LS HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARhflA & HON'BLE MR.R.N.CHANDRAKAR, JJ. Criminal Appeal No. 640 of 2006 Appellant Dadu @ Narendra Gond S/o Hari Ram (In Jail) Gond, aged about 21 years, Occupation Agriculture, R/o Dagania, Police Station - Dindayal Upadhaya Nagar, Raipur, District Raipur (C.G.) Versus State of Chhattisgarh. Through:- The District Magistrate, District - Raipur Respondent (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) Mr. Adil Minhaj, counsel for the appellant. Mr. Neeraj Kumar Mehta, Panel Lawyer for the State/respondent. JUDGIVIENT (Delivered on 01st December, 2011) The followina iudament ofthe Court was delivered bv T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 30.06.2006 passed by the Additional Sessions Judge (FTC), Raipur (C.G.), in Sessions Trial No. 150/2006, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Imam Khan (since deceased) convicted him under Section 302 ofthe I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default of payment offine to further undergo R.l. for two months. ^ n y 2. Conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on fateful night of 09.01.2006 between 8:15 to 8:30 pm, present appellant was quarreling with Akram Khan (PW/7), which was seen and informed by Shahina Anjum Khan (PW/13), sister of Akram Khan (PW/7) to her father i.e unfortunate deceased Imam Khan, then deceased proceeded towards the spot. After some time, Sultana Begam (PW/5), wife of deceased also proceeded towards the spot. At that time appellant was scuffling and assaulting the deceased by knife and caused fatal injuries. She tried to save her husband, thereafter they took the injured to Medical Hospital, Raipur, where he died as a result of injuries. Dehati Nalisi was lodged by Sultana Begam (PW/5) vide Ex.P/10 at police out post Dindayal Nagar, Raipur. On the basis of Ex.P/10, F.I.R. Ex.P/15 was recorded. Merg was registered vide Ex.P/16 and Ex.P/17. Investigating officer left for scene of occurrence and after summoning the witnesses vide Ex.P/1, inquest over the dead body of deceased was prepared vide Ex.P/2. Spot map was prepared by investigating officer vide Ex.P/23. Bloodstained soil and plain soil were seized from the spot vide Ex.P/7. Dead body was sent for autopsy to Dr. Ambedkar Hospital, Raipur vide Ex.P/13, where Dr. Shivnarayan Manjhi (PW/12) conducted autopsy vide Ex.P/18 and found following injuries: (i) Stab injury over left shoulder of 1.5x .5 x 1.5 cm. (ii) Stab injury over chest just below axillary fold of 1.5 x .5x3 cm. upto mussel deep. (iii) Stab wound over left arm of 2.5 cm to olecranon eminence of 3cm x 0.9cm x 6cm. (iv) Stab wound over injury no. 3 of2 x 0.6x 9cm. (v) Stab wound of 2cm x 0.5cm x 5 cm over left thigh. (vi) Stab wound of 2cm x 0.5cm x 9.5cm over left thigh muscle deep. (vii) Stab wound of 1 cm x 0.5cm x 2.5cm near blueteal fold. (viii) Incised wound over left side of chest of 0.5cm x 0.2cm. (ix) Stab wound over chest of 2cm x 0.5cm into sufficient de< (x) Soft tissues, left pleura, left lung were found cut. Abdominal cavity was also found cut. (xi) Stab wound over left side of chest of 1 .8cm x .5cm x .7cm. (xii) Multiple impacted abrasions over both the knee of .5cm x 1.5cm. in diameter. Mode ofdeath was shock and homicidal in nature. During the course of investigation, appellant was taken into custody. He made disclosure statement of knife vide Ex.P/4, same was recovered at his instance vide Ex.P/6. Sealed viscera and clothes of deceased were seized vide Ex.P/5. Knife was sent for chemical examination to doctor vide Ex.P/19, which was examined vide Ex.P/20. Appellant was examined by doctor vide Ex.D/5 and two abrasions were found over his body. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'Code') and after completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Raipur, who in turn, committed the case to the Court of Sessions, Raipur, from where the learned Additional Sessions Judge, Raipur received the case on transfer for trial. In order to prove the guilt ofthe accused/appellant, the prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code, in which he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. Appellant has taken specific defence that Akram Khan (PW/7) had tried to outrage modesty of her sister and used to comment, when he stopped him then Akram along with Ritesh Monas (PW/8), deceased Imam Khan, Shahina Anjum Khan (PW/13), Sultana Begam (PW/5) came to him, caught hold and assaulted him, as a result of which he sustained injuries thereafter he immediately rushed to the police station from where he was sent for medical examination to doctor and no action was taken on his report. He has also taken the defence that he has not caused any injury or homicidal death ofdeceased. -,.-€."-^ v.;^^. ^ '•:- TS K's.yta';. y '•..sasia. s * i ..^ ^ 6. After providing oppori:unity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellant vehemently argued that conviction is based on evidence of Sultana Began (PW/5), wife of deceased, Hajra Khatun (PW/6), neighbour of deceased, Akram Khan (PW/7), son of deceased, Ritesh Monas (PW/8), friend of Akram (PW/7) and Shahina Anjum Khan (PW/13), daughter of deceased, but their evidence do not inspire confidence and trustworthy. All are interested and relative witnesses having enmity with appellant. There is contradiction, omission and exaggeration in their evidence, statements and Dehati Nalis Ex.P/10. He further submits that incident took place at dark night and nobody was in a position to witness the incident. Even as per evidence of Akram Khan (PW/7) and Ritesh Monas (PW/8), appellant and deceased were scuffling each other, deceased was having healthy physique and was working as welder. Complainant party had tried their level best to elude and took out the deceased from the place of incident, even they pushed the deceased, took him inside the house and closed the door from outside but the deceased somehow managed to come out from the house and he himself has caused injuries to appellant. He also submits that evidence of prosecution witnesses may be sufficient in creating suspicion that appellant might have committed the offence but it is not sufficient for drawing definite conclusion that appellant has caused homicidal death of deceased with intent to cause his death. 9. On the other hand, learned Panel Lawyer for the State/respondent opposed the appeal and submits that aforesaid witnesses are relatives and interested witnesses but their evidence cannot be discarded on the ground of relationship and minute scrutiny of their evidence is required. The incident took place near the house of deceased and presence of aforesaid witnesses was natural. He further submits that they have admitted true version and true story in their cross-examination which \ ^ show credence. They have not suppressed the material evidence or fact. There is some discrepancy, omission, contradiction and exaggeration in the statements of witnesses but their evidence cannot be discarded on the ground of such discrepancy, omission, contradiction and exaggeration. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death as a result of fatal injuries found over the vital part of deceased Imam Khan has not been substantially disputed on behalf of the appellant; even otherwise, it is established by the evidence of Dr. Shivnarayan Manzi (PW/12) and autopsy repori: Ex.P/18 that death ofthe deceased was homicidal in nature. 12. As regard the complicity of the appellant in the crime in question is concerned, conviction is substantially based on the evidence of Sultana Began (PW/5), wife of deceased, Akram Khan (PW/7), son of deceased, Ritesh Monas (PW/8), friend of Akram (PW/7) and Shahina Anjum Khan (PW/13), daughter of deceased. All are relatives of the deceased and the presence of these witnesses on the spot has not been substantially disputed by the appellant, inter-alia in examination under Section 313 ofthe Code, appellant has specifically admitted the presence of aforesaid witnesses on the spot. As per his defence, witnesses were present, they caused injuries to him thereafter he went to police station for lodging report. He was also examined by doctor vide Ex.D/5, which shows one abrasion of 2cm x 6cm over back, one abrasion over right index finger, middle finder and ring finger. All injuries were simple in nature. As per evidence of Sultana Begam (PW/5), wife of deceased, she lodged Dehati Nalisi vide Ex.P/10. Initially, appellant and Akram Khan (PW/7) were quarreling, being informed by Shahina Anjum Khan (PW/13) she along with her mother Sultana (PW/5) and deceased Imam Khan proceeded towards the spot, thereafter they came back. To avoid further quarrel and dispute of appellant with her husband she pushed her husband inside the room and closed the door from outside. Again appellant caught hold Akram Khan (PW/7) then deceased Imam Khan came out from the house ^ssi ^" .(T—iiiil r x i, '^J'" through roof and tried to save his son Akram (PW/7) then appellant assaulted the deceased Imam Khan by knife. They tried to save Imam Khan and Akram (PW/7) then appellant went to his house and again came back with belt and chased Akram (PW/7) who ran from the spot. Appellant also threatened this witness and she was saved by Hajra Khatun (PW/6). Thereafter, they took the injured to hospital and ultimately her husband deceased Imam Khan died and Merg Intimation Ex.P/10 thereofwas lodged by her. Version of Sultana Begam (PW/5) is corroborated by the evidence of Hajra Khatun (PW/6) up to her part and remaining part is irrelevant. Evidence of Akram Khan (PW/5), Ritesh Monas (PW/8) and Shahina Anjum Khan (PW/13) is specifically corroborated by the evidence of Sultana Begam (PW/5). Defence has cross-examined this witness in detail. 13. Akram Khan (PW/7), son of deceased, has categorically and specifically admitted in para 5 of his cross-examination that at the time of main incident while he was quarreling with appellant, his father came thereafter, his mother also came. He has also admitted that appellant was quarreling with him not with his father but his father came down by jumping from the roof then his father and appellant caught hold each other and started scuffling, as a result of which they fell down on the floor. He has further admitted that they were five in numbers and appellant was alone. He has also admitted that they tried to separate the appellant and deceased, his father (deceased Imam Khan) was having healthy physique. He has denied the suggestion that he was having knife but he has admitted the fact that appellant had also gone to the police station for lodging report. 14. Ritesh Monas (PW/8) has specifically admitted in para 7, 8 and 9 of his cross-examination that appellant and deceased were scuffling with each other. Firstly, they took the deceased inside the house and locked the door but deceased came out from the house by jumping from roof then appellant and deceased caught hold each other as a result of which they fell down on the floor. Deceased overpowered the appellant, they tried to separate them. He has further admitted that during the course of quarrel appellant received injury and he also went ^^y-»":- ^.^•^, •A1 I j ^ ~'VK/t/ ~'*»ssssalS'" to police station for lodging report. In their detail cross-examination they have specifically admitted that initially some dispute/quarrel took place between Akram Khan (PW/7) and appellant. Deceased came forward to save Akram and quarreled with appellant then they took the deceased inside the house to avoid further dispute or quarrel but deceased by jumping from roof came out from the house then appellant and deceased caught hold each other and scuffled virtually they were assaulting each other. Thereafter, appellant took out knife and caused injuries to deceased. They are relatives and interested witnesses. Evidence of these witnesses also shows the enmity between parties but only on the ground of relationship and interestedness, there evidence cannot be discarded. 15. While dealing with the question of evidentiary value of relatives, interested and inimical witnesses, the Supreme Court in the matter of Dalip Singh v. State of Punjab has held that a witness is normally to be considered independent unless he or she springs from sources which are likely 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 relative 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" 16. As held by the Supreme Court in the matter of Mohabbat and Ors.v. State of M.P.2, 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 as under, "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. '(1954) 1 SCR 145 22009 AIR SCW 1486 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 factor 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." 17. While dealing with the same question, the Supreme Court in the matter of Guli Chand and others v. State of Rajasthan has held that mere fact that relative witness or his relations is not sufficient to discard his testimony. 18. While dealing with the same question, the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra held that in view of the close relationship and affection any person related to the deceased would have,such a witness would naturally have a tendency to exaggerate oradd facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Para 48 of the said judgment reads as under:- "48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this 3(1974) 3 SCC 698 4AIR 1984 SC 1622 process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it." 17. In case of animosity or natural evidence of interested witness, Court is required to scrutinize the evidence minutely and in case of exaggerations, omissions, contradictions and partial false evidence, the Court is required to scrutinize the evidence and must make an attempt to separate grain from the chaff, the truth from the falsehood. 18. The maxim 'falsus in uno, falsus in omnibus' is not applicable in India. Statement of any witness cannot be discarded and rejected out rightly on the ground that the witnesses patently falsely implicated to one or more accused or his statement is not reliable for some accused. Statement of a witness may be relied upon for some accused and may be rejected or discarded relating to some accused. 19. While dealing with the question of reliability of the evidence of the person who has exaggerated and patiently given false statement up to some extent, the Supreme Court in the matter of Laxman and others v, State of Maharashtra has held that witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrable incorrect or doubtful. Relevant portion reads as under: "Before we discuss the evidence further, we may observe that Professor Munsterberg in a book called "On the Witness Stand" (p.51), "Law and the Modern Mind" (see: 1949 ed. P.106) gives instances of experiments conducted by enacting sudden unexpecfed preplanned episodes before persons who were then asked to write down, soon afterwards, what they had seen and heard. The astounding result was: "Words were put into the mouths of men who had been silent spectators during the whole short episode: actions were attributed to the chief participants ofwhich not the slightest trace existed; and essential parts of the tragic- comedy were completely eliminated from the memory of a number of witnesses". Hence, the Professor concluded: "We never know, or imagine". Witnesses can not, therefore, be branded as liars in toto and their testimony rejected outhght even if parts of AIR 1974 SC 308 ^^f-s V- 10 ./ their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted or acted upon. It is sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "falsus in uno falsus in omnibus". 20. There are exaggerations, omissions, and contradictions in the evidence of aforesaid witnesses to some part of the incident. Sultana Begam (PW/5) has deposed in her evidence and admitted that she has lodged Dehati Nalisi Ex.P/10 and made exaggerated statement but even on the ground of exaggeration, omission and contradiction evidence of witnesses cannot be discarded and Courts are required to separate grain from the chaff, the truth from the falsehood. 21. We have examined the aforesaid witnesses and case laws relating to reliability of the evidence of interested and relative witnesses also on the basis of contradictions, omissions and exaggerations. 22. Evidence of these witnesses clearly reveal that appellant was quarreling with Akram Khan (PW/7), son of deceased, then deceased came from the house with a view to save his son, thereafter both quarreled with each other, assaulted each other, deceased was not having any weapon whereas appellant was having knife, he took the knife and caused as many as 10 injuries. As per evidence of Dr. Shivnarayan Manjhi (PW/12), injury No.11 i.e. multiple impacted abrasions cannot be caused by sharp edged weapon but it may be caused by falling on knees during his scuffle. Injury No. 11 was simple in nature and rest of the injuries were on vital parts and fatal in nature. Two injuries found over the chest were fatal injuries thereby soft tissues, left pleura, left lung and abdominal cavity were found cut. 23. This is not a case in which with a view to save himself appellant has caused 1 or 2 injuries even by knife but appellant has caused as many as 10 fatal injuries to the deceased. Evidence of aforesaid witnesses to the extent that appellant has caused injuries by knife inspire confidence and trustworthy and same is safe to rely. Further, evidence of aforesaid witnesses is sufficient to prove the fact that appellant has caused homicidal death ofdeceased. 11 24. As regards the question of intention and motive, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. 25. In the present case, initially on the ground of quarrel with deceased, appellant was having right of private defehee but after causing any of injury out of 10 there was no occasion of causing repeated injuries that too 10 in numbers to the deceased, which shows grave intention ofthe appellant for causing homicidal death of deceased with intent to cause his death. 26. After appreciating evidence available on record, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 27. Conviction of the appellant is based on credible, clinching and reliable evidence and same is sustainable under law. While convicting and sentencing the appellant under Section 302 of the IPC, Court below has not committed any illegality or infirmity. 28. Consequently, the appeal being devoid of merits is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.N. CHANDRAKAR. Judge Vijay