otherwbe abo estabSished by the evidence of l>r,yjnay Kumar Supta (PW-t2) and autopsy reports ExsP/30 A P/31 which revea! that fata! injurles we^re found over the' head and neck of the deceased and deathswere homJddaUn nature« tl.As regards the complicity of the appelbnts jn the crime in question, conviction is substontially based on the avldence of eyewitnesses and the evjdence of disclosur'e/recovery of- the prop€rty/omaments robbcd from the deceosed. Manoj Kumar Patel (PW-4), motema! grandson of deceased hos deoo^d i?i his Bvjdcncc thct nri 7.2.91 Gtcxbout 8 D"rn- hc wcnt to hous8 of •!Sadhram Patel to attend Da^atra functioh abng with matema! uncte Madhav Singh (PW"6), son of the person, they came back at obout 11 p.m., deceased were p.resent in the house, they arran9ed 3-4 beds in their verandoh, belng asked they Informed that appeJEant Chlni and Dhaniram hove oiso cor^e and they ^IH stoy, at that twe/the appelbnts came, they went for sieep, he abng with Maclhav Singh aiso went for sleepinQ inside the room. Between 12 to 1 o.t.nlght he heard crles of weepjng and he abn.g with hls m<rternnl uncle Madhav Slngh (p>W~6) came out from the room, they sow that hls moternal grandmother and grondfather l.e. deceased were lying |n ~ the bnd near ^h^ house, bo4'h the appeSlants were presenf, dppellant Chinl was hoiding axe and wo.s o.ssauitlng by,^xe to Manmati. His uncte Madhav Singh asked appeilant Chini, then aft^r throwing axe, ,the appelbnt<3 fied from the ^pot/they shouted for heip, but at that time the appe!!ant< !eft tbe village/ He narrated thc jncident to Devlal who-went to poiice station and lodged the FXR. SmtShakuntabbd (PW-B), wlfe of Modhavram (PW-6).who,was present In the house has substantialiy corrobomted the evidence of Manoj Kumar Patel (PW-4). Madhayram pW-6), rpaternQi uncte of ManoJ Kumar Pate! (PW-4)and husband of Smt.Shakunteteboi (PW-5) h^s •^ <: dso substantjc!!y corroborated the eyidence of ^anoJ Kumar Pate! (PW-4). These wltnesses have clearly and cotegoricaSSy d^posed that both the appeibn^s came to the house of the deceased persons ond they were abo present there. 'Both the appelbnts st^xyed in the house of the deceased Qnd between 12 to 1 at night, they heard cries of weeping, they woke up and came jn front of the house where o.ccused Chini was ossauiting the deceased jyianmati by nve, deceased were iying in the room and finaliy they dled, they shouted fori he!p3nd appeiianfs f)ed fromthe sppt» 12;Appe!!ant Chinl is also cbse rebtive of Chamar Singh. Defence has crossa"Bxo.min€-d th-8S€- witnc-sscs ct le^iQth^ Tharc o.re ^orne controdictlons and omhsions §n thelr evidence .ond prevlous STOtements recorded under Section 161 of the Code by the poiice, but they hQve stuck their versjon relatlng to the fc,ct that the appelbnts have stcr^ed on the date of incldent in' the house of the deceased persons and they kllbd them in the same night. ^ppeilantChJnj was assaulting deceased Manmoti by axe and both the persors fled from the <pot. Injured bodies were lylng on the spot. AIthough these wltnesses are cbse relatives of the deceased, but only on the ground of retotio^shlp, their statements cannot be discarcled.. IS.Whiie deallngw^th the question of rcijability of relatiye wltness the Apex' Court In ths mGttsr.of Dc!lp Slr»gh and othsrs v. Th®Stats of Punjab has he!d that a wltness Is normaily to be consldered Independent uniess he op she ^prings fror^ sources which ore likeiy to be tainted- Para 26 of th'e said judgment reads os under^ • , • ' "26. A witness Is norrna!?y to be considered Independent uniess he or she sprinas from sources which are JIReiy to be 'rainted and that ysuaiiy means unless the witriess has CQUSC, such Q.S enmity against the accuscd, to' wish to implicate him faiseiy. Ordinartly, a close relation wouid be the iast to screen the real culprit and fabeiy impiicate an innocent person. It is true, when feelings run high and there is oersonai cause for enmit^/. that th^re is a tendency to dr3ag In an innocent person again^t whom a witness has a grudge along with the guilty, but foundatlon • • AIR 1953 SC 364 must be teld for such a crjticlsm and the mere fact of reiationship tar* from being a foundation is often a sure guarantee af truth, Howev^r, we are not attemptirsg wiy sweeping gener'aijzotlon. Each-case mustbejudgedon its own facts< Our observations are oniy made to combat what is so often put for4ward In cases Defore us as a genera! rub of prudence. There Is no syfch generoi rule- Each case.must be timited to and be governed by its own facts." i4.Ths Apsx Court in th®tr.attsr* of Mshabbst Qnd Ors.v. Stfit®®fM.P. , has:he!d that rebtJonshlp is not ground to affect credlblllty of witness, foundation has to be fcid If of faJse impilcation is rajsed. Para 7 of the said Judgment reads as under, "T^AAerc-ly bacojjs^- tha eyc-witnBSses o.rc- foiT^.iiv t^c-^bers their evidence cannot oer se be discarded, When there is aliegation of interestedness, the has to be estab'ished. Mere statament'that being rebtives of the deceased they are ilkeiy to falseiy implicate the accused cannot be a ground to discard the evidence which is otherwlse cogent a.nd credibte. We shal! a!so dea! with the contention regarding interestedness of the witnesses for furthering tl^ie prosecution verelon. S^iation^hip is not a factor to affect credibiHt^/ ofawitness.It is more. often than not that a reisrtion wouid not conceaj actuai cuiorst, ana8 make • alie9ations against ari Innocent person. poundation has'to be Idd if p!ea of foise innp'icatbn is made. In such cases, the court has to adopt a carefui approach and analy2:e evidence to find out Vtf-hether it is cogent and credlbie." 15. We have sc^utlnized ,the evidence 'of Manoj Kumar Patel yW-4), Smt.ShakuntQiabGJ (PW-5) and Madhavram (PW-6). Thelr evidences inspjr^ feonfjdcnce and trustworthy rebtlng to the oforesald fact and they have narrated the incldent to Devb! who has lodged the FJ-R- ExP/i. 16. Bcsishakhu (PW-3) has m his evidence that on 8.2..91 at about 6 a.m. whiie he WQS going Qfter inti'mQting rebtives of Chamar Singh and Mcnmatj relating to thelr deaths from vHiagc Koudlya, he met appeliants Chini, r>haniram and co-occused Mahettar at viliage Jangi at'aboytS a<m< and they £2009AIft SCW 1486 -^ 9 < were bearing in the bus and proceeded by bus towards Seepat. Jangi js adjolnjng vjjlage of Dabripara where the offence took ptece- befence has cross-examined this witness at length, but has not been abte to elicit anythlnn m hj^ cros^examination to discard hls evldence- -17.As rc.c^oirds re-covc-ry of omn:iTI€nts oind c'thcr incrJtT^iHQtinci Qrtictes ofi the 'basis of confessiona! <tntements of the appeSbnts, as per evidence of Sub ^cctor .A.K..V€rlrp;Q[ fPVV-lO). he- hos intc-rroQoted GDDB11ont Chin'j who ,tTscsd€- discbsure statement of neckiace, kardhan (siiver' waist belt), ear ri.ng and tops vide Ex.P/11, then appeibnt Chini took hlm abng with the witnesses neqr paddy gras^ stock (Pairawat)/from where he produced the aforesdd artic!es which were in hidden posltion. • Thls witness has seized the articles vide Ex.P/12- He has a!so deposed In para 9 of his evidence thatappeifant Dhanlram dso made discbsure Statement of sliver artlcle nagmorl vide Ex-P/14. . He has aiso recovered' Rico iw.tch and other artic!es from oppeilant Dhaniram vide ExP/18. He went oJong with appelbnt Dhoniram to BaiocJd Bazaar In the shop of AAahesh Jeweie.rs and seized nagrpori at the jnstan.ee of Dhaniram from Jagprasad along with receipt book. Appe!tant Dhaniraf^ has sold the ortlcle to Jagprasad and has told •his name c.s Mahesh- A^ per evicience of thls witness he has selzed artlc!e vlde Ex,.P/!5 and copy.of the receipt is Ex.P/25. Shobharam (PW-T) has substo.ntialiy corroborated fne-evidenc-e of A.K.Verma (PVV-IO) and has de.posed fh.Qt Dhaniram ond Chini have mode disclosure statements of the artlcles and at their instances, the police has seized the aforesald artictes He has denied the suggestlon that these'o.ccused persons have not mode any'di.scbsu.re statements- Naroyon (PW-11), who has conducted identification of the articles/has deposed that he hos conducted ide.ntjfication of the arti.cles and AAadhav nnd ShckuntQia had identified the articies out of other simi'ar artictes vide Ex-P/10. Defence has cross-excmined this wltne-ss In detdi, but has not been abte to eHclt.anythlng En his cross-examinatlon to discard hb evidence/on the other hand, his evidence is wel!-corrtoboro,ted by the evidence of Sm.t..Shakuntob. (PVV-5) and AAodhavrom (PV^-6) who have 10 < jcjentified the. articles. TTiese evJdences are-suffjcienttoestabljsh the fact that the . articies which. Manmoti was wearing were recovered o.t- the instance of appeibnt Chini and DhQniram and they haye been weii identified by the son and daughter-in-bw of. Manmatl The oppelbnts have not offered any expbnotion as to how they knew that the artjcie.s were hidden under the paddy grass stock or was so!d to ornament shopkeeper them. -In .the absence of such expianation'and m the Hght of recent possession of the articies which deceased AAanmnti was wearing, the oniy inference wou!d be possibie that the present appeltents have removed the artictes from the body of MQnmo-ti at the'time of co'mmission of the offence. IS.The evidence rehting to wjtnessing the jncident' and recovery of the articles at the instances of the cxppeliants and identification of the articies If considered together, then on!y. Inference wou!d be possibte that the present appelbnts^came to the hbuse of Chamar Singh and AAanmo.ti, they ot nioht whiic-thcy W^FB steeDinQ. thcn thcv conlmitt%d robbBry ond during the course of robbery they committed murder of Chamar Singh AAanmati. i9.Aifter Gpprsciatjng ths svsdence Gv'GiiGbte on record, learned 3 Additionai Sessions Judge, Bibspur has convicted the appelbnts under Sections 302 & 392 of the Indian PenoJ.Code. Conviction of the appeltents is based on credibie, ciinching and reliabie evidence sustainabie under the b.w.. The Court beiow ha^ not committed any i!!ego!ity jn convicting and sentenclng the appeilants as ofore-mentioned- PQ.For the foregoing reasons, the appea! being devoid of merit is Ijabte to be dismissed end it is hereby dismbsed. ^ppe!!ants'Chhinnib!.Gnd &haniram ars on bdl, thsy shGll sUrrendsr 'rhev^ss.h'&s forthwith bsfore the 3 Additiona! ^ssions Judge, Bibspur for servjng remoJni.ng part of sentence possed In Sessions Case No-300/9t Sd/- Sd/- I S R.L.Jhanwar TRSharma | i Judge Judge