HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 245 of 1994 Uday Singh & Another Vs. State of M.P. (Now State of Chhattisgarh) ^:- JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J a^T^^ Sd/- Chief Justice Post forJudgment .2^04^0^ Sd/- Sunil Kumar Sinha Judge ^s /^^ HIGH COURT OF CHHATTISGARH. BILASPUR '^. ^ CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS Criminal Appeal No. 245 of 1994 1 Uday Singh S/o Navdhir Singh Gound, aged 27 years, R/o Dhanwari Dand, Manendragarh, District Sarguja, M.P. (Now Chhattisgarh) 2 Bhola Singh S/o Navdhir Singh Gound, aged 27 years, R/o Dhanwari Dand, Police Station Manendragarh, District Sarguja, M.P. (Now Chhattisgarh) Versus StateofM.P. (Now State of Chhattisgarh) Through The Police Station- Manendragarh, District Sarguja (Criminal Appeal under Section 374 (2} of The Code of Criminal Procedure. 19731 RESPONDENT Appearance: Mrs. Kiran Jain, Advocate for appellant No.1. Mr. Anil Gulati, Advocate for appellant No.2. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (2S.04.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 11 of January, 1994 passed in Sessions Trial No. 125/90 bytheAdditional Criminal Appeal No. 245 of 1994 Sessions Judge, Manendragarh. By the impugned judgment, the appellants have been convicted u/ss 302 & 323 IPC and sentenced to undergo imprisonment for life and R.l. for 1 year, with a further direction to run the sentences concurrently. ^:.- (2) The facts, briefly stated, are as under:- The appellants are real brothers. The appellants and their father were prosecuted for commission of murder of deceased- Tuiyan Ram and for causing simple hurt to Baalsai (PW-1) and Daiya Bai (PW-2). The 3rd accused i.e. Navdhir Singh died during the pendency of the sessions trial, therefore, his name was deleted and the trial was conducted against the 2 appellants herein. The case of the prosecution is that on 11.3.90 at about 3.00 p.m., Baalsai (PW-1) and his wife Daiya Bai (PW-2)were going to the house of their maternal uncle. Appellant- Bhola met them on the way. He abused Daiya Bai (PW-2) and threatened her to outrage her modesty. He caught her by hair and threw her on the ground. Appellant- Uday Singh and their father Navdhir Singh (3d accused) also came there. They tried toassault them. Baalsai (PW-1) and Daiya Bai (PW-2) ran towards their house. They were chased by the accused persons and were caught by them. On hue and cry, the deceased i.e. father of Baalsai (PW-1) came there and tried to intervene. On this, he was assaulted by the accused persons by knife and lathi. Bhola was holding the knife. The deceased received multipleserious injuries. He was taken to the hospital, where he died during the course of his treatment on the same day. An intimation (Ex.-P/19) was sent to the police station by Dr. P.K. Niyogi (PW-13) and merg (Ex.-P/22) was recorded. The Investigation Officer reached to the Hospital and dehatinalishi (Ex.-P/1) was recorded on the "'%. N3^^ % ^l 9 Criminal Appeal No. 245 of 1994 report of Baalsai (PW-1). The Investigation Officer gave notice (Ex.-P/5) to the Panchas and prepared inquest (Ex.-P/6)on the dead body of the deceased. The dead body of the deceased was sent for post-mortem vide memo Ex.-P/S. The post-mortem examination was conducted by Dr. P.K. Niyogi (PW-13). The deceased had received following injuries:- (i) Incised wound 4 inch x 1.5 inch x 1.5 inch on the mandible region. Muscles were deeply cut extending to the wind pipe. The wound was heavily bleeding; (ii) Incised wound 3A inch x 1/6 inch x 1/6 inch on the left cheek; (iii) Abrasion 3A inch x 3A inch on the left cheek; (iv) Contusion 3 inch x 4 inch on left parietal region; (v) Contusion 1.5 inch x 1 inch on the left temporal region & (vi) Contusion 3 inch x 3 inch on right occipital region. On internal examination, it was found that there were extra-dural haemorrhages of 4 inch x 2 inch and 3 inch x 3 inch on right temporal & occipital regions. The brain was congested. Lungs were pale and left chamber of the heart was empty. The Autopsy Surgeon opined that the cause of death was shock and haemorrhage on account of head injury and injury to the neck and it was homicidal in nature. The post- mortem report is Ex.-P/20. Baalsai (PW-1) and Daiya Bai (PW-2) were also sent for their medical examination. Their injury reports are Ex.-P/17-A & P/16. There was noexternal injury on the person of Baalsai (PW-1), however, Daiya Bai (PW-2) had received one lacerated wound of 1.5 inch x % inch,4 inches above occipital region. The injury was simple which could have been caused by hard and blunt object. r Criminal Appeal No. 245 of 1994 The incident was said to be witnessed by 9 eye- witnesses namely- Baalsai (PW-1), Daiya Bai (PW-2), Surender (PW-4), Gulab (PW-5), Bholi (PW-6), Soharnath (PW-7), Rooplal (PW-8), Radhe (PW-9) and RamkunwarBai (PW-15). Out of the above, except the 4 witnesses namely- Baalsai (PW-1), Daiya Bai (PW-2), Surender (PW-4) and Ramkunwar Bai (PW-15), all turned hostile. The Sessions Judge relied on the testimonies of above 4 eye-witnesses and convicted and sentenced the appellants as aforementioned. (3) Mrs. Kiran Jain & Mr. Anil Gulatj, learned counsel appearing on behalf of the appellants, argued that the eye-witnesses, relied by the Sessions Court, are close relations of the deceased being wife, sons and daughter-in-law, therefore, they were interested witnesses and conviction based on their testimonies cannot be sustained. They also pointed minor differences in the inter se evidence of the eye-witnesses regarding part played by the accused persons to assail the testimonies ofthese witnesses. (4) On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the Sessions Court. (5) We have heard learned counsel for the parties at length and have alsoperused the records ofthe sessions case. (6) In Harbans Kaur and another -Vs- State of Harvana. 2005 AIR SCW 2074, the Supreme Court held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the 1 f?t Criminal Appeal No. 245 of 1994 contrary, reason 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. (7) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Supreme 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 oblique motive. The Supreme Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically 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 victim is 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. (8) In So/ie/a/ -Vs- State of M.P.. 2008 AIR SCW 7988, the Supreme Court again said that merely because the eye witnesses are family members their evidence cannot be per-se discarded. Relationship is not a factor to affect credibility of a witness. It is more -/A^ -^v ... - J S ^. v^^" '^%^J^ Criminal Apoeal No. 245 of 1994 Gi (^ often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea pffalse implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. (9) In Dharnidhar -Vs- State of Uttar Pradesh and Others & other connected appea/s. (2010) 7 SCC 759, the Supreme Court further reiterated that there is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before court. The Supreme Court held that a close relative of deceased does not, per-se, become an interested witness. An interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes and deposes before court only with that intention and not to further cause of justice. However, version of interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same. When their statements find corroboration by other witnesses, expert evidence and circumstances of case clearly depict completion of chain of evidence pointing out guilt of accused, then statements of so-called "interested witnesses" can be relied upon by court. (10) Therefore, this argument cannot find favour that the testimonies of relative witnesses cannot be relied on, only on the u tC Criminal Appeal No. 245 of 1994 ground that they were the relatives of the deceased. However their evidence is to be scrutinized with due care and caution and if such evidence is found credible in appreciation, the conviction can well be based on their such testimonies. (11) Now we shall analyze the evidence of above eye witnesses. (12) Baalsai (PW-1) deposed that it was the day of Holi; he was going along with his wife to the house of Rooplal (PW-8). As soon as they reached near the badi of accused persons, appellant- Uday caught his wife and said her to outrage her modesty. Uday threw his wife on the ground. He prayed not do all this by quoting his mother and sister. He said to him that Daiya Bai (PW-2) is like his mother/sister. Even then Uday did not leave Daiya Bai, on which, he assaulted him by dhela (a piece of soil). Thereafter they returned to their house. He further deposed that the accused persons came to their house and assaulted his father. In the cro^^joination, he deposed that Uday assaulted his father by knife and otner accused persons assaulted him by danda and stones. (13) Daiya Bai (PW-2) also deposed in similar fashion. She also stated that she was assaulted by Uday who threw her on the ground. In her further evidence, she deposed that her father-in-law was assaulted by knife by appellant- Bhola and appellant- Uday assaulted him by lathi. Criminal Aopeal No. 245 of 1994 (14) Surender (PW-4) is another son of deceased- Tuiyan Ram. He also claims to be an eye-witness. He deposed that his father was assaulted by knife by appellant- Uday. KC (15) Ramkunwar Bai (PW-15) is wife of deceased- Tuiyan Ram. She deposed in a different fashion. According to her, when appellants- Uday & Bhola were chasing her son, he went to the house of Patel. Patel scolded Uday and Bhola, on which, they returned to their house. Thereafter all the 3 accused persons i.e. Uday, Bhola and their father came to their house and took out her husband and assaulted him. She categorically deposed that Uday assaulted her husband by knife. ^. ;":. (16) Baalsai (PW-1) had lodged dehatinalishi (Ex.-P/1) immediately after the incident in which he mentioned that it was appellant- Bhola who abused and threatened his wife, caught her hairs and threw her on the ground. This was the first incident which took place prior to the alleged assault of the deceased. He also mentioned in dehatinalishi (Ex.