APPELLANTS: (In Jail) Criminal Appeal No.972 of 2004 1 . Versus State of C.G. Through Musturi Police. {Criminal appeal under Section 374 (2) Cr.P.C.} NON-APPLICANT: @ HIGH COURT OF CHHATTISGARH, BILASPUR Anil son of Kalesar Satnami Aged about 22 years 2. Kalesar son of Hari Satnami Aged about 58 years Shailesh @ Chotu son of Kalesar Aged about 20 years All cultivator and resident of village Murpar P.S. Masturi, Distt. Bilaspur x Present: Mr. Yogeshwar Sharma, counsel for the appellant. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon’ble Mr. T.P; Sharma and Hon’ble Mr. R.N. Chandrakar, JJ T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 24—9—2004 passed by the 8th Additional Sessions Judge (FTC), Bilaspur in Sessions Trial No.428/2003, whereby & whereunder learned Additional‘Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Jhaduram and for causing injury by sharp edged weapon to Dil Prasad & Chameli Bai in sharing common intention, while acquitting co—accused Kalindri @ Salindri, convicted & sentenced the appellants in the following manner: ORAL JUDGMENT (1 5—6—201 1 ) — Name of the accused Conviction Sentence Anil, Kalesar & Shailesh @ Chotu Sec. 302 IPC imprisonment for life & fine of Rs.50,000/— each, in default additional RI for 3 years. Anil Sec. 324 IPC Rl for on_e year & fine of Rs.2,000/—, in default additional RI for 3 months. 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—82003 at about 6 a.m. the appellants along with Kalindri stopped injured witness Dil Prasad (PW~9) and caused injuries by axe, carpenter axe & knife on which Dil Prasad shouted for help then Jhadurarinjsince deceased) along with Dharmkirti (PW-5) & injured Chameli Bai (PW-8) — mother-in- law of Dil Prasad came to the spot. The appellants assaulted Jhaduram and caused his instantaneous death. They also assaulted Chameli Bai. Dharmkirti (PW—5) fled from the spot. immediately, Dil Prasad (PW-9) went to the police station and lodged merg vide EXP-6 and FIR vide EXP—7. The investigating Officer left for the scene of occurrence and after summoning the witnesses vide EXP-18, prepared. inquest over the dead body of the deceased vide Ex.P~19. injured Chameli Bai (PW-8) was sent for medical examination vide EXP-20A and she was examined by Dr. Smt. Kalpana Chachane (PW—13) vide EXP-20 who found i lacerated wound on left forehead of 1 c.m. x 0.1 c.mL. Another injured Dil Prasad (PW—9) was also sent for medical examination vide EXP-5A and he was examined by Dr. R.L. Tiwari (PW-4) vide Ex.P-5 who found following injuries: - (1) lncised wound with fresh bleeding of 5 1/2 c.m. x 2 c.m. x muscle deep on outer aspect of right hand. (2) Lacerated wound with fresh blood, two in number, both are 1 c.m. apart on medial side of mid part right forearm. (3) Tenderness and redness at bridge of nose in mid part. i Kalesar & Shailesh @ Chotu Sec.324 read with Sec. 34 IPC ‘ , RI for one year & fine of Rs.2,000/— each, in default additional RI for 3 months. Shailesh @ Chotu Sec. 324 IPC RI for one year & fine of Rs.2,000/-, in default additional RI for 3 months. Kalesar & Anil Sec.324 read Rl for one year & fine of with Sec. 34 Rs.2,000/—each, indefauit IPC additional Rl for 3 months. Shailesh @ Chotu Sec. 25 (1) (b)Arms Act Rl for one year & fine of Rs.1,000/-, in default additional Ri for 3 months. Dead body of deceased Jhaduram was sent for autopsy to Block Medical omcer, Masturi vide EXP-21. Dr. P.C. Banerjee (PW-14) conducted autopsy vide EXP—21 and found following injuries on the person of the deceased:- (1) Incised wound 1" x 1" near left angle of mouth. (2)~lncised wound 3" x 1" below left ear. (3) Incised wound 2” x 1/2 c.m. on left parietal and parietal bone was cut. (4) Incised wound 3" x 1/2” on middle aspect of head and parietal bone was cut. (5) Incised wound 2" x 1/2" on posterior aspect of right parietal and cut n rietal bone. (6) Incised wound 4” x 1/2” on occipital bone and occipital bone was cut. (7) Incised wound 1” x 1/2 .m. above riht eebro. (8 Icised wound 6" x 1” on right sid of neck below right mandible. (9) incised wound 3" x 1/2” on upper right abdomen. (10) incied wound 6” x 1/2" on middle aspect of left abdomen. s injuries were caused by hard and sharp object. Mode of death was shoc and death w homicidal in nature. Sealed clothes of the deceased were seied vide Ex.P-1. Spot map was preped vide Ex.P- 24. Patwari prepared sot map vie Ex.P~31. During the course k as z ar d of investigation the appellants were take into custody. Appellant Anil made discloser statement of e vide EXP-15 and same was recovered at his intance vide Ex.P-8. Appellant Kalesar made discloser statement of carenter axe vide Ex.P-16 and same as recoered at his instance vie EXP—12. oodstained cloth of appellant Kalesar as seize vide E A d Bl w d x.P-13. Bloodstained cloth of appellant Anil was seized vide Ex.P-9. ppellant Shailesh made discloser statement of knife vide EXP—17 and same was recovered at his instance vide EXP-10. Bloodstained cloth of appellant Shailesh was seized vide Ex.P-11. Seized articles were sent for chemical examination vide EXP—28. Presence of blood was confirmed over the clothes seized from the appellants, axe, carpenter axe and knife vide EXP—30. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Additional Chief Judicial Magistrate, Bilaspur who committed o pa c g yw ) n e , n ax s p w v the case to the Court of Sessions, Bilaspur from where learned Additional Sessions Judge received the case on transfer for trial. . in order to prove the guiit of the accused persons, the prosecution has a. < examined as many as sixteen 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. After affording opportunity of hearing to the parties; learned Additional Sessions Judge while acquitting co-accused Kalindri, convicted and sentenced the appellants as aforementioned. . We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. Learned counsel for the appellants submits that on account of previous enmity, the appellants have been falsely implicated in the crime in question. Dharmkirti (PW-5) — son of the deceased, Chameli Bai (PW—8) — mother—in-law of Dil Prasad (PW—9) & Dil Prasad (PW—9) — brother of the deceased, are interested and relative witnessesétheir evidence is not trustworthy, it does not inspire confidence and is not safe to place reliance in absence of any other corroboration from independent sources.- Suspicion however grave cannot take the place of legal evidence. Evidence of aforesaid witnesses do not find corroboration for medical evidence and on account of inconsistency between medical and ocular evidence, the appellants are entitled for acquittal. . On the other hand, learned State counsel opposes the appeal and submits that evidence adduced on behalf of the prosecution is sufficient to establish the fact that on account of previous enmity, the appellants have firstly assaulted Dil Prasad, thereafter, they have brutally assaulted Jhaduram by sharp edged weapon. There is no inconsistency between medical and ocular evidence. Evidence of the witnesses are well corroborated by the promptly lodged report of injured witnesses. Injuries found over the bodies of Dil Prasad & Chameli Bai show that they were present at the time of incident and they have seen the incident. On account of their relation their evidence cannot be discarded. 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. x 5 . . @ 11. In the present case, homicidal death of deceased Jhaduram as a result of ten fatat injuries found over his person has not been substantially disputed on behalf of the appellants, even otherwise, it is established by evidence of Dr. P.C. Banerjee (PW—14) and autopsy report EXP—21 that the death of Jhaduram was homicidal in nature. The appellants have also not disputed the injuries found over the bodies of Chameli Bai (PW- 8) & Dil Prasad (PW-9); same have also been established by the aforesaid witnesses, Dr. R.L. Tiwari (PW—4), medical report EXP-5, Dr. Smt. Kalpana Chachane (PW-13) and EXP—20 which are sufficient to establish that Chameli Bai & Dil Prasad have also sustained injuries by sharp edged weapon. 12.As regards complicity of the appellants in the crime in question, conviction of the appellants is based on evidence of eyewitnesses namely Dharmkirti (PW—5) -— son of the deceased, injured witness Chameli Bai (PW-8) — mother-in~law of Dil Prasad (PW-9) & another injured witness Dil Prasad (PW-9) — brother of the deceased. They are relatives of the deceased and their evidence cannot be discarded‘only on the ground of their relation. 13.0rdinarily, 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:- x “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. lt 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 1AIR 1953 sc 364 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." 14.As per evidence of Dharmkirti (PW-5), Chameli Bai (PW-8) & Dil Prasad (PW-9) and the promptly lodged FIR, initially all the appellants were present on the spot, they assaulted Dil Prasad on which he shouted for help whereupon Jhaduram (since deceased) came whom .all the appellants have assaulted by axe, carpenter axe & knife and caused as many as ten injuries resulting in his instantaneous death along with fracture of vital parts. Defence has examined these witnesses in detail, but it has not been able to elicit anything in their cross—examination especially relating to the fact that they have not caused any injury to Jhaduram, Dil Prasad & Chameli Bai. Their version is also corroborated by mediCal evidence of the aforesaid doctors and the medical reports. Evidence of aforesaid witnesses are sufficient for drawing inference that the appellants have caused homicidal death of deceased Jhaduram and injuries by sharp edged weapon to Chameli Bai & Dil Prasad in sharing ‘ common intention. 15.After appreciating evidence available on record: learned Additional Sessions Judge convicted & sentenced the appellants in the aforesaid manner. Appellant Shailesh @ Chotu, who was found in possession of prohibited arm knife, has also been convicted under Section 25 (1) (b) of the Arms Act and sentenced accordingly. 16.Conviction of the appellants is based on legal and clinching evidence sustainable under the law. We do not find any illegality in conviction of the appellants. 17.As regards the question of sentences, we also do not find any illegality in the sentbnces imposed upon the appellants under Sections 324, 324 read with Section 34, 324, 324 read with Section 34 of the IPC & 25 (1) (b) of the Arms Act. 18.As regards the question of sentences imposed upon the appellants under Section 302 of the IPC, the trial Court has sentenced the appellants to undergo imprisonment for life & pay fine of Rs.50,000/- each. As per case of the prosecution, the incident took place on the ground of previous dispute. This iswnot the case of specific or rare nature in which fine of Rs.50,000l- to each of the appellants could be justified.