HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.96 of 1991 E APPELLANTS: ‘1. Bhagirathi alias Bhagi S/o Kodu Ram aged 29 years R/o Parsuli, Raipur 2. Jagdish S/o Khedu Ram R/o Parsuli, P.S. Arjuni, Raipur 3. Sonuram S/o Khedu Ram Satnami aged 4O years, R/o Parsuli, Raipur (DIED) 4. Tuka S/o Sonu Satnami aged 20 years, I u ‘ R/o Parsuli P.S. Arjuni, Distt. Raipur Versus a RESPONDENT: . State of MP. (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mrs. Fouzia Mirza, counsel for the appellants. Mr. Sandeep (Yadav, Deputy Govt. Advocate for the State/respondent. JUDGMENT (29m March, 2010) The iudqment of the Court was delivered by T.P. Sharma. J: - . Challenge in this appeal is to the judgment of conviction & order of sentence dated 4—12—1990 passed by the 5‘“ Additidnal Sessions Judge, .« Raipur in Sessions Trial No.271/88, whereby & whereunder learned Additional Sessions Judge .after holding the appellants guilty for commission of homicidal death amounting to murder of Rekhram & Paltan in sharing common intention and causing simply injury to Paltan, J convicted the appellants under Sections 302 read with Section 34 & 323 read with Section 34 of the l.P.C. and sentenced each of them to undergo imprisonment for life & to undergo R.l. for six months, respectively. ~i-\ ,e ii 2. Conviction is impugned on the ground that without any iota of evidence especiaiiy the fact that the prosecution has deliberately suppressed the first F.I.R. recorded by it in which the names of the appellants herein were not mentioned, the trial Court has convicted & sentenced the appellants as aforementioned and thereby committed illegality 3. As per the information given by the State, appellant No.3 Sonuram has been released on probation granted by the State Government after serving the sentence and he died during the pendency of appeal. Therefore, this criminal appeal as it relates to appellant No.3 Sonuram aba‘fes. 4. Case 9f the prosecution, in brief, is that on thefateful day of 23—5-88 at about 4—4.30 p.m‘. Rekhram (since deceased) along with Jagdish, Jaggu & Ashok were repairing their tiled roof, Paltan (since deceased) was standing there, at that time appellants Bhagi & Jagdish came from Dhamtari and threatened them. After some time, the appellants herein came to the spot. Appellants Bhagi & Jagdish were holding’iron kalari (instrument with handle used in agricultural operations), accused Sonu (since deceased) was holding axe and Tuka was holding stick, they (a: threatened Rekhram & other persons to come down from the roof, Bhagirathi thrown kalari towards Rekhram who is repairing tiled roof, w‘ Rekhram, Ashok & Jaggu came down from the roof and all the four accused persons assaulted Rekhram & Paltan and caused fatal injuries, they were stained with blood. Ashok Kumar was also badly injured and he was examined by the doctor. Sukli Bai (PW-1) — wife of Paltan (since deceased) tried to intervene and then Sonu chased her on which she J I went to the house of Veer Singh and , hide herself. Jagdish, Veer Singh & 1 i-x Phool Singh were sitting in the shop of blacksmith Veer Singh. Again she went to the spot. Her husband Paltan & son Rekhram died. At that l time police came then she lodged report vide dehati na/si EXP-26. Dehati merg was also recorded vide Exs.P—27 & P-28. On the basis of dehati nalsi EXP-26, registered F.I.R. was recordedvide EXP—29 and registered merg was recorded vide Exs.P—3O & P-31. After summoning the witnesses, inquest over the dead bodies of Paltan & Rekhram were prepared vide Exs.P-19 & P-20. Dead bodies were sent for autopsy vide Exs.P—32 & P-33. Dr. C.K. Singhai (PW—19) conducted autopsy on the dead body of deceased Paitan vide Ex.P—42 and found following injuries: (1) Distortion of right hand as a result of fracture at three places. (2) Haematoma over left temporal region. ‘t (3) incised wound of 4" x 2" x 1" over parietal region. (4) lncised wound of 3" x 2" x 1" over left temporal region, bone be‘neath the injury was found fractured. (5) Contusion ov‘er left scapula region of 4" x 2". (6) Contusion of 3" x 2" over left wrist. (7) Fracture of left wrist. (8) Fracture of bone of right hand at three places. (9) Fracture of left parietal region. (10)Rupture of left temporal region of brain. (11)Fracture of right lungs. Mode of death of Paltan was shock. Dr. C.K. Singhai (PW-1.9) also conducted autopsy on the dead body of deceased Rekhram vide Ex.P- 43 and found following injuries: — (1) Crushed fracture over right hand. (2) Contusion of 2" x 1" over right wrist with crepitus sound. (3) Abrasion over right leg of 2" x 1". (4) Abrasion over right thigh of 2” x 2". (5) lncised wound of 3” x 2” x 1" over occipital region. (6) lncised wound of 3x2 x 1" over left frontal region. (7) Contusion of 4" x 3" over left side of neck. (8) Fracture of occipital & frontal bones. (9) Multiple fracture of right wrist. Mode of death of Rekhram was also shock. E‘ ¢ 4 . During the course of investigation, one blood stained towel was seized from the spot vide Ex.P—1. One blood stained cloth just below the head of deceased Paltan was seized from the spot vide EXP-2. Blood stained & piain soil were seized from the spot vide Exs.P-3 & P—4. One iron kalari with wooden handle was seized near the spot videEx.P-5. One broken piece of handle was also seized from the spot vide EXP—6‘. Blood r stained chappal of deceased Rekhram was seized vide Ex.P-7. Blood stained & plain soil were also seized from the spot vide EXP-8. During the course of investigation, accused Tukram was taken into custody, he made discloser statement of stick vide Ex.P-9 and the same was seized at the instance of Tuka vide EXP-10. Appellant Bhagirathi made discloser statement of kalari wooden stick vide Ex.P-11 and the same was seized at the instance of Bhagirathi vide EXP-12. Accused Sonuram (since deceased) made discloser statement of axe vide Ex.‘P- 13 and the same was recovered from Sonuram vide Ex.P—14. Blood stained underwear was seized from appellant Bhagirathi vide EXP-15. Blood stained clothes were also seized from accused Sonuram, Jagdish & Tuka vide Exs.P-16, P-17 & P-18, respectively. Patwari prepared spot map vide Ex.P-21. Blood stained clothes were also seized from Ashok Kumar son of Paltan vide EXP-23. During the course of investigation, statement of injured Ashok Kumar was recorded~vide EXP-22. :Seized articles were sent for chemical examination vide EXP-39 and presence of blood was confirmed over stick, axe, kalari, undenivear of appellant Bhagirathi and clothes of appellant Jagdish vide Exs.P—40 & P-41. . Statements ofrthe witnesses were recorded under Section 161 of the Cr.P.C; and after completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Dhamtari who in turn, committed @ the case to the Court of Sessions, Raipur from where 5th Additional Sessions Judge, Raipur received the case on transfer for trial. 7. In order to prove the guilt of the appellants the prosecution has examined as many as twenty witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and faise impiication. 8. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the accused in the aforesaid manner. g u a 9. We have heard Iearned counsel for the parties‘ perused the judgment and record of the trial Court. 65 10.Mrs. Fouzia Mirza, learned counsel for the appellants, vehemently argued that in the present case according to the case of the prosecution, appellants Bhagirathi & Jagdish were having wooden kalari —‘ a sickle like pointed object having no sharp edge, but according to the evidence, firstly the sickle like shape of kalari was made straight and injuries were caused with kalari by both the appellants, however, no punctured injury or stab injury was found on the dead bodies of both the deceased or even on the body of injured Ashok Kumar. Most of the injuries found on 6 the bodies of the deceased were incised wounds which reveal that sharp edged weapon has been used by the assailants at the time of causing injuries. According to the case of the prosecution, accused Sonuram was having axe and has caused injury with the said axe. ,There is - complete conflict between medical & ocular evidence and no injury was possible to be caused by the kalari. The prosecution has suppressed the first F.l.R. recorded in the Police Station in which names of only two accused persons viz., Tuka & Sonuram were mentioned. After recording of first F.l.R. and suppression of first F.l.R. entire evidence of the 6 prosecution is full of suspicion and is not sufficient for drawing inference i against any of the accused/appellants. Learned counsel piaced reliance in the matter of T.T. Antony v. State of Kerala and others1 in which the Apex Court has held that there can be no second FIR and no fresh investigation onreceipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizabie offences. Learned counsel further placed reliance in the matter of State of U.P. v. Raja Ram and others2 in which the Apex Court has held that in case of'no injury found over the body of the deceased alleged to have been caused by the accused persons, only V one blunt injury caused by the alleged accused person, then the accused persons are entitled for acquittal. Learned counsel also placed reliance in the matter of St'ate of Uttar Pradesh v. Abdul Karim and others3 in which the Apex Court has held that in case of total discrepancy in injury and weapons used, the appellants are entitled for acquittal. Learned counsel relied upon the matter of Ramanand Yadav v. Prabhu Nath Jha and others4 in which the Apex Court has held that in case of variance between ocular and medical evidence, normally preference shall be given to ocular evidence, but in case if the evidence specifically rules out the injury as claimed to have been inflicted as per oral testimony, medical evidence shall be given weightagea. Learned counsel further relied upon the matter of State of Punjab v. Harbans Singh and another5 in which the Apex Court has held that in absence of independent witnesses; evidence of stock witnesses, evidence of single witness and cause of fight are not safe to rely. Learned counsel also (it .-\ 1 (2001) 6 scc 181 2 3 (2007) 12 scc 748 (2007) 13 scc 569 4 AIR 2004 sc 1053 5 AIR 2003 sc 2268 if, A, matte f Pichai alias Pichandi and others v. State of T N.8 in which the Apex Com has held that conflict between medical & ocular evidence, in case of any absence of corresponding injury, the accused are entitled w’ for benefit of doubt. any first F.l.R. lodged. Defence was having ample opportunity to call the alleged first F.l.R. It is clear from the evidence of Head Constable Subhash Chandra Shukla (PW-14) & Assistant Sub inspector Biharilal Sonl (PW-15) that Head Constable Subhash Chandra Shukla (PW—14) i spot where he recorded dehati na/si. Even otherwise, if the evidence of Assistant Sub Inspector Biharilal Soni (PW-15) that Kotwar Gendram & Gopiram have lodged report, is admitted as gospel truth, second part of evidence would also‘be requited to be believed which reveal that Kotwar Gendram & Gopiram have lodged report relating to four accused and not relating to two accused and, therefore, in any case, even in a stretch of \\ 6 AIR 2005 SC 2110 7 (2003) 1o scc 118 (2005) 1O SCC 505 r o 8@, 4- imagination if it is believed or suspected that the police has registered first F.l.R., same would not be fatal to the prosecution. According to the case of the prosecution, after making the kalari straight from sickle shape, both the accused persons viz., Bhagirathi & Jagdish have ‘ assaulted Paltan & Rekhram and caused injuries. Medical, and ocular evidence are not in ‘conflict in the present case. Only two incised wounds were found on parietal & mastoid regions of Paltan and remaining injuries were not incised wounds. Likewise, only two injuries found over the head of Rekhram were incised wounds and remaining eight injuries were not incised wounds. The accused persons have used u e kalari like stick with iron straight part and injuries found over the bodies of Paltan & Rekhram were caused by the kalari Used by the appellants. ln the present case, evidence of Sukli Bai (PW-1) & injured witness Ashok (PW—8) inspire confidence and safe to rely.; Learned Additional Sessions Judge after appreciating the evidence available on record has rightly convicted & sentenced the appellants in the aforesaid manner. 12.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13.ln the present case, homicidal deaths of Paltan & Rekhram as a result of fatal injuries have not been substantially disputed on behalf of the appellants, otherwise also established by the evidence of Dr. C.K. Singhal (PW-19) and autopsy reports Exs.P-42 & P-43 Which reveal multiple fractures of hands & head of the deceased and that the deaths t were homicidal in nature. ~i-\ 1'4.As regards the injuries of injured Ashok, the prosecution has examined Dr. RK Baxi (PW-13) whohas deposed in his evidence that on 23-5-88 at about 11.15 p.m. he has examined injured Ashok and found following injuries vide EXP-25: — 9 @ (1) Lacerated wound of6 c.m. X 1 c.m. bone deep on parietal region. (2) Lacerated wound of 3 c.m. x 3 c.m. skin deep on left index finger. (3) Lacerated Wound of 1 c.m. x 0.5 c.m. skin deep on right ring finger. (4) Contusion of 10 c.m. x 2 c.m. on chest. (5) Sweiling over left leg. Defence has not cross—examined Dr. R.K. Baxi (PW-13) to discredit his testimony. Evidence of this witness is sufficient to establish the fact that at the time of incident injured Ashok also became injured, and aforesaid injuries were found on his body. 15.As regards complicity of the appellants in the crime in question. conv‘lction is substantially based on the evidence of Sukli Bai (PW-1) — the alleged eyewitness and Ashok (PW-8) — the injured witness. 16.Ashok (PW-8) has-deposed in his evidence that at the time of incident on 23m May, 1988 at about 4—5 p.m. he along with Rekhram, Jaggu & Jagdish were repairing the tiled roof, his father Paltan & mother Sukli Bai were standing near the house, at that time, appellants Bhagi & Jagdi'sh came, they abused and told that call the entire family they will see and’ also told that they will be coming with their other members, thereafter, they went away. After 10-15 minutes, appellants Jagdish, Bhagi, Tuka & W Sonu (since deceased) came to the spot, they abused Rekhram and directed him to come down from the roof and While Rekhram was coming down, all the accused persons started assaulting him with stick, kalari & axe. Appellants Jagdish.& Bhagi were having kalari, accused Sonu (since deceased) was having axe and appellant Tuka was having stick. Immediately his father Paltan came near Rekhram, then all the f appellants assaulted Paltan also. He (this witness) also went near Rekhram, then Jagdish assaulted him with kalari, he fell down on which 1 other accused persons assaulted him . and he became unconscrous. . y \ After some time, when he regained consciousness, his father Paltan & l l 1o brother Rekhram died. He was taken to Dhamtari Hospital for treatment where he was admitted for 9-10 days. Defence has cross-examined this witness at Iength. in para 8 of his cross—examination he has admitted that prior to incident, aii the appellants had gone to Jabaipur for their livelihood, but on the date of incident ail the appellants were present in the village. in para 9 of his cross-examination, he has further admitted that appellants Bhagi & Jagdish have firstly asked them as to why they are constructing house upon their land. He has also admitted that cause of‘quarrel was construction of house over the land. in para 10 of his crois;examination he has’deposed that he has stated to the police that appellants Bhagi & Jagdish have assaulted his brother Rekhram & father Paltan; but the aforesaid fact does not find place in EXP-22, his previous statement. In his detailed evidence, he has substantially deposed that all the appellants assaulted his father, brother and him. He has specifically deposed in para 3 of his evidence that he is not in a position to say that as to who has assaulted them upon which part of the body, but all the four accused persons have assaulted them. 17.Sukli Bai (PW—1) — mother of deceased Rekhram & wife of deceased Paltan, has substantially corroborated the evidence of Ashok (PW-8). She has specifically deposed in para 9 of her evidence that appellants Bhagi & Jagdish were having ka/ari. She has furthét deposed that these two appellants have pushed her husband & two sons with the point of ka/ari and even they have pierced by the pointed ka/ari to her husband & two sons. She has denied the suggestion that at the time of incident U Tukaram & Sonu were not-present. 18. lshwar (PW-2) has corroborated the evidence of Ashok (PW-8) and has \ deposed that all the accused persons were assaulting Paltan, Rekhram l 11 @‘ & Ashok, but in his cross-examination, he has stated that police has not recorded his statement. 19. Premu (PW—3) has also substantiaiiy corroborated the evidence of Ashok (PW—8). Jagdish (PW-6) who is also working with Rekhram on the tiled roof has corroborated the evidence of Ashok (PW—8). He huas stated in his evidence that when appellants Bhagi & Jagdish came and threatened them, he came down from the roof and went away from the spot, he has not seen the incident, but after some time he came back to the spot, at that time, Rekhram & Paltan were found dead and Ashok was injured & y unCQnsCIOLIS. 20.As per the evidence of Sukli Bai (PW—1), accusedSonu (since deceased) chased her on which she went to the shop/house of Veer Singh and narrated the incident to them. Veer Singh (PW-7)‘ has supported the evidence of Sukli Bai (PW—1) up to that extent. 21.3ubstantially, conviction is based on the evidence of Sukli Bai (PW-1) & Ashok (PW-8). Ashok (PW—8) is injured & relative witness and Sukli Bai (PW-1) is also relative witness. They are close relatives of the deceased, but their evidence cannot be discarded on the ground that they are relative witnesses. 5 22.0rdinarily, a close relative would be the last to screen the real culprit and 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 Punjabg has held that a witness is normatly to‘be\ considered independent unless he or she l springs from sources which are likely to be tainted. Para 26'of the said judgment reads as under:- i l 9 AIR 1953 SC 364 @ 12 “26. A witness is normally to be considered independent uniess he or she springs from sources which are likely to be tainted and that usually means uniess the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen theureal 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. Qur 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 case must be limited to and be governed by its own facts." 23.While dealing with the same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Biharm has held thus, u ...... 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 w‘ relative of the victim, which is otherwise credit—worthy, cannot be relied upon unless corroborated by public witnesses. lnsofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled 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 ° 2008 AIR scw 3739 13 @ of the crime, he/she cannot be characterized as an “interested" witness. It 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‘.” 24.Statements of relative witnesses cannot be discarded only on the ground of their retationship. The Courts are required to scrutinize theirevidence with great care and caution. p 25.However, in the present case, evidence of both the relative witnesses viz., Sukli Bai (PW-1) & Ashok (PW-8) reveal that both the parties were in inimiéal terms on account of dispute relating to land. Therefore, these witnesses are interested witnesses. As held by the Apex Court in the matters of Dalip Singh & Ashok Kumar (supra), relative witnesses are the persons reluctant to spare the real culprit and falsely implicate an innocent person, but in case of enmity close relatives have a tendency to exaggerate or add facts which may not have been stated to them at all to implicate and to ensure convrctlon of the accused persons While dealing with the aforesaid question, the Apex Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra“ has held that close relatives of the victim have tendency to exaggerate or add facts, Court should examine their evidence with great care and caution. Para 48 of the judgment of the Apex Court in the above cited case reads thus, G “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. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of 11 AIR 1984 sc 1622 @ 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