:: ^B?^^ HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANTS: (In Jail) c'. RESPONDENT: APPELLANT: (InJail) RESPQNDENT: Criminal Appeal No.888 of 2004 1. Aafisar @ Aameshwar Panika, S/o Karijan Panika, aged 35 years, resident of Village Udari, Chowki Lundra, P.S. Dhorpur, District Surguja (CG). 2. Ramkaran @ Ausliha, S/o Karijan Panika, aged 40 years, resident of Village Udari, Chowki Lundra, P.S. Dhorpur, District Surguja (CG). 3. Mahendru Panika s/o Kisun Panika, aged 25 years, resident of Village Udari, Chowki Lundra, P.S. Dhorpur, District Surguja (CG). 4. Marhu @ Naihar Sai Panika, S/o Shivjan, aged 24 years, resident of Village Udari, Chowki Lundra, P.S. Dhorpur, District Surguja (C.G.) 5. Ramdhani @ Ghutul @ Maiya Panika, S/o Jhangal aged 35 years, resident of Village Udari, Chowki Lundra, P.S. Dhorpur, District Surguja (CG). Versus State of Chhattisgarh AND Criminal Appeal No.912 of 2004 Chankhu @ Chintu @ Chinkhu, S/o Karijan Panika, aged 30 years, resident of Village Udari Chowki Lundra, Police Station Dhourpur, District Surguja (CG). Versus State of Chhattisgarh {Criminal appeals under Section 374 (2) of Cr.P.C.} Present: Mr. Sunil Tripathi, counsel forthe appellants in Cr.A.No.888/2004. Mr. A.K. Prasad, counsel for the appellant in Cr.A.No.912/2004. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. Division Bench: - Hon^ble^Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (14-3-2011) T.P. Sharma, J: - 1. Since the aforesaid two criminal appeals are arising out of the same judgment of conviction & order of sentence dated 14-10-2004 passed by the 5 Additional Sessions Judge (FTC), Ambikapur, in Sessions Trial No.356/2003, they are being disposed of by this common judgment. 2. Challenge in these appeals is to the judgment of conviction & orderof sentence ^lated 14-10-2004 passed by the 5th Additional Sessions Judge (FTC), Ambikapur, in Sessions Trial No.356/2003, whereby & whereunder learned Additional Sessions Judge convicted appellant Chankhu (appellant in Criminal Appeal No.912/2004) under Sections 148, 323 read with Section 149 & 302 ofthe IPC and sentenced him to undergo Rl for one year; Rl for six months; and imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo Rl for one year, respectively. Learned Additional Sessions Judgealso convicted the appellants in Criminal Appeal No.888/2004 under Sections 148, 323 read with Section 149 & 325 read with Section 149 of the IPC and sentenced each of them to undergo Rl forone year; Rl for six months; and Rl for four years & pay fine of Rs.250/-, in default of payment offine to further undergo Rl for three months, respectively. 3. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 4. As per case of the prosecution, on the fateful day of 21-8-2003 at about 10 p.m. all the appellants, on account of previous dispute of Kotwari service, formed unlawful assembly having its object to commit culpable homicide amounting to murder of Kunwar Sai and causing grievous injury to Budhiyaro, they were armed with deadly weapons and in furtherance of common object of the unlawful assembly, they gathered and caused grievous injury to Kunwar Sai (since deceased) resulting in his death and also caused injury to Budhiyaro. Budhiyaro Bai (PW-1) - wife of the deceased and injured witness has lodged FIR at Chowki "^-.. ^^.^•^ Lundra vide Ex.P-1 and on the basis of Ex.P-1 FIR was lodged at Police Station Dhourpur vide Ex.P-35. Merg was recorded vide Ex.P-2. The investigating officer left for the scene of occurrence and after summoning the witnesses vide Ex. P-6 inquest over the dead body of Kunwar Sai was prepared vide Ex.P-7. Spot map was prepared vide Ex.P-3. Bloodstained soil and plain soil were recovered from the spot vide Ex.P- 15. Dead body was sent for autopsy to Primary Heatth Centre, Lundra vide Ex.P-34. Dr. Kamlesh Kumar (PW-10) conducted autopsy vide Ex.P-30 and found fottowinginjuries: - (1) Deep incised wound over right parietal area of 6 c.m. x 1 c.m. x bone deep. (2) Incised wound of 5 c.m. x 4 c.m. on left elbow joint, bone underlying the injury was found fractured. (3) Incised wound over both legs of 2 c.m. x 1 c.m. and 4 c.m. x 1 c.m. Mode of death was intracranial haemorrhage and death was homicidal in nature. Injured Budhiyaro Bai (PW-1) was also sent for medical examination, she was examined by Dr. Shailendra Narayan (PW-11) vide Ex.P-33 and contusion of 4 c.m. x 3 c.m. over left scapula was found. Patwari prepared spot map vide Ex.P-36. Sealed clothes of the deceased were seized vide Ex.P-4. During the course of investigation, the accused persons were taken into custody. Appellant Chankhu made discloser statement of axe vide Ex.P-8 and same was recovered at his instance vide Ex.P-17. Appellant Ramkaran made discloser statement of bahinga - heavy bamboo article vide Ex. P-9 and same was recovered at his instance vide Ex.P-19. Appellant Aafisar @ Aameshwar made discloser statement of stick vide Ex. P-10 and same was recovered at his instance vide Ex. P-16. Accused