E7jB.i Cr'imsnat (SB: Hon'bleMr. T.P.Sharma. J.) IndraBa! '\ 's Stote of Chhattlsciarh -Judgment be posted for pronouncement o" 17 Noyember, 2008 Sd/- T.P.Sharma Judge ths. triai court ho^ co^yictsci ctnd ssntenced thA csDDe'ftciHt as <3fore?ne"t^o"€'.d ond thsrsbv cownnitte'd HlccioJitv, -3. Ccss^ of th@ Dr'@s?cyt?Qn, tn bn^f". .4ccused CTnd injure.d comDlQinant Ku. PoonaT' (PW-5) ore c!ose re'atives. Ku. Poonam 's niece of accused Indrapal. They are. residing 'm the scme yicir'ity. Both the famiiies o.<fi haymg inim'cai terms- On 8.6-2006 at about 8-30 p.m. nccused s+ntic'nec! his "'otorcycle nnd obstructecl the woy of the complainant's family. They told 1+ie c?cc!js%d to ksso th^ r^otorcycE^ in othsr Dto.ee. but h& rsfused^ Wh^.rt i^iure' Poonam was removino bricks, which were sDr'ead on the wav, accused ccme wth iron rod eH'id trted to c'.s'sciult fcithsr of the iniurBd Kii. PooncETn La, •^ .,—^.f-... . -.-..,„,.;. Cha"drrtjDoJ fPW-6^. Persons of this vicinitv c^ms and interven^d the mGttsr a"d they took the accused towar'ds his house- After" sometime. acc'-ised acain came to the spot and after abusing and threatening, he cssaulted Ku. Poonam by br'cks s^d sptpctl iron rod oysr hsr h^o.ci. Shs b©cetnt^unconscious. Fsther of the, comploina"t nameiy Chandr'apni lodged +he F.I-R- vide Ex.P/6 wi+hin 30 minutes of the incident. Immediately, they took the iniured Poonam to the CXAAS Hospitat, BHfflspur where shis was exQS^insd by &r. ^.K. Upadhyoy (PW-1) y'de Ex-P/1 cnd h©found one 'Qcercsted wound of3 x 2x 2 c.!n. oy^r h€r> rl^ht tempora! region- Ciotted b!ood was pres'ent fflid one incised wound of 11 x 1/5 x 1/5 c.n^, obiioualv sit^'ated ovsr h©rriaht DCTistctl reQio". The; doctor su39fts't'e<^ ^or> city-scQn. Her co^d'tion wss bad ond r'ef'ect^^ Qctic-'n WGS "ot prnper. She was admitted in the hospital- Ouring the course of her tr'eatffler't, She wcs admiti'ed on 10.6.2006 at Smt. Vim!o. &evi Memoria! Hospi+d! Qnd ftesear'ch Centre, Biiaspur "Aere &r'- Ashol< KuFnar Shende. (PW-13) upon her' ocamnction c"d treQtr^ent "otlc^d that her bo^c of "t^e hsad was fractursd cyd "rs^rted '^tc' brrtin, M^n^br'ciHe of br0ii?1 WQS ro^tur'e Q^d huQ8 c'^nount of blood was fou^d ipsidei ^c brcjn and ^fftter WQS tnformed to1 the DoE'c^ vide Ex.P/22 and finaiiy she wos discharged on 19-6.2006. Her bed-head ticket is Fx,P/?3. Pi%cs of frontQl Dor'etQl bonB of 3x3 c.Ti. wrts 'found ?nsld% ths br'di?i. S^rsl'(n>n wc-s prssent oy€:r! "H^e brain. Air wos fou"c! inside th^ brcin. Doctoys reinov^d th^ blood cnd Di^ce of bone from 'tt1®b?l<?Jri. Tl^^ doctor h'ns )• ' I/ . I! ' ' HI6H COURT OF CHHATTISeARH AT BILASPU! Criminai Aoeeai No. 413 of 2007 APPELL.4N" iln Jailj R.PSPONDFMT Z^drnDo! Son of LGte Shr' K?2"hcJ Kushwaha, aged about 30 years, Resident of Behind Chouksey Coliege, l^o AAijhoni. Poiice; St<xt'oFi Torwo. bistrict Biiaspur (C.6.) Versus State of Chhattisgarh, T^fough; the Poiice Station Torwa. District Bilaspur (C.6.) i.L APPEAL UNbER SECTCON 374 (?) OF THE CODE OF Ci PftOCEDUftE, 1973) Present: r. V.i^. Pandev, counse! for* It^e <^oe!!srtt. "II Ms Sanaeetn AAishra, Panei iawyer for the State/respondent. Sjnflle Bench: •bte Mc, •LP. S ^L \^ frfs-lf.wrri nn 17th M.