HIGH COURT OF CHHATTISGARH. BILASPUR [^ / DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.740 of 2005 Amol Sai - Versus - State of Chhattisgarh JUDGMENT FOR CONSIDERATIO HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- T.P. Sharma Judge 28-6-2011 Sd/- ^^. nianwar 5udge th Post for pronouncement of judament on 28l" June. 2011 Sd/- T.P. Sharma Judge /y^ ^ r ^ ^. j ^ \.%i^/ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARIVIA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT: (In Jail) RESPONDENT: Criminal Appeal No.740 of 2005 Amol Sai, S/o Ram Prasad Suryavanshi, aged about 33 years, R/o Village Nagoi P.S. Sarkanda, Distt. Bilaspur (C.G.) Versus State of Chhattisgarh, Through Police Station Sarkanda, Distt. Bilaspur (C.G.) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure 1973} Present: Mr. Uttam Pandey, counsel for the appellant. Mr. D.K. Gwalre, Govt. Advocate forthe State/respondent. JUDGMENT (Delivered on 28th June, 2011) The followina iudament ofthe Court was passed bv T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 20-7-2005 passed by the 8th Additional SessionsJudge (FTC), Bilaspur in Sessions Trial No.73/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Bhayyaram, convicted the appetlant under Section 302 of the IPC and sentenced him to undergo imprisonment for life and pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for three months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant and thereby committed illegajity. 3. As per case of the prosecution, on the fateful day of 31-10-2004 at about 7.30 p.m. on account of family dispute and active participation of Bhayyaram (since deceased) in the alleged family dispute,the appellant assaulted Bhayyaram by stick over his head and caused his instantaneous death. Shatruhan Lal (PW-5) - son of deceased '^ Bhayyaram who was also present on the spot went to the police station and lodged FIR vide Ex.P-3. Merg was recorded vide Ex.P-4. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-5, prepared inquest over the dead body of the deceased vide Ex.P-6. Bloodstained soil, plain soil, bloodstained towel and bloodstained shawl were recovered from the spot vide Ex.P-9. Spot map was prepared by the Investigating Officer vide Ex.P-12. Dead body of Bhayyaram was sent for autopsy to CIMS, Bilaspur vide Ex.P-1A. Dr. Vijay Kumar Manwani (PW-2) conducted autopsy vide Ex.P-1 and found following injuries: - (1) Multiple abrasions of % c.m. x % c.m. to 2 c.m. x 2 c.m. over left forehead and face. (2) Abrasion of 1.5 c.m. over right hand. (3)Chopped wound of 9.1 c.m. x 3.2 c.m. up to brain deepover occipital, temporal and parietal regions, brain matter was visible. (4) Incised wound of 9.2 c.m. x 0.5 c.m. x brain deep over left occipital region, brain was found cut. (5) Compound fracture of occipital, parietal and temporal bones of boththe sides. Mode ofdeath was coma and death was homicidal in nature. During the course of investigation, the accused was taken into custody. He made discloser statement of rapli (small spade) vide Ex.P-10 and same was recovered at his instance vide Ex.P-11. Patwari also prepared spot map vide Ex.P-8. As per case ofthe prosecution, Shatruhan Lal (PW-5) tried to cause injury and caused injury to the appellant by encircling rape over the neck of the appellant and by hands & fists. The appellant was sent for medical examination vide Ex.P-14, he was examined by the doctor and abrasions were found over his neck. Seized articles were sent for chemical examination vide Ex.P-15. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court ofAdditional Chief Judicial Magistrate, Bilaspur who committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as eleven witnesses. The accused was examined under w Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication. The accused has also taken defence that Shatruhan Lal (PW-5) has tried to kill him and at the time of incident he was not present on the spot and he has been falsely implicated in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 8. Learned counsel for the appellant submits that Shatruhan Lal (PW-5) - son of the deceased, is interested and inimical witness, he has caused fatal injuries to the appellant before the alleged incident, and at the time of incident, the appellant was not able to cause any injury on account of injuries sustained by him. Dead body of Bhayyaram was found near the shop of Pandey and it was not visible from the shop of Pandey. The place where the dead body was found was surrounded by shrubs. At the time of incident there was complete darkness and it was not possible for persons to see whether the dead body was lying and who has caused injury. There is inconsistency between ocularand medical evidence. As per FIR, the appellant has caused injury by stick, but as per autopsy report five fatal injuries caused by sharp edged object have been found. Evidence adduced on behalf of the prosecution is not safe to rely. Learned counsel further submits that other eyewitnesses i.e. Keshav Pandey (PW-6) & Kapil (PW-8) were alsopresent on the spot, although the prosecution has declared them hostile, they have clearly deposed that Shatruhan Lal (PW-5) has tried to kill the appellant, at the place of incident there was complete darkness and nobody has seen the incident. Evidence of aforesaid witnesses inspires confidence and their evidence is trustworthy. Learned counsel placed reliance in the matter of Kapildeo Mandal & Ors. v. State of Bihar in which the Supreme Court has held that credibility of eyewitness cannot be judged merely on basis of his relationship with deceased and strained relation with accused, but is required to be judged on the basis of other factors like identification/ availability of live consistency with medical and ocular evidence. 1 AIR 2008 SC 533 ^ 9. On the other hand, learned State counsel opposed the appeal and submitted that evidence of eyewitnesses Shatruhan Lal (PW-5) & Kapil (PW-8) inspires confidence, their evidence is trustworthy and their evidence cannot be discarded only on the ground of relation or inimical terms, only minute scrutiny of their evidence is necessary. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adducedon behalfofthe prosecution. 11.1n the present case, homicidal death of deceased Bhayyaram as a result of fatal injuries found over vital part i.e. head has not been substantially disputed on behalf of the appellant, otherwise also it is established by the evidence of Dr. Vijay Kumar Manwani (PW-2) and autopsy report Ex.P-1 that death of the deceased was homicidal in nature. 12.As regards complicity ofthe appellant in the crime in question, conviction is substantially based on evidence of Shatruhan Lal (PW-5) & Kapil (PW- 8) - sons of the deceased. As per evidence of Shatruhan Lal (PW-5), at the tjme of incident, he was talking with Ramsanehi in front of the shop of Pandey between 7-7.30 p.m., at the same time, the accused came from behind and assaulted him, thereafter, the accused caught hold of his collar and abused him. Witnesses Ramsanehi and Prahlad rescued him. Thereafter, the accused went away from the place. This witness went to his house to inform the incident to his brother Kapil (PW-8) and he again came along with Kapil near the place of Pandey shop, his father was also coming behind them, the accused was hiding himself near the place of incident and when his father came near Pandey shop, the accused/ appellant assaulted his father by kudali, a weapon used for digging, and caused his death. He along with his brother went to Police Station Sarkanda and lodged FIR. As per his evidence, maternal nephew bhanji of Bhayyaram (since deceased) was married to the appellant and there was dispute relating to the aforesaid relation. Shatruhan Lal (PW-5) has further deposed that he has lodged FIR Ex. P-3, merg P-4 and other documents. Kapil (PW-8) — another son of the deceased, has substantially corroborated the evidence of Shatruhan Lal (PW-5). 13.As per the FIR, the appellant has caused injuries by stick. There are contradictions and omissions in the evidence of Shatruhan Lal (PW-5), the statement recorded under Section 161 of the CrPC Ex.D-1 and the FIR Ex. P-3. This witness has specifically admitted in para 9 of his .^SSWKt-^^.. j^"'^ '"^ f€ "'"* 1 t 'l :;-%% .^ ^- evidence that he has lodged report against the appellant that he has caused injury by stick. In para 11 of his evidence, he has specifically deposed that the appellant was holding stick. But he has admitted presence of light near the place of incident. He has denied the suggestion in para 13 of his cross-examination that there was no light and complete darkness near the place of incident. In para 15 of his evidence, he has denied the suggestion that he has assaulted the appellant and tried to cause injury by encircling rope and tightening the same over his neck. In para 16 of his cross-examination he has further denied that after causing such injury when the appellant fell down, they left him thinking that the appellant has died. In para 21 of his cross- examination he has further stated that he does not know how such injury has been found over the head of his father, but he has specifically stated that brain came out from the injury. He has also deposed that he has tried to assault the accused when the accused assaulted his father, but the accused fled away from the spot. In para 23 of his cross- examination he has also admitted that eyesight of his father was weak and normally his father was not in a position to walk without any support. 14.Defence has cross-examined Kapil (PW-8) at length. There are some contradictions and omissions in his evidence and the statement recorded by the police under Section 161 of the CrPC Ex.D-3. In hiscross- examination he has denied the suggestion that there was complete darkness, the place of incident was surrounded by beshram shrubs and it was not visible for the persons. He has further denied in para 20 of his cross-examination that there was enmity of his father with other villagers and his father has been killed by some person, butby taking the benefit of enmity, they have falsely implicated the appellant. 15.Goverdhan (PW-1), Ramsanehi (PW-3), Pappu @ Pradeep Suryavanshi (PW-4) & MahendraKumar (PW-9) have been declared hostile by the prosecution. These witnesses have deposed that they have not seen the incident and there was complete darkness. They have deposed about the incident of causing injury by Shatruhan Lal to the appellant. The prosecution has also declared Keshav Pandey (PW-6) hostile. He has also notsupported the case of the prosecution. As per para 12 of his cross-examination he has not seen Shatruhan Lal (PW-5), Kapil (PW-8), & Mahendra Kumar (PW-9) coming towards his shop, but he has deposed that two small children i.e. grand-sons of Bhayyaram (since ^ .^'y-^ deceased) came to his shop, they were weeping and they told that somebody has killed his grand-father. As per the suggestions given to these witnesses and evidence of these witnesses, Bhayyaram was old person, he was not in a position to walk without support, his eyesiglit was weak and even he was not in a position to walk in dark or at night. There was complete darkness near the place of incident. Deadbody of Bhayyaram was found far away from Pandey shop, the place was surrounded by beshram shrubs and it was not possible for the persons to see the dead body or the persons who have assaulted Bhayyaram or any other persons, even from a distance of 10-12 ft.. All these suggestions have been denied by Shatruhan Lal (PW-5) & Kapil (PW-8), but have been admitted by other witnesses whom the prosecution has declared hostile. Definitely there were contradictions and omissions in the statements of Shatruhan Lal (PW-5) & Kapil (PW-8), even there is inconsistency between medical and ocular evidence relating to the weapon used. 16.At the instance of the appellant, the prosecution has seized rapli - small spade. Width of blade of rapli was 2 1^" and length was 7" fitted in the wooden handle of 32". Definitely, the incident took place at night and at the time of such incident, persons can well see and identify the person who was present and was causing injury, but there may be doubt about the description of weapon and one can easily narrate that the miscreant was holding stick because the major pari: of the weapon in question was stick i.e. handle having its object of small size. But only on the ground of this mistake, evidence of eyewitnesses cannot be discarded. Both the witnesses namely Shatruhan Lal (PW-5) & Kapil (PW-8) have clearly admitted the enmity, they have also admitted that Shatruhan Lal (PW-5) has caused injury to the appellant and thereafter, the incident took place. Although both the witnesses have denied the fact that they have caused injury to the appellant at the time of such incident, it appears that with a view to save themselves from any prosecution, they have not admitted the fact that at the time of first incident they have caused injury to the appellant. But this evidence or concealing the first incident by the witnesses is not sufficient to discard the entire testimony of these witnesses. 17.Witnesses whom the prosecution has declared hostile have deposed that there was complete darkness, dead body was found near the place Y^A^ •^^ ^.^^ '"%: ^^::-ui{^!"' \ ^ ^" which was surrounded by beshram shrubs, it was not visible and even it was not visible as to who has caused injuries, but they have not clearly deposed as to who was standing near Pandey shop. When it was not possible for them to see on account of complete darkens, then it was also not possible for them to see who was standing near Pandey shop and who camefrom which side. There is no other occasion or they have not been informed by any person that dead body of Bhayyaram was lying at the place which was surrounded by shrubs and no other person has seen the dead body insuch place. Therefore, it was not possible for these witnesses to notice the fact that the injured dead body of Bhayyaram was lying at such place of incident. As per their evidence, Bhayyaram was not in a position to walk without any assistance and his eyesight was very weak, even it was not possible for him to walk during night. However, the fact remains that his dead body was found away from his house at 7.30 p.m.. If he was not in a position to walk, then it was not possible for him to walk from his house up to the place of incident. This evidence shows that the aforesaid witnesses whom the prosecution has declared hostile are not giving true picture of the incident and they are concealing the truth. 18.As per evidence of Shatruhan Lal (PW-5),on account of first incident he went to the house and informed the incident to his brother Kapil, then both the persons came near Pandey shop, his father also came behind them and thereafter, the incident took place. On account of first incident when twosons of deceased Bhayyaramwent towards Pandey shop, it was very natural for their father i.e. Bhayyaram to go towards Pandey shop. It is not like Bhayyaram was not in position to walk, but it was not comfortable for him to walk. In case of emergency or in case of such incident, it was not impossible for Bhayyaram to walk from his house towards Pandey shop that too behind his two sons. 19.While dealing with the question of evidentiary value of witnesses having inimical terms and cohtradictory evidence with exaggeration, 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 testjmony rejected outright even if parts of their statements are demonstrable incorrect or doubtful. Relevant portion reads as under: AIR1974SC308 :~\^ ^.