A(^^ 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.708 of 2003 Mutur Ram & another - Versus - State of Chhattisgarh Criminal Appeal No.770 of 2003 Ramsai - Versus - State of Chhattisgarh Criminal Appeal No.896 of 2004 TulSai - Versus - State of Chhattisgarh Criminal Appeal No.1062 of 2004 Kunwar Say - Versus - State of Chhattisgarh AND Criminal Appeal No.1066 of 2004 Jadu Ram and another - Versus - State of Chhattisgarh JUDGMENT FOR CONSIDERATION HON'BLE MR. JUSTICE R.L. JHANWAR 9 <^ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge Post for pronouncement of iudament on 27 November. 2009 Sd/- T.P. Sharma Judge A-e^- HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: APPELLANTS: (In Jail) RESPONDENT: APPELLANT: (In Jail) RESPONDENT: APPELLANT: (In Jail) RESPONDENT: APPELLANT: (In Jail) RESPONDENT: DIVISION BENCH HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.708 of 2003 1. Mutur Ram S/o Sukh Ram aged about 35 years. 2. Dinesh Kumar S/o Mutur Ram aged 20 years. Both are Resident of village Adchi Police Station, Darima Distt. Sarguja (C.G.). Versus State of Chhattisgarh, through Police Station Darima Distt. Sarguja (C.G.). Criminal Appeal No.770 of 2003 Ramsai S/o Late Shri Shital aged 62 years, village Adachee Thana Darima, Distt. Sarguja (C.G.) Versus State of Chhattisgarh Criminal Appeal No.896 of 2004 Tul Sai S/o Sukhram aged about 35 years, Residence of Village Adchi, Police Station Darima, Distt. Sarguja (C.G.) Versus State of Chhattisgarh, Through Police Station Darima, Distt. Sarguja (C.G.) Criminal Appeal No.1062 of 2004 Kunwar Say s/o Sukhram, aged about 55 years, Occupation Labour, r/o Father's house, at village Adawi, P.S. Darima, Distt. Surguja, C.G. Versus The State of Chhattisgarh, through P.S. Darima, Distt. Surguja, C.G. AND Criminal Appeal No.1066 of 2004 APPELLANTS: (InJail) RESPONDENT: 1. Jadu Ram S/o Kunwer Sai aged 30 years. 2. Pater Say /o Kunwer Sai aged 30 years. (Both are resident of Village, Adchi P.S. Darima Distt. Sarguja C.G.) Versus State of Chhattisgarh {Criminal appeals under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. M.K. Baeg, counsel for the appellants in Cr.A.Nos.708/2003, 896/2004 & 1066/2004. Mr. Sanjay Agrawal, counsel for the appellant in Cr.A.No.770/2003. Mr. Shakti Raj Sinha, counsel forthe appellant in Cr.A.No.1062/2004. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. JUDGMENT (27th November, 2009) The followina iudament ofthe Court was passed bv T.P. Sharma. J: - 1. Since ali the aforesaid criminal appeals are arising out of the same judgment ofconviction & order of sentence dated 14-5-2003 passed by the 2nd Additional Sessions Judge, Ambikapur, in Sessions Trial No.315/2001, they are being disposed of by this common judgment. 2. Challenge in these appeals is to the judgment of conviction & order of sentence dated 14-5-2003 passed by the 2nd Additional Sessions Judge, Ambikapur, in Sessions Trial No.315/2001, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of offence under Sections 148 & 302 read with Section 149 of the I.P.C., sentenced each of them to undergo R.l. for three years and to undergo imprisonment for life & pay fine of Rs.10,000/-, in default of payment offine to further undergo R.l. for three years, respectively. 3 3. Case of the prosecution, in brief, is that on 18-7-2001 at about 12 noon Rameshwar (since deceased) was sitting in his house with his wife Baso Bai (PW-2), daughter-in-law Kamla Bai (PW-1) & Raitlo Bai (PW-3), after taking meals. Accused Tulsai chased the mother of Baso Bai (PW-2) namely, Suari Bai for assaulting her, Suari Bai fled away from her house and went inside the house of the deceased. The deceased and his wife Baso Bai (PW-2) intervened and objected accused Tulsai. Other accused Ramsai, Kunwar, Jadu, Pater Sai, Mutur & Dinesh also came, they were holding axe and they dragged deceased Rameshwar from his house and assaulted with axe & stick. Accused Kunwar assaulted deceased Rameshwar with axe on his head. Other accused Tulsai, Mutur, Jadu, Ramsai, Pater & Dinesh assaulted the deceased with stick and caused injury over right leg, left leg, back & waist. Raghu Gond, Shahi Gond, Bigan Gond & Bhagu Seth had seen the incident. Wife of the deceased Baso Bai (PW-2) went to Police Station Darima, 18 kms. away from the place of incident, and lodged the report within 