@* HIGH COURT OF CHHATTISGARH. BILASPUR riminal Aggeal No. 1130/1 99 C 5 Dhanau and Others. g lu‘ Vs. Staté of M.P. (Now State of Chhattisgarh) 1'. ORDER PostforOrder : 1/11/2011 x7; Sd/- 4'“ Sunil Kumar Sinha r a Judge 1 VAe' ‘ HIGH COURT OF CHHATTISGARH, BILASPUR (Sinqle Bench: Hon’ble Shri Sunil Kumar Sinha, J) Criminal Apgeal No. 1130/1995 APPJELLANTS 1. Dhanau son of Phool Singh Lodhi‘ aged about 38 years, 2. Dhansai son of Phool Singh Lodhi, aged about 40 years, Ratan, son of Dhanau Lodhi, aged about 18 years, 4. Mangtinbai, W/o Dhanau Lodhi, aged about 37 years, All residents of Village Thantar, Police Station Gandai, District Rajnandgaon (MR) (Now State or Chhatijsgarh) Versus RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh). (CRIMINAL APPEAL UNDER SECTION 378 OF THE CODE OF CRIMNAL PROCEDURE) Appearance: Mr. Adil Minhaj, Advocate for the appellants. Mr. U.K.S. Chandei, Panel Lawyer for the State; $1) JUDGMENT (Oi 41.201 1) Foliowing judgment of the Court was deiivered by Sunil Kumar Sinha, . fix 3(1) This appeal is directed against the judgment dated 315‘ of July, 1995 passed in Sessions Trial No. 114/1992 by the Additional Session Judge, Khairagarh, Sessions Division, Rajnandgaon. J , Crimjnal Appeal No. 1130/1 995 (2) By the impugned judgment the appellants have been convicted under Sections 304—I & 323 IPC and sentenced to undergo R.l. for 5 years with fine of Rs. 1000/— and fine of Rs. 1000/- respectively. t 4/ (3) Appellant No.3— Ratan has been finally released on 16.05.1998 by getting speciai remission of 2 years 20 days and appellants- Dhansai & {.2 hanau have also been finally released from jail on 26.01.1998, on the D eve 0f Republic Day by getting special remission of 22 months 20 days. g V . (4) The facts, briefly stated, are as under:- On 12 11 1991 at about 400 pm Nohar Ram (PW7) his e mother Mantora Bal (PW9) and other family members Including his father— Ram Singh (Since deceased), were harvesting the crops of the disputed field. The allegations are that the appellants came there, quarreled with them on account of harvesting of the crops and thereafter K a assaulted the deceased with “Tangiya”. The deceased received multiple injuries and succumb to those injuries. Nohar Ram (P.W.7) also sustained injuries. Nohar Ram (P.W.7) reported the matter to the concerned police Station, where the First Information Report (Ex-P-11) was recorded at about 5:15 p.m. Names of all the accused persons were mentioned in the F.l.R.. During the course of investigation, copies of various revenue records relating to the disputed land were seized It was also found during the investigation that on 12 11 1991 ”the Sub DiVisional Magistrate had sent a memo to the Station House Officer Gandai for submitting a report after inqUIry in their matter under Section 145 of the Code of Criminal Procedure. The copy of the memo issued by Sub Divisional Magistrate is Ex-P—10. Though the charges were framed under Sections 302, 304/34 & 324 IPC, but looking to the above facts, the appellants were ac‘quittedaef those charges and they were convicted under aforementioned sections of IPC. 3 Criminal Appeal No. 1130/1 995 (5) The conviction of the appellants is based on eye-witnesses’ account of Nohar Ram (P.W.7), Mantora Bai (P.W.9), Omkar (P.W.10) andiChandanlai (P.W.1 1). € (6) Mr. Adil Minhaj, Iéarngd counsel for the appeliants, argued that the eye—Witnesses are not reiiable; Nohar Ram (P.W.7) is son of the deceased and Mantora Bai (P.Wi9) is wife of the deceased, therefore, they are interested witnesses; the. evidence of two other witnesses i.e. Omkar (P.W.10) & Chandaniai (P.W.1 1) are also shaky. 1 u ‘ (7)s On the other hand, Mr. U.K.S. Chandei, learned Panel Lawyer appearing on be‘half of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (8) ’ i have heard the learned counsel for the parties at length and have also perused the records of the Session’s Case. (9) Nohar Ram (P.W.7) is an injured eye-witness. He deposed that on the fateful day they were harvesting the crops of the disputed tield. The appellants came over the field and started quarreling with them. Appellants 1 to 3 were armed with “Tangiya”. After altercation, they assaulted his father by “Tangiya” and they also assaulted him. He also received injuries. He admitted to lodge the First information Report. The above evidence of Nohar Ram (P.W.7) is duly corroborated by the evidence of Mantora Bai (P.W.9), Omkar (P.W.10) and Chandanlal (P.W.11). The evidence zofN all the eye-witnesses, so far it relates to appellants 1 to 3,is intact and their evidence lead to irresistible conclusion that appellants 1 to 3 assaulted the deceased by “Tangiya”who received multiple injuries and succumb to those injuries. The Supreme Court has 4 Criminal Aggeal No. 1130/1 995 held in many cases 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 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 anjalyse evidence to tind out whether it is cogent and credible. i have carefully examined the evidence of above witnesses. The findings of the Sessions Judge relating to appellants 1 to 3 is based on sufficient material available on record and no interference is required in the above findings. A (10) So far as the appellant No.4 is concerned, though her name is mentioned in the F.l.R., promptly lodged by Nohar Ram (P.W.7) who was an injured eye-witness, but no overt-act is attributed to her. lt is simply mentioned in the F.l.R. that she also came with appellants 1 to 3 who assaulted the deceased in the above manner and at the time of the assault, she was standing near the place of occurrence. The above omission in the F.l.R. is fatal to the prosecution. Tghe F.l.R. has been lodged by an injured eye-witness, who has given details about manner of assaults by appellants 1 to 3. Had the appellant No.4 also participated in the assault, the description would have been there in the F.l.R. lt is not a ' case in which the appellants were convicted with the aid of Section 34 ‘ ‘lPCl. Therefore, in absenceeef any proof of common intention and looking . to the contents of the F.l.R., in which no overt-act has been attributed to 1 appellant No.4, the appellant No.4 cannot be held liable for punishment in this imatter. p Criminal Appeal No.. 1130/1 995 (11) For the foregoing reasons, the appeal is partly allowed. The appeal filed by appellants 1 to 3 is dismissed. The appeal filed by appellant No.4 is allowed and she is acquitted of the charges framed against her. Presently she is on bail her bail bonds are cancelled and surety stands discharged. Sd/— a \ Sunil Kumar Sinha Judge ff,—