-P/1) that his father was assaulted by knife by appellant- Bhola. Whereas, in the court evidence, he deposed that his wife was abused and thrown on the ground in the above manner by appellant- Uday. According to Baalsai (PW-1) and his wife Daiya Bai (PW-2), they had a conversation with Uday while the first incident. Therefore, there was no question of confusion in the identity of the person who assaulted his wife. If, in fact, appellant- 1 •riss!s^ 9 Criminal Apoeal No. 245 of 1994 \ Uday had assaulted the wife of Baalsai (PW-1), why he would mention the name of Bhola in dehatinalishi (Ex.-P/1). This was material contradiction for testing the veracity of the evidence of these witnesses. This shows that these witnesses are not giving correct version regarding first incident of assault/Daiya Bai(PW-2). (17) In the court evidence, Baalsai (PW-1) deposed that his father was assaulted by appellant- Uday by a knife, whereas in dehatinalishi (Ex.-P/1), he had mentioned that his father was assaulted by appellant- Bhola by a knife. This is also a material contradiction. Daiya Bai (PW-2) deposed that her father-in-law was assaulted by Bhola by knife. Surender (PW-4) and Ramkunwar Bai (PW-15) deposed that the deceased was assaulted by Uday by knife. (18) On appreciation of the evidence of these 4 eye-witnesses, we find that there was inter se inconsistency in the evidence of these eye-witnesses regarding which accused assaulted the deceased by knife. (19) Apart from the above, these witnesses have come with a different case in their court evidence. The case of the prosecution was that Daiya Bai (PW-2) was abused and thrown on the ground by appellant- Bhola, and Bhola had also assaulted the deceased by knife. Whereas, in the court evidence almost all the eye-witnesses changed their versions aad deposed that Daiya Bai (PW-2) was i ^^^^^ ;^>- ;?/ ;,-.;, i ^'"^saiKh s \ • t^,^i"^ ^^ .-^ '^^.^^^' 10 Criminal Appeal No. 245 of 1994 assaulted and thrown on the ground by appellant- Uday and Uday assaulted the deceased by knife. The main incident took pace at about 3.00 p.m. According to the prosecution, it was witnessed by 9 witnesses, out of which 5 turned hostile and the remaining 4 eye- witnesses supported the case of the prosecution. These eye- witnesses are close relations of the deceased. Dehatinalishi (Ex.- P/1) was the first hand information lodged by one of the eye- witness. If, in fact, the above witnesses were rightly describing the inddent, they would have stick to the version of dehatinalishi (Ex.- P/1) which was lodged by one of them. These witnesses have changed the entire case of the prosecution before the court. Instead of appellant- Bhola using the knife against the deceased they came with the case that the deceased was assaulted by knife by appellant- Uday. Not onlythis, Baalsai (PW-1) and Daiya Bai (PW-2) also changed their versions regarding the first incident as they deposed that Daiya Bai (PW-2) was assaulted by appellant- Uday and not by appellant- Bhola. (20) We note that Ramkunwar Bai (PW-15) admitted in Para-9 of her cross-examination that during the quarrel her husband (deceased) assaulted one of the accused by danda, and thereafter said accused took a farri (a wooden article), which was lying there, and assaulted her husband. We further note that according to the prosecution, in the second incident, the 2 accused persons also sustained injuries. Injury report of accused/appellant- Bhola is Ex.- r.•^. .'^••^'" ^%£i^^A'^ 11 Criminal Appeal No. 245 of 1994 (^ P/14-A and injury report of accused/appellant- Uday is Ex.-P/15-A. The contents of the 2 injury reports would show that Bhola received small abrasion over the occipital region with clotted blood present, whereas Uday received 1 abrasion over left parietal region and 1 lacerated wound on the occipital region. This suggests that there was a quarrel and fight between the complainant party and the appellants in which the appellants also received above injuries. (21) On appreciation of the entire evidence on record, we are of the view that in light of the inter se inconsistency between the eye- witnesses regarding which accused caused injury on the neck of the deceased by knife, it was not safe to convict the appellants for commission of murder of the deceased. The discrepancy as to allege role played by accused persons was sufficient to give them benefit of doubt. (22) We further note that independent charges were framed against both the accused persons/appellants u/ss 302 & 323 IPC. The accused persons were not prosecuted by making them liable with the aid of Section 34 IPC. We have already held that it was not established as to who caused fatal injuries to the deceased and the evidence relating to the part played by each accused was highly discrepant and inconsistent. Therefore, in the facts and circumstances of the case, the Sessions Judge was not justified to convict both the accused persons u/ss 302 & 323 IPC. 12 Criminal Appeal No. 245 of 1994 (23) For the foregoing reasons, we allow this appeal and set-aside the conviction and sentences awarded to the appellants u/ss 302 & 323 IPC. The appellants are acquittedof the charges framed against them. * Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti