‘ u$ HIGH COURT OF CHHATTISGARH BILASPUR W CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.N. CHANDRAKAR, JJ. Criminal Aggeal No.117 of 2005 Manharan Verma and others - Versus - State of Chhattisgarh ’ "* Sd/- .9 Q .N. Chandrakar Jud ‘“ JUDGMENT FOR CONSIDERATION HONBLE MR. JUSTICE R.N. CHANDRAKAR egyw eWK L r“ "\ A W; q. R W“ ge ‘ Post for Qronouncement ef iudgment on 20 of October, 2011 HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.N. CHANDRAKAR, JJ. I ‘ Criminal A_Qpeal No.1 17 of 2005 APPELLANTSI: 1. Manharan Verma, S/o Bishru (Accused persons) Verma, age 24 years, Occupation (All in Central Jail Raipur C.G.) Agriculturist, 2. Shiv Prasad Verma, age 20 years ‘ son of Shri Bishroo Prasad Verma, ' Occupation Agriculturist, 3. Hari Ram son of Shri Bhisal Ram age 22 years, Occupation Agriculturist, 4. Jeetoo @ Jitendra age 22 years son of Manvishram, Occupation Service AII residents of Village Kunda, P.S. Mandir Hasoud, Distt. Raipur. Versus RESPONDENT: State of Chhattisgarh, Through District Magistrate, Raipur. {Criminal appeal under Section 374 Cr.P.C.} Present: Mrs. Hamida Siddiqui, counsel for appellants No.1 & 2. Mr. Ashok Patil, counsel for appellant No.3. Mr. J.R. Verma, counsel for appellant No.4. Mr. Neeraj Mehta, Panel Lawyer for the State/respondent. JUDGMENT (20’5 October, 201 1) The foilowin_g_iudqment of the Court was delivered by T.P. Sharma, J: — 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 14-1-2005 passed by the 13‘“ Additional Sessions Judge (FTC), Raipur, in Sessions Trial No.297/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Punitram & Urmila Bai in sharing common intention, convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced them to ‘ E undergo imprisonment for life & pay fine of Rs.1 ,OOOI- each, in default of payment of fine to further undergo Ri for six months. Appellant Shiv Prasad has also been convicted under Section 324 of the IPC and sentenced to undergo RI for three years for causing simple injuries by sharp edged weapon to Ganesh Ram. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 11-7—2004 at about 7.30 p.m. the appellants caused brutal murder of Punitram at Village Kunda, Police Station Mandir Hasaud, Distt. Raipur and while Urmila Bai (since deceased) was coming from the field after easing herself along O with her daughter Manisha Verma (PW-1 3), the appellants also caused injuries by axe to Urmila Bai and caused her homicidal death. The appellants confessed guilt at the time of causing injuries to Urmila Bai that they have already killed Punitram. Appellant Shiv Prasad also chased and caused injuries to son of Punitram namely Ganesh Ram by axe on 12-7-2004. Dehati Nalsi was recorded vide EXP-36, Dehati morgues were recorded vide Exs.P-37 & P-38 and on the basis of Exs.P- 36 to P-38, morgues were lodged vide Exs.P—Z & P-3 and FIR was lodged vide Ex.P—1 by Manisha Verma (PW-13). The investigating Ofticer left for the scene of occurrence and after summoning the O witnesses vide Exs.P-7 & P—8, prepared inquest‘over the dead bodies of the deceased persons vide Exs.P-9 & P—10. Bloodstained and plain soil of were recorded from the spot where the dead body of Urmila Bai was tying along with plastic iota, broken bangles of Urmila Bai, ladies hawai chappal and one gudaku dibbi vide Ex.P-6. Bloodstained and plain soil, one pair of slipper and one pair of shoes stained with blood were seized from the spot where the dead body of Punitram was lying vide Ex.P-5. Injured Ganesh Ram was sent for medical examination. He was examined by Dr. K.S. Rai (PW-7) vide EXP-26 and following injuries were found on the person of Ganesh Ram: - (1) incised wound of1 “/2” x 3 c.m. x 1 c.m. over both the buttocks. (2) Contusion of 1 c.m. x 1 c.m. over right side of head. Dead body of Urmila Bai was sent for autopsy to Dr. Ambedkar Hospital, Raipur. Dr. S.P. Garg (PW-12) conducted autopsy vide EXP-46 and found following injuries: - (1) Incised wound over both the eyebrows of 8 c.m. X 5 c.m. with fracture of‘bone below the injury. (2) Incised wound of 8 c.m. in length over fronto parietal region, bone and brain membrane were also found cut. (3) Incised wound over cheek of 10 c.m., lowerjaw was chopped. (4) Incised wound of 6 c.m. over left side of face, lower ear was found cut, internal bones were also found cut. (5) Incised wound of 4 c.m‘.‘ x 2 c.m. just below the left ear, lower jaw was found cut. (6) Incised wound of 1O c.m. on neck, internal tissues were found cut. (7) Incised wound of 5 c.m. x 2 c.m. over neck. (8) Incised wound over neck of 4 c.m. x 1 c.m. (9) Incised wound over right clavicle bone of 7 c.m. x 2 c.m. and contusion near such injury of 3 c.m. x 1 c.m. (10) Abrasion with contusion over chest of 3 c.m. x 7 c.m. (1 1) Superficial and incised wound of 13 c.m. over head. (12) Incised wound of 4.5 c.m. X 1 c.m. over left scapula, internal ribs were found cut. (13) Contusion over right shoulder of 8 c.m. x 3 c.m. (14) Contusion over left shoulder of4 c.m. x 1/2 c.m. (15) Incised wound over left forearm of 3 c.m. (16) Incised wound over left thigh of 3 c.m. x 1/2 c.m. Mode of death of Urmila Bai was shock and hemorrhage and death was homicidal in nature. Dr. S.P. Garg (PW-12) has also conducted autopsy of Punitram vide Ex.P—47 and found following injuries: - (1) Head was mostly chopped. (2) Skull bone was found broken into pieces. (3) Cervical bone was broken. (4) Skull was found cut. (5) Incised wound over left ear of 6 c.m. x 3 c.m., bone below the injury was found cut. (6) Incised wound over face of 13 c.m. x 2 c.m. with fracture of bone. (7) Contusion with abrasion over right forehead of 3 c.m. x 5 c.m. (8) Irregular abrasion just below right eye of 7 c.m. x 3 c.m. l , (9) Introverted incised wound over chest of 8 c.m. in length and 4 c.m. in depth, muscles of chest were found cut. (1 0) Incised wound over right shoulder of 4 c.m. (11) lncised wound over right arm of 6 c.m. x 1 om. (12) lncised wound over left shoulder of 5 c.m. X 2 1/2 c.m. (13) Incised wound over left hand of 3 c.m. x 2 cm. (14) lncised wound of 7 c.m. x 5 om. over left leg. (15) Left lungs were found cut. (16) Blood was found inside thorax cavity. injuries found 'on the person of Punitram were ante mortem, mode of death was shock and death was homicidal in nature. . During the course of investigation, appellant Manharan was taken into custody, he made discloser statement of axe and blood stained cloth vide Ex.P-22 and same were recovered from him vide EXP—12. Appellant Shiv Prasad made discloser statement of axe and bloodstained cloth vide EXP-23 and same were recovered at his instance vide EXP—13. Appellant Hariram made discloser statement of dagger and clothes vide Ex.P-24 and same were recovered at his instance vide EXP-16. Appellant Jitendra made discloser statement of axe and clothes vide Ex.P-25 and same were recovered at his instance vide Ex.P-17. Sealed clothes of the deceased were seized vide Exs.P- 14 & P-15. Spot map was prepared vide EXP-56. Seized articles were sent for chemical examination and presence of blood over axe and clothes was confirmed vide Ex.P—57, but no blood was found over dagger. . Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Raipur who committed the case to the Court of Sessions Judge, Raipur, from where learned Additional Sessions Judge received the case on transfer for trial. . ln order to prove the guilt of the accused, the prosecution has examined as many as twenty-four 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, Iearned Additional Sessions Judge, convicted & sentenced the appellants in the aforesaid manner. 8. We have heard Iearned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Mrs. Hamida Siddiqui, learned counsel appearing on behalf of appellants No.1 & 2 namely Manharan Verma & Shiv Prasad Verma, vehemently argued that although this is case of double murder, but only on the ground of double murder, appellants No.1 & 2 cannot be convicted without any credible and clinching evidence sufficient for their conviction. Conviction is substantially based on evidence of Manisha Verma (PW- 13) — daughter of the deceased persons and Ganesh Ram (PW—t4) — son of the deceased persons. Ganesh Ram (PW—14) is chance witness and no reliance can be placed on evidence of chance witness‘without further corroboration from independent sources. His evidence does not find corroboration from evidence of another eyewitness Manisha Verma (PW-13). It was dark night and it was not possible for both the witnesses to witness the incident. Even their subsequent conduct is unnatural and does not find support from other sources. They have not informed immediately to the villagers and they have not lodged report immediately. in these circumstances, evidence of Manisha Verma (PW-1 3) & Ganesh Ram (PW-14) is not safe for conviction of the appellants. 