4 % hours vide Ex. P-1. Injured Rameshwar was taken to the Police Station and to the hospital. He was examined by Dr. J.K. Jain (PW-11) & Dr. O.P. Shrivastava (PW-12) vide Ex.P-SA. The injured was unconscious, his blood pressure was 108/80 m.m.; pulse was 68 per minute; pupils were diluted and not reacting; blood was coming from the mouth and injuries were present over the body. There was a lacerated wound over left side of head and injured Rameshwar was admitted in hospital for treatment. During treatment, he died on 19-7-2001 at 6.30 a.m.. Death of Rameshwar was intimated by the doctor to the Police Station and on the basis of said intimation, merg was recorded. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-22, inquest over the dead body of Rameshwar was prepared vide —'T^. 5^-:)1 Ex.P-23. The dead body was sent for autopsy to Drstrict Hospital, Ambikapur vide Ex. P-2 and autopsy was conducted by Dr. B.P. Chandra (PW-4) vide Ex.P-2 who found following injuries: - (a) Stitched wound over left frontal region of scalp witl-i swelling over fronto parietal region. (b) Swelling over left cheek. (c) Both eye lids were swollen and black. ' . (d) Dry blood clot over nostril and mouth. (e) Multiple depressed fractures of both parietal and frontal bones. (f) Membraneof brain was ruptured. , (g) Sub-dural haematoma was found. Injuries found over the head were dangerous to life and cause of death was coma as a result of sub-dural haematoma and brain damage resulted from injury. Death was homicidal in nature. Spot map was prepared by the Investigating Officer vide Ex.P-34. Bed head ticket of the deceased was seized vide Ex.P-35. Patwari prepared the spot map vide Ex.P-38. The accused persons were taken into custody. Accused Tulsai made disclosure statement of stick vide Ex.P-3 and on the basis of the same, stick was recovered at his instance vide Ex.P-4. Accused Pater Sai made disclosure statement of stick vide Ex. P-5 and on the basis of the same, stick was recovered at his instance vide Ex.P-6. Accused Kunwar Sai made disclosure statement of axe vide Ex.P-7 and on the basis of the same, axe was recovered at his instance vide Ex.P-8. Accused Jadu Ram made disclosure statement of stick vide Ex.P-9 and on the basis of the same, stick was recovered at his instance vide Ex.P- 10. Accused Mutur Ram made disclosure statement of stick vide Ex.P- 11 and on the basis of the same, stick was recovered at his instance vide Ex.P-12. Accused Dinesh made disclosure statement of stick vide EX.P- 36 and on the basis of the same, stick was recovered at his instance vide Ex.P-13. Accused Ramsai made disclosure statement of stick vide EX.P- / •p9UOffU9tU9JOje se 8}ue||9ddB 941 peouaiues ^ pepjAuoo eBpnp suoisses leuoftjppv p9UJB9| 'sejijed 941 0} Buueeq jo Aiiunijoddo Buipjo^e jeyy '9 •lOdS 9L|l UO »U9S8jd SGM pesnooe ou ^nq 'uoftipuoo pejnfuj ui luesQjd SBM jeML|S8iuey ejsqM lueppuj jo eoe|d Q{\} 0} IUOM 8|-| •jeMi<89iuey pueqsnq jey peiinesse QAeq suosjed pesnooe xjs 6ujuieiu8j jesiuey pesnooe ideoxe IBLJI p9LUJojui pue luiq o} eujeo leg oseg IBL|I pesodep seq (z-MQ) luejnBeiig •jeifio qoee q^iM pejjajjenb Ae^ qoiqM uo jes|ni pesnooe Buiijnesse SBM JBM4S8lUey p98B939p ^Bqi p8SOd8p §64 ((.-MQ) JBMun>| uog •g •80U9^8p ji9L|i u.i (z-MQ) ujejn6e4g '? (1--MQ) JBMUn>1 UOS P9UIIUBX9 ©Aeqsuosjed pesnooe 941 •uojieoijdujj 98|e^ pue 93U900UU! p9iuie|o ' 01941 isuieSe Buueedde seoueisujnojp e^ peiuep Aeqi qo|L|M Uj •Q-d'JO 841 P gi.g uojioes J9pun peuiiuexe ejQM suosjed pesnooe 941 -sesssuiiM ueovnoj se AUBUJ se psujiuexs seq uojinoesojd QLJI 'siueijsdde 941 jo i|jn6 eqi ©Aojd o» jepjo u| •^ •IBUI jo^ JQ^SUBJI uo eseo QU^ peAieoej jnde)|jqujv 'eBpnp SUOISS9S leuoiiippv puZ 941 ejeqM uioj^ 'jnde^jiqujv 'SUOJSSQS p ijnoo ©q»01 eseo 9L|i psniiuLUoa ujni uj oqM 'jnde^iqujv '©lejisjBe^ lepjpnp pjqo 941 ejopq p©|y SBM ^eqs ©Bjeqo 'uoiieBiiseAui jo uoiiQidujoo jsyy 'Cg-d oVLZ-d 'VQZ-d'sxa epjA jo»oop941 Aq peuiiuexe 9J9M 91UES 94» PUB V€€-do» YZZ-d 'QZ-d'sxg 9piA uoiieuiiJUBxe JOJ JOpOp 9^ 01 IU8S 9J8M SSpjlJe p9Zj8S 'O'd'-IO SMI P ^9^ uojioes jepun pepjooej QJOM SOSSQUIIM 9^ jo siu9uj9teis "IZ-d 01 si. ^-d"SX3 SOIU8LU »S9JJB QpjA p9»S8JJB 9J9M suosjsd pesnooe ©qi•^i.-d'xg /apjA 9oue^u{ siti ^e p9J9A009J SBM ^)\}'s 'eujBS eqi jo sjseq 8L|i uo pue ze '(.'•. 7. We have heard learned counsel for the parties, perused the impdgned judgment and record ofthe trial Court. 8. Mr. M.K. Baeg, learned counsel appearing on behalf 6f Mutur Ram, Dinesh Kumar, Tul Sai, Jadu Ram & Pater Sai, vehemently argued that even according to the first information report these accused/appellants were not holding any weapon, they have not caused any injury and fatal injury was caused only by Kunwar Sai over the head of the deceased resulting into multiple fracture of head, therefore, these accused/ appellants are not liable for commission of the homicidal death of Rameshwar amounting to murder. Bald and omnibus statements of Kamla Bai (PW-1), Baso Bai (PW-2) & Raitlo Bai (PW-3), who are close relatives of the deceased viz., daughter-in-law, wife & mother-in-law, respectively, are not safe to rely upon in absence of corroboration from independent sources. Statement of Raghu Gond (PW-8) is also not safe to rely upon. Mr. M.K. Baeg further argued that it appears that intention of the appellants was to cause grievous hurt and if some body has exceeded the same, only the person who has exceeded the same is liable for commission of murder and the remaining persons are not liable for commission of murder with the aid of Section 149 of the I.P.C. He placed reliance in the matter of Jamna and others v. State of U.P.1 in which the Apex Court has held that common intention of unlawful assembly was to cause grievous hurt and if anybody exceeds the same, he or they would be liable for their individual acts. 9. Mr. Sanjay Agrawal, learned counsel appearing on behalf of Ramsai, supported the arguments advanced by Mr. M.K. Baeg and argued that Ramsai has not caused any injury to the deceased. Bhaguram (DW-2) has specifically deposed that Ramsai was not present on the spot. 1AIR1994SC79 "o/ '..[ 10.Mr. Shakti Raj Sinha, learned counsel appearing on behalf of Kunwar Sai, vehemently argued that accused/appellant Kunwar Sai has not caused any injury to the deceased. According to the case of the prosecution, accused Kunwar Sai was holding axe, but no incised wound was found over the body of Rameshwar. This shows that accused Kunwar Sai has not inflicted any injury with axe and he was not holding the stick, therefore, he is not liable for causing any injury to Rameshwar or for causing the death of Rameshwar. Mr. Shakti Raj Sinha further argued that accused Kunwar Sai has been falsely implicated in the crime in question. He also argued that Kunwar Sai is in custody since 26-7- 2001, thereby he is in custody for more than eight years. 11.0n the other hand, learned State counsel vehemently opposed the appeals and argued that the prosecution has proved its case beyond all reasonable doubts. Case of the prosecution rests on the direct evidence of relative eyewitnesses Kamla Bai (PW-1), Baso Bai (PW-2) & Raitlo Bai (PW-3) whose presence at the time of incident was natural. The statement of independent eyewitness Raghu Gond (PW-8) is sufficient for drawing inference that the appellants are the persons who have caused the homicidal death of Rameshwar amounting to murder. 12.1n order to appreciate the contentions of the parties, we have examined the evidence adduced on behalf of the parties. 13.1n the present case, homicidal death of Rameshwar is not substantially disputed by the appellants, otherwise also it is established by the evidence of Dr. B.P. Chandra (PW-4). Dr. J.K. Jain (PW-11), Dr. O.P. Shrivastava (PW-12), report Ex.P-26A, bed head ticket Ex.P-SA and autopsy report Ex.P-2. Dr. O.P. Shrivastava (PW-12) has deposed that he has examined unconscious injured Rameshwar on 18-7-2001 at 4.20 8 p.m. and found the injuries as mentioned above. Dr. J.K. Jain (PW-11) has deposed that injured Rameshwar was admitted in his hospital on 18- 7-2001 at 6 p.m. and on the next day morning he died. Dr. B.P. Chandra (PW-4) conducted autopsy on the dead body of Rameshwar and found the injuries mentioned in para 3 of this judgment. He has stated that the head injury sustained by the deceased was sufficient for causing his death and the death was homicidal in nature. These facts are sufficient to establish that the deceased died as a result of fatal injuries sustained by him and the death was homicidal in nature. 14.1n order to establish complicity of the accused/appellants in the crime in question, we have examined the evidence of the witnesses. 15.Baso Bai (PW-2), wife of deceased Rameshwar, who has lodged the report Ex.P-1, has deposed in her evidence that on the fateful day, her husband deceased Rameshwar, her daughter-in-law Kamla Bai (PW-1) and herself were sitting in the verandah.accused Tulsai was chasing and assaulting her mother, her mother came to her house and her husband deceased Rameshwar asked Tulsai as to why he is assaulting the old woman, then accused Dinesh was also present and he called the remaining accused persons. Accused Kunwar Sai was holding axe and the remaining accused persons were holding sticks. Accused Ramsai told other accused persons to drag out Rameshwar and kill him. Accused Tulsai dragged Rameshwar with the help of a g»mcha(a kind of towel). Accused Ramsai assaulted Rameshwar with stick on which Rameshwar fell down, thereafter, accused Kunwar Sai assaulted Rameshwar with axe and the remainingaccused assaulted him with stick and caused injury over head, chest & different other parts of the body. She (PW-2) & her daughter-in-law Kamla Bai (PW-1) tried to intervene on which the accused persons dashed them. When her husband asked ^ for water, she came with water which was thrown out by accusec Dinesh. She shouted for help but nobody came to her rescue. Thereafter, Ramsai told other accused persons that Rameshwar has expired whereupon they fled away from the spot and went inside the house of Ramsai. She called the villagers and took her husband to Police Station Garima where she lodged the report vide Ex.P-1. Thereafter, she took her husband to the hospital and during the course of treatment, he died. 16.Kamla Bai (PW-1), daughter-in-law of the deceased, has corroborated the version of Baso Bai (PW-2) and Raitlo Bai (PW-3) has corroborated the versionsof Kamla Bai (PW-1) & Baso Bai (PW-2). 17-Raghu Gond (PW-8) has deposed in his evidence that on the fateful day he was sleeping in his house and after hearing the sound of quarrel, he came out from the house, at that time, the accused persons were assaulting Rameshwar with stick and axe, he did not intercept the incident and quarrel on the fear that they may assault him also. Rameshwar became unconscious, they took him to the Police Station by auto and from there they took him to Ambikapur hospital wi.ere he died. 18.The accused persons have also examined the evidence of Son Kunwar (DW-1) & Bhaguram (DW-2). Son Kunwar (DW-1) has deposed that on the fateful day deceased Rameshwar was dragging accused Tulsai with the help of a towel, Kuha Bai & Kamla were also present there. Tulsai pushed and threw the deceased and both the persons quarrelled with each other. Being a old woman she had not intercepted the quarrel. Accused Pater, Jadu, Kunwar, Dinesh & Mutur also came ihere, Kunwar was holding stick and he assaulted the deceased with stick. Ramsai was not present at the time of incident and he came later on. Baso Bai & 10 Raitlo Bai abused accused Ramsai. This witness (DW-1) has specifically deposed that except Kunwar Sai nobody has assaulted the deceased. In her cross-examination, she has admitted that after hearing the sound of quarrel she reached to the spot. She has also admitted that when Ramsai came he was present on the spot. She has further deposed that Ramsai came after the incident. She has admitted in para 10 of her evidence that when she reached to the spot, accused persons Tulsai, Jadu, Mutur, Pater, Kunwar & Dinesh were assaulting deceased Rameshwar, but she has deposed that nobody has assault^d Rameshwar with axe. Rameshwar became unconscious as a result of the injuries sustained by him. In para 14 of her cross-examination, she has again deposed that accused Jadu, Mutur, Pater & Dinesh were watching the incident like her and they have not assaulted the deceased. 19.It appears from the evidence of Son Kunwar (DW-1) that she has tried to support Ramsai, but she has admitted the presence of all accused though according to her evidence, Ramsai came later onand in para 10 ^:. she has deposed that accused Tulsai, Jadu, Mutur, Pater, Kunwar & Dinesh assaulted Rameshwar, however, in para 14 she has deposed that they have not assaulted Rameshwar. Her evidence is full of contradictions. At one place she states that the accused persons had assaulted Rameshwar and at another place she denies the same. Her evidence shows that no reliance can be placed upon the same. 20.Bhaguram (DW-2) has also deposed that he was informed by Baso Bai that except Ramsai other six accused persons have assaulted her husband and after ten minutes, Kamla Bai also came and told him that the quarrel has completed on which he went to the spot, Rameshwar was present in injured condition. but no accused was present there. He has further deposed that Baso Bai told him that six accused persons jjj^ Mfifi 11 have assaulted her husband, but Ramsai has not assaulted her husband. In his cross-examination, he has admitted that he has not seen the incident. He has admitted in para 8 of his evidence that he had informed the Police at the time of recording his statement that accused Kunwar, Mutur, Tulsai, Jadu, Pater & Dinesh have assaulted Rameshwar. He has denied the suggestion that Rameshwar was present and he has not assaulted the deceased. This witness (DW-2) has not seen the incident, but he has deposed on the basis of the information given by Baso Bai (PW-2) who told him that except Ramsai, remaining six accused persons have assaulted her husband. 21.According to the evidence of Bhaguram (DW-2). Baso Bai (PW-2) has informed that except Ramsai, remaining six accused persons have assaulted her husband which itself is unnatural. In case of any inddent, the witness may narrate the incident that somebody has assaulted or somebody has taken part in the incident, but without any cause it is difficult to hold that anybody will say that 'X' has not assaulted and other persons except 'X' had assaulted. However, this part of thQ statement of Bhaguram (DW-2) has not been supported by Baso Bai (PW-2). This negative statement shows that accused Ramsai has also participated in the inddent, but this witness (DW-2) has tried to help and save Ramsai. 22.Kamla Bai (PW-1), Baso Bai (PW-2) & Raitlo Bai (PW-3) are close relatives ofdeceased Rameshwar. Kamla Bai (PW-1) is daughter-in-law, Baso Bai (PW-2) is wife and Raitlo Bai (PW-3) is mother-in-law of the deceased. They are close reiatives of the deceased, but their evidence cannot be discarded on the ground that they are relative witnesses. 23.0rdinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the question of a-" 12 » evidentiary value of the relative witnesses, the Apex Court in the matter of Dalip Singh and others v. The State of Punjab2 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 relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings ryn 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. Our 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." 24.While dealing with the same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar3 has held thus, "..... Jt 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 relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public 2AIR1953SC364 3 2008 AIR SCW 3739 13 witnesses. Insofar 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 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." 25.While dealing with the same question, the Apex Court in the matter of Hari v. State of Maharashtra4 has held that relationship by itself cannot be ground to discredit the evidence of eyewitnesses relatives of deceased, more so, when deceased was murdered by his cousin (relative). Paras 21, 22 &23 of the said judgment read thus, "21. It may be true that all the vital witnesses, namely, PW1, 2 and 8 are relations of the deceased but that by itself cannot discredit their evidence. It is a fight between the relations it has come on record that the appellant is the cousin of the deceased. In such a case, the relations are likely to be the most appropriate witnesses. 22. Certain decisions have been cited at the Bar which need to be considered and explained. About appreciation of evidence of witnesses who are related to the deceased, learned counsel for the appellant relied on a dedsion of this Court in Avtar Singh vs. State of Punjab, (2006) 12 SCC 524. In that case the facts were totally different and it was opined by the learned 4 2009 AIRSCW 2250 14 Judges, in the peculiar facts of that case, that enmity and bad blood between the rival groups was established beyond doubt. In that case no report was lodged with the police regarding the occurrence and this Court looked into the evidence and opined that the story about making an effort to lodge a report earlier was not true. In that case the