Karijan made discloser statement of stick vide Ex. P-11 and same was recovered at his instance vide Ex. P-18. Appellant Ramdhani made discloser statement of stick vide Ex. P-12 and same was recovered at his instance vide Ex.P-20. Appellant Mahendru made discloser statement of stick vide Ex.P-13 and same was recovered at his instance vide Ex.P-21. Appellant Marhu @ Naihar Sai made discloser statement of stick vide Ex.P-14 and same was recovered at his instance vide Ex. P-22. Blood stained clothes were seized from appellant Chankhu vide Ex.P-24. Blood stained clothes of Ramkaran were seized vide Ex.P-25. Blood stained clothes of Ramdhani were seized vide Ex.P-26. Blood stained clothes of Mahendru were seized vide Ex.P-27. ^^i^i^iii^i^i^ 4 ^ Blood stained clothesof Marhu @ Naihar Sai were seized vide Ex. P-28. Seized articles were sent for chemical examination and presence of blood over articles and clothes seized from the accused persons was confirmed vide Ex. P-44. 5. Statements of the witnesses were recorded under Section 161 of the CrPC. After comptetionof investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ambikapur who committed the case to the Court of Sessions,Ambikapur, from where learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the accused persons, the prosecution has examined as many as eighteen witnesses. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Mr. A.K. Prasad, learned counsel for appellant Chankhu @ Chintu @ Chinkhu, vehemently argued that conviction is based on solitary evidence of injured, interested & relative witness Budhiyaro Bai (PW-1) which does not inspire confidence and which is not trustworthy, as per her evidence, she was present at the time of beginning of the incident, she was not in a position to state what was the cause for commission of offence and why the appellant has caused such injuries. As per medicat evidence, only one injury found over head of the deceased was fatal and other injuries were not fatal for life. Even if the act attributed to appellant Chankhu @ Chintu @ Chinkhu is considered, it does not travel beyond the scope of Section 304 Part-11 ofthe IPC. 10.Mr. Sunil Tripathi, learned counsel for the appellants in Criminal Appeal No.888/2004, vehemently argued that present appellants have not caused any fatal injury to the deceased, all injuries found over body of the deceased were caused by sharp edged weapon and the aforesaid appellants were not holding any sharp edged weapon, therefore, if t 'l-^' ^ G presence of the present appellants is believed that they were present on the spot along with another appellant, even then it is difficult to hold that they were having common object to cause grievous injury or to kill the deceased or to cause simply injuries to Budhiyaro Bai (PW-1). Mr. Sunil Tripathi further argued that while convicting and sentencing the present appellants, the trial Court has not considered the evidence in its evidentiary value and thereby committed illegality. 11.0n the other hand, learned State counsel opposed the appeals and submitted that evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellants have committed the aforesaid offence and the trial Court has rightly convicted and sentenced the appellants. 12.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13.1n the present case, homicidal death of deceased Kunwar Sai as a result of fatal injuries found over his body has not been substantially disputed on behalf of the appellants, even otherwise, it is established by evidence of Dr. Kamlesh Kumar (PW-10) and autopsy report Ex.P-30 that death of deceased Kunwar Sai was homicidal in nature. Simple injury found over the body of Budhiyaro Bai (PW-1) has also not been substantially disputed on behalf of the appellants and it is established by evidence of Dr. Shailendra Narayan (PW-11) and injury report Ex.P-33 that the injury was simple in nature. 14.As regards complicity of the appellants in the crime in question, conviction is substantially based on evidence of solitary witness Budhiyaro Bai (PW-1) who is injured and relative witness. As per her evidence, on the date of incident at about 4 p.m. quarrel took place between the appellants and her husband Kunwar Sai (since deceased), thereafter at about 9 p.m. her neighbour asked her whether she is present in her house or not, at the same time all the appellants came to the house of her neighbour and thereafter, all the appellants assaulted her husband and dragged him towards the house of Karijan (acquitted accused) where they tied her husband by rope and caused repeated assaults. When she tried to save her husband, the appellants assaulted her also. The appellants assaulted her husband by stick and axe and caused his death. On second day she went to the police station and 6 lodged FIR vide Ex.P-1 and merg vide Ex.P-2. Defence has cross- examined this witness at length. She has admitted in paras 7 & 8 of her evidence that her husband used to drink liquor. In para 11 of her cross- examination, she has denied the suggestion that her husband has abused and the quarrel took place with only 2-3 persons, she has admitted the suggestion that in order to save her husband, even she lay down upon her husband. 15.Budhiyaro Bai (PW-1) is wife of the deceased and injured witness, she is relative of the deceased. Her evidence cannot be discarded on account of her relation. 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 evidentiary value of the relative witnesses, the Supreme Court in the matter of Dalip Singh and others v. The State of Punjab1 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 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. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what 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." 16-While dealing with same question, the Supreme 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, Y 1AIR 1953 SC 364 22008AIRSCW3739 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 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 perse 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." 17.1n the present case, Budhiyaro Bai (PW-1) herself has sustained injuries, she has not exaggerated her version and in her detailed cross- examination defence has not been able to elicit anything in her cross- examination to discredit her testimony relating to the fact that the appellants were not present on the spot and have not caused injuries to the deceased. As per para 4 of her evidence, appellants Ramkaran & Ramdhani caught hold of her and told that after causing fracture (breaking hands & legs) of her husband, they will bring her husband to her house. As per medical evidence i.e. autopsy report, injuries found over the dead body were caused by sharp edged weapon. As per case ofthe prosecution, appellant Chankhu @ Chintu @ Chinkhu was holding sharp edged weapon. As per evidence of Dr. Kamlesh Kumar (PW-10), injury found over head of the deceased was fatal to life and other injuries were not fatal to life. Injuries found over head of the deceased reveal that same are caused by sharp edged weapon. As per evidence of the prosecution, appellant Chankhu @ Chintu @ Chinkhu was holding sharp edged weapon. 18-After appreciating the evidence available on record, learned Additional Sessions Judge convicted & sentenced appellant Chankhu @ Chintu @ Chinkhu under Sections 148, 323 read with Section 149 & 302 of the IPC and other appellants under Sections 148, 323 read with Section 149 & 325 read with Section 149 ofthe IPC. 19.Para 4 ofevidence of Budhiyaro Bai (PW-1) clearly reveals that other appellants have specifically told this witness that after breaking hands & legs of her husband, they will bring her husband to her house. This ^ shows that the object of the aforesaid appellants, except appellant :'r'sx Soma 8 Chankhu, was to cause grievous injury to Kunwar Sai (since deceased) in order to teach him a lesson. The trial Court has rightly convicted appellants Aafisar @ Aameshwar Panika, Ramkaran @ Ausliha, Mahendru Panika, Marhu @ Naihar Sai Panika & Ramdhani @ Ghutul @ Maiya Panika under Sections 148, 323 read with Section 149 & 325 read with Section 149 ofthe IPC. 20.As regards the question of sentence, all the appellants have been sentenced to undergo Rl for one year under Section 148 of the IPC and Rl for six months under Section 323 read with Section 149 of the IPC, except appellant Chankhu @ Chintu @ Chinkhu otherappellants have been sentenced to undergo Rl for four years & pay fine of Rs.250/-, in default of payment of fine to further undergo Rl for three months under Section 325 read with Section 149 ofthe IPC. 21.Considering the act attributed to appellants Aafisar @ Aameshwar Panika, Ramkaran @ Ausliha, Mahendru Panika, Marhu @ Naihar Sai Panika & Ramdhani @ Ghutul @ Maiya Panika, the fact that incised wounds were found over the dead body of the deceased and that these appellants have not caused injury to the deceased, though they were members of the unla^A^ul assembly, sentences imposed upon them under Section 325 ofthe IPC require consideration. 22-Consequently, Cr.A.No.912/2004 filed on behalf of Chankhu @ Chintu @ Chinkhu is liabie to be dismissed and it is hereby dismissed. 23.Cr.A.No.888/2004 filed on behalf of Aafisar @ Aameshwar Panika, Ramkaran @ Ausliha, Mahendru Panika, Marhu @ Naihar Sai Panika & Ramdhani @ Ghutul @ Maiya Panika is partly allowed. Conviction & sentences imposed upon these appellants under Sections 148 & 323 read with Section 149 of the IPC are hereby maintained. Conviction imposed upon them under Section 325 read with Section 149 of the IPC is also hereby maintained, instead of Rl for four years & fine of Rs.250/-, they are hereby sentenced to the period already undergone by them i.e. from 24-8-2003 at least till 29-10-2004 for about one year two months & fine of Rs.250/- each, in clefault additional Rl for three months. Sentences shall run concurrently. — "—-~ 1 Sd/- Sd/. i ] R.L. Jhanwar ^RSharma I Jud8e Judge