10.Mr. Ashok Patil, learned counsel appearing on behalf of appellant No.3 namely Hari Ram, submitted that the prosecution has not collected material evidence against appellant Hari Ram. As per evidence of Manisha Verma (PW-13), Hari Ram has not caused any injury to any of the deceased persons. Manisha Verma (PW-13) & Ganesh Ram (PW- 14) have not deposed anything relating to injury caused to Punitram (since deceased). Both the eyewitnesses have not deposed as to which injury has been caused by which appellant and they have also not adduced any evidence to establish common intention. ln absence of aforesaid evidence, conviction of appellant Hari Ram is ‘not sustainable under the law. .Mr. Ashok Patil placed reliance in the matter of Mohmed lnayatullah v. The State ,of Maharashtra1 in which the Supreme Court has held that @ discioser statement under Section 27 of the Evidence Act includes fact discovered and placed from which it is produced and the knowledge of the accused as to this. Mr. Ashok Patil further placed reliance in the matter of Deva v. State of Rajasthanz in which the Supreme Court has held that in absence of any evidence of causing injury by knife, the person who was holding knife cannot be convicted. Mr. Ashok Patil also placed reliance in the matter of Gulab Khan & others v. State of C.G.3 in which this Court has held that if discloser statement of the accused is not supported by independent witnesses, then there cannot be legal evidence. 12.Mr. J.R. Verma. learned counsel appearing on behalf of appellant No.4 ’ namely Jeetoo @ Jitendra, vehemently argued that even as per . evidence of Manisha Verma (PW-13) & Ganesh Ram (PW-14), appellant Jeetoo has not caused any injury to any deceased, they have not deposed anything relating to injury caused to Punitram. Ganesh Ram (PW-14) is chance witness and his evidence is not safe to rely without further corroboration from independent sources. As per para 2 of evidence of Manisha Verma (PW—13), the alleged eyewitness, after the incident, on second day, she went to the house of appellant Jitendra whom she informed that her mother & father have been killed, she requested him for accompanying her to the police station for which appellant Jitendra has shown his willingness, however, he had not gone to the police station. This evidence shows that present appellant has not caused any injury to any of the deceased persons and appellant Jitendra was not associated in the commission of offence. 13.Mr. J.R. Verma placed reliance in the matter of Pichai alias Pichandi and others v. State of T.N.4 in which the Supreme Court has held that holding of deceased to facilitate others to assault and to cause injury is not sufficient to prove common intention for causing murder, but the act attributed to them shows that they were having knowledge that grievous hurt may be caused, therefore, they may be convicted under Section 324 of the IPC. Mr. J.R. Verma further placed reliance in the matter of Fagu Manjhi and others v. State of Bihar and another5 in which the Supreme Court has held that accused running behind the assailant is not 2 AIR 1999 sc 214 3 2008(3) c.G;L.J. 71 (DB) 4 (2005) 1o scc 505 5 (2001) 10 scc 692 sufficient to prove the common object of such person. Mr. J.R. Verma also placed reliance in the matter of Sambhaji Hindurao Deshmukh and others v. State of Maharashtra6 in which the Supreme Court has held that in absence of credible evidence relating to common intention, except the accused who has caused injury, other accused persons cannot be convicted in sharing common intention. Mr. J.R. Verma reiied upon the matter of Hem Raj and others v. State of Haryana7 in which the Supreme Court has held that failure to examine independent and material witness though available and no explanation by prosecution for such non-examination would not by itself give rise to adverse inference but would assume significance when evidence of the alleged, eyewitnesses raises serious doubt about their presence at the time of the OCCU rrence. 