-.vi—.hi-i-?' ^irf&iSy^i %U Vii A .r i "yv ydi ita/Sti ^ i—^/w'U^ Iv this QDDeoL 'ff1®a''5Dsil(2rlt hos chrt!ieprtsd 14^$ leQalit*/ <xnd Drtft!>?i"itftt1/ of tfie Judg erlt of co"yictinn ond order of sent<°r!cs ci^ted ^.S.2007 pa'ssgd by the Sessions Judge, B'lcspur", '" Sessions Tria! No. 14/2007 whersby the lcQrned S^ssio^s -Jud^e after hold'^^ the occussd/opp®!lctnt gut'ty fo^ con'm'ssion of offence for" nttemot to commit murder, con'/jcted under' Ssction 307 of the. India" Pensl Code and sentenced hir" to undergo rigorous impi''sonment for 7 yeai's and to pay f'ne "f fts.500/-, i" default of payrsent of f'ne, to further uidergo '•igor'ous Irnprlsonn'ent for 3 "'onths. 2. The Judgment is cha!!e"ged on the ground that without there be'ng any independent cmd credible evidence ns clso not aipported by medical evidence, \\ opir'ed thot ?njurly fou"cj oyer th& body of co?np!ai?i<yt Ku. Poonam wo.s ^rious jn ^atijre and fatoil to thB 'ife ond i?^ th% absence of irn?Tt@diate tr'ectt?n%rit. even it was sufficient for causing de-ath. The occused was take" into custody on 29-6.2006. He made disc!osurs statement '•elatint! to br'icks, irori rocd and nfloto?*-cycfft yids E?<-P/3. At ths i^stc'ncs of Ciccus^d Zr?d>'t<3D{''tl on^ roup:da?irt (spir'af) vod of 95 cn^. ctrtd rnotor-cyci€1 wer®rscoyered yide Ex-P/4, The accused wcs ar-rested vids Ex-P/5. Biood stand clothes of the in iure.d Poonam was recovered v'de Ex.P/7. Spot m<!p wos prepared by Patwari yide Ex-P/8. Two D'eces of brick^, b!ood stQtried soil o^d D'o.'n soil we>,r*e seized o»i 9.6.2^ vide Ex.P/11- Spot map was prepared by Investia'iting offi.ser' vide Ex.P/ll. Sei^ed ^rticfss were ssl^it for* ch%r?ticc>! sxarRincitio!" v'de Ex.P/18, 4. Aft£!T* rscorci'^Q the stct<o'rnB?it of ths cosTioiciiic'nt u^dBr Ssct'on 161 of th$ Codp of Cri?n'rtat Procedurs. 19T3 rtfld aftcr co??tD!etfon of inye-5tio,otion chcr'ge sheet vras filed fn the Court of Addi+ionol Chief Judicja! Ma3Js+!"cite, Bilaspur who 'm tur" cowwtted the case to the Cour't of Se.ss'wns, Bi'cspur. 5. In order- to prove 1+ie guilt of the appellait/accused, the prosecutio" hrts exct)ntn^d as mrtnv cts 13 witn^ss^.s. Sto.ts'T^'snt of the Qccuscd/ at?Detlant was rec^rcled yr*'der Sectio" 313 of the Cr'^P.C^ i" wh'ch he ds?i'ed thc cir'curn<tances G©R^artniGaaatn<t h'm af^d innocence ond fa'^e 'mDHco.tion on ths ground of animosit/ is c!aimed. V. L^orned Sessio^s J'ud^e cift'e;?* cxffordin9 cn opportu^'ty of heann^ to the respectivs par'ties, conyicted and ssntenced the ttccilsed/appe!!o."+ as afor^.mentioned. 8. I haye heard AAr. V.K. Pandey, counse! for th.e, appellant cnd ;s Sangeets Mishra, PW!®! iaw^?er for the State/respondent and perused 1+>e judgment impugned and recor'd of the trial court- 9. L^Qrned counse! for the cippeHant subwits that his farft'ly Qirsd family of the; in lure;d Poor>rtm dre havirsQ inirntc<si terms. Poo"''iin is bis rsiece. M€ ho.s not caused any injury to Poonam- Even there was "o occasion +<? cause any injur'y to S3ES-S Poono.rn. Zridese!nd%"t witness has "ot suDDOr'tsd th^ CCESC of the orosecut'on. According to the case of the pr-osecutio", Poonam receiyed injur'/ by bricks and iron rod, but out of tw'o injuries, one is lacerated wound and one is '"cised wound. &r. R.K. Upndhyay (PW-1) who has e?