^ HI6H COURT OF CHHATHS^ARH AT BILASPUR APPELLANT flnjain RESPON&ENT Crimjnal ApDcaJ No.8S4 of 2003 Katlami Pandu, Aged 33 Yrs., S/o Manglu, R/o Hita Warha Kurseemwar, P.S. Barsur. bistrict Dantewara Versus : State of Chhatt-isgarh, Throu9h P.S. Bflir^jr/ District Dontewara (Appeal under Section 374(1) of Cr.P.C.) Dlvlsion B®nch: Non'ble Mr. T.P.Sharma & Hon'ble Mr. N.K. Aaarwat. JJ. Present: Shri R.K< Sharma, counsel for the cppeltant, Shri M.P.S. Bhatia, Dy. 6ovt. Advocate for the State/ respondent. ORAL JUt^MENT (Passed on 6th day of January, 2010) P®rT.P. Sharma. J. Challenge in this appeal is to 1+ie judgment of conviction and erder of sentence datedt 30-04-2003 passed by Fourth ^dditional Stessions Judge (F.T.C.), Bostar at Jagdalpur jn S.T. No.130/2002 whereby and whcr^i.inder Tearned Adlditional Sessions Jud9e after hotding the cppellant guilty for commission of homicjdat decrtfi amounttng to murder of Katlami Jimme, conyicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and pay fine of Ks400A, in defauJt of payment of fine to further undergo additional Imprisonment for one month, 2. The judgment is impugned on the ground that without any cljnching and ct^dible evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed il^ality. 3. Brief facts of prosecution case are that on 16-01-2002 at about 10.00 A.M,, deceased Katlami Jimme was present in her hoyse, 1+ie oppellant exsrw to her house. He was holding stick. He ossoulted the deceased by stick and caused her death, Paichoyat was convened and FJ.R. was lod9ed by PW-1 (/ Alami Joga vide Ex. P-1. Merg intimation was also recorded; Afhsr summoning the wilnesses, inquest over Itse dead body of the deeeased was prepared. Dead body was sent forautopsy to Priinary 1-tealth Centre. Btorajr. Autopsy was conducted by PW-8 Dr. P.S. Komre vide 6x. P-9. He found following injuries on the body of Katlami JinimB: a) one contusion of 3N x 2" over Jateral aspact of the abdamen; b) one contusion of 3" x 2" over left auxiliary region; and c) one contusion over back side of the neck: On internal examination, it waus found that ^ileen vws ruptured, 3rd & 4 ribs were fractured, 2 A 3 bones of neck (cervical vertebra) were fractured. Injury No.3 was dangerous. Ccajise of death was shock as a resutt of njipture of spleen and the death was homicidal in nature, 4. Spot map was prepared videEx.P-3. Oie woo<ten club was recovensd from the cqppetlant vide Ex.P-5, Statements of witnesses wwe reeorded under Section 161 of the Gode of Criminal Procedure, 1973 (for short *the Code'). After completion of jnvestjgation, charge-riieet was fited before the Chief Judicial Magistrate, Dantewara who m turn, committ^ed the QCK^SS to the Court of Sessions, Bastar, from wrtiere learned Additional Sessions Judge .received the caseon transfer for trial, 5, In order to prove the guilt of the accused, the prosecytion examinecl as many as 8 witnesses. The accused wos examined under Section 313 of the Code where he denied 1+ie circumstances appecrJng a^giinst him, pleade^ innocence oind false Jmplication. 6, After affording opportuinity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced 1+ie appettant as aforementioned. 7, We have heard learned coun^l for the parties, perused the judgment jmpugned and record of Court below. 8. Shri R.K. Sharma, learned counsel appearing for Ihe fl^pettant, vehemently argued ttiat conviction of 1+te appellant rests an the ^)litary /T^•^, statement of PW-3 Ku. Bajsi, a child witness. who» statement does not inspire confidence, trustworthy and wfe to rely. PWt"3 Ku. Baisi altej^d eyc witness, has not seen the incident even she was not present at the time of alleged incident. Learned counsei further argued that prosecution was uncter obligation to prove its oose beyond all reasonoible doubts. but in 1fie present case. eviden<» addu<»d on behalf of the prosecution is not iajifficient for convicting the accused that too under Section 302 of Ihe I.P.C. 9. On the other homd. Shri Bhatia, leamed counsel appearing for the State/respondent, vehemently opposed the appeal and argued that convJction of the accused rests on the evidence of eye witness PW-3 Ku. &iisi, relative of the deceased and her presenc^ at the time of incident w<is rKxtural, Her statement inspires confldence <xnd safe to rely, 10, In order to appreciate the arguments advanced by the parties ^w have examined the evidence adduced on behalf of the prosecution. In th®present case, homicidlal death of the deceased as a result of jnjury is not sub<rhintialty disputed by Ifie appelkxnt, otherwise also established by the evidence of PW- 8 Dr. P.S. Komr®and autopsy report 6x. P-9 in wriiich it reveals that 1+ie death of fotlami Jimmi was as a result of fatal injury sustained by h&r, rupture of spleen anct the death was homicidal in nature. 11. As reQards the complicity of 1+ie accused in crime in question, conviction of the accused Ss based on the evidence of solitary wttness PW-3 Ku. Bajsi. 12. PW-3 Ku. Baisi has deposed in her evidence that at the time of jncident, deceased was sleeping in her house. the apj^llant caune to the house of deceased ond after sonw discussion, he assaulted her by stick over the waist of 1+ie deceased and as a result of such injury Ihe deGeaasd djed. She has specifiaally (teposed that she has seen the incident. The defBnce ho® cross-examined 1+iis witness in detail but has not been abte to Jllicit anyrtiing in her cross-examination to discredit her testimony. Admitl'edty, PW-3 Ku. Baisi is retative of the dec^^ed and even she was residing wi-rti the eleceased, but her statement cannot be discarcfed only on "rtie ground of relatjon^iip, ...::^' ^~ K'" "---. r^ 4 Even otherwise, relative Js a person reluctant to ^parc 1+>e rexxl ailprit and iniplicate an innocent person falsely. 13. White dealin9 with Ihe question of reliabilit/ of retative wHness the Apex Courf 'm the matter of Dalip Singh and others v, The Statw of Pwiab1 has held that a witness is normally to be consideredl in<i<^endent unless he or she springs from sources which are likely to be tainted< Paro 26 of the ^xid judgment reads as under:- tt26. A witness is normalty to be consicteredl independent unless he or ^ie -springs from sources which are likely to be tainted and that usuaily means unless ihe witness has cause, such as enmity a9ainst the occused, to wish to implicate him falsely. Ordinarily, a clos®retation would b®the last to screen the real culprit and falsely implicate an innocent person. It is true, wrfien feelings run high and there is personal cause for enmity, that there is a tendency to dra9 in cn inno<»ntperson against whom a witness has a 9rudge along wcth the guilty, but foundation must be laid for ^udi a criticism and the mere fact of rebtionshjp far from being a founctation Js often a sure guarantee of truth, However, we are n@t attempting any swe^ing g^Teralization. Each COSB must be jud9ed on its own facts» Our obserwtions aro only made to combat what is so often put forwxrd in cases before us as a general rule of prudence. Thercs is no such 9eneral rule, Eoch case must fae liinited to and be govemed by its own facts." 14. Further, in the matter of Mohabbat and Ors. v. Statt of M.P.8 the Apex Court has held that relationship is not ground to affect credibility of witness/foundation has to be laid if plea of false implication is rdsed. Para 7 of the said jud9ment reads thus, <k7. Merely because the eye-witrussses are faniily members their evidence cannot per se be discar^ed. When there is allegation of interestedness, Th®sama has to be established» Mer®statement that beJng relatives of the deceased they are titely to falsefy implicate 1+ie accused cannot be a ground to discwd the evidence which is otherwise co9ent and credible, We ^iall also deal wi'th -riie contention resgardjng interestedness of the wi'hiesses for furthering the 1AIR 1953 SC 364 22009AIRSCW1486 ^ prosecution version. Relationship is not a factor to affect credibiJtty of a witness. It is moro often than not that a refation would not conceal octuoil culprit and make allegations against an innocent pevson. Foundation has to be kxid if plea of false implication 'ts made. In such cases, 1+ie court has to adopt a carefyl approach and onalyze eviclwice to find out w^iel+ier it <s cogent cyid credible*'1 15. In the present ocxse. prea»nce of PW-3 fai. Baisi, relatiw of the deceased who was residing with the deceased, at the time of mddent was natural. Her statement inspires confidence, trustworttiy and safe to re^y. 16, After oippreciating Itie evidence available on record, teamed Adclitional Sessions Judge has arrived at a finding "rtiat cppellant is the person who has caused fatal injury to the decea^d. 17. As regards motive behind the offence, in case of direct evidence, motive loses its importance. even otherwise, motive only dds in Griminality and it can be inferred on the bas'ts of 1+ie injury. part of th®body affected. wreapon used wd other circumstances. In the present case, the dectKased was sleeping jn her house, She was not holding any weflpon. The appellant came to her house, as«xulted her and caused more •HIGUI one fatal injury including fracture of ribs and cervical vertebra which shows his grave mtention of ccxusing homicjdal death amounting to murder of dteceased Xatlami Jimml 18, After appreciating the evidence available on record, leQrned AdditJorNit Sessions Judge has convicted the appelfant under Sectian 302 of the I,P,C andt sentenced to undergo Jmpri»)nment for life and fine of fts.tOOA, Conviction of the oppelJont is baused on clinching and credibte evidenee; sustainable under 1+ie law. 19. On close scrutiny of the evidence, we do not fmd any iltegality or infirmity in 1+ie judgment impugned wxrranting any jnterference. Th®cypeal being devoid of merit is liable to be oind Js hereby dismissecl. Sd/- T.P. Sharma Judge Sd/- N.K. Agarwal Judge Kvr