HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANTS: (In Jail) RESPONDENT: Criminal Appeal No.350 of 2007 1. Bodhan Yadav, Son of Ghasi Ram Yadav, aged about 41 years, R/o Village Ghont, Distt. Raipur (C.G.) 2. Ghasi Ram Yadav Son of JagannathYadav, aged about 72 years, R/o Village Ghont, Distt. Raipur (C.G.) 3. Sattu @ Satyanarayan Son of Ghasi Ram Yadav, aged about 37 years, R/o Village Ghont, District Raipur (C.G.) 4. Krishna Yadav Son of Ghasi Ram Yadav, aged about 28 years, R/o Village Ghont, District Raipur (C.G.) 5. Bhuneshwar Yadav Son of Ghasi Ram Yadav, aged about 23 years, R/o Village Ghont, District Raipur (C.G.) 6. Harish @ hlarishchandra Son of Ghasi Ram Yadav, aged about 21 years, R/o Village Ghont, District Raipur(C.G.) 7. Chunuram Son of Mohan Lal Sonwani, aged about 48 years, R/o VillageGhont, District Raipur(C.G.) Versus State of Chhattisgarh, Through the Police Station Gevra Nawapara, Distt. Raipur {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. AshokVarma, counselfor appellants No.1 to6. Mr. Bhishma Kinger, counsel for appellant No.7. : Mr. Vinod Shrivastava, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar. JJ ORAL JUDGMENT (21-2-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence,,dated. 28-4-20p7 p^s^ed by.jt^,7 Additional Sessions Judge, Raipur in Sessions Trial No.397/2006s whereby & whereunderlearned Additional Sessions Judge after holding the appellants guilty for formation of unlawful assembly having its common object to commit murder of Nandkumar Yadav, convicted the appellants under Sections 147 & 302 read with Section 149 of the IPC and sentenced them to undergo Rl for six months and to undergo imprisonment for life & pay fine of Rs.500/- each, in default of payment of fine to further undergo Rl for three months, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecutiori, on the fateful day of 7-7-2006 at about 7 a.m. Nahdkumar Yadav (siticer'aeceasedJT was "ploughing his field, on account of enmityrelating to land, appellants Bodhan, Satyanarayan & Ghasi Ram came to the field, appellant Bodhan was holding cricket bat, appellants Satyanarayan & Ghasi Ram were holding stick, they opposed the act of Nandkumar, thereafter, appellant Bodhan assaulted Nandkumar upon his head by cricket bat as a result of which blood came out, thereafter, appellant Satyanarayan caught hold of Nandkumar and appellant Bodhan again assaulted him upon hisright leg& rightwrist by bat, some how Nandkumar rescued himselffrom the appellants and ran away. The aforesaid three appellants chased Nandkumar up to the field bfKartik Ram where appellants Bodhan & Ghasiram again assaulted Nandkumar over his head on which Nandkumar fell down, thereafter Bodhan snatched axe from Vishnu Yadav (PW-10) who was also present on the spot. At the same time, remaining appeltants Bhuneshwar, Krishna, Harish & Chunuram came with stick and in furtherance of common object of unlawful assembly, they assaulted Nandkumar by stick, bat and axe and caused his death. Immediately, Vishnu Yadav (PW-10) went to Police Station Gevra Nawapara and lodged merg vide Ex.P-43 and FIR vide Ex.P-44. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-2, prepared inquest over the dead body ofthe deceased vide Ex.P-3. Dead body was sent for autopsy to Assistant Surgeon, Nawapara, Rajim. Dr. S.K. Tiwari (PW-13) conducted autopsy vide Ex.P-48 and found following Injuries: - (1) Small lacerated wound 1 c.m. x V* c.m. x 14 c.m. over right ear. •€^^ .y^^ . "'^ y^-^ ff"^ §' &..