14.0n the other hand, learned State counsel vehemently opposed the appeal and submitted that conviction is substantially based on evidence of Manisha Verma (PW-13) & Ganesh Ram (PW—14). The prosecution has not examined all witnesses present on the spot. Evidence of Manisha Verma (PW-13) & Ganesh Ram (PW-14) is sufficient for drawing definite conclusion. Although they are relatives, but there is no exaggeration, contradiction or omission in their evidence, their evidence clearly reveal that villagers were having fear against the appellants, when the appellants have threatened them that if any person will give . v evidence against them, they will kill that person also. Presence of Ganesh Ram (PW-14) on the spot is not natural, but he is injUred witness which ensures his presence on the spot. Another witness Sangeeta Sahu (PW-15) in whose house Manisha Verma (PW—13) has taken shelter at night has not supported the case of the prosecution, but has admitted to the extent that she came along with deceased Urmila Bai & Manisha Verma (PW-1 3) from the field, thereafter, she went to her house and after some time, Manisha Verma (PW-13) came to her house, though her father Chandu Lal (PW-10) whom also the prosecution has declared hostile has not corroborated above part. This shows that villagers were threatened by the appellants and considering brutality of murder of two persons with a view to save them from any danger they have not supported the case of the prosecution. However, on the ground v,, G (2008) 11 scc 186 2 7 (2005) 1o scc 614 wwk . that other persons have not supponed the case of the prosecution, evidence of eyewitnesses cannot be rejected. 15.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 16.ln the present case, homicidai death of deceased persons Urmila Bai & Punitram as a result of fatal injuries and brutal murder has not been substantially disputed on behalf of the appellants, even othenNise, it is established by evidence of Dr. S.P. Garg (PW-12) and autopsy reports Exs.P-46 & P—47 that death of the deceased persons was homicidal in nature. As regards simple injuries caused by sharp edged weapon to Ganesh Ram, same has also not been disputed by the appellants, even otherwise, it is also established by evidence of Dr. K.S. Rai (PW-7) and injury report EXP—26 which are sufficient to prove that Ganesh Ram sustained injuries by sharp edged weapon. 17.As regards complicity of the appellants in the crime in question, conviction of the appellants is substantially based on evidence of anisha Verma (PW-13) & Ganesh Ram (PW-14). 18.As per evidence of Manisha Verma (PW-13), she along with her mother Urmila Bai (since deceased), Sangeeta Sahu (PW-15), Ramkali Yadav & Pushpa Verma went for ease to the field, thereafter they came to the village, while they were coming back to their houses and passing near the house of Kodu & Pati, appellants Hariram & Jeetoo caught hold of her mother Urmila Bai, appellant Shiv Prasad & Manharan also caught g hold of her mother and all appellants confessed that they have killed her husband i.e. husband of her mother and they will kill her also i.e. Urmila Bai and also kill all family members. Appellants Shiv Prasad & Manharan caused fatal injuries by axe to her mother and appellats Hariram & Jeetoo‘also caused fatal injuries to her mother by axe. All appellants chased this witness then she rushed to the house of Chandulal and she entered in the house of Chandulal whom the appellants asked about her, but Chandulal refused to tell presence of this witness to the appellants. They also threatened Chandulal. She stayed at night in the house of Chandulal, between 5.30 a.m. and 6 a.m., she went to her house and knocked the door on which her brother Ganesh Ram (PW—14) opened the door. They went to the house of another Punit Verma and requested for bringing the dead bodies of their parents which M 6W? 9 Punit Verma refused whereupon she went to the house of appeuant Jeetoo and requested for accompanying her to the potice station. Appellant Jeetoo had shown his willingness. The appeiiants threatened villagers that if somebody wiii give evidence against them, they wiii kiii them also like Punitram and Urmila Bai. She lodged dehati nalsi and morgue vide ExsiP-36, P-37 & P-38. 9.Ganesh Ram (PW—14) has substantially corroborated the evidence of Manisha Verma (PW-13). As per his evidence, he was coming towards the pond at the time of incident, when he reached near the house of Kodu Ram he saw that all_four appellants were causing injuries to his mother Urmila Bai by axe. The appellants chased his sister Manisha Verma (PW—13) on which she entered in the house of Chandulal, he also tried to save his sister whereupon appellant Shiv Prasad caught hold of him and caused injuries by axe over his buttocks, he rushed and went inside his house and bolted the door. The appellants threatened that if some body will give evidence against them, they will kill them also. He went to the house of Bisahu Verma through another door and informed him, but instead of taking any action, Bisahu Verma directed his son to accompany him up to his house. Second day morning, his sister Manisha Verma (PW-13) came to his house and knocked the door on which he opened the door, they went to the house of Bisahu Verma and informed them, thereafter they went to the house of Kotwar and informed him also. Appellant Jeetoo came out from the house of Kotwar. His sister requested Jeetoo for lodging report, but Jeetoo threatened. They went to the place of incident where dead bodies of his mother & father were lying. This witness has also deposed that he was examined and treated by the doctor. 20.Defence has cross-examined these witnesses at length. Sangeeta Sahu (PW-15) whom the prosecution has declared hostile has corroborated the evidence of Manisha Verma (PW-13) up to some extent. As per her evidence, she along with Ramkali, Pushpa, Manisha Verma and mother of Manisha Verma went to field for ease, thereafter they came back to their houses, after some time Manisha Verma came to her house, but she did not tell anything. The prosecution has declared her hostile. She has admitted the fact that all of them came back from the field after ease 1 and went totheir houses and after some time, at the time of sleeping, k Manisha Verma came to her house, but she did not tell anything. This ’a., 1 10 fact was unnatural. It does not appear to be natural that Manisha Verma, 18 years aged girl, will come to her house without any cause and will not inform anything to her, especially after murder of her mother & father. This fact shows that under some circumstances she is concealing the truth. Considering the evidence of this witness and evidence of Manisha Verma (PW-13) & Ganesh Ram (PW-14) it clearly reveals that the appellants have threatened villagers and other persons and they were under threat. 21.ln her detailed cross-examination, Manisha Verma (PW-13) has very specifically deposed and stated that the incident took place before her, she has seen the incident, all appellants have caused fatal injuries to her A mother and all have confessed that they have killed her father. She has denied the suggestion that she has not seen the incident. She has admitted in para 14 of her cross-examination that she is not able to identify the persons at dark night from 2-3 ft. but she is able to identify the persons in light. She has admitted in para 16 of her evidence that her father has been released on bail prior to commission of offence. She has further admitted in para 17 of her cross-examination that one criminal case was pending against her father relating to liquor poisoning. 22.Ganesh Ram (PW-14) has substantially corroborated the evidence of Manisha Verma (PW—13). He is injured witness. lncised wound over both buttocks of this witness were found in the size of 1‘1/2" x 3 c.m. x 1 c.m. which was not so small. Injuries found over the body of this witness _ » ensure his presence on the spot. Both the witnesses are son and daughter of the deceased, but their evidence cannot be discarded only on the ground that they are relatives. Even otherwise, relatives are the last persons to spare the real culprit and implicate innocent persons falsely. 23.While dealing with the evidentiary value of relative witnesses, the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtrag has held that close relatives of the victim have tendency to exaggerate or add facts, Court should examine their evidence with great care and caution. Para 48 of the judgment of the Apex Court in the above cited case reads thus, V l . V “48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the a AIR 1984 SC 1622 11 background of which the oral statements are to be considered. AII 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