y^- '\ ^^L- . l^^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BL^ MR.T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR, JJ. Criminal Appeal No.1023 of 2004 APPELLANTS: Jangal @ Ramsharan and another Versus RESPONDENT: State.^f Chhattisgarh And • • Criminal Revisioh No.591 of2004 Applicant Kishan Lal Versus NQn-aBplicants Smt.Chandra Kumari and another JUDGWIENT FOR CONSIDERATION _/ |, ^. Stiarina Judge HON'BLE MR. JUSTICE R.N.CHANDRAKAR J» ^y^-^e- Sd/- R.N. Chandrakar Judge Post for pronouncement of iudament on 25 Julv. 2011 Sd/- T.P. Sharma rp c'\^' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR, JJ. Crimina! Appeal No.1023 of 2004 Appellants 1. Jangal @ Ramsharan Aged about 50 years, S/o Lal Das Satnami, R/o Village- Pendri, P.S.Navagarh, Present R/o Gurughashidas Nagar, Behind Yug Nirmaq; School, Camp-2, Shardapara, P.S. C.havni, District-Durg. 2. Rameshwar-@ Ramesh, Aged about 25 years, S/o Jangal @ Ramsharan Jangde, R/o Gurughashidas Nagar, Behind Yug Nirman School, Camp-2, Shardapara, P.S. Chavni, District-Durg. Versus State of Chhattisgarh Through P.S. Chavni, District-Durg (C.G.) RESPONDENT (Criminal Appeal under SECTION 374 (2) ofthe Cr.P.C.) Mr.V.C.Ottalwar with Mr.Rajeev Shrivastava and Mr.Malay Shrivastava, counsel for appellant No.1. Mr.Alok Bakshi, counsel for appellant No.2. Mr.J.A.Lohani, Penal Lawyer for the State/respondent ApDlicant Non-apDlicants And Criminal Revision No.591 of 2004 Kishan Lal S/o Dhanusharam Manhare Aged about 27 years, R/o. Guru Gashi Das Nagar, Camp-11, Bhilai, P.S. Chhawani, Tahsil & Distt.Durg (C.G.) Versus 1. Smt.Chandra Kumari W/o Jangal @ Ramshran, Aged about 36 years, R/o Village Bhaisamuda, P.S. Navagarh, at present Opp. to Ghasi Das Nagar Yug Nirman School Camp-11 Shardapara, P.S. Chhawani, Tahasil & Distt.Durg (C.G.) 2. State of Chhattisgarh, Through-P.S. Chhawani Distt.Durg (C.G.) c'\.J (Criminal Revision underSection 401 read with Section 397 ofthe Cr.P.C.) Mrs.Kiran Jain, counsel forthe applicant. Mr.Arvind Sinha, counsel for non-applicant No.1. Mr.J.A.Lohani, Penal Lawyerforthe State/non-applicant No.2. JUDGMENT (Deliveredon 25th July, 2011) The iudament of the Cotlrt was delivered bv T.P.Sharma. J. 1. Criminal Appeal No. 1023/2004 fited on behalf of appellants Jangal @ Ramsharan and Rameshwar @ Ramesh against their conviction & sentence dated 18.10.2004 passed by the Sessions Judge, Durg, in Sessions Trial No.234/2003 and Criminal Revision No.591/2004 filed against the same judgment by victim Kishan Lal against acquitted accused Smt.Chandra Kumari, are being disposed of by this common judgment. 2. Vide aforesaid judgment of conviction & order of sentence dated 18.10.2004 passed by the Sessions Judge, Durg, in Sessions Trial No.234/2003, whereby while acquitting accused Smt.Chandra Kumari and Sanjay Kumar, convicted appellants Jangal @ Ramsharan and Rameshwar @ Ramesh under Sections 302 read with Section 34 & 323 of the I.P.C. and sentenced them to undergo imprisonment for life and to pay fine of Rs.100/-, in default of payment of fine to further undergo R.l. for three months and fine of Rs.200/-,in default of payment offine to undergo R.l. for three months. The trial Court has also convicted appellant Jangal @ Ramsharan under Section 323 of the I.P.C. and sentenced him to undergo R.l. forthree months. 3. Conviction of appellants Jangal @ Ramsharan and Rameshwar @ Ramesh has been challenged in Criminal Appeal No. 1023/2004 and acquittal of accused Smt.Chandra Kumari has been challenged in Criminal Revision Nd.591/2004. 4. As per case of the prosecution, on the fateful day of 13.3.2003 at about 4 p.m. wife of Kishanlal'(PW-8) namely Smt.Madhvi (PW-2) was bringing water from tanker who was pushed by co-accused Mahesh (juvenile offehder) with intent to outrage her mo^esty. In answer to the act of II accused Mahesh Smt.Madhvi (PW-2) abused him, then Mahesh caught hold her hairs and assaulted her by hands and fists, at that time Gendlal came to rescue her and renpoved Mahesh from the spot. Mahesh went to his house and came along with present appellants and acquitted accused Kumari @ Chandrakumari, they were holding sword and sticks, they assaulted by sword and stick to Gendlal and caused serious injuries. Kishanlal (PW-8) and Smt.Madhvi (PW-2) tried to intervene the quarrel, the appellants also assaulted them. After causing such incident the appellants along with co-accused went to the shop of Kishanlal (PW-8) and caused damage to the property kept in the shop. Gendlal was badly injured, Kishanlal (PW-8) took injurea -Gendlal to BSP Hosptital Sector-9 where he lodged dahati nalishi vide Ex.P/15 and on the basis of Ex.P/15, F.1.R. Ex.P/19 was recorded. Injured Gendlal was examined by Dr.A.P.Sawant (PW-5) vide Ex.P/8 and found following injuries:- (i) Incised wound of6 cm. x 2 cm. x bone deep over scalp. (ii) Incised wound of 6 cm. x 2 cm. x bone deep over middle of the head. (iii) Incised wound of 10 cm. x 2 cm. x bone deep over left parietal region. (iv) Incisedwound of 6 cm. x 2 cm. x bone deep over occipital region. (v) Incised wound of 10 cm. x 1A cm. x % cm. over back of the head. (vi) Incised wound of 14 cm. x 2 cm. x bone deep over right parietal region. (vii) Two incised wounds of 2 cm. x 'A cm. x % cm. over left and right index fingers. His condition was poor, he was unconscious and was immediately admitted in surgical ward. Suresh Kumar was also examined by this witness vide Ex.P/9 and found lacerated wound of 2 cm. x % cm. x % cm. over thumb of right leg. Smt.Madhvi (PW-2) was examined by Dr.A.P.Sawant (PW-5) vide Ex.P/10 and found lacerated wound of4cm. x % cm. x y-i cm. over right tibia. Injured Kishanlal was also examined by the same doctor vide Ex.T'/ll and found two abrasions of 4 cm. x 2 cm. over right index & middle finger and left index & middle-finger. During the )'l!>tfl;SttE2f"?- 'i;"" " course of treatment, Gendlal succumbed to the injuries. Death was reported vide Ex.P/31. Merg were recorded vide Exs.P/31 and P/32. Investigating officer proceeded for scene of occuffence and after summoning the witnesses vide ex.P/13 prepared inquest over the body of deceased Gendlal vide Ex.P/14. Dead body ofthe deceased was sent for autopsy to District Hospital, Durg where Dr.P.Akhtar (PW-11) conducted autopsy vide Ex.P/17 and found following injuries:- (i) Stitched wound over right palm of 12 cm. in length. (ii) Stitched wound over rightfrontal region of8 cm. in length. (iii) Stitched wound &vepthe head of 7 cm. in length. (iv) Semi-lunar stitched-wo'und of 10 cm. in length over the head. (v) Stitched wound of 10 cm. in length over left parietal region. (vi) Stitched wound of 7 cm. in length over occipital region. (vii) Stitched wound of 10 cm. in length over left parietal region. (viii) Stitched wound of 7.5 cm. in length over occipital region. (ix) Stitched wound of 10 cm. in length over occipital region. (x) Incised wound4 cm. x % cm. over right index finger. (xi) Haematoma was found inside the brain. (xii) Occipital frontal bone was found fracture and parietal bone and subdural haematoma over surface of frontal lobe and both parietal lobes of size 14" x 12". Cause of death was shock. During the course of investigation, appellant Jangal @ Ramsharan was taken into custody, he made disclosure statement of stick vide Ex.P/2 and same was recovered at his instance vide Ex.P/5. Bloodstained cloth of appellant Jangal @ Ramsharan was seized vide Ex.P/6. Accused Chandrakumari Bai made disclosure statement of sword vide Ex.P/3 and same was recovered at her instance vide Ex.P/7. Bloodstained clothes of the deceased were seized from Kishanlal vide Ex.P/4. Bloodstained & plain soil, broken bangles and bamboo stick were seized from the spot vide Ex.P/12. Sealed clothes of the deceased were seized vide Ex.P/21. One sword was seized from appellant Rameshwar @ Ramesh Kumar vide Ex.P/22. Seized articles were sent for chemical examination vide Ex.P/23 and presence of blood / over cloth and stick recovered from appellant Jangal and sword recovered from accused Chandrakumari vide Ex.P/29 was confirmed. 5. Statements of the witnesses were recorded under Sections 161 of the Code of Criminal Procedure, 1 973 (for short 'Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Durg, who in turn, committed the case to the Court of Sessions, Durg. 6. In order to prove the guilty ofthe accused/appellants, the prosecution has examined as many as, si)<feen witnesses. Statements of the accused/appellants were recordedvunder Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. 