L-'.S HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ, Criminal ApDeal No. 947/2005 APPELLANT/ (injail) RESPONDENT Vishnu Prasad, aged 40 years, S/o Charuram Binjhwar, R/o village Diparapara Kota, P.S. Kota, Distt. Bilaspur (C.G.) VERSUS State of Chhattisgarh, Through Police Station Kotal, Dist. Bilaspur (C.G.) CRIMINALAPPEAL UNDER SECTION 374 (2)0F THE CRIMINAJ- PROCEDURE CODE Appearance: Shri Daya Ram Sharma, Senior Advocate with Shri B.D.Badgaiyan, counse] for the appellant. Shri Ashish Shukla, G.A. for the State. ORALJUDGIVIENT (Passedon 12.11.2010) Per T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 12.09.2005 passed in Sessions Case No. 7 of 2005 by the Sessions Judge, Bilaspur, whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of Kartikram after committing house trespass with intent to commit offence punishable with imprisonment for life, the Court below convicted the appellant under Section 450 and 302 of the I.P.C. and sentenced him to fiveyears R.l. with fine of Rs.1000/- and life imprisonment with fine of Rs.5000/- and in default of payment of fine, to undergo additional imprisonment for 6 months and one year respectively. 2. The conviction of the appellant is impugned on the ground that without iota of evidence, the Court below convicted and sentenced the appellant as aforesaid and thereby committed illegality. ft ""its^. ''% 3. As per the case of prosecufion that on fateful day of 15.09.2004 at about 2.30 P.M. Kartikram (since deceased) came after consuming liquor with the appellant one Rajesh Yadav. The appellant was abusing Kartikram in filthy language after threatening him to kill. Thereafter, the appellant went to his house. After some time, the appellant came with betel axe and entering the house of Kartikram dragged him and thereafter assaulted him over his head, neck and other parts of the body by betel axe and caused the instantaneous death of Kartikram. Wife of the deeeased Jamuna Bai P.W.1, son of the deceased Harilal P.W.2 and Meena Kumari P.W.12, daughter ofthe deceased witnessed the incident. P.W.1 Jamuna Bai lodged the F.I.R. vide Ex.P.19 within 45 offhe incident. Merg was recorded vide Ex.P.20. Investigating officer left the scene of occurrence and after summoning the witnesses vide Ex.P.1, inquest over the dead body was prepared vide Ex.P.2. Plain soil and blood stained soil were recovered vide Ex.P.3. Dead body was sent for autopsy to Community Health Center, Kota vide Ex.P.13. Dr. Kaml Kishor Airy P.W.9 conducted the autopsy and found the following injuries: 1. Incised wound of5x % x 1 inch upon left ear. Bone beneath the injury was found cut and buckle cavity was visible. 2. lncisedwoundof5x1.5x1.5inchoverneck. 3. Incised wound .of5 x1.5 x 1.5 over left shoulder. 4. Incised wound of 5.5 x 2.5 x 2.5 inch over right side of neck. Carotid artery and muscles of neck were found cut. 5. Deep ineised wound of 3.5 x1 % x % inch over upper arms deltoid process. Muscles, nerves and artery were found cut. 6. Incised wound of 2.5 x 1.5 x 1 inch over right hand. 7. Incised wound over left hand. 8. Incised wound of 5 x 1 x 1 inch over epigastric region transversely. 9. Incised wound of 5 x1 inch over abdomen near umbilicus region. Intestine came out from injury. 10. Deepincised would of2x2 %x4 % depth over abdomen. 11. Incised wound of1 inchover above leftknee, 3x%x % inch. 12. Incised wound of 4 x 1X1 % inch over left knee. Tibia and Fibula bone were found cut. 13. Incised wound of3 1/2x2 x 1 inch over right knee. Tibia and fibula bone were found cut. -b 14. Superficial incised would over right knee, size is 2 x 1 inch. Death was homicidal in nature. During the course of investigation, the accused was taken into custody; he made disclosure statement of betel axe vide Ex.P.4 and the same was recovered at the instanceof the appellantvide Ex.P.5. Blood stained cloths of the appellantwere seized vide Ex.P.6. Patwari prepared spot map vide Ex.P.10. Sealed cloths of the deceased and betel axe, after medical examination, were seized vide Ex.P.12. Investigating officer preparedspot map vide Ex.P.22. Seizedarticles were sent for chemical examination and presence of blood over lungi and betel axe, seized from the accused, was confirmed vide Ex.P.25. 4. Statements ofwitnesses were recorded under Section 161 of the Crimina] Procedure Code, 1973 (for short 'the Code'). After completion of investigation, charge sheetwas filed before the Court of Additional Chief Judicial Magistrate, Bilaspur, who in turn committed the case to the Sessions Judge. 5. In orderto provethe guiltofthe accused, the prosecution examined as many as 12 witnesses. The accused was also examined under Section 313 of the Code inwhich he denied the circumstances appearing against him and pleaded his innocence and false implication in crime in question. 6. After affording opportunity to the parties and after hearing them, the learned Sessions Judge convicted and sentenced the appellant as aforesaid in paragraph 1 (supra). 7. We have heard Shri Dayaram Sharma, learned Senior Advocate with Shri B.D.Badgaiyan and Shri Ashish Shukla, learned counsel for the State atlength and have perused the record of the Court below including the impugned judgment. 8. Learned counsel for the appellant vehemently argued that conviction ofthe appellant is substantially based on the evidence of P.W.1 Smt. Jamuna Bai, wife of the deceased, P.W.2 Harilal, son of the deceased and MeenaKumar P.W.12, daughter ofthe deceased, who are the relative witnesses having inimical terms with the appellant, therefore, fl1. ..—-.i r~--"=7s''i. s '''»? ^ in the absence of corroboration from independent sources, their evidence does not inspire confidence and trustworthy. Even as per their evidence, the appellant has caused injuries to the deceased on the spur of moment all of sudden without any premeditation, therefore, the act of the appellant falls within the ambit of Section 304 Part II ofthe I.P.C. 9. On the other hand, learned counsel appearing for the State opposed the appeal and submitted that although conviction of the appellant is substantially based on the evidence ofP.W.1 Smt. Jamuna Bai, wife of the deceased, P.W.2 Harilal, son of the deceased and Meena Kumar P.W.12, daughter of the deceased, but only on the ground of relation their eviderice cannot be discarded. Relatives are witnesses who would normally be most reluctant to spare the real assailants and to falsely mention the name of another person. The appellant has caused as many as 14 fatal injuries including fracture of legs and other part of the body which shows.that he has caused murder of the deceased. After appreciating the evidence available on record, the Court below has rightly convicted and sentenced the appellant as aforementioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injuries found over the body of Kartikram has not been substantially disputed on behalf of the appellant but otherwise has been established by the evidence of Dr. KamalKishor Airy P.W.9 and his autopsy report Ex. P.17 and the death was homicidal in nature. 11. As regards complicity of the appellant in crime in question, the conviction of the appellant is substantially based on the direct evidence of P.W.1 Jamuna Bai, P.W.2 Harilal and P.W.12 Meen Kumari, who are wife, son and daughter of the deceased respectively. P.W.1 Jamuna Bai has deposed in her evidence that she was present in her house at the time of incident. Her husband was also present. Then the appellant came to her house and called her husband for consuming liquor and dragged him out of house. Thereafter, the appellant assaulted her husband by betel axe over his neck and other parts of the body. Her husband fell down and shouted for help but nobody came to rescue him. Hersons and daughters s were present and witnessed the incident. Thereafter, she went to the police station and lodged F.1.R. P.W.2 Harilal, son of the deceased, has substantially eorroborated the evidence of P.W.1 Smt. Jamuna Bai and has deposed that appellant dragged his father from his house and caused fatal injuries over the person of the deceased by betel axe. P.W.12 Meena Kumari, daughter of deceased has also substantially corroborated the evidence of P.W.2 Harilal and has deposed that the appellant has caused fatal injuries to her father by betel axe, resulting into his instantaneous death. Definitely, these three witnesses are relatives of the deceased but only on the ground of relation, their evidence cannot be discarded. 12. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the question of evidenttaFy value of the relative witnesses, the Apex Court in the matter of DatipSingh and others v. The State of Punjab has held that awitness is normally to be considered independent unless he or she springs from sources which arelikely to be tainted. Para 26 of the said judgment reads as under;- "26. A Witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. hlowever, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combatwhat is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 1 AIR 1953 SC 364 While dealing with the same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar^ has held thus, "......it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives ofthe victim is concerned, it is well settled though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or forsome other oblique motive." While dealing with the same question, the Apex Court in the matter of Hari v. State of Maharashtra3 has held that relationship by itself cannot be ground to discredit the evidence of eyewitnesses relatives of deceased, more so, when deceased was murdered by his cousin (relative). Paras 21, 22 & 23 of the said judgment read thus, "21. It may be true that all the vital witnesses, namely, PW 1, 2 and Sare relations ofthe deceased but that by itself cannot discredit their evidence. It is a fight between the relations it has come on record that the appellanf is the cousin of the deceased. In such a case, therelations are likely to be the most appropriate witnesses. 22. Certain decisions have been cited atthe Bar which need to be considered and explained. About appreciation ofevidenceof witnesseswho are related to the deceased, learned counsel for the appellant relied on a decision of this Court in Avtar Singhvs. State of Punjab, (2006) 12 SCC 524. In that case the facts were totally differentand it was opined by the learned Judges, in the peculiar facts of that case, that enmity and bad blood between the 22008AIRSCW3739 3 2009 AIR SCW 2250 7 rival groupswas established beyond doubt. In that case no report was lodged with the police regarding the occurrence and this Court looked into the evidence andopined that the story about making an effort to lodge a report earlier was not true. In that case the nambardar and the chowkidar who were alleged to have accompanied PW-1 to the police station were not examined and there was a categoric denial by PW6-Station House Officer about anyone reporting the incident to him before 4.12.1989. This Court found that the High Court has not at all noticed the facts. In the background of those facts, this Court held that proper caution was not exercised by the High Court in appreciating the highly partisan evidence adduced by the prosecution. 23. But in the instant case, the factual scenario is totally cjifferent. Here the occurrence took place within the house at the instance of the close relatives and in such a situation only relatives would be the witnesses. Of course, in the present case also there was some enmity in view of the land dispute but that by itself is not a ground to discard the evidence of the witnesses, who are relatives when their evidence is cogent and credible. Factually, the decision of this Court in Avter Singh ('supra/stands on a eompletely different footing." In the matter of Mohabbat and Ors. v. State ofM.P. the Apex Court has held that relationship is not ground to affect credibility of witriess, foundation has to be laid if plea of false implication is raised. Para 7 ofthe said judgment reads thus, "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a facfor to affect credibility of a witness. It is more 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 of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible." 4 2009 AIR SCW 1486 / A. ti'-' 13, In the light of aforesaid legal proposition laid down by the Apex Court, we are required toscrutinize the evidence of P.W.1 Smt. Jamuna Bai, wife ofthe deceased, P.W.2 Harjlal, son and P.W.12 Meena Kumari, daughter of the deceased. The defence has cross-examined these witnesses at length but has not been able to elicit anything to discredit their testimony except the name of weapon i.e. axeorbetelaxe. The evidence of these witnesses cannot be discarded on the ground of discrepancy but the nomenclature of objeot used by the appellant. 14. After appreciafing the evidence available on record, the learned Sessions Judge recorded a finding that the appellant entering into the house of the deceased dragged him out of his house and has caused fatal injurieswhich resulted intoinstantaneous death of Kartikram. The finding of Court below is based on legal, clinching and credible evidence sustainable underlaw. 15. As regards the question of motive, in case of direct evidence, motive loses its importance, evenotherwise, motive onlyaids in criminality and it can be inferred from the use of weapon, part on the body affected and other similar circumstances. In the present case, as per the evidence of aforesaid eye witnesses, the appellant came with weapon and dragged the deceased from his house and thereafter he caused as many as 14 injuries including fracture of bone which shows the grave intention and merciless assault made by the appellant, which is sufficient for drawing inference that the appellant has caused culpable homicide amounting to murderof Kartikram intentionally after cQmmission of Grimina] house trespass with intent to commit offence punishable withimprisonment for life. 16. On close scrutiny of the evidence, we do not find any illegalify or infirmity in conviction and sentence imposed upon the appellant by the Courtbelow. 17. Consequently, the appeal being devoid of meritand substance is liable to be and is hereby dismissed. >•' Sd/- T-p. Sharma Judge Sd/- R.L. Jhanwar Judge