-^ 8 "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 unexpected 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 of which not the slightesttrace existed; and essential parts ofthe 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 outright even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabitities 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.While dealing with the question of evidentiary value of interested witnesses and need of deep scrutiny,the Supreme Court in the matter of Ramanand Yadav v. PrabhuNath Jha and others3 has observed in para 15 that "But at the same time if the relatives or interested witnesses are examined, the Court has a duty to analyze the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring oftruth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused foundation for the same has to be taid. If the materials show that there is partisan approach, as indicated above the Court has to analyze the evidence with care and caution." 21.While dealing with same question in the light of relationship, the Supreme Court in the matter of Mst. Dalbir Kaur and others v. State of . Punjab has held in para 13 that "A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness'. The term "interested" postulates that the person concerned musthave some direct interest in seeing that the accused 1 3AIR2004SC1053 4AIR 1977 SC 472 ^€T^! ff^ I. -'^.sms.f y % person is somehow or the other convicted either because had some animus with the accused or for some other reason." 22.While dealing with same question theSupreme Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar5 has held that relationship per se does not affect credibility of witness; merely because witness happens to be a relative of victim of crime, he/she cannot be characterized as "interested" witness. The Supreme Court has observed in para 7 as follows: - "........even otherwise itwill 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 of the victim is concerned, it is well settled that though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be djscarded 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 for some other oblique motive." 23.In the matter of Sandeep v. State of Haryana6 the Supreme Court has held that in case where victim and accused are known to witness, his evidence would be material and cannot be criticized on ground that as witness was knowing the father ofthe accused, he is interested witness. 24.1n case of interested or inimical witnesses the Court is required to scrutinize their evidence with great care and caution. Even otherwise, enmity is double edged weapon, it may be used for commission of incident as also for false implication. There is inconsistency between medical and ocular evidence. As per medical evidence, injury has been caused by sharp edge weapon. As per ocular evidence and FIR, the appellant has caused injury by stick. Considering the factum of darkness, it can be well considered that Shatruhan Lal (PW-5) & Kapil (PW-8) have not seen the part of that stick handle having small object 5 AIR 2008 SC 2436 6 AIR 2001 SC 1103 ^...-' ^-< ^- 10 i.e. rapli, but only this discrepancy or inconsistency is not sufficient to discard the statement of eyewitnesses. Virtually, evidence of eyewitnesses is substantiallycorroborated by medical evidence. This is not the case where fire arms have been used. No injury of fire arm was found. The incident took place in the broad day light and the witnesses have deposed that the miscreant was having stick or any specific kind of weapon. 25.Evidence of Shatruhan Lal (PW-5) & Kapil (PW-8) is substantially corroborated by medical evidence and the promptly lodged FIR. 26.As held by the Supreme Court in the matter of Kapildeo Mandal (supra), credibility of eyewitness cannot be judged merely on basis of his relationship with deceased and strained relation with accused, but is required to be judged on the basis of other factors like identification/ availability of live consistency with medical and ocular evidence. In Kapildeo Mandal's case (supra), on the ground of variance between two ocular evidence and total inconsistency with medical evidence, and doubtful evidence relating to identification, the Supreme Court has acquitted the accused persons. In the present case, evidence of aforesaid witnesses though having strained relation with the accused, is not suffering from any infirmity relating to identification or inconsistency and the alleged inconsistency relating to use of weapon has been well discussed. The case of Kapildeo Mandal (supra) is distinguishable on facts to thatof the present case. 27.0n close scrutiny of evidence, we are of the considered view that evidence of Shatruhan Lal (PW-5) & Kapil (PW-8) well corroborated by the promptly lodged FIR, merg and medical evidence, inspires confidence, their evidence is trustworthy and safe to rely upon. 28.After appreciating the evidence available on record, learned Additional Sessions Judge convicted andsentenced the appellant in the aforesaid manner. 29.0n close scrutiny of evidence, we do not find any illegatity in the judgment impugned. Consequently, the appeal is dismissed. ^i Soma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge