HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.984 of 2004 Mahkulram versus State of Chhattisgarh through D.M., Surguja (CG) JUDGMENT FOR CONSIDERATION Hon'ble Shri Sunil Kumar Sinha, J.: Sd/- R.S. Sharma Judge Sd/- Sunil Kumar Sinha Judge p——3-s-na-2DJJ Sd/- JUDGE 2-] -09-2011 \ a: -•t HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.984 of 2004 Appellant versus Respondent Mahkulram, S/o Panchamram, aged about 40 years, occupation farmer, R/o Village Bargai, P.S. Darima, District Surguja, Chhattisgarh State of Chhattisgarh through D.M., Surguja (CG) Present: Shri Vineet Kumar Pandey, 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 2%^ September, 2011) Per Radhe Shvam Sharma, J.: This appeal is directed against the judgment dated 24-8-2004 passed by Session Judge, Ambikapur in Session Trial No.268/2004. By the impugned judgment, accused/appellant Mahkulram has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default, to further undergo simple imprisonment for three months. 2. Case ofthe prosecution, in brief, is as under: On the fateful day, i.e., 28-2-2004, at about 9 A.M., deceased Garzee Kanwar was ploughing his field. The appellant, Manikdas (PW-2) and Dewan (PW-3) were also ploughing their fields situated nearby the field of the deceased. At about 9-10 A.M., the appellant D assaulted the deceased with a Lathi. The deceased fell down and succumbed to the injuries sustained in the assault. Manikdas (PW- 2) went to house of the deceased and narrated the incident to his son Aghansai (PW-1). Thereafter, Aghansai (PW-1) went to house of Up-Sarpanch Ramnarayan (PW-4) and Nawalsai (PW-8). These three persons went to the place of occurrence and saw that dead body of the deceased was lying in the field. Aghansai (PW-1) lodged the First Information Report (Ex.P-2). Merg tntimation (Ex.P- 1) was also recoded. The investigating officer reached the place of occurrence, gave notice (Ex. P-3) to Panchas and prepared inquest (Ex.P-7) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Government Hospital, Ambikapur vide Ex.P-13. Post mortem examination was conducted by Dr. R.N.Gupta (PW-5), who gave his report Ex.P-14. He found (i) lacerated wound over right parietal area of scalp, 7cmsx2cmsxbony deep, (ii) lacerated wound over right mandibular area, 5cmsx2cms with fracture of right mandible, (iii) linear bruise over upper part of chest 3 in number each of about 10cmsx3cms, (iv) lacerated wound over right leg anteriorly at middle third portion, 3cmsx2cmsxmuscle deep and (v) lacerated wound over left leg at lower third portion, 2cmsx2cmsxskin deep. There was fracture in parietal bone. Right lung was ruptured. He opined that mode of the death was coma and shock and cause of the death was head injury and traumatic rupture of right lung. In further investigation, plain earth and blood stained earth were seized vide Ex.P-8. Memorandum statement (Ex.P-11) of the appellant was recorded under Section 27 of the Evidence Act on 29- -~S*E!l!>a>. ~'i'i S ll[ " 1i -'•'J ^^'?3^s^^^ ^ A'?-' /^ *ts><y 2-2004 and at his instance, a Danda (a piece of Bamboo) was seized vide Ex.P-12. Lungi and Baniyan of the appellant were also seized vide Ex.P-10. Site-Plan (Ex.P-4) was prepared by Sub- Inspector V. Pradhan (PW-9) and another site-plan (Ex.P-5) was prepared by Patwari Omprakash (PW-6). After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ambikapur, who, in turn, committed the case to the Session Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant as mentioned above. Charge under Section 302 IPC was framed against the appellant. The appellant abjured the guilt. The prosecution examined Aghansai (PW-1), who lodged the First Information Report (Ex. P-2), Manikdas (PW-2) and Dewan (PW-3), who are eye- witnesses, Ramnarayan Singh (PW-4), Autopsy Surgeon Dr. R.N.Gupta (PW-5), Patwari Omprakash (PW-6), Duhanram (PW-7), Nawalsai (PW-8) (witness of memorandum and seizure) and Investigating Officer Sub-lnspector V. Pradhan (PW-9). The appellant did not examine any witness in his defence. 3. Shri Vineet Kumar Pandey, learned counsel for the appellant argued that there was no independent eye-witness. Aghansai (PW- 1) is son of the deceased and Dewan (PW-3) is also a relative witness. Dewan (PW-3) was 65 years old on the date of incident and his eye-sight was very weak. Hence, it was not possible for him to identify the assailant. Therefore, the conviction of the appellant ^^;-1-~~;;; i. ^3 cannot be based on the evidence of Manikdas (PW-2) and Dewan (PW-3). 