<a""nec! Ku. Poonai?' just after incide.nt has specifically sta+ed i" para-6 of his cross-exan'ino.tio" that 'njury No.l i.e. locer'ated v^ound r^ay be: caused du^ to fall 'n th$ surfac'? but tnlurv No-2 i.e. incised wound cou!d not be caused by br'cks or iron rod. The. accused has not assauited by any ^harp-edged %%apon. Ths pro3?.cutl?'?i has ^ot adduced cnv eyidence to the- effect that accused has used cmv sharo-adoed ^. -...„. ^. ^^^^^ ift at th^ tir"iai of >ncidel'it which shows *?^at the state^^nt of the i" iurecl c^nc8 inter'ested yyitr^esses has not b%e,n suppQrted by ony 'ndependent witT'f5"<;c ar>d Ttsd'ca! eyid^nce. The nr'osBcution has yiot oroyetd the tn^tive nf fhs offence. In the absence. of motive and corroboratio" by an ir witness, 'tt>Si statewBnts of l?it€ifest^d witnesses ore not safe to D'lace rsliance to cony'ct the rtSID€iiQrnt. 10. On the other hnnd, judgment impugned is supported on behalf of the State/r'espondent ond si'bmits •t+'at the pr-osecution hos proved jts case beyond all shadow of doubt- Injure.d witness Ku. Poonam (PW-5) has cat®Qorlca!ly sunnort^d th$ cass of the orc'secution. H^r stotpmsin!t 's supported by eyewitness Chandrapa! P'W-6), Ku.Pooja pW-4) a"d medica! svideince. L^csmed coufssl furth^r submits that this is not a co.s<? l^ which 'H^e accused h<as syddenly c?xusft i?ijurly to Ku- Poonam^ but CTfter f'rst part of th^ inc'dent; the accussd w^r't to his house and ctxms aio^g with rod and caussd dangerous injuries to Ku. Poonam- The accused has used sp'ro"! rod which is specia! type of wd havng sharp-edged (ridged rod) and hss caused mjut'tes over the head of Ku- Poor'a'T &r. R.K. Upadhyny (PW-1) cnd Or". .4shok K'-'T'n1' Yende (PW-13) have catege?rica!!y stated and deposed that injury was serious and dff?7Qer*ous for i'fe. 12. After aDBrec'mt'nct the evidence availcble on record, the tr'io.l court hss conyicted a"d sentenced the appellwt rigor'ous i'npr'sonment f"r 7 year's. Sentence imposed upo" the appellant is not disproport'ionste. .// ii''V^SSk. K i —^ S ^.^^"''".^"1 "CS^'i' -rf" 13. As r-egards the. injun/ caused to injured k'u- Poona'r' (PW- naf-ire 's concerned, (('-'. Poonaffl (PW-5) has stated m her evidence thct on 8.6.2006 at the, time of incident the. appellcmt u'as assouited by rod and by bricks oye>rt her hecd. Ther'^ wa< bts^dino from thc iniurv Gnd sh<? b<RCGms unconscious. She was shifted to the hospitai. Chandrapa! (PW-6), father' of Ku. Poonam, has support'ed the version of injured Ku. Poonam '•('ho wos pr'esent at the ft?ne of iincid^rst. KuPooio 05W-4V <ister of Ku. Poonam ha'3 also supported the statement of PW-5 Ku. Poononi. PW-6 Chandr'apa! hcs lodged thc F-T.P- Ex.P/6 'n which it ho,s iw$^tto'n^d thctt shs WQS QSSQult€tci bv SDirQl rod and bricks by 'Hie dccussd. First tiws br*. R.K- Upadhyoy (PW-1) h<l>s exnmined her on 8-6.2006 at 9-10 p.?". cmd he found tw" injuries vide Ex-P/1. Jn|yr*y h^o.l is !QC£rQtecl wound o'f 3 ?< 2 ?<^ c-?n. ove'T' her riQht ts'?Ti|3oroi region. Blood c'otted were pr'esentand injury No. 2 is one incise" w"u"d of 11 x 1/5 x 1/5 c.m. oblique.ly sjlzia+ed over her right parie+al regio". Biood clotted were pre.sent- She wss unconsc'ous and her pupils werv. not reacting properly. Injury No. 1 was cnused by hard and blu"t object wher'aas irijurY No,2 was cciysed by sharD"'BcJQ€?dwsesDoy}. H^ WQ< ocl^nittsd in ths hosp!tQL 14. Dr. Ashok Ku?nctr' yepct^ (PW-1-3) hcis statsd in h>s ^yiclence that on 9-6.2006 Ku. Poonam was admitted in Sm+. yim!" Deyi .AAe'n'oriaj Hospito.1 ond RfSSSQrch CsEntr^. BiiasDur. H^ hod exnyn\ned and tr^ct^d her "snd c'lso conducted surgery of her brain. He has stated that the b.bod cnd pioce of bon's wos found inslde; the brysin, Msmbrarte of brain WCTS ruDtur'e. She w''s unconscious. Inju'*ies were serious in iditur'e aid do.iae''ous for !ife- Bed-head ticket is Ex.P/23- The defence has suggested that one injury of Poonam wns caused by fall, which has been denied by Poonam. By the state'nent of aforesaid Witnesses, it is esteb!>shed that PoonaT! has receiyed injuries at the tirt'e of inc'dent who were serious in nnti.'re a"d danger'ous for I'fe. 15. In order to proye the comp'ic'ty of the accused/appe'lant in ths cr'we in question, I haye examined the evidence collected by the prosecution- Ku.Poonaw pW-5) has stdted that at the time of incident she, her sister Ku- Poojannd her brother So.nju were remoying the bricks, the accused/appe!!o."t quCTrrsiffd with her* fctther ("h'3ndrc11poJ. The persons pr*^se"t rtee1?' th^ "'tcident had interyened and pacified the quarre!. ^f+er- sometime, accused/oppe.Hant carne to the spot with rod a"d assQulted her oyer her hecd by rod a"d bricks and caused injur'ies over her head- Chandrapal (PW-6), father of the injured Ku. Poonam, hns also supported the "er-sion of Ku. Poonam and specificaiiy s+ated that the accusecj/nppeila"t quarreied with him and tried to "ssnu!t, bi.it iti^ perso"s prss@"t ctt the t>?ne of quarrel ho.d 'nteryencd. theFi the accused/appellant went to his house and again come with rod and assaulted his dQughter Ku. Poo^arn by ?*od <snd fled awoy fr'on^ if'e spot. Me' took hsT dc'IJ9^t%rl to ths Pojice 5tc!tton-Torwct, th^n hs; took her to hospitet! ©ndfir>a!ly he todged the. F.I-R- (E.v-P/6). Ku. Pooja yW-4) has stcted thnt the eiccus%d/QDD3'!sTnt hos Q5S<?u!ted har sister bv rod or?d brick^. 16. Thss® 14^ ^B% witnss^BS hov$ gd Fra'ttsd 'tt1e ^n ??1itv wth th^ accused/csppeltant who is uncle of Ku. Poonom ond Ku. Puja and br-other of Chandrapal- Ku.Poonam pW-5) hos denied the suggestion that at the time "f incident her father Chandrapal threw the bricks with a view to assault the accused, but she received injury by that brick used by her fcther. She has a!so denied 'Hi's suggestion that th% accuse;d hcts not asssulted her* by rod- She hos also de-nie'd the suq^estion that at th^ t!Hl®of removi"^ ths br'icks, she has received jnjuries. Chandnipa! (PW-6), father of Ku- Poonam and brother of the accused/appellant, has adm'tted •Ae enrpity with •rtie accused/appelbnt. Chandr-c^a! (PW-6) has a!so admitted -rtiet at the time of incident the accused/<?pe!!cnt was standing beside the motor-cycie. At thot time, he wes not having rod, but he has denied the suggestion that the accused/cppe!!a"t has not ossaulted Ku. Pooriam by rod and bricks. He has also denied the suggestion iho.t he has •Hirown bricks aid assautted his daughtec. .Accordjrig to statement of Chcndrapc! (PW-6), Narendr'a, Bauwc, VinayGk, BhupendrQ and other persons were present at the, spot. The prosecution has exowineci Narendra Kumar Mourya (PW-10) cnd Vinyak Mourya (PW-11), but l+'ey have not supported the case of the prosecution. Pposecution had declar'ed the'T! hos+ite. Even i" their cross-e.xamination they haye not supported t.he case of c^ the prosecution or defence, but they ho.ve admitfed .that there was some dispute with Chandmpa! and the accused at the time of mcident. 17. Counsel for the appelbnt hcs argued •riiot f)r'. R.K. Upadhyoy (PW-1) who is a medicai e>rpert, has stnted that injury No.2 could not be cnused by iron rod and piece of bricks and according to the cnse c>f the prosecutinn the accused has assarited Ku. Pooncm by bric.ks and iron rod. This T'oter'nl co^trddsctior? in ocular arscl mcdical sytdence is 5L>ffici^"t to d'sc's'r'd th^ t©stirno"yof thsf oEl!sQ$d ^y€^wllTt©3ssswho cxt^ r^lativ^s of the in iur'sd ] Poonam and they cr'e hwing inimical terms with the accused/appe!la"t. 18. Chdndrcyal (PW-6) has lodoed the F.I-R. (E.x.P/6) wi'rti'n hQlf an hour of ths lnc!d©nttyi which 't hns bse?i SDecificGHy ?Ttsnt'o!<lsc! 'tt1?1! the GDD^Hrt»ithas caused 'njury to Pooncm by spiral rod (^:nTar?T? 7rs5. Seizure of Ex.P/4 shows thc't Sength of r*od WGS 95 c^. (about 1 rr»etsr). Spir>^^ ^od (datrt"L'nfIa round^d) itself is shar-p-edged weapon. Ku. Pooja (PM/-4) and Chandropoi (PW-6) are rl0istivs5 witri^sse;s, but "tfleiift stote'^Bnts ca^^ot bs dtecisrcled on 't4ia Qround thcEt th^y Qrve relCTt)y%5 wEt?isssss, WH'I^ decxlin^ with the? ^uestion of re'Hc'bility of rsiQtiy^ ^yitMsss th^ Apsx Court in thff> cos^ of Dnllp S'?^h lnwld sthers v. Ths Stets sf Ps.'rysb has hs!s thst ordins"i!y a ciese reiatscn woutd bs th^. EQSI to screl&n th?" reo! culDrit rtnd fQi5ffsly i^DHcQte <xn iniocent person. Po.r'a 26 of the nbove judgment rends as under;- "A uwitness is normcsllv to b% cortSirier%d ir!ctensncl©y1tur'tess he or1 she SDrinos from sources which re iikeiy to be tainted and that usuaiiy means uniess ths witness has cause, such as enmity against he "ccused, to wish to imptjcate him falsely. Ordinarily o ciose relation wouid be the iast to screen the reai culpr'it and falsely impiicate an innocent person. It is true, when feeiings run high & there is per-sonal cause for enm'ty. that ther-e is a tendency to drag in an innocent person agamst whom a witness has a grudge along witii the guilty, but foundation must be !aid for such <3 criticis?Ti and ths tTsers; fact of reictionship far1 fro!^ brina a foundation is often a sure csuarcsntee. of truth. However, we af-e not atterTipting any sweeping gener-alisation. fcacn case must be judged on its own fncts. Our observations nre only ?r!cde to combat what is so often put forward in cases before us as a 'AIR 1953 SC 364 ^^•^. ^ •^ ^ s^ isi^£.^ ?*u!<s of DrItsd©Mce.Th^p^ is no such lr?.en^rc'i r'ul^- E/3ch cf.s^ must be limited to and be ooverned bv its own facts."* 19. Whs!^ dsQli^^ wtfi th®sovne. ou^stlo" In ^ie ccss's' of Syl' Chslnd a?^d cthsrs v. Stste sf Rsjastha.i . ths Apex Court hss held that insre fcct that rslctive witness or his retations is not sufficient to d'scnrd his tsstimonv. 20. By placing re!ia"-ce in the matter of Dnlip (supra), the Apex Court in the case cf Israr •••. State sf U.P. has hsld that svidence of friends arsd relatiyes cainnot be djscord^d on th<5; Qrouftd of th's1*11 r'elot'ons, o?iiy rT1!'rtute scrutiny is required- 21. The stcite!Fnffr!t of Ku. Poonar" whlch s'uDRort^c! by the state;STi©ntsof gyjsw)tyi$.ss Ku. Poojd (PM^-4) ond Ch<^lriropal (PW-6) (rslatiyes w>'tr^'?sses) Qnd also supported by medica! e'/idence inspjres cor'fidence and trustwor'thy. The accused is o i?er*son who has caused ^srious and do<n'3<Ert<?us 'n iurt/ to 'n iured Ku. Poonam. 22. As regards thie 3Ttotjye in the crl?ne iri qu^st'on is cc>ncer'"ed in cnseF of dlr^ct ^vidgiincs. motiye !ossss Sts i^Dorto^cs. Zt 's oniy <2id in crwnal'tv Qnd wotsys CGH blff inferred <?!n 'H^®bo.si5 of circumstQ"cs5 ®SDscin!lyuss of th^ weapon, ncture of iniury ond pdir't of the body which injured has been caused. Xn ths 'nstcint cos$', firstly th<ftn£ wexs ouctrre'l bi(3tMfssn fcithsr of Ku. Poonctiw[ and the accused. It was inter'yened by ths persons pre.sent the" after" first part of quarrel the accused/appe!lant we.nt to his house a"d agoin came wth spiro! rod csr*d assauitsd KU. Pocinar'r1 who is agsd about 16 years oyer her hefQd by rod and secondly by bricks. The accused has made repeated asscult shows Jiig mn+iye for the c-i"ir"e- 23. After appreciatinq the eyidence ayaiicbie on record the tr'ial cour't ho-s convicted ond sentenced the appe!la"t as aforen'entioned. The convictl"" of "Ht^ aDDellfflnt undesr Ssct'on 30Z of it'e' Zndictn P<>rl<sl Cocip is bss^d okrs crv?dible evidence *3"d is su^taino.bls undsr tha !aw- Ttie tr'lal coL'rt his se^tence'd ths'1 '(1974) 3 SCC 698 3AIR 2005 SC 249 ff/ \\ <B«-^' £' <5wi' '% -<; :f^ <. l' appe!!ont rigorous imprisonment for 7 years and to pay flne of Rs-500/-. The oppellant was hwing a" inimica! ternn with the fathe'- of iniur'ed PooRam but he was not haying any inimical term with injured Poon&m who is h's niece aged about 16 years who was not haying any wedpon at the tine of incident. The, appeliant after taking the rod from his house cnused repeoted irijuries to Poonam- The injyries were dcr'gerous for life cmd brain was bed!y affected by the inju''ies. Taking into considemtion the natdre of injury, the weapon used, body of part affected cmd manner of causing the in iuries, the appellont does not desewe any sympathy. The sentence awarded to the appeliant is Just and proper. 34. For the foregoing reasons, I am of l+'e considered opinion that prosecution has proyed its cose beyond all reasonabile doubt and •ther'e is no illegatit^ or infirmity in the impugned judgment of the trial court. 25. In the resu!+, the appeat being deyoid of merit is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge /~