HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.L.JHANWAR, JJ. Criminal Appeal No.764 of 2004 Dilip Suryavanshi and another Versus \ State of Chhattisgarh JUDGMENT FOR CONSIDERATION Hon’ble Mr.R.L.Jhanwar, J. @a%/ Sd/— R.L. Jhanwar Judge Post for pronouncement of the Judgment on : 4/3/2011‘ Sdl— T‘P. SHARM g A Jude E HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal AQQeal No.764'of 2004 Division Bench:- Coram: HON’BLE MR.T.P.SHARMA & H‘ON’BLE MR.R.L.JHANWAR, JJ. APPELLANTS 1. Dilip Suryavanshi S/o Ramadhar (In Jail) Suryavanshi, aged about 27 years, 2, Sunil Suryavanshi Sfo Ramadhar Suryavanshi, Aged about 22 years, Both R/o Vill. Lakhram, P.S. Ratanpur, District Bilaspur (C.G.) Versus RESPONDENT State of Chhattisgarh Through P.S. Ratanpur District Bilaspur (C.G.) (CRMINAL APPEAL UNDER SECTION 3’74 (2) OF THE CODE. OF CRIMINAL PROCEDURE, 1973) Present:- ~ ' Mr.G.P.Kurre, counsei for the appellants. Mr.Sanjeev KumarAgrawal, Panel Lawyer for the respondent/State. JUDGMENT (Delivered on 4‘ March; 201 1 ) The following judgment of the Court was delivered by T.P.Sharma, J.:- Challenge in this appeal is to the judgment of conviction and order of sentence dated 26.8.2004 passed by the 1“ Additional Sessions Judge, Bilaspur in Sessions Trial No.392/2003, whereby & whereunder learned tst Additional Sessions Judge while acquitting co-accused Jamunabai and aft‘er holding appellants ’Dilip Suryavanshi and Sunil Suryavanshi guilty for commission of culpable homicide amounting to murder of Rampyari Bai & Shyampyari Bai and attempt to commit murder of Shakuntla Bai in sharing common intention convicted appellant Dilip under section 302, 302 & 307 of the l.P.C. and appellant Sunil under Sections 302/34, 302/34 & 307/04 and sentenced them to undergo imprisonment for life, imprisonment for life and R.l. for seven years. 3 Conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. As per case of the prosecution, on the fateful day of 18.7.2003 unfortunate deceased Rampyari Bai, Shyampyari Bai and injured Shakuntla proceeded for their field for field work at village Lakhram, Police Station Ratanpur at about 10.45 a.m. Co—accused Jamuna Bai went to aforesaid field and abused them, after some altercation she went back to her house for calling present appellants Sunil and Dilip her sons, after 10 minutes accused Jamuna. bai again came back to field along with appellants Sunil and Dilip who wereholding stick and axe. After some dispute. when injured and deceased were going to their house situated at village and were crossing beside field of Rajabhata, the appellants have assaulted Shakuntla, she fell down, thereafter appellants assaulted Rampyrari and Shyampyari by stick and axe and caused theilsinstantaneously death. After sometimeftYéVKumar (PW-2), brother of Shakuntla (PW-1) came to the spot whom Shakuntla narrated the incident, thereafter she became unconscious. Devkumar immediately went to the Police Station and lodged the F.l.R. vide Ex.P/1. Merg was also recorded vide Exs.P/2 and P/3. Injured Shakuntla was brought by Devkumar to Government Hospital, Ratanpur, she was examined by Dr.Anil Kumar Shrivastava (PW-11) vide Ex.P/14 and found one deep incised wound over right side of neck of 3 x 1/2", deep muscle cut and excessive bleeding was found. Injury was grievous in nature. She was referred to District Hospital, Bilaspur where she was treated. lnyestigating officer proceeded for scene of occurrence and after summoning the witnesses, inquest 'over dead bodies of Rampyari and Shyampyari was prepared vide Exs.P/4 and P/5. Bloodstained soil, plain soil, other bloodstained articles and blood clots were seized from the spot vide EXP/6. Dead bodies were sent for autopsy vide Exs.P/12A and P/13A to Government Hospital, Ratanpur where Dr.Anil Kumar Shrivastava (PW—11) condUcted autopsy of deceased Rampyari vide EXP/12 and found following injuries:— (i) Dead body was stained with blood. (ii) One deep incised wound near neck just below the right ear of \ 3.1" xw x1 / /. (iii) Deep muscles and neck artery vain and cervicai vertebra was fount cut. Injures Were ante-mortem. Cause of deat was shock and death was homicidai in nature. Dr.Anil Kumar Shrivastava (PW-11) conducted autopsy of body of Shyampyari vide Ex.P/13 and found following injuries: (i) Deep incised wound over right side of neck of 3 1A” x2" x 1 1/2" x 1/2 (ii Deep muscies, carotid artery and vertebrai column were found cut. Injuries were ante—mortem. Cause of death was shock and death was homicidal in nature. Spot map was prepared by nvestigating officer vide Ex.P/19. Patwari also prepared spot map vide EXP/18. Sealed clothes of deceased Rampyari nd Shyampyari were seized vide EXP/21. During the course of nvestigation, appellant unil was taken into custody, he made disclosure statement of stick vide Ex.P/8 and same was recovered at his instance vide Ex.P/7. Appellant Dilip was also taken into custody, he made dclos..statemnt of axe, l bloodstained‘ clothes and chappal vide Ex.P/9 and same ere recovered at his instance ide x.P/10. Seized articles were sent r chemical exaination vide EXP/22 and presence of blood over chappal, axe and clothes seized from appellant Dilip an stick seized from appellant Sunil hs been confirmed by F.S.L. vide EXP/23. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘te Code’) a after completion of investigation charge sheet was filed beore the Court of Chief Judicial Magistrate, Bilaspur, who in turn committed the case to.e Court ofSessions, Bilaspur, from where learned 15‘ Additional Sessions Judge, Bilaspur received the case on transfer for trial. I order to prove the guilt of the accused/appellants, prosecution has examined as many as fourteen witnesses. Accused were examined under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in crime in question. \ h ) i a i S isuLee w v E fo m d a h nd f th n 6. After providing an opportunity of hearing to the parties, learned 15‘ Additional Sessions Judge convicted and sentenced the appellants as aforementioned. 7. We have heard Mr.G.P.Kurre, learned counsel for the appellants and Mr.Sanjeev Kumar Agrawai, Panel Lawyer for the respondent/State, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that on the basis of previous enmity relating to agricultural land the appellants have been falsely implicated in crime in question. Shakuntia Bhardwaj (PW-1), Devkumar (PW-2) and Radhram (PW-3) are interested and relative witnesses, their evidences do not inspire conndence and trustworthy in l absence of corroboration from independent sources. Even as per their evidences, injured and deceased were found in field of the appellants, in these circumstances, right of private defence was available to the appellants. Evidences of aforesaid witnesses are full of contradictions and omissions and are not safe to rely for conviction‘of the appellants for commission ofdOuble murder and for making attempt to commit murder of injured Shakuntla. On the other hand, learned State counsel opposed the appeal and argued that evidences of injured witness Shakuntla (PW—1), Devkumar (PW~2) and Ridhram (PW-3) are sufficient for drawing inference that the present appellants have committed murder of Rampyari and Shyampyari and also attempted to commit murder of Shakuntla. Evidence of Shakuntla (PW-1) injured and relative witness cannot be discarded on the ground of her relation. Mere relation is not ground to discard testimony of relative witness. Only care, caution and deep scrutiny is required. . In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of prosecution. 11. In the present case, homicidal death as a result of fatal injuries on vital part i.e., neck of Rampyari and Shyampyari has not been substantially disputed on behalf of the appellants, on the other hand, othenNise also established by the evidence of Dr.Anil Kumar Shrivastava (PW—11) and ,\ \ autopsy report Exs.P/12 and P/13 and deaths of Rampyari and Shyampyari were homicidal in nature. 12. As regards the fatai injury found over the body of Shakuntla (PW-1), samejs also not substantially disputed on behalf of the appellants, on the other hand, also established by the evidence of Dr.Anil Kumar Shrivastava (PW-11) and injury report EXP/14 that incised deep fatal injury found over her neck. Shakuntla also received deep injury upon her neck which was grievous in nature. x 13. As .regards the complicity of the appellants in crime in question, conviction is substantially based on evidence of eyewitnesses of Shakuntla (PW—1), Devkumar (PW-2) and Ridhram (PW-3). As per evidence of Shakuntla (PW-1) injured and relative witness, she along with Rampya‘ri (since deceased) went to their field for working, at the time of incident they were working in their field, co-accused Jamuna Bai, mother of the present appellants, came to field and abused them, she also told that why they are working in her field,.afte_qr«some altercation Jamuna Bai’Wen’t back to her house that she was going to her house for calling her two sons namely, appellants Dilip and Sunil. After ten minutes she came with present appellants, appellant Sunil was holding stick and appellant Dilip was holding axe, they asked to her that why they have assaulted their mother, which she denied, thereafter they asked to one old woman i.e. wife of Paras. At about 10 a.m. Shyampyari (since deceased) came to her field and at her instance they were coming back to their house, appellants have already entered their field situate near Rajabhata. While they were passing beside Rajabhata field, both the appellants came out from field, appellant Sunil was holding stick and appellant Bilip was holding axe, appellant Sunil assaulted her by stick over her back, she fell down, thereafter immediately appellant Dilip assaulted her byaxe over her neck. Again appellant Sunil assaulted Shyampyari, her stepmother (W) by stick, she also fell down, then appellant Dilip assaulted her by axe. Again appellant Sunil assaulted. her mother Rampyari by stick, when she fell down, then appellant Dilip assaulted her by axe over her neck. After killing Rampyari and Shyampyari and causing injury to Shakuntla, appellants fled from the spot. After about half hour his brother Devkumar came to the spot whom @ she narrated the incident, then she became unconscious and she regained conscious in the hospital. Devkumar (PW-2) has corroborated the evidence of Shakuntia (PW—1)‘ He has deposed in his evidence that he was informed by Ridhram (PW—3) about the incident, then he went to place of incident where he saw dead body of his mother and stepmother (W). His sister Shakuntia was agonizing, she was stained with blood, then he provided water to her, Shakuntla told him that both the appellants have assaulted them by stick and axe. He went to the Police Station and lodged the F.l.R. ,and merg vide Exs.P/2 and P/3. Ridhram (PW-3) has deposed in his evidence that while he was grazing his goats near Rajabhata field and deceased and Shakuntla were coming back to village from the held he heard sound, then he saw the incident, both the appellants assaulted Rampyari, his wife, Shakuntla, sister of his wife and Shyampyari his daughter by stick and axe. He rushed to save his daughter, wife and sister—in-law but the appellants have chased him, then he fled towards village and informed the incident to kotwar Lakhan and sarpa‘nch Bahorik and his son Devkumar. Defence has cross-examined this witness at length. ln para 3 of his cross—examination he has admitted dispute relating to field. Defence has not asked anything to this witness relating to the fact that he has not seen the incident. As per evidence of Devkumar (PW—2), even he was not present at the time of incident, he was informed by his father and his sister. Defence has cross—examined injured witness Shakuntla (PW-1) in detailed. She has denied the suggestion in para 6 of her cross—examination that appellant Sunil was not present on the spot and she has falsely implicated him. She has admitted that they were holding kudali but she has denied that they were holding axe. in para 7 of her evidenceshe has specifically admitted that she was badly injured by appellant Dilip and on account of axe blow caused by appellant Dilip her mother and stepmother (W) had been died. 14. Virtually defence has not asked anything to this witness relating to injury caused by appellant Dilip to deceased and her, that too by axe. Evidences of Shakuntla (PW-1) and Devkumar (PW-2), her brother and Ridhram (PW—3), her father reveal that there was some dispute relating to land, may be the appellants were in possession of the land and the deceased persons were trying to dispossess them, but the fact remain ‘ a «A w—Fv‘w a @ that whiie the deceased and injured Shakuntla were coming from field to their house situate at Village and whiie passingbeside Rajabhata field, al| of sudden appellants Sunii and Diiip came, they were holding stick and axe and have caused fatal injuries to Rampyari) Shyampyari and Shakuntla. As per evidence of Shakuntla (PW—1), firstly their activities were objected by co—accused Jamuna Bai in the field where they were working, then Jamuna Bai came back to village for calling the appellants, expecting mis—happening deceased Shyampyari directed Rampyari and Shakuntla to go back to their house and at the instance of Shyampyari both the deceased and injured Shakuntla were coming back from the field, at that time incident took place. . Definitely these three witnesses are relatives and interested witnesses but their evidences cannot be discarded only on the ground of their relations Injury found over the body of injured Shakuntla secures her presence on the spot While dealing wrth the question of evrdentiary ‘ value of Interested Witnesses and need of deep scrutiny, the Supreme Court In the matter of Ramanand Yadav v Prabhu Nath Jha and others AIR 2004 SC 1053 has observed in para 15 that “But at the same time if the relatives or interested Witnesses are examined the Court has a duty to analyze the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the eVIdence was biased Whenever a plea is taken that the Witness is partisan or had any hostility towards the accused foundation for the same has to be laid. lf the materials show that there is partisan approach, as indicated above the Court has to analyze the evidence with care and caution.” , While dealing with same question in the light of relationship, the Supreme Court in the matter of Mst. Dalbir Kaur and others v. State of Punjab, AIR 1977 SC 472, has held in para 13 that “A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an finterested witness’. The term “interested” postulates that the person concerned must have some direct interest in seeing‘that the accused person is somehow or the other convicted either because had some animus with the accused or for some other reason.“ r) ”é? 17. While dealing with same question the Supreme Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar, AIR 2008 SC 2436, has heid that relationship per se does not affect credibiiity of witness; mereiy because witness happens to be a relative of victim of crime, he/she cannot be characterized as “interested” witness. The Supreme Court has observed in para 7 as follows: - " ........ even otherwise it will be erroneous to Iay 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 of the evidence of relatives of the victim is concerned, it is well settled that 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 per'se 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. lt is trite that the term “interested” postulates that the person concerned has some difect or indirect interest in seeing that the accused is somehow or the other c0nvicted either because he had some animus with the accused or for some other oblique motive.” 18. In the matter of Sandeep v. State of Haryana, AIR 2001 SC 1103, the Supreme Court has held that in case where victim and accused are known to witness, his evidence would be material and cannot be criticized on ground that as witness was knowing the father ‘of the accused, he is interested witness. 19. As held by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, in view of the close relation‘ship 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. Para 48 of the said judgment reads as under:- “48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which 'the oral statements are to be considered. Ail persons to whom the oral statements are said to have been made by Manju when she visited Beed for the Iast 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 revenge' or nemesis against the accused person and in this process certain facts which may not or could not have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it." 20. As per evidence of Shakuntla (PW-1) and spot map Exs.P/18 and P/19, incident took place in the road and while deceased and injured Shakuntla were coming back from the field to their village. There was no ~ propriety for causing any injury. No right of private defence was available to the appellants for causing such injury, although single blow of axe has been found over the body of Rampyari and Shyampyari and injured Shakuntla but injury reveals that full force of blow has been used upon neck of the deceased and injured resulting into instantaneously death of " two women who were in helpless position. Evidence of Shakuntla (PW-1) establishes that the present appellants are waiting the deceased and injured near Rajabhata field. These evidences are sufficient to establish the fact that both the appellants were waiting the deceased and injured, they were holding stick and axe, appellant Dilip has caused fatal injury to deceased and injured Shakuntla and appellant Sunil was also accompanying Dilip with stick, both were called by their mother. Waiting the deceased and injured woman and holding of stick and axe shows grave intention, preplanned and premeditation of the appellants for causing such deaths. 21. Evidence adduced on behalf of prosecution is sufficient for drawing inference that appellant Dilip has caused homicidal death with intent to cause deaths of Rampyari and Shyampyari and has attempted to commit murder of Shakuntla in sharing common intention with co—accused Sunil. a 10 @j 22. After appreciating the evidence available on record learned 1St Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. 23. On close scrutiny, we do not tind any illegality in conviction and sentence of the appellants. 24. $ Sd/— ;. V, "T.P. SHARMA> Sty. ,ii.‘_1._‘ ri/ R.L. Jhanwar #l F Jadge ‘ l l Judge