4. On the contrary, Shri Ashish Shukla, learned Government Advocate for the State/respondent submitted that the impugned judgment of conviction and sentence passed by the learned Session Judge is impeccable and 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 appellant under Section 302 IPC is based on the testimonies of Manikdas (PW-2) and Dewan (PW-3). 6. It is not disputed that Aghansai (PW-1) is son of the deceased and Dewan (PW-3) is also a relative of the deceased. It is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the Court is satisfied that the evidence of the interested witness has a ring of truth such evidence could be relied upon even without corroboration. The fact of being a relative cannot by itself discredit the evidence. When the eyewitnesses are stated to be interested and inimically disposed W] towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. 7. In Brahm Swaroop and another vs. State of U.P., AIR 2011 SC 280, the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh & Ors. V. State of Punjab, AIR 1953 SC 364; Masalti v. State of U.P., AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC 76; and Rizan & Anr. V. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh, (2003) 2 SCC 661) : (AIR 2003 SC 976)." 8. Manikdas (PW-2) deposed that on the fateful day, he was ploughing his field. One Khora, Dewan (PW-3), the appellant and the deceased were also ploughing their respective fields. It was getting about 9 A.M. He saw that the appellant, who was armed with a Lathi, assaulted the deceased with the Lathi and killed him in the field. Due to fear, he did not go near the dead body. He went to the house of the deceased and told his son Aghansai (PW-1 ) that the appellant had killed the deceased assaulting him with the Lathi in the field. In cross-examination, he deposed that his agricultural field is situated adjacent to the agricultural field of the appellant and agricultural field of the deceased is situated adjacent to the agricultural field of the appellant. He further deposed that he witnessed the appellant assaulting the deceased. After the incident, he fled from there due to fear. 9. Dewan (PW-3) deposed that he was ploughing his field. Field of the deceased was situated after a field. The deceased was ploughing his field. The appellant was also ploughing his field. Fields of the deceased and the appellant are situated adjacent to each other's fields. At about 10 A.M., the appellant assaulted the deceased with a Lathi. He knew that the Lathi blow was given on the head of the deceased. Due to the assault, the deceased fell down. He fled from there due to fear. 10. Aghansai (PW-1) deposed that his father Garzee Kanwar (the deceased) had gone to plough the field. At about 10 o'clock, Manikdas (PW-2) came to Bhandar-Tikara and told him that the deceased was killed by the appellant in the field. Manikdas (PW-2) deposed that he had told Aghansai (PW-1) about the incident. Aghansai (PW-1) came home and narrated the incident to Up- Sarpanch Ramnarayan (PW-4). Thereafter, he went to the field along with 1-2 villagers. He saw that the deceased was lying dead in the field. Ramnarayan Singh (PW-4) deposed that Aghansai (PW- 1) told him that his father (the deceased) had been killed by the ^l appellant. Thereafter, they had gone to the fiefd to see the deceased. Dead body of the deceased was lying in his field. Nawalsai (PW-8) deposed that Aghansai (PW-1) came his house and told him that the appellant had committed murder of his father (the deceased) in the field. Thereafter, he, Aghansai (PW-1) and one Sonsai had gone to the field to see the dead body. 11. Learned counsel for the appellant argued that the evidence of Aghansai (PW-1) regarding the injuries is contradictory to that of Ramnarayan (PW-4) and Nawalsai (PW-8) and there is material contradiction between ocular and medical evidence. 12. This contention of learned counsel is not acceptable. Aghansai (PW-1) deposed that he saw injuries over chest and chin of the deceased. He went to Police Station Darima and lodged a report. On his report, Merg-lntimation (Ex.P-1) was recorded and First Information Report (Ex.P-2) was registered by the police. Aghansai (PW-1) is the son of the deceased. It was not possible for Aghansai (PW-1) to observe minutely each and every injury present on the dead body of the deceased as the dead body was of his father and having seen the dead body of his father he would have lost control over his mind. He saw injuries over chest and chin of dead body of his father and went for lodging the First Information Report (Ex.P-2). The inquest (Ex.P-7) contains description of injuries present on the dead body. Ramnarayan (PW-4) deposed that injuries were present on head, chest and chin of the deceased and blood was oozing out near his lips. Nawalsai (PW-8) deposed •::=^. ":-. '^' 'd lA-rfS-,:^ 1/' • ''K V^!S^^ "^.^'s-^' /Z ^ i '^'v 8 that Ramnarayan Singh (PW-4) had also come to the place of occurrence. Dead body of the deceased was lying in the field. Injuries were present on leg, head, face and back of the deceased. Thereafter, they sent Aghansai (PW-1) to police station. 13. Dr. R.N.Gupta (PW-5) deposed that on post mortem examination of the deceased he found the above five injuries including fracture of parietal bone and rupture of right lung. 14. It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the Court to reject the evidence in its entirety. Irrelevant details, which do not in any way corrode the credibility of a witness, cannot be leveled as omission or contradiction. In the instance case, the evidence of Aghansai (PW-1) regarding injuries present on the dead body of the deceased is duly corroborated by the medical evidence and the evidence of Ramnarayan (PW-4), Nawalsai (PW-8). 15. Learned counsel for the appellant has contended that eye- sight of Dewan (PW-3) was very weak and he was aged about 65 years on the date of incident, hence, it was not possible for him to identify the assailant. 16. This argument of learned counsel is not acceptable. Dewan (PW-3), in cross-examination, though admitted that his eye-sight was weak, but he deposed that he was able to see, and for this, at the time of his examination, he stated before the Court that he was able to see the road made outside the Court and 2-3 persons standing there. In this regard, the learned trial Judge has also given his opinion. It appears that Dewan (PW-3) could see things clearly in the daylight. 17. Patwari Omprakash (PW-6) deposed that he prepared site- plan (Ex. P-5) according to statements of Manikdas (PW-2), one Khora and Aghansai (PW-1). After perusal of the document Ex.P-5, it appears that distance between the field of Manikdas (PW-2) and the field of deceased would be 44 metres and distance between the place of occurrence and the field of Dewan (PW-3) would be 52 metres. 18. Manikdas (PW-2) and Dewan (PW-3) specifically stated that the occurrence had taken place before them. The appellant was well acquainted with Manikdas (PW-2) and Dewan (PW-3) and the occurrence had taken place at about 9-10 A.M. in the month of February. The distance, which has been stated by Manikdas (PW-2) and Dewan (PW-3) between the place of occurrence and their fields was not so far that the appellant, who was a resident of the same village, where these witnesses also resided, could not easily be seen and identified by these witnesses. 19. Sub-lnspector V. Pradhan (PW-9) deposed that he had interrogated the appellant before Ramnarayan Singh (PW-4) and Nawalsai (PW-8) on 29-2-2004. Memorandum statement of the appellant regarding hiding the Lathi in his house was recorded vide Ex. P-11. He seized the Lathi from the house of the appellant vide Ex.P-12. Nawalsai (PW-8) deposed that the appellant had stated before the police about hiding the Lathi in his house, which was 10 recorded in Ex.P-11. The Lathi was seized by the police from the house ofthe appellant vide Ex.P-12. 20. We have carefully perused the evidence of Aghansai (PW-1 ), Manikdas (PW-2), Dewan (PW-3), Ramnarayan (PW-4) and Nawalsai (PW-8). Manikdas (PW-2) and Dewan (PW-3) have specifically deposed that on the fateful day, the appellant had given Lathi blows on the head of the deceased. The evidence of these witnesses are corroborated by medical evidence. There is no material on record to show that Manikdas (PW-2) and Dewan (PW- 3) had any motive to falsely implicate the appellant. The evidence of Manikdas (PW-2) and Dewan (PW-3) are cogent, clinching and trustworthy and corroborated by the medical evidence. Dr. R.N. Gupta (PW-5) has opined that mode of the death was coma and shock and cause of the death was head injury and traumatic rupture of right lung. In view of the mode and cause of death of the deceased, we are of the opinion that the death of the deceased was homicidal in nature. 21. For the foregoing reasons, we do not find any infirmity in the finding recorded by the trial Court that it was none else but the appellant who inflicted injuries on the head of deceased with the Lathi and the deceased died on account of the injuries caused by him. 22. Consequently, the judgment under appeal, being impeccable, is affirmed and the appeal is dismissed. Sd/- Sunil Kumar Sinha Judge .^.^. Sd/- R.S. Sharma Judge Gopal