HIGHCOURT OF CHHATTISGARH. BILASPUR '^ e CORAIVI: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunii Kumar Sinha. J. Criminal Appeal No. 1159 of 1992 Mohammad Abid Husain Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT HON'BLE SHRI JUSTICE RAJEEV GUPTA I For consideration Sd/- Sunil Kumar Sinha Judge Sd/- Chief Justice Postfor Judgment ^06/2010 Sd/- Sunil Kumar Sinha Judge ^. ,<^. HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri RaieevGupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT RESPONDENT Criminal Appeal No. 1159 of 1992 Mohammad Abid Husain, son of Rahim Miyan, Musalman, aged about 22 years, resident of village - Kusmi, Police Station - Kusmi, District - Sarguja (M.P.) (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2)of The Code of Criminal Procedure, 1973) Appearance: Mr. J.S. Baraik, Advocate for the appellant. Mr. Kishore Bhaduri, Additional Advocate General, for the State. JUDGMENT (2.^.06.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Mohd. Abid Husain stands convicted u/ss 302 & 307 IPC by the Second Additional Sessions Judge, Ambikapur, District Surguja in Sessions Trial No. 21/91,and sentenced to undergo imprisonment for life and R.l. for 10 years and fine of Rs.500/- with a further direction to run the sentences concurrently. (2) The facts, briefly stated, are as under:- Nanuram (since deceased) and his wife- Lalo Bai (injured- PW-1) were residing together in a house in Semra Line Paraof village Kusmi. Their elder son, Hirasai (PW-2) was residing in a \ different locality of the same village. On 25.7.90 at about 6.30 a.m., •••<^'. ,c-. Criminal Appeal No. 1159 of 1992 Hirasai visited the house of his father. He found his mother, Lalo Bai, in seriously injured condition. His father was also seriously injured. In fact, his father has died. Themother narrated him that the appellant had assaulted them by a fal (an iron equipment which is used for ploughing the fields) and spade. The matter was reported to the police by Hirasai (PW-2), on which, a First Information Report (Ex.-P/1) was registered and thecharge-sheet u/ss 302 & 307 of IPC was filed by the prosecution. The case of the prosecution was based on eye-witness account of injured witness - Lalo Bai (PW-1). The learned Sessions Judge believed the sole testimony of PW-1 and held that the appellant was liable for punishment under the aforementioned Sections of the IPC. (3) Mr. J.S. Baraik, learned counsel appearing on behalf of the appellant, submitted that the sole eye-witness i.e. Lala Bai (PW-1)was an interested witness being the wife of the deceased and there are many material discrepancies in her evidence, therefore, her testimony cannot berelied on. (4) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the Sessions Court. (5) We have heard the learned counsel for the parties at length and have also perused the records of the Sessions Court. (6) It has not been disputed before us that deceased-Nanuram died homicidal death and the injuries sustained by Lalo Bai (PW-1) were dangerous to life and sufficient to cause death in ordinary course of nature. ^;(f) 1 Criminal Appeal No. 1159 of 1992 (7) So far as arguments relating to interested witness is concerned, in Harbans Kaur and another -Vs- State of Harvana. 2005 AIR SCW 2074, it was held that there is no proposition in law that relatives are to be treated as untruthfulwitnesses. 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 culpritand falsely implicate the accused. (8) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835. the Apex Court 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 accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be characterized 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 intrinsically retiable, inherently probable and wholly trustwprthy, 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. (9) In Sone/a/ -Vs- Stateof M.P.. 2008 AIR SCW 7988, the Apex Court again said that merely because the eye witnesses are family members their evidence cannot be per-se discarded. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an c- Criminal Appeal No. 1159 of 1992 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 analyse evidence to find out whether it is cogent and credible. (10) Therefore, this argumentcannot find favour that the testimony of relative witness cannot be relied on, only ofthe ground that he or she was a relative of the deceased. However, his/her evidence is to be scrutinized with due care andcaution and in such scrutiny if the evidence is found credible, the conviction can well bebased on the sole testimony of such witness. (11) Now we shall scrutinize the evidence of Lalo Bai (PW-1). (12) Lalo Bai (PW-1) was an injured witness who received the following € Injuries:- (i) Lacerated woundl 7z inch x % inch x % inch on the middle of skull; therewas a fracture also; (ii) Incised wound 3A inch x % inch x % inch on the left eye causing injury to cornea having a fracture on surrounding bone; (iii) Incised wound 1 7z inch x % inch x ^ inch just below the left eye, lens was damaged; (iv) Incised wound 3A inch x % inch x V2 inch on the right side of the face with fractures of underline bone; (v) Incised wound 3/i inch x % inch x 1/4inch on right index- finger, clotted blood was present & (vi) Incised wound 1 inch x VA inch x % inch on the back side of right hand. She was wife of the deceased. It is not disputed by the defence that the husband and wife were living together. The incident took place their house. Therefore, her presence at the sceneof occurrence -ff^S?^-.., ^ .V, Criminal Appeal No. 1159 of 1992 cannot be doubted. She herself was the victim and naturalwitness of the incident. She deposed that at about 12 in the night, she was sleeping on a mat in her house. Deceased- Nanuram was sleeping near heron a cot. She has very specifically mentioned that a lamp was burning in the room. The appellant, whom she had named, came from the kothar side and started assaulting her husband. She tried to stop him but he assaulted her husband by spade. Her husband received injuries on chest and skull. When she further tried to stop, the appellant assaulted her by the sharp edged side of the spade, due to which, she received injuries. He assaulted her on head which caused deep injury. She lost her eye. She was hospitalized for 8 days. (13) Though this witness has been put to lengthy cross-examination but the defence has not been able to elicit any such circumstance on which either her testimony may be discarded or it may be said thatshe is falsely implicating the appellant. The background of the case is that deserted daughter of the deceased was kept as wife by the appellant. Deceased was not accepting their relations. For some reason, the daughter has turned back. It is for this reason, the appellant has assaulted the deceased and injured. We find that the version of the injured witness is duly corroborated by the medical evidenceof Dr. M.L. Garg (PW-6),who noticed the above injuries on her person and also noticed one incised wound deep to the brain matter on the left side of skull of the deceased along with other injuries. There was also fracture in skull ofthe deceased. Many pieces of skull bones were present in the wound. He has specifically mentioned in the post-mortem report that there was fracture of parietal bone, and brain membrane and brain matter were injured. Not r^"^'»., ^' ^; ^''^^m \ ^ ^e^ 6 Criminal Anneal No. 1159 of 1992 ^ only this, we find same version in the F.1.R. (Ex.-P/1) lodged by Hirasai (PW-2 - son of the deceased & injured) on 25.7.90, in which, the appellant has been named and the story as narrated by this witness to him has also been mentioned. Mr. Baraik has argued that according to the F.1.R. (Ex.-P/l), the story was narrated to Hirasai (PW-2) in the morning in the house, whereas, it comes in the evidence of Lalo Bai (PW- 1) that she stated the story to her son in the hospital in morning. We do not find any force in this argument. Even if the story was told to the son in the hospital and not in the house of the deceased, on this count alone, her entire testimony cannot be discarded. This is not a material factor to discard the testimony of PW-1 . Why she will conceal the actual culprit and falsely implicate the appellant. After going through the entire evidence of this witness, we are of the view that she was fully reliable and her sole testimony was rightly relied on by the Sessions Court. (14) For the foregoing reasons, we do not find any merit in the appeal. The Appeal, therefore, is liable to be dismissed and is hereby dismissed. (15) It is stated that the appellant is on bail. He is directed to surrender immediately to serve the remaining sentence. Sd/- ChiefJustice Sd/- Sunil KumarSinha Judge vatti