5% HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.1332 of 2003 APPELLANT: (in jail custody) Phool Singh alias Kartik Ram, S/o Nanha Singh Kanwar, aged about 43 years, occupation Labour, resident of avillage Mauharitola, Bandhi, P.S. Pendra, Distt. Bilaspur (C.G.) Versus RESPONDENT: State of Chhattisgarh Through P.S. Pendra, Distt. Bilaspur (C.G.) {Criminal appeai under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. V.P. Gupta, counsel for the appellant. mi: M.P..S. Bhatia, Deputy Govt. Advocate for the State/respondent. Division gench: - ‘ Hon’ble Mr. T.P. Sharma & Hon’ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (5-1-2010) T.P. Sharma, J: — 1, Challenge in this appeal is to the judgment of conviction & order of sentence dated 22-10-2903 passed by the Additional Sessions Judge (F.T.C.), Pendra Road, in Sessions Trial No.148/2002, whereby & wh'ereunder learned Additional Sessions Judge after holding the appellant guilty for commission of the murder of his wife Phulu Bai, convicted him under Section 302 of the l.P.C. and sentenced him to undergo imprisonment for Iife & pay tine of Rs.100/-, in default of payment of tine to further undergo S.l. for three months. 2. Judgment is impugned on the ground that without any iota of evidence the Court below has convicted & sentenced the appellant and thereby committed illegality. . Case of the prosecution, in brief, is that Phulu Bai (since deceased), wife of the appellant, was residing with the appellant and her children Kum. Chanda Bai (PW-7) — daughter, Suraj (PW-9) & Govind (PW-1 3) — sons. On the fateful day of 1 1-2-2002 at about 11 p.m. the appellant demanded money from his wife Phulu Bai and on her refusal, he assaulted Phulu Bai with heavy stone Iodha (used in kitchen) over her chest and also pressed her neck and caused death. Daughter of the deceased & the appellant Chanda Bai (PW-7) lodged F.I.R. vide Ex.P-8 and merg vide EXP-9. The investigating Officer left for the scene of occurrence and after summoning the witnesses, prepared inquest over the dead body of Phulu Bai. Stone, the weapon of offence Iodha was seiz’ed vide EXP-3. Spot map was prepared by the investigating Officer vide EXP-6. Dead body was sent for autopsy vide Ex.P-15 to Community Health Centre, Pendra. ‘Dr. N.S. Paikra (PW—10) conducted autopsy on the dead body vide Ex.P~11 and found bruises & abrasion over face ’& chest, haematoma over left parietal region, fracture of four ribs and rupture of left lung. ’ Cause of death was shock as a result of excessive haemorrhage and death was homicidal in nature. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Pendra Road, who in turn, committed the case to the Court cf Sessions, Bilaspur, from where learned Additional Sessions t Judge (F.T.C.), Pendra Road received the case on transfer for trial. . ln order to prove the guilt of the appellant, the prosecution has examined as many as thirteen witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. After proViding opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 5, We have heard learned counsel for the parties, perused the impugned judgment and record of the trial Court. 6. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on the statements of Kum. Chanda Bai (PW-7), Suraj (PW-9) & Govind (PW—13), who are children of the deceased. They are relatives and interested witnesses presently residing with their maternal uncle & aunt. Their statements are not safe to rely upon. The statement of Kum. Chanda Bai (E’W-7) and the F.I.R. lodged by her are self—contradictory and are in conflict to the medical evidence, not safe to rely fof conviction of the appellant that too under Section 302 of the l.P.C. a 7. On the other hand, learned State counsel opposed the appeal and vehemently argued that Kum. Chanda Bai (PW-7), Suraj (PW-9) & Govind (PW-13) are relative witnesses, they are daughter & sons of the deceased as well as of the appellant, their presence at about 11 p.m. in their house is natural and they have specifically supported the case of the prosecution. Their statements inspire confidence and safe to rely upon. There is no conflict between medical and ocular evidence. 8. in order to appreciate the arguments advanced on behalf of the parties, , we have examined the evidence available on record. ln the present case, homicidal death of Phulu Bai as a result of ante—mortem injuries is not substantially disputed by the appellant, otherwise also established by the evidence of Dr. N.S. Paikra (PW—10) and autopsy‘re'port Ex.P—11 which reveal that four ribs were found fractured, left lung was ruptured, é, cause of death was shock as a result of excessive haemorrhage and the death was homicidal in nature. . As regards complicity of the appellant in the crime in question, case of the prosecution rests on the evidence of eyewitnesses Kum. Chanda Bai (PW-7), Suraj (PW-9) & Govind (PW-13), daughter & sons of the deceased & the appellant. Suraj (PW-9) has deposed in his evidence that in the first part of the incident, the appellant was beating his mother Phulu Bai (since deceased) and demanding money for liquor. Govind (PW-13), child witness, has corroborated the evidence of Suraj (PW-9) up to that extent anddeposed that his father assaulted his mother with Iodha (heavy stone used in kitchen). 10. Kum. Chanda Bai (PW-7), daughter of the appellant & the deceased, has categorically deposed that firstly the appellant came with his two friends and‘d‘emanded money from her mother for purchasing liquor and assaulted her, thereafter subsequently at about 11 p.m. her father (the $ appellant herein) ,again came and demanded money from her mother which she refused whereupon the appellant assaulted her mother by fists, kicks & Iodha over her forehead, cheek, chest & neck and also pressed her neck. She tried to intervene, but the appellant abused her and also chased her with axe on which she went inside the room. She has lodged report vide Exs.P-8 & P-9. Defence has cross-examined this 'witness at length where she denied that the persons came with the appellant have eaten meat. She has denied the suggestion that her mother fell down over stone and sustained injury. In cross-examination of this witness, defence has not been able to elicit anything to discredit her testimony. Her evidence is duly corroborated by the evidence of Govind (PW-13), child witness, who has also denied the suggestion that his mother fell down over stone and sustained injury. Govind (PW—13) is ea child witness, but nothing has been brought in his cross-examination to discredit his testimony. 11.Medical evidence and autopsy report Ex;P-11 reveal that cause of death of the deceased is shock as a result of excessive haemorrhage. Four @ ribs were found fractured and left lung was found ruptured which are sufficient for causing death of the deceased, but no visible injury was found over the neck of the deceased. 12.Kum. Chanda Bai (PW-7) has deposed in her evidence and aiso mentioned in F.l.R. Ex.P-8 & merg intimation Ex.P—9 lodged by her that the appellant has.presSed the neck of the deceased and also assaulted with Iodha, however, no visible injury was found over the neck of the deceased. x r 13.Autopsy report Ex.P-11 reveals that abrasion was found over the face of t‘ . the deceased. Kum. Chanda Bai (PW-7) has deposed that the appellant was pressing the neck of her mother and has also assaulted near the A neck. The incident took place at 11 p.m. in the house of the appellant 3 and the appellant who is father of this witness was assaulting his wife i.e. mother of this witness. In case of low pressure over neck visible injury would not be possible, but only on the ground of some trifle discrepancy in ocular & medical evidence, medical evidence or ocular evidence cannot be discarded. Defence has cross-examined Kum. Chanda Bai (PW-7) in detail, but it has not been able to elicit anything in her cross— examination to discredit her testimony. a 14.Govind (PW—13), child witness, has also deposed that the appellant has assaulted his mother with lodha. Nothing has been asked by the defence to this witness that the appellant has not used lodha. Both the witnesses viz., Kum. Chanda Bai (PW-7) & Govind (PW-13) are relatives (children) of the deceased as well as of the appellant. Evidence of E) L. relative witnesses cannot be discarded only on the-ground of their l \ 15.0rdinarily, a close relative would be the last to screen the real culprit and l relationship. falsely implicate an innocent person. While dealing with the question of ‘ @ evidentiary value of the relative witnesses, the Apex 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 iikely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to ir‘npiicate him faisely.‘ 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 is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each x case must be limited to and be governed by its own facts." 16.While dealing with the same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Biharz 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, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness x 1AIR‘ 1953 sc 364 I '2 2008 AIR scw 3739 l 7 @ *of the evidence of relatives of the victim is concerned, it is well settle§ though the @ourt 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 per se does not affect the credibility of a witness. Merely because a witness happens'té be a relative of the victim of the crime, he/she cannot be characterized as an “interested” witness. lt 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.Evidence of Kum. Chanda Bai (PW—7) & Govind (PW-13) inspire confidence, their evidence is trustworthy and safe to rely. After“ appreciating the evidence available on record, learned Additional Sessions Judge has arrived at, a finding that the appellant has caused injuries to the deceased which was sufficient for causing her death. 18.As regards the question of motive, in case of direct evidence motive loses its importance, even othenivise, motive only aids in criminality and it can be inferred on the basis of nature of injuries, weapon used, part of the body affected and other similar circumstances. 19.ln the present case, the appellant, who is husband of the deceased, has assaulted his wife by hands & kicks and also by Iodha, the heavy stone used in kitchen, over chest as a result of which four ribs were broken and ’r left lung was ruptured which shows that the appellant was having Li wknowledge of the result of his act. The act of the appellant shows that he has committed homicidal death of his wife amounting to murder. 20.bearned Additional Sessions Judge has convicted & sentenced the . appellant under‘ Section 302 of the l.P.C. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned warranting any interference. Consequently! the appeal is Iiable to be dismissed and it is hereby dismissed. Sd/— Fr ’ :1 y T.P.Sharma ’ ' i ' Judge Q i Sdl— R-L_ Jha“war Judge