-?; "a>t.> 1^1 ''..-/^ ^'^^ /^v ^i HiGH COURT OF CHHATTSSGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR-.T.P.S HON'BLE MR.R.N. ,JJ. Crsminal Appeat No.721 of 2007 Ramadhar Nishad and others <l!iiinl ^ersus State of Chhattisgarti ORDER FOR CONSIDERATION Hon'bie Mr.R.N.Chandrakar, J. e) a^a^z-^a' 3 Sd/- T.P.Sharma Judge Sd/- .N. Chandrakar Judge POST FOR PRONOUNGEKiENT OF THE JUE?QMENT ON : 9/11/281 Sd/- T.P. Shai.-ma Judge It lli]-:. :iii'i ;«:-::^y::: ;1^~.,'^ ^••A ''•• HiGH COURT OF CHHA7TSSGARH AT BiLASPUR DiVISiON BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N.CHANDRAK^?, JJ. Cri ADpeiiants (!n Jaii) iminai Appeal No.721 of 2007 1. Ramadhar Nishad, Aged abouf years, S/o. Pyarelai Nishad, 32 2. Omprakash, Aged about 27 years, S/o. Pyare!a! Nishad. v'. 3. Gihi'var, Aged about 32 years, S/'o. . Dwarika Prassd, Ati R/o. Viiiage Labhandih, P.S. Telibandha, Tahsi! & District Raspur (C.G.). State of Chhattisgarh, Through P.S. Telibandha, Raipur. Respondent (CRMiNAL APPEAL UNDER SECTiON 374 (2) OF THE Cr.P.C.) Mr.Somnath Verma, counsei forthe appeilants. MrJ.A.Lohani, Pane! Lawyer forthe State/respondent. JUDGIV1ENT (Passed on 9th November, 201 1) The following judgment of the Court was deiivered by T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of convlction & order of sentence dated 30.4.2007 passed the Third A hird Addltionai Sessions Judge, Raipur, in Sessions Triai No.408/2006, whereby & vvhereunder iearned Third Additionai Sessions Judge after hoidmg the appeiiants guitty for commission of cuipable homicide amounting to murder of Dashrath and attemDt to commit murder cf Gautam Bai and Mahesh in sharing common intention convicted them under Sections 302/'34 and 3Q?/34 of the i.P.C. and sentenced to undergo imprisonment for llfe and flne of Rs.1000/-, in defauit of payment of fine to further undergo R.i. for three months and R.i. for-five years and fine of Rs.500/-, in defauit of k~- to payment of nne to further undergo R.i. for two months r'or sach commit murder. 2. Convictlon is impugned on the ground that without there belng any iota of evidence, ths trial Court has convicted & sentenced the appelianfs as aforementioned and thereby committed iilegality. 3. As per case of the prosecution, on 6.8.2006 at about 9 p.m. Dashrath (since deceased) was going to his house for taking meai, appeilants Daddu @ Omprakash and Ginc/ar came to him and toid thai they •v'ili burn his house. While .Dashrath was entering in his house appeiiant Girwar and Daddu @ dmprakash poured petrol over him, n4abesh and Gautam Bai and set them abiaze, anyhow thsy extinguished the flre. Appeiiant Ramadhar was aiso standing near the place of incident, he was havlng motorcycie, thereafter three accused fied from the spot; injured Mahesh (PVtf-8) wentto the Poiice Station Teiibandha and iodged F.1.R. \nde Ex.P/10. injured v/ere sent for medicai examination to DrAmbedkar Hospitai, Raipur vids Ex.P/14A, P/15 and P/16. They were examined by Dr.Neeta Kamawat (PW-17) vide Exs.No.P/28, P/29 and P/30 and found superficiai to burn deep by flame over the body of Dashrath, Nahesh and Gautam Bai. They were admitted in hospitai in burn unit for further frsatment. During the course of treatment on 7.8.2006 l.e. second day of the incident Dashratti (since deceased) made dying declaration before Naib-Tahsiidar Pranav Singh (PVV-19) vide Ex.P/32 and stated that appeiiant Daddu and Girwar had poured petroi over him, hls son and wife and set them abiaze. During the course of treatment on 12.8.2006 at about 6.20 p.m. Dashrath Died. Merg was recorded vide Ex.P/31. After summoning the wiinesses vide Ex.P/3 prepared inquest over the body of deceased Dashrath vide Ex.P/5. Dead body of ihe deceased v/as sent for autopsy to Dr.Ambedkar Hospitai vide Ex.P/22where Dr.vikas Kumar Dhruv (PVV-21) conducted autopsy over the body of t'ne deceased vide Ex.P/34 snd found muitipie burn injuries. Cause of death was cardio respiratory faiiure as s result of burn and its cdmplications. During the course of investigation burn piece of ciothes wiih smeli of petroi were seized from Mansingh, son of deceased Dashraih vlde Ex.P/2. One bottie containing some petrol was seized from drainage adjoining to the house ofthe deceased vide Ex.P/3. Spoi map was preparsd by investigating officer vide Ex.P/11. Paiwari also prepared spot map vide Ex.P/7. Two motor-cycles were ssized from appeiiani Giro'ar and Ramadhar vide Ex.P/12 and P/13. Documents of motor-cycies were aiso seized from Shankarial vide Ex.P/14. Rsgarding dying deciaration, request was mads to the Doctor vide Ex.P/17 where the doctor has certified that Dashrath was in a fit state of mind to give statement on 7.8.2006, thereafter his staiement was recorded. Seaied artlcies were sent for chemteai examinatlon vide Ex.P/23. 4. Statements of the 'A'ithessfe were recorded under Section 1 61 of the t Code of Criminai Procedure, 1 973 (for short 'Code') and after completion of investigation, charge sheet was fiied In the Court of Additional Chief Judiciai Magistrate, Raipur, v/ho in turn committsd the case to the Court of Sessions, Raipur, from where ths. iearned Third Additionai Sessions judge, Raipur, received the case on transfsr for tria! 5. !n order to prove the guilt of the accused/appeliants, the prosecution has as many as 21 witnesses. Statements of the examlned 1/^/M 1<^<"|/4/'^ iiarrts were recorded under Section 313 of the Code, in which they denied the circumstances appsaring against thsm and pleaded innocence and faise impiication in the crime in question. The- havs also examined defence witnesses Omp Bhlkamchand Kurrs (DW-2) who have rakash Yadav (DW/-1) and /*i'anr'soart *^^t isr ^v^& UCMw3?ic?u i.Ucsli, ti i^ iime incident some unknown persons were quarreied with the deceassd Dashrath and injured Mahesh and Gautam Bai and aii of sudden they saw fiame of fire from body of Dashrath, Mahesh and Gautam Bai, ihen they fled Sowards their hoyse and entered into the hcuse, they had consumed iiquor and thsy w'ere in habit to quarrei ivith resident of vicinity after consuming iiquor. After the incident, Mansingh, son of deceased Dashrath came $o Bhikamchand Kurre (DW-2), auto drivsr, then he brought tRe injured to Poiice Station Teiibandha and hospstai. Being asKed Dashrath informed the poiice that he does not know who has set .them abtazs. Mahesh (PW-8) totd to the Poitee that he does not know caused burn to them but they v/ere having enmity with the Zz appeiiants and they wouid hav treatment. K'^c^r^ • 'c UwSl l burrrt, thereafter they were sent for 6. After providing opportunlty^of hearing to the parties, iearned Third Additionai Sessions Judge, Raipur convicted & sentenced the appeli'ants as aforementioned. 7. We have heard leamed counsel for the parties, perused the judgmsnt impugned and record of the triai Court. 8. Learned counsei for the appeliants vehementiy argued that conviction is bassd on the evidence of, interested, inimical and relatives witnesses Mahesh (P/tf-8) and Gautam Bai (P^V-9), although they are injured witnesses and fheir presence on the spot cannot be doubted, bui same is not sufficient for conviction of the appeliants without further corroboration. As per evidence of Mahesh (PW-8) and Gautam Bai (FW-9), they have not seen the incident, their evidencs are compieteiy th contradictory to each other. As per their evidsnce, deceased Dashrath was not in a position to gsve statsment or, 7.8.2006. His alieged dying deciaration Ex.F/32 appears to bs suspicious. it appears from the svidence of the wstnesses that there wss no propriety for causing such brutal injury by ths appeiiante, thsra was no previous enmity. in thsse circumstances, oniy suspidon is not sufficieni for convtetion of the 8. On the other hand, iearnsd Panei Lawyer for the Staie/respondent opposed the appeai and argued that conviction is based on dyin£ declaration made by deceased Dashrath to Executive Magistrate Pranav Singh (FvV-19) vide Ex.P/32 and evidence of injured witnesses Mahesh (PW-8) and Gautam Bai (PW-9) whose presence cannot be doubted. Definlieiy thes6 witnesses are relatives witnesses. There may be enmity between ths parties but oniy on the ground of relationship or enmity their presence cannot be dsscarded and oniy minute scrutiny of their evidence is required before accepting it. 10.1n order to appreciats the arguments advanced on bshaSf of ihe parties, wetiave examined the evidence adduced on beha!fofthe parties. •'is f/ 11.1n the present case, homicidal death as a result of burn injuries of Dashrath and burn Injures to Mahesh and Gautam Bai have not been subsfantiaiiy disputed on behaif of the appellants, irter atia, by examining defence witnesses Omprakash Yadav (DW-1) and Bhikamchsnd Kurre (CWV-2) they themseives have admitted the bum injuries caused to the injured and the deceased at the time of incidsnt. Even othsrwise, sams is estabiished by the evidence of Dr.Neeta Karnawat (PW-17), medical report Exs.P/28, P/29 and P/30, evidence of Dr.Sharad Grewal (PW-20), medicai report Ex.P/33, evidence of Dr.Vikas Kumar Dhruv (PW-21) and autopsy report Ex.P/34 that burn injuries v/ere found over the body of Mahesh and Gautarrr Bai ^nd death of deceased Dashrath was as a resuit of bum injuries and its compiications. 12.As regards the complidty of ths appeliants in the crime in question, conviction is substantiaiiy based on the evidence of dying deciaratlon of Dashrath before the Executive Magistrate Pranav Singh (PW-19) vide Ex.P/32 and evidence of injured Mahesh (PVV-8) and Qaufam Bai (PW-9). Mahesh (PW-8) has deposed in his evidence that at the tlme of incident aii the three appeltants came near his house, they cailed his father Dashrath out of the house, they also came out from the house, then appeilant Ramadhar toid his younger brother i.e. appeiiant Omprakash to pour petroi over them, then they poured petroi over ttsem, then appeiiant Gi"<war set them " abiaze, he become unconscious, thereafter he regain conscfous then thsy went to the Poiice Slation and iodged the F.I.R. vide Ex.P/10. They were treated by the doctor. Other injured wtness Gautam Bai (PW-9) has substaniiaily corroborated the evidence of Mahesh (PW-8). iS.Defence has cross-examined ihese witnesses at ierigth reiating to presence of accused persons, pouring of petrol by whom and who has set them ablazs, where ths incident took piace and where they recelved burn injuries. There are some contradictions in their statements reiating to the aforesaid facts but the aforesaid controverey has been set at rest . by the evidence of Omprakash Yadav (DVtf-1) whose evidencs reveals thatthese aii three injured were present in front of their house and ali of sudden they saw ths flame coming from th'eir bodies, then they rushed o towards their house. This shows that all the three persons have been set them abiaze in front oftheir house. 14.As per dying deciaration Ex.P/32, whiie deceased Dashrath was entering into his houss at the same tlme petroi was poured over him, his son and wife and they were sei ablaze. These evidence cieariy reveal that incident took piace on the gaie of house of injured and the decsased. Three persons have received burn injuries and out ofthree one died as a resuit of burn injuries and its complications. It was not a normal incident. Pouring petro! and setting them abiaze cannot be treated as a norrral incident and if such incideiSt happens then definiSely they wiil first tpy to save themseives, they wi!l rush and they wii! try to exiinguish the fire. in fhese circumstances, some discrepancies, omissions and contradictions retating to piace and mode of incident would be just and natural, but on the aforesaid ground their evidence cannot be discsrded or rejected in toto. IS.Naib-Tahsiidar Pranav Singh (PW-19) has recorded dying deciaration of Dashrath on 7.8.2005 second day of the incident at 1 .20 p.m. vide Ex.P/32. As per his evidence, at the instance of investigating officer he visited Dr.Bhimrao Ambsdkar Medicai Hospital, Raipur, Dashrath was admitted in Ward No.17, Bed No.16 (burn unit), he obtained certificate of fitness from Dr.Sharad Grewai and ihereafter recorded dyiRg deciaratlon of Dashrath vide Ex.P/32. As per hls evidence, two persons nameiy Daddu and Girwar threstened him and while he was entering in his house they poured petroi over him, his son & wife and set them abiazs. Defence has cross-examined this witness at length. in his cross- examination he has categoricaliy deposed that Dashrath was a fit staie of mind to give statement and he has recorded the statemsnt given by Dashrath vide Ex.P/32. ie.Mahesh (PW-8) and Gautam Bai (PVV-9) are injured witnesses. As per evidencs of Bhikamchand Kurre (DW-2), they were having snmity with the present appeiiants. it appears that Mahesh (PVv-8) and Gautam Bai (PW-9), v»'howsre injured, are atso reiative witnesses and ihere may be enmity betv.'een them and the appeilants, bui only on the ground of ' (cfc reiationship or enmity their evidence oannot be discarded. !t requires minute scrutiny before accepting it. '.'tfVhiie deaiing with the question of evidentiary value of relatives, interested and inimical witnesses, the Supreme Court in the matter of Dailp Ssngh v. State of Punjab has held that a witness is normafly to be considered independent uniess he or she springs from sources which are itkeiy to be tainted. Para 26 ofthe said jucigment reads as under:- "26. A witness is normaily to be considered independent unless he or she springs from sources which are fiksly to be tainSed and fhat usuaily means unlsss the witness has cause, such as ^nmity against the accused, to wish to impiicate hinrfaisei^. Ordinarily, a ctose reiative would be the iast to screen the real culprit and fateely implicats an innocenf person. if is true, when feeiings run high and there is persona! cause for enmity, thst there ss a tendency to drac in an innocent pereon against whom a witness has a grudge aiong with the guiSty, but foundation musf be laid for suoh a criticism and the mere fact of reiationship far from being a foundation is ofien a sure guarantee of truth" t8.As hei V. of heid by the Apex Court in the matter of Mohatrtsat and M.P. , reiationship is not ground to affect credibiiity witness, foundation has to be laid if piea of faise imptication ts rai^sd. Para 7 of the said judgment reads ss under, "7. Mereiy because the eye-witnesses ars famiiy members their evidence cannot per se be discarded. When there is ailegation of interestedness, the same has to be established. Msre statement that bsing relatSves of the deceased ihey are iikeiy to faisely impiicate the accused cannoi be a ground to discard the evidence which is otherwise cogent and credibie. We shaii aiso dsai 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 oSen than not that a reiation wouid not conceal actuai culprii and make ailegations agasnst an innocent person. Foundation has to be iaid if piea of fa!se implicatlon is made. In such cases, the court has to adopt a carefu! approach and anatyze eyidenceto find oui whsther it is cogent and credibie." •TS.Whiie deaiing •vith ths same question, the Suprems Court in the matter pf 6uH Chand and others v. State of Rajasthan has h&ld that mere i(S954)! SCR;145 22009 AIR SCW 1486 3(i974) 3 SCC 698, 6? fact that reiative witness or his relations is not sufficient to discard his testimony. 20.Whiie deaiing with the sams question, the Supreme Court in ths matter of Sharad Birdhichand Sarda v. State of Maharashfra4 held that in view of the close reiationship and affection any person reiated to ihe deceased would have, such s witness wouid naturally have a tendency to exaggerate or add facts which may not have been stated to thsm at aii. Not that this is done consciously but even unconsciousiy the love and affectton for the deceased wouid create a psychological hatred against the supposed mu^derer and, therefore, the Court has te examine *" ^ such evidence with ver/ great care and caution. Para 48 of the said judgment reads as under:- "48. Before discussing the evidence of the witnesses we might mentson a few preiiminary remarks against the background of which the orai statements are to be considered. Aii persons io whom the oral statements are said to have been made by Manju when she visited Beed for the tast time, are ciose relatives and friends of the deceased. !n view of the c!ose relationship and affection sny person in the position of the witness wouid naturally have a tendency to exaggerate or add facts which may not have been stated to them at a!i. Not that this is done consciousiy but even unconsciousiy the love and affection for the deceased wouid create a psyehologlca! hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. E'/en if the witnesses v.ere speaking .a part of the truth or perhaps the whoSe of it, they wouid be guided by a spsrit of revenge or nemesis against the accused pereon and in this process certain facts which may not or could not havs been stated may be imagined to have been stated unconsciousiy by the wiinesses in order to see that the offender is punlshed. This Is human psychology and no one can heip it." 21. Definiteiy Mahesh (P.'V-S) and Gautam Bai (PVtf-9) were injured witnesses and they have received burn injuries by using petrol whioh finds corrbboration from the evidence of Omprakash Yadav (DW-1) and Bhikamchand Kurre (DW-2). This is not the case that they themseives had set them abiaze. Mahesh (PW-8) has specmcaiiy deposed thaf Ramadhar was directing other accused to pour petroi and set them abiaze, then they poured petrol and setttiem abiaze. Gsutam Bai (PW-9) has also deposed the same thing. Evidence of Mahesh (R/V-8) and ""IR 1984 SC 1622 9 Gautam Bai (PW-9) reveal that accused Omprakash and Girwsr had poured petroi and set them abiazs on the direction of appeilsnt Ramadhar and appeilant Ramadhar has personaily not poured petroi over them and has not set them ablaze. 22.As per evidence of Naib-fahsiidar Panav Singh (PW-19) and dying dsciaration Ex.P/32, Daddu and Girwar came to Dashrath, fhey threatensd him and they poured petroi and they set them ablaze and in dying deciaration Ex.P/32 Dashraih has named oniy two persons i.e. Daddu and Girwar. As per F.i.f?. Ex.P/10 Daddu @ Omprakssh was keeping piastte bottte contaihing petroi and Ramadhar was standing near place of incident, Ramadhar vvas hoiding motor-cycie. On minute scrutiny of evidence of Mahesh (PW-8) and Gautam Bai (PW-9), dying dedaration Ex.P/32 and F.I.R. Ex.P/10 it cleariy reveais that although appeiiant Ramadhar was stancisng near the place of incident but he has not commltted overt act. As per Ex.P/10 F.i.R. and Ex.P/32 dyinc deciaration, appeiiant Daddu @ Omprakash and Girwrar have caused She incident. Burn injuries found over t'ne body of Mahesh (PW-S) and Gautam Bai (PW-9) were simpie in nature, but the act of pouring petroi over any person and setting him ablaze itself is the act of attempt to commit murder ofths person. 23.Evidence of Mahesh (P.'V-S) and..Gautam Bai (PW-9) substantla!iy by Omprakash Yadav (DW-1) and Bhikamchand Kurre corroborated 24 (DW-2) snd aiso corroborated by the evidence of Nalb-Tahsiidar Pranav Singh (P'W-19), dying declaration Ex.P/32 and F.i.R. Ex.P/10 are sufficient to estabiish the fact that appeHant Daddu @ Omprakash and Gim'ar in sharing common intention havs committed homicicial death of Dashrath with intent to cause his death and have aiso attempted to commit murder of Mahesh (PW-8) and Gautam BS! (PW-9). .After appreciating the evidence svaiiabie on record, leamed irial Court has rightiy convicted and sentenced appeiiants Omprakash and Ginwar, but.whiie convicting and sentencing appeSiant Ramadhar the triai Court has not considered insuffteiency of evidencs against appeiiant Ramadhar and absence bf any overt aet of appeiiant Ramadhar. The triai Court has aiso not consldered ths fact that mere presence of any person near the 1f\ place of incident is not sufRcient to connect him for commission of offence and thereby committed iitegaiity reiating to conviction and sentence of appeiiant Ramadhar. 25. F .For the foregoing reasons, the appeai is partly ailowed. Conviction & sentencesof sppeliant Ramadhar under Sections 302'34 and 307/34 of ths i.P.C are hereby set aside. He be set at iiberty and be reieased forthwith if not required in any other case. However, conviction and sentences of appeilants Omprakash and Girwar under Sections 302/'34 and 307/34 ofthe i.P.C. are hereby maintained. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge