.6ft.i§§ 2.7.^'-O HIGH COURTOF CHHATTISGARH. BILASPUR CORANI: Hon'blfe Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 243 of 2004 Itwar Singh alias Jagat Singh Vs.,- .J:! State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA _5 .0^ Sd/- Chief Justice ><a Post for Judgmentj^f/06/2009_ Sd/- ^ y06/2009 A ..sSSSS ^...•etlj^ ..-^p. ^f-^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble^hri Raieev Guota, C.J. & Hon'ble ShrLSynil Kumar Sinha, J. APPELLANT RESPONDENT CnminaLABpeal No^243^of2004 Itwar Singh alias Jagat Singh S/o Ram Singh Gond, aged about 27 years, Occupation- Cultivator, R/o Village- Bandha Khar, P.S. Katghora, Tahsil- Katghora, District- Korba (C.G.) •i-i Versus State of Chhattisgarh Through P.S. Pasan, District- Korba (C.G.) (Appeal under Section 374 (2) ofThe Code of Criminal Procedure) Appearance: Mr. K.K. Singh, Counsel forthe appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT ' .06.2009) Following judgment of the Court was delivered by Synil Kymar^inhaJ. (1) Appellant Itwar Singh @ Jagat Singh stands convicted u/ss 450 & 302 IPC & sentenced to undergo R.l. for 10 years with fine of Rs.1,000/- andR.I. for life with fine of Rs.1,000/-, with default sentences in both counts, by the Fourth Additional Sessions Judge, Bilaspur in Sessions Trial No. 481/2001 on 29th December, 2003. (2) The facts, briefly stated, are as under:- On .13.7.2001 at about 17.00 hours, Itwariya Bat (PW- 2) lodged the First Information Report (Ex.-P/3) alleging that in the intervening night of 12.7.2001 & 13.7.2001 she was sleeping in her house along with her second husband Sitaram Gond (since deceased). At about 12 in the mid-night, Criminal Appeal No. 243 of2004 ^ -..^t?^?^^ .-i^.gSSSS-s .^^•^y'^' i»:,: she heard some noise. She woke up and saw in the light of small lamp (Chimney) that her first husband namely Itwar Singh (accused) was running out from her room along with tangia in his hands. Sitaram has fell down from the cot. He had received cut.injury over his neck. Itwariya Bai (PW-2) made allegations that her first husband i.e. the appellant had attempted the life of her second husband by causing grievous injury to his neck. She also mentioned about narrating thestory to,Deosingh, Santram (PW-4), Ahibaran Singh (PW-3) and Hr'^a Singh (PW-1). On the said report, an offence u/ss 450 & 307 IPC was registered'against the appellant. During the course of investigation, deceased Sitaram was sent for his medical examination. He was examined by Dr. G.S. Jatra (PW-8), who prepared MLC report (Ex.-P/7). He found a sharp edged wound 4 1/2cm x 1% cm on the left antero-lateral side of the neck, transversely placed. Froth was coming from the wound. He also noticed another injury of 1 cm x % cm over posterior side of right middle finger. Looking to the seriousness, he referred the patient to ENT Specialist for admission and further treatment. The deceased was admitted in the hospital, where he died on 21.7.2001 during the course of his treatment. The Investigating Officer gave notice (Ex.-P/10 & P/11) to the Panchas and prepared inquest (Ex.-P/12) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to PHC (hundred bed hospital), Korba, where the post-mortem examination was conducted by Dr. A.D. Puren (PW-11), who prepared his report Ex.-P/9. He also noticed the aforesaid external injury on the neck bf the deceased. The Autopsy Surgeon opined that the cause of death was septicemic shock due to ante-mortem injury on neck and it was homicidal in nature. Criminal Appeal No. 243 of2004 ($) ^ •. .'.» ' '•^'l^~:~S&Ss S^-r^/ s^&' --S^TJ:'.;©'~" In further investigation.site plan was prepared under Ex.-P/5. Plain soil, blood stained soil and shirt of the deceased were seized from the place of occurrence under EX.-P/6. After taking the appellant into custody, his memorandum statement (Ex.-P/1) was recorded u/s 27 of the Evidence Act on 17.7.2001 and a tangia was seized at his instance on the same day under Ex.-P/2. •'.i After completlon of usual investigation, the charge- sheet was filed in'the Court of Judicial Magistrate, First Class, Katghora, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Fourth Additional Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (3) Conviction of the appellant is based upon eye witnesses account of Itwariya Bai (PW-2) corroborated by the evidence of Hira Singh (PW-1), Ahibaran Singh (PW-3) and Santram (PW-4). (4) Mr. K.K. Singh, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of PW-2, Itwariya Bai, that she had seen the appellant assaulting the deceased who had received injury on his neck. The injury of the deceased was so serious that even he was unable to speak. Doctors opined that it was a grievous ante-mortem injury which ultimately caused septicemic shock to the deceased who died on 21.7.2001 and the death was homicidal in nature. It was, therefore, established that the death ofthe deceased was homicidal in nature. .^avKS.-S ..ri^^. Criminal AopealNo. 243 of 2004 (5) Mr. K.K. Singh then argued that the learned Sessions Judge erred in law in appreciating the evidence of Itwariya Bai (PW-2), who has been held to be the solitary eye witness of this case. If her evidence is properly appreciated, it would appear,that she had never seen the occurrence and had only seen a person running away from her house which evidence is also shaky and unreliable. About Hira Singh (PW-1), Ahibaran Singh (PW-3) and Santram (PW-4), he argued that they are totally unreliable •i-i ,.i: witnesses. He argued that the witnesses are the close relations of the deceased, therefore, they are interested witnesses and they have tried to support the prosecution before the Court by exaggerating their versions. (6) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) So far as question of relative witnesses is concerned, it has been held by the Apex Court in the matter of Rizan and another-Vs- State of Chhattisaarh. throuah the Chlef^ecretary, ^oyt^ ofjC/ihaffisgarfL Raipur. AIR 2003 S.C. 976, in para 6, that the relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such a case, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. ^ .tiSEyics's ^ ".l'\l:^:f'" ^sS. -^?' Criminal Appeal No. 243 of 2004 (9) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Apex Court further held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accysed somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be ctiaracterized as an 'interested' witness. •'.!. /<• He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsicalty reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The Apex Court also referred to the decision rendered in the matter of Harbans Kaur and another -Vs- State of Harvana. 2005 AIR SCW 2074, in which, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. (10) Therefore, in view of the al?ove legal position, the evidence of PW- 2, Itwariya Bai and other 3 witnesses namely Hira Singh (PW-1), AhibaranSingh (PW-3) and Santram (PW-4) who alsoclaim to be relations of the deceased has to bescrutinized with care and caution considering all probabilities and past statements as also the attending circumstances and after such a scrutiny, if their evidence is found to be g ^-';••;;; .^s-aagg ^•..'•,,.„,.-... ...,.' .-,. S,;: Sff^SfKgS^ Criminal ApoealNo. 243 of2004 trustworthy and reliable, conviction can be based upon their such testimonies. (11) Now we shall consider the evidence of these witnesses. (12) According to the F.I.R., Itwariya Bai (PW-2) was not an eye witness ofcausing the assault to the deceased. She mentioned in the F.1.R. that when she woke up after hearing the noise, she saw that the deceased «!• was lying on the floor of the roo'rn in injured condition and appellant Itwar Singh Gond was running out of the room having a tangia in his hands. Whereas, in her evidence before the Court, she deposed that at about 12-1.00 'O' clock in the mid-night herfirst husband came in theroom with a tangia and caused injury on the neck of the deceased. Due to such injury trachea of the deceased was cut and blood & froth were coming out. When the appellant assaulted the deceased with tangia, she made hue and cry, on which, Santram (PW-4), Hira Singh (PW-1) and Ahibaran (PW-3) came to her house. She narrated the story to them. They could not catah the appellant. She further deposed that the appellant was her first husband, he had left her and she was residing in her parent's place since last 7 years and thereafter she had recently married the deceased who was residing with her. She further deposed that since she married to deceased, the appellant became inimical to them. I (13) In the cross examination, she admitted that she was married to the appellant 9 years prior to the incident. She further admitted that the room in which she wassleeping with the deceased was of the size of 10 x 17 feet and she was sleeping at a distance of about 3 hands from the cot of the deceased and one small lamp (chimney) was kgpt at a distance of 3 :•:•;'.'I"'!"' g,-,^"^:»-w ,..;Mta ^\ Criminal Appeal No. 243 of2004 hands from the cot and it was burning. She further admitted that it is very difficult to get kerosene oil in villages and normally, in the night, the villagers either quenched the chimney after their meals or they put the flame low so that the intensity of the light is low and it consumes less kerosene oil. She categorically admitted in Para-13 of her cross examination that when she went to sleep, the chimney was not burning with full intensity and it is true to say that the light of the chimney was so low that the objects of distance were not visible. She further admitted that it was a dark night of rainy season. She also admitted that it is true to say that there was such a darkness that nearer persons were not visible. She also admitted that it was raining in the night and the winds were blowing with high speed and it was not possible that in such situation a small chimney may remain in burning condition. (14) In further cross examination, she was confronted with her diary statement (Ex.-D/2). She claimed that she has told the Police that appellant Itwar Singh had assaulted her husband on his neck by a Tangia. This was asked because in the court statement she claimed to be an eye-witness of the actual assault given to the deceased, whereas in the diary statement (Ex.-D/2) and in the F.1.R. (Ex.-P/S) she mentioned that she saw the appellant running away from her house with a Tangia in his hands and the out-come ofthe contents ofthe above documents was that it ison this only, she says that her husband was assaulted by the appellant. This omission in the F.1.R (Ex.-P/3) as also in case diary statement (Ex.-D/S) is a vital omission and theexaggeration made by this witness is fatal to the prosecution. Seeing a person actually assaulting the deceased by causing injuries and seeing a person only running R;'"K;;!«i<S®S^& 1: |.'" ""'-•'•-^'Sf^-S^^^- Criminal Aupeal No. 243 of 2004 away from the place of occurrence along with a weapon and presuming that he would have assaulted the deceased are two different things. This witness has tried to improve her previous statement given at two different stages by making above exaggerations which throws shadow of doubt on her testimony. (15) For further appreciation of evidence of solitary eye-witness Itwariya Bai (PW-2) now we shall cons)der the evidence of other witnesses. Hira Singh (PW-1) deposed that when he heard hue and cry, he immediately rushed towards the. house of his brother and saw that the appellant was running away. He also saw his nephew (deceased Sitaram) in injured condition. He has sustained injury on his neck. Sitaram was lying on the floor and the blood was oozing from the injury. He could not see whether the appellant was having some weapon in his hands or not. Sitaram was unable to speak. In the cross examination vide para-6, he clearly admitted that he has seen the accused/appellant (present in the Court) for the first time and he had never seen him prior to the said date (date of evidence). He was also confronted with his diary statement Ex.-D/1 . He admitted that he did not mention this fact in the diary sfatement that when he reached to the scene of occurrence, he saw appellant Sitaram coming out and running away from the house of the deceased. Apart from the above, he categorically admitted vide Paras 10 & 13 ofhis cross examination that when he reached to the room, Itwariya Bai was not present thereas she had gone to the house of her brother-in-law Santram (PW-4) and at that fime Chimney was not burning and there was darkness in the room. Since this witness has deviated from his diary statements and has developed the story that he saw appellant coming out / - a li ^ l,,,:.,,.s<iss?SgSg° .......^KsWSSS.. Criminal Appeal No. 243 of2004 and running away from the house of the deceased, which was not in his diary statement, which only contains that he was told by Itwariya Bai (PW-2) that she had seen the appellant running away from her house, we do not rely on the testimQny of this witness. (16) PW-3, Ahibaran Singh deposed that when he reached to the house of deceased, he saw that a man was coming out from the house. He could not identify that man. He'/also could not see as to whether he was carrying something in his hands or not. He could not identify him on account of darkness. He asked Itwariya Bai, who told that appellant Itwar Singh has caused murder of Sitaram. Sitaram was taken to the hospital by his brother Hira Singh (PW-1). He also admitted in the cross- examination that when he reached to the house of Itwariya Bai, there was complete darkness all around and he could not see that what is there in the house, on account of darkness. The outcome of evidence of this witness is that he could not identify the person who was running away from the house of the deceased and there was complete darkness in the house and the room ofthe deceased. (17) PW-4, Santram deposed that he reached to the scene of occurrence after hearing the cries of Itwariya Bai and saw that appellant Itwar Singh was coming out from the house of the deceased. He had talked with Itwariya Bai, who told that Itwar Singh was running away from the house. She also told that Itwar Singh caused injury to the neck of her husband. He went inside the room and saw that deceased Sitaram was lying on the floor. He tried to talk to him but Sitaram was unable to speak. Sitaram was trying to tell something by gestures. He further •ww 10 Criminal ApcealNo. 243 of 2004 deposed that he gave water to the deceased, but he was unable to drink it due to cut injury on the neck. The water was coming through the injury and it was not passing to the stomach. Surprisingly, in the very first paragraph of his cross-examination, this witness also categorically admitted that he has seen the accused present in the Court for the first time. Neither he met him earlier nor had ever seen him earlier. He further admitted that there was darkness in the house of the deceased and the .;: things were not visible. He admitted in Para 6 of his cross examination that he deposed in the Court on the basis of information given to him by Itwariya Bai. He was also confronted with his diary statement, Ex.-D/3, in which, the facts relating to seeing a person and running away from the house of the deceased are missing and it comes that after the incident, Itwariya Bai came to his house and told him that the appellant has assaulted her husband and has run away from the house. Therefore, the evidence ofthis witness is also unreliable. (18) In Lallu Manihi and another -vs- State of Jharkhand (2003) 2 SCC 401, the Apex Court held that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable "li 1- :v--_:^' 11 Criminal Appeal No. 243 of2004 l..:-^^fi^'' WS9SSS testimony, direct or circumstantial, before acting upon the testimony of a single witness. (19) If we appreciate the evidence of Itwariya Bai (PW-2), in light of the evidence of above three witnesses, we do not find her to be wholly reliable. The evidence of heF claiming to be an eye-witness of the actual assault made to the deceased was an exaggeration as it was an omission in the First Information Report as'^also in her diary statement (Ex.-D/2). In appreciation, we find that she had never seen appellant assaulting the deceased. As far as the story relating to appellant running away from the house of the deceased along-with a Tangia in his hands, the same also appears to be doubtful in the facts and circumstances of the case. After considering the entire evidence adduced by the prosecution, the outcome is that either there was complete darkness in the room or the chimney light in the room was so low that a normal person would not be able to identify any one. According tothe evidence of PW-2 Itwariya Bai, she saw the appellant from a distance of about six hands (9-10 ft.). We doubt that from such a distance in the above circumstances she would be able to correctly identify the assailant. Therefore, we do not rely on the testimony of this witness on the point of identification of the appellant. The present appears to be a case of mistaken identity and on the basis of such evidence of eye witness Itwariya Bai, in our opinion, the conviction cannot be sustained. (20) We would also like to highlight the other infirmities pf the prosecution case. Admittedly, the incident took place on 12.07.2001 and the offence was registered u/s 307 IPC. This was converted to Section 302 when the deceased died on 21.7.2001. The memorandum of the 'ssss^yss^. !»,.;.;:;«„-..(a;)!!Sjl ^- '^•\':^5^^^*. 12 Criminal Aupeal No. 243 of2004 appellant (Ex-P/1) was recorded on 17.7.2001, pursuant to which, the seizure of Tangia (Ex.-P/2) was made on the same day. But in both the documents, sections have been mentioned as 302 & 450 of IPC. How section 302 has been mentioned in the document prepared on 17.07.2001 when the deceased was alive on the said date ? This has not been clarified by the Investigation Officer. This creates doubt on the conduct of prosecution. 'f.i •f, (21) For the foregoing reasons, we are of the opinion that the learned Sessions Judge erred in law in resting the conviction on the evidence of above witnesses who are not the reliable witnesses. The case appears to be one of the mistaken identity by the sole eye-witness Itwariya Bai (PW-2). (22) In the result, the appeal is allowed. The conviction and sentence imposed against the appellant are set-aside. He is acquitted of the charges framed against him. It is stated that the appellant is in jail since 17.07.2001. He be set at liberty forthwith, if not required, in any other case. -s Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge 'iitti/Raa