7. After providing opportunity of hearing to the parties, learned Sessions Judge while acquitting accused Smt.Chandrakumari and Sanjay Kumar has convicted appellants Jangal @ Ramsharan and Rameshwar @ Ramesh as aforementioned. Charge sheet against juvenile offender Mahesh has been filed before the Juvenile Justice Board. 8. We have heard Mr.V.C.Ottalwar with Mr.Rajeev Shrivastava and Mr.Malay Shrivastava, counsel for appellant No.1, Mr.Alok Bakshi, counsel for appellant No.2 & Mr.J.A.Lohani, Penal Lawyer for the State/respondent in Cr.A.No. 1023/2004, Mrs.Kiran Jain, counselfor the applicant, Mr.Arvind Sinha, counsel for non-applicant No.1, Mr.J.A.Lohani, Panel Lawyer for the State/non-applicant No.2 in Cr.R.No.591/2004, perused the judgment impugned and record of the trial Court. 9. Mr.V.C.Ottalwar, counsel for appellant No.1 Jangal @ Ramsharan in Cr.A.No. 1023/2004 vehemently argued that conviction is based on the evidence of interested witnesses Smt.Madhvi (PW-2) and her husband Kishanlal (PW-8) whose evidence does not inspire confidence and trustworthy, same are not safe to rely. As per evidence of Smt.Madhvi (PW-2), appellant Ramesh and juvenile offender Mahesh assaulted Gendlal by sword and appellant Jangal and Chandrakumari by stick, they also assaulted her by'sword and Mahesh has assaulted her by sword and Ramesh has assaulted her by stick, inter alia, as per evidence of Kishanlal tMS (PW-8), Mahesh & Ramesh have assaulted Gendlal by sword and Jangal & Chandrakumari have assaulted Gendlal by stick, Jangal has also assaulted him by stick. At tjne time of incident they have not tried to rescue Gendlal, he was agonizing, the appellants were having sufficient oppori:unity to kill Gendlal but they have not killed Gendlal shows that they have not caused injurieswith intend to cause his death. No injury ofstick has been found over the body of deceased Gendlal. As per medical evidence of Dr.A.P.Sawant (PW-5) who was examined Gendlal vide Ex.P/8 and has noticed seven incised wounds shows that only sword has been used at the time of causing injury and as per case of the prosecution, Mahesh was holding sword who was juvenile offender. In the absence of any injury by stick, no inference can be drawn that except Mahesh, other persons have caused injury to Gendlal. In these circumstances, conviction of the appellants Jangal @ Ramsharan and Rameshwar @ Ramesh under Section 302 read with Section 34 of the I.P.C. is not sustainable under the law. Learned counsel further argued that other two accused namely Chandrakumari and Sanjay Kumar have been acquitted by the trial Court on the same set of evidence and has convicted the present appellants on the same set of evidence, therefore, the present appellants are also entitled for acquittal on the ground of parity. Learned counsel contended that the prosecution has not adduced any evidence against the present appellants relating to overact for sharing common intention. lO.Learned counsel placed reliance in the matter of Milkiyat Singh and others v. The State of Rajasthan in which the Supreme Court has held that in case of one part of prosecution story is found doubtful, it would not necessarily falsify the whole account, but in that case the rest of the story told by the alleged eye-witnesses must be examined carefully before it is relied on. Leaned counsel further placed reliance in the matters ofNarain v. State of M.P. , Hatti Singh v. State of Haryana3, Nankun & others v. State of M.P. (Now C.G.) in which the Supreme Court and this Court has held that in case some accused acquitted on the same set of evidence, 1AIR 1981 SC 1579 2(2004) 2 SCC 455 3(2007) 12 SCC 471 ,'t2010(2)C.G.L.J.483(DB) ir im! then other accused cannot be convicted on the basis of same set of evidence. Learned counsel relied upon the matter of Nagaraja v. State of Karnataka in which the Sypreme Court has held that only exhortation is not sufficient to infer the common intention or mere exhortation by one of the accused persons that they would not leave him (deceased) till he died, cannot be a ground to rope in all the accused persons. Leaned counsel placed reliance in the matter of Virendra Singh v. State of Madhya Pradesh in which the Supreme Court has held that common intention implies a pre-arranged plan and acting in concert pursuant to the plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. The common intention to bring about a particular result may well develop on the spot as between a number of persons, With reference to the facts of the case and circumstances of the situation, though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a pre-arranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. Learned counsel further placed reliance in the matter of M.C.AIi & another v. State of Kerala in which the Supreme Court has held that if the prosecution case is not corroborated by independent witness, then the accused is entitled for acquittal. ll.Learned counsel for appellant No.2 has adopted the arguments advanced on behalf of counsel for appellant No.1 and argued that the prosecution has not collected evidence against appellant No.2 to connect him in crime in question, therefore, he is entitled for acquittal. 12.Learned counsel for the applicant Kishan Lal in Cr.R.No.591/2004 argued that the prosecution has adduced sufficient evidence to connect non-applicant No.1 Chandrakumari in crime in question. Evidence adduced on behalf of the prosecution is sufficient for conviction of appellants Jangal and Rameshwar and also for non-applicant No.1 Chandrakumari, but the trial Court has illegally acquitted her. 5(2008) 17SCC 277 62010(6)8upreme 795 72010(2)C.G.LJ.421(SC) lll 13.Learned counsel for non-applicant No.1 Chandrakumari opposed the revision and argued that the prosecution has not collected evidence against Chandrakumari and the trial Court has rightly acquitt^d her. 14.0n the other hand, learned Panel Lawyer opposed the appeal and arguec) that the prosecution has -collected sufficient evidence against the appellants and after appreciating the evidenceavailable on record the trial Court while acquitting other co-accused on the ground of insufficiency of evidence has convicted-the appellants as aforementioned. 15.1n order to appreciate the argurpents advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 16.1n the present case, homicidal death as a result offatal injuries found over the body of deceased Gendlal and simple injury to Kishanlal have ngt been substantially disputed on behalf of the appellants, even otherwise, it is established by the evidence of Dr.A.P.Sawant (PW-5), injury report of Gendlal Ex.P/8, injury report of injured Kishanla! Ex.P/11, Dr.P.Akhtar (PW-11) and autopsy report Ex.P/17. Death of Gendlal was homicidal in nature and simple injury found over the bodyof Kishan Lal. 17.As regards the complicity of the appellants in crime in question and incriminating evidence against non-applicant Chandrakumari, the prosecution has placed reliance upon the evidence of Smt.Madhvi (PW-2), alleged injured eyewitness, Smt.Pushpa Devi (PW-3), alleged injured eyewitness, Kishanlal (PW-8), injured witness, Santosh Kumar (PW-12), eyewitness and Suresh (PW-14). As per evidence of Kishanlal (PW-8), injured witness, at the time of incident his wife Smt.Madhvi (PW-2) was coming back to her house after taking water from tanker, accused Mahesh pushed her with ulterior motive, then his wife abused Mahesh, at that time he was standing near tanker, then scuffle took place between Madhvi and Mahesh, deceased Gendlal came to the spot and tried to intervene, he was trying to remove accused Mahesh from the spot, then Mahesh rushed to his house and after sometime he came along with present appellants Jangal @ Ramsharan, Rameshwar @ Ramesh and accusec) Chandrakumari, Mahesh & Ramesh were holding sword and Jangal & Chandrakumari were holding stick. All the appellants,,assaulted Gendlal by sword and stick, after leaving bucket of water he rushed towards his IrflK W? brother Gendlal where appellant Jangal assaulted him by stick over his left hand, Gendlal was agonizing, the appellants thought that Gendlal died, then the appellants left ^he spot. They took Gendlal to Police Station, at the same time the appellants went to his house and again assaulted him and damage the property of his shop. He lodged dehati nalishi vide Ex.P/15. Police sent him and his brother Gendlal for medical treatment and during the course oftreatment Gendlal died. Smt.Madhvi (PW-2), wife of Kishanlal (PW-8), has substantially corroborated the evidence of Kishanlal (PW-8). Smt.Pushpa Devi (PW-3) has also corroborated the evidence of Kishanlal (PW-%. As per evidence of Santosh Kumar (PW-12), he heard sound of quarr6l,. then he proceeded towards the spot where he saw injured body of Gendlal lying in the floor and appellant Ramesh & accused Mahesh were holding sword and appellant Jangal & his wife were holding stick, they were assaulting Gendlal. Suresh (PW-14) has also corroborated the evidence of Kishanlal (PW-8). 18.0efence has cross-examined Suresh (PW-14) in detail, in which he has denied the suggestion that Mahesh was not present on the spot. As per para 7, he has also tried to intervene. He has denied the suggestion that on account of help/assistance given by Gendlal to his father he is implicating the present appellants falsely in support of Gendlal. Defence has cross-examined Santosh Kumar (PW-12) in detail. In his detailed cross-examination in para 7 he has specifically deposed that prior to incident he was not known Gendlal. He has also denied the suggestion that Gendlal was habitual offender. He has also denied the suggestion that in association with the complainant party he has harassed the accused party. Defence has cross-examined Kishanlal (PW-8) in detail. In his detailed cross-examination he has categorically deposed that at the time of incident he was present near the place of incident. He has denied the suggestion of jealousy on account of shop and has also denied the suggestion relating to criminal antecedent of his brother Gendlal. He has also denied the suggestion of enmity between both the parties. As per para 11 of his cross-examination, appellant Jangal is his neighbour. He has admitted in para 18 of his cross-examination that at the time of incident Sanjay was not present but at the time of incident in his shop Sanjay was present. He has admitted the presence of Suresh (PW-14) at iaiu» 10 (y ^\ lili"' the time of incident in his shop. In detailed cross-examination of Smt.Madhvi (PW-2), she has categorically deposed that firstly she was pushed by accused Mahesh and thereaffer incident took place and all the appellants assaulted Gendlal. Smt.Pushpa Devi (PW-3) has also deposed the same thing in her cross-examination. There are some contradictions and omissions in the evidence of aforesaid witnesses. They are relative witnesses but their evidence cannot be discarded only on the ground of their relation, on the other hand, a close relative would be the last to screen the real culprit ahd falsely implicate an innocent person. In case of inimical and relative witnesses, only'minute scrutiny of their evidence is necessary to exclude the possibility.of 6xaggeration and implication of an innocent person along with real culprit. 19-While dealing with the question of relative and interested witnesses, the Supreme Court in the matter of Dalip Singh v. State of Punjab has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:- "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run highand 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" 'O.As held by the Apex Court in the matter of Mohabbat and Ors.v. State of M.P. , relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads as under, "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, th.e same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to 8(1954) 1 SCR 145 92009ArR SCW 1486 11 discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relations^ip is not a factor to affect credibilityof a witness. It is more often than not that 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 cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible." 21.While dealing with the same question, the Supreme Court in the matter of Guli Chand and others v. State of Rajasthan has held that mere fact that relative witness or his relaflons is not sufficient to discard his testimony. 22.While dealing with the same question, the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra held that in view ofthe close relationship and affection any person related to the deceased would have, such a 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 prelimingry 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 the deceased. In viewof the closerelationship 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 may be imagined to have been stated 10(1974) 3 SCC 698 "AIR 1984 SC 1622 .. /.. 12 unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it." 23.While dealing with the qu^stion of value of eyewitnesses whose one part of story is doubtful, the Supreme Court in the rnatter of