£43m HIGH COURT OF CHHATISAR ''ILASPUR ’ n1y1§10N BEKCH ’ ‘ ‘ V ‘ CORAM: HON’BLE NIR. T.P. SHARMA 8a HON’BLE MR. R. L. JHANWAR, JJ. ‘ “{3 ' CKMINAL APPEAL No; 1007(2008 VBhuneshwar ® ’?outia, S/o Kotal Smgh aged about 35 years Occ Cultwator R/ o Vlllage Gattibuda P.S. Tapkara, Dxstrlct — ‘Jashpur, (C.G.). f VERSUS Art’ELLANT IN JAIL State of Chhattisgarh Through P.S. Tapkara, District —Jashpur, (C.G.). mMINAL'APPEAt, UNbE’SECT10N 374 F THE CODE O ’ I‘VIINAL PROCEDURE Present Smt Klran Jam, Advocate for the appellant V Shrl Rakesh Jha, Dy G A for the State/responden T RESI’ONDEN c R"‘ 2 O F CR ' . ORAL-JUDGEMENT r (Passed on 251’01/2010) The followirg iugigment of. the Court was passed bv T.P. SharmaJ J:- Challenge in this appeal is to the judgment of conviction and order of sentence dated 8/11/2002 passed by' the 2nd Additiona Sessions Judge (F.T.C.) Jashpur’Nagar C.G. in Sessions TrialNo. 154/.02 whereby and where under after holding the appellan guilty for the commission of homicidal death amounting to murder of his brother Laxman Slngh Routia conv1cted the appellant u d nder Sectlon 302 of the Indian Penal Code and sentence TGH ATB ‘ t l t imprisonment for life and fine of Rs. 500/— in default of payment further rigorous imprisonment for 5 months. 2. Judgment is impugned on the ground that without any reliable and clinching evidence Court below after placing the reliance upon the evidence of PW2 Khirobai wife of the deceased a interested witness not fully reliable has convicted and sentenced the appellant and thereby committed an illegality. Case of the prosecution in brief is that on fateful day of 6/6/02 between 8 to 9 P,M. deceased Laxman Singh Routia was present in his hOuse along with wife PW2 Khirobai, DWI mother Guruwari Bai. On the date of incident few hours prior to the commission of inCident some quarrel took place between appellant and deceaSed‘ relating to planting of sOme crop. Appellant who was brother of the deceased and was residing under same roof came with axe ' and assaulted the deceased over his head. The deceased fell down and died. Appellant thrown the axe near the place of incident and fled away from the spot. Wife of deceased PW2 Khirobai started weeping. PWI Shivshankar neighbour heard the hearing that he came to the house of the deceased, PW2 Khirobai narrated the incident to Shivshankar. He went to the police station and lodged the First Information Report vide Ex. P—l. Marg was recorded vide Ex. P—2. Investigating Officer left for scene of occurrence. After summoning the witnesses inquest over the dead body of the : deCeased was prepared Vide Ex. P—5. Dead body was sent for autopsy to Community Health Center, Tapkara District Jashpur. @ Autopsy was conducted by PW5 Dr. B.C. Paikra vide Ex. P-13 and found following injuries:~ (1) ~one lacerated wound of 3 1/2 x 2 1/2 c.m. over middle of the head with depressed fracture (2) one abrasion of 3r X 2 1/2 c.m. over right mandible region, (3) one abrasion of 2 1/2 c.m. x 2 cm. over right mastoid region, partial on was found fracture, haemrrhag pent inside the rain, ath was as a resul of Cerebr haeorrhage and deat was homicidal in nature. Spot ap was repa Vide Ex. P—3. Blood stained and plain soil were recovered Vide EX. P-6. O Lungi of ne the deceased was seized Vide Ex. —8.‘ Axe staied with the bloo P n d was recovered near the spot Vide Ex. P— Patwari also prepared 7. spot 'rap Vide Ex. P—l 1. Axe was examined by t Doctor Vide EX. n he P a hat ove de —14 nd opined t injury found r the body of the ceased er . e may be caused by Hamm (blunt part) of the axe Seized articls were sent for cmical xaination Vie Ex. P—l7. Stateme o thewitnesses were recorded der Section 161 of nt f‘ un e Code of Criminal Procedure, 973 (in short the Code). After c es t l h ompletion of the invtigation charge shee was fied before te Chief Judicial Magistrate, Jshpur who in t committe the a urn d case to the Court of Sessions Raigarh. Learned Additional Sessions Judge received the case on transfer for trial. . In order to prove the guilt of the appellant/accused, prosecution examined as well as 6 witnesses. Accused was examined under Section 318 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. . be oe res b de t al m h m pred he em d th 1 Accused has also examined defence Witness his mother Gumwari Bai, Dineshwar Singh and his brother Ramsingh. DWI Guruwari Bai and DW3 Ramsingh has admitted the death of Laxman Singh Routia but have deposed that they do not know how he died. DW2 Dineshwar Singh has deposed that axe has not been seized before him vide Ex. P-7 but he has singed over the Ex. P—7 . Df/Q After affording an opportunity of hearing to the parties learned Additional Sessions Judge convicted and senteneed the appellant aforementioned. Learned Counsel for the parties are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that case of the prosecution rests on the solitary statement of \PW2 Khirobai wife of deceased, interested witness whose evidence is not fully reliable. Her evidence shows that she and her husband were having inimical term with the appellant in absence of any corroboration from the independent sources her evidence is not sufficient for conviction of the appellant. Learned counsel for the appellant further argued that suspicion however grave cannot take place of evidence and prosecution is requiredto stand on his own leg. Prosecution cannot take benefit of weakness of defence. Learned Counsel for the appellant also submits that at the time of incident deceased and his wife PW2 Khirobai were present inside the room where deceased received injury they were not having any issue. Deceased Was willing to remarry, therefore she has killed her husband and has taken the benefit of quarreling of the deceased with her husband for implicating him falsely. 9. On the other hand, learned Counsel for the State/respondent opposed the appeal and submits that conviction is based on sole testimony of PW2 Khirobai wife of the deceased her presence at the time of incident at about 8 to 9 p.m. in her room where deceased was also present is natural. Her statement cannot be discarded only on the ground that she was wife of the deceased and close relative of the deceased. Close relatives of the deceased are person reluctant to spare the real culprit and implicate I innocence person falsely. 10. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the Prosecution. ‘x l 1. In the present case homicidal death as a result of fatal injury on the deceased has not been substantially disputed by the appellant. On the other hand also established by the evidence of PWS Dr. B.C. Paikra and autopsy report P—13 which reveal that fatal injury was found over the head including depressed fracture of partial bone which was sufficient for causing the death of the deceased and death was homicidal in nature. 12. As regard the complicity of the appellant in crime in question is concerned the conviction is substantially based on the evidence of PW2- Khirobai wife of'the deceased who has deposed in her. evidence that on fateful day deceased and appellant who were brother were quarreled on account of planting of some crop. She has further deposed that at night deceased was sitting inside the room, she herself and the mother of the deceased DWI Guruwari Bai were also sitting in the same room. Appellant came with axe and assaulted her husband she tried to snatch the axe, she also received injury. over her hand. Appellant assaulted her husband by axe over his head her husband died on the spot then appellant went away from the room and fled away he did not come back in night, she started weeping then after hearing her weeping Shivshankar came whom she narrated the incident. Accused has thrown the axe over kitchen—stool. In her cross examination she has admitted that normally Villagers keep axe, kudari in their house. She was married with the deceased 10 to 12 years prior to the incident. She used to take meal at about 8—9 p.m. and they used to sleep at about 9 p.m. She has admitted that they were having no issue but she has denied the suggestion that on account of issue her husband used to threat her for second marriage. She has also denied the suggestion that she annoyed and assaulted her husband by axe and with a View to save herself she started weeping and has implicated falsely the appellant. PW3 Khageshwar Ram has not supported the case of the prosecution. Prosecution has declared him hostile but in Para -6 of his cross examination. he has deposed that’appellant made extra judicial confession to him that he has killed his brother Laxman Singh Routia by the blunt part of the axe even he has admitted in Para-7 (“S‘élvé / @ of his cross examination that appellant went to him and told that he has committed wrong and went away. PW6 T.C. Malakar who has conducted the investigation has admitted in para—16 being asked by the counsel for the defence that accused was not present in the Village and was escaped from the village to forest then after calling him he has arrested the accused. Defence has examined DWI Guruwari Bai, mother of the deceased and DW3 brother of the deceased Ramsingh who had deposed that they do not know how Laxman Singh Routia has died. They have not stated that appellant has not caused injury or PW2 Khirobai or other person have caused injury to the deceased. DW2 Dineshwar Singh has deposed that no axe has bee-n a recovered before him but he has signed EX. P—7 the seizer memo of the axe. In his cross examination Para-2 he has admitted that he came to know that Ramkumar has assaulted the Laxman Sing-h Routia. According. to his statement he was Upsarpanch at that time he has not deposed anything to show that if the axe was not recovered before him then why he has signed over the Ex. P—7 what was the circumstances at the time of signing of such document and why he has not informed the police being responsible person of the Village “Upsarpanch’t that some Ramkumar has killed the Laxman Singh Routia. This shows that this witness is concealing the truth; Accused was residing under same roof. He has not taken the defence of alibi. In the present case First Information Report has been lodged by Shivshankar \‘N‘N \ ‘ i r l ram, K " 7 ‘ m and not by the appellant Whose presence in the house was natural according to the evidence of PW2 Khirobai he fled away from the spot after commission of the offence which has been supported by the eidence of W6 T.C. Malaka, Investigating Officer ho has v P r w arrested the appellan after calling him from e Forest. he dead t th T body of deceaed bther of th appellan was prent in the house and the appellant was foud in forest lso show hs n a s i unnatural condct. PW hirbai fe f the decased were u 2 Ko wi o e present at the time f incident her ence at the tim of incident o pres e was natural her statement finds suppot from th statement f r e o PW Shivsankar who has lodged the report his evidenc also d t w s reveal that he immeiately went to search appellan ho wa not sent i the house. T evidence of PW Khirobai fe and close pre n he 2 wi ti d e relave of the deceased cannot be discarde on the ground of hr l Ki th e .. reationship PW2 hiroba is a close relative of e deceasd ie wife but also dauhter-i-law (Bahu) of he appellant. gn t h ue e ur While dealing with te qstion of relative witnss Apex Cot h Mohabbat and 01s. v. State of M.P.1 has eld in the matter of ' that relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads thus:— vlv{E VV t “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 1 2009 AIR SCW 1486 _ M“\¢ \ r l ' / s ro e t se b ? I h e @ 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 factor to affect credibility of a Witness; It is more often than L not that a relation would not conceal actual culprit lg/ 2 and make allegations against an innocent person. J 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.” In this case Court below has convicted the appellant substantially on the ground of PW2 Khirobai the solitary witness. In case of Jhagsa Kabari and others, Aggellants v. State at Bihar: Respondentz Apex Court has held that there is no bar is basing conviction on the testimony of solitary witness so long as the said witness is reliable and trustworthy. Para-9 reads as follows:— “There is, However, no bar is basing conviction on the testimony of solitary witness so long as the said witness is reliable and trustworthy. The Sessions Court and the High Court examined the testimony of PW—l and found no reason to disbelieve it. We have also gone through the testimony of PW—l. We are also of the View that her deposition is most natural, reliable and trustworthy. She could not be shaken in the cross—examination. Simply because 14 years’ old boy did not name her in the fardbayan, in the facts of the case, is of no consequence and does not require her evidence to be rejected. He 2 AIR 2002 sc 312 “A: m‘ 1 10 é U must have been under a mental tension on account of the murder of his father and uncle. In our View, there is no inflrmity in the conviction and sentence of Bhikar Raut and Isralil Kabari for offence under Section 302/34 IPC.” While dealing with the question of conviction on the basis of solitary witness Apex Court has held in case of Chittar Lal, L5 Aggellant v. State oi Raiasthan, Resgondent3 that the conviction can be based on the testimony of sole witness it is the quality and not the quantity of evidence that is relevant for proving or disproving a fact. Para-7 reads as follows:- “Therefore, the plea that P.W. 3’s testimony is doubtful lacks substance. The other plea was that conviction should not have been “made on the basis of a single witness (P.W. 3 ’s) testimony. This plea is equally without essence. The legislative recognition f the fact that no particular number of witnesses 'can be insisted upon is amply reflected in S. 134 of the. Indian Evidence Act, 1872 (in short ‘Evidence Act’). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent cases where the testimony of a single witness only could be available, in number of crimes offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has 3 AIR 2003 SC 3590 o to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact.” According to PW2 Khirobai appellant has used axe but injury L ‘3/ found over the body of the deceased shows that blunt part of the ,? axe was used which finds support from the brief extra judicial confession made by the appellant to the PW3 Khageshwar Ram and 'opinion of the PW5 Dr. B.C. Paikra. In the present case evidence of solitary and relative witness PW2 Khirobai is corroborated by the evidence of PWI Shivshankar, FIR Ex. P-l, brief extra judicial confession made by the appellant to PW3 Khageshwar. After appreciating the evidence available on record learned Additional Sessions Judge has convicted and sentenced the appellant aforementioned the conviction of the appellant is based on credible, clinching and reliable evidence sustainable under the law. On close scrutiny of the evidence, we do not find any scope in the appeal. Consequently, criminal appeal is liable to be dismissed 1 , .- § and it is hereby dismissed. I SM Sd/_ J ‘ I R.L. Jhanwar T.P. SHARMA ,- %% ‘ ' \ i Judge