^<-<^».. i "•^.. £ g) (2) Lacerated wound 4 c.m. x% c.m. over right temporal region. (3) Lacerated wound 4 c.m. x 1/^ c.m. x Vi c.m. over right temporal region. (4) Lacerated wound 2 c.m. x Vi c.m. x 7i c.m. over left temporal reglon. Bones underlying the aforesaid injuries were found fractured. Cause of death was severe head injury. During the course of investigation, accused Bodhan was taken into custody, he made discloser statement of bat vide Ex.P-5 and same was recovered at his instance vide Ex.P-12 along with axe and bloodstained clothes. Accused Sattu made discloser statement of stick and blood stained clothes vide Ex. P-6 and same were recovered at his instance vide Ex.P-13. Accused Ghasi Ram made discloser statement of stick and bloodstained clothes vide Ex.P-7 and same were recovered at his instance vide Ex.P-14. Accused Krishna made discloser statement ofstick& clothes vide Ex.P-8 and same were recovered at his instance vide Ex.P-15. Accused Harish made discloser statement of stick and bloodstained clothes vide Ex. P-9 and same were recovered at his instance vide Ex.P-16. Accused Bhuheshwar made discloserstatementofstickandbloQdstained dothes vide Ex.P-10 and samewere recovered at his instance vide Ex.P-17. Accused Chunuram made discloser statement ofstick and bloodstained clothes vide Ex.P-11 and same were recovered at his instance vide Ex.P-18. Accused were arrested vide Exs.P-19 to P-25. Pieces of bones of head of the deceased alohg wf 'hairs arid cliappaT were recovered vide Ex.P-28. One pair of chappal was seized from the spot vide Ex.P-29. Patwari prepared spot map vide Ex.P-33. Accused Ghasiram was medically examined vide Ex.P-34 and contusion of 3 c.m. x 3 c.m. was found on left forearm. Accused Bodhanwas medically examined vide Ex.P-35, but h6 ihjury was fbund'oh' tiis" persbri."'Sealed clbthes 6f the deceased were seized vide Ex.P-45, Seized articles were sent for chemical examination vide Ex.P-46. Vishnu Yadav (PW-10) was also medically examined vide Ex.P-49 and contusion of 2 c.m. x 2 c.m. was found over his right calf. The Investigating Officer prepared spot map vide Ex.P-51. . t-t'-,. H(.^:}. •<-f ;;-• •»<.--t .—••-• -:- .-^•-..••- •• - 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed against the appellants before the Courtof Judicial Magistrate First Class, Raipur •'f ^ ^^'^^%^ <^ x who committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the caseon transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as fourteen witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. Appellant No.7 Chunuram has taken defence that he is not related to the deceased or to appellants No.1 to 6, he has given evidence in Pawan murder case against deceased Nandkumar, Pardeshi Yadav and Vishnu Yadav (PW-10) and, therefQrei,9he^has 'been falsely implicated in the crime in question. Pawan was hisbrother. Deceased Nandkumar & Vishnu Yadav (PW-IO)are havihg inimical terms with the appellants, they have committed murder of his brother Pawan and on account of enmity they have falsely implicate him in the crime in question. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted &* sentenced the appellants as aforementioned. 8. Wehave heard learned counsel for the parties, perused the judgment impugned and recordofthetrjal Court."- - - , 9. Mr. Ashok Varma, learned counsel for appellants No.1 to 6, vehemently argued that appellants No.1 to 6 have not committed the aforesaid offence and they have been falsely implicated on account of enmity. Conviction is based on evidence of Bisauha Ram (PW-6), Vishnu Yadav (PW-10)& Renu (PW-11) who are interested and relative witnesses, theirevidence requires clo^e scrutiny. Theyare also having enmity with the appellants. As per their evidence, firstly three accused came and caused injuries, thereafter, remaining four accused came and caused ipjuries. But evidence of aforesaid witnesses is not corroborated by medical evidence and there is inconsistency in ocular and medical evidence. Therefore, evidence of interested witnesses are not safe to rely. 10.Mr. Bhishma Kinger, learned counsel for appellant No.7, submits that appellant No.-7 Chynuram is.by casteSatnamiandotherappellants are by caste Yadav, appellant No.7 Chunuram was not having any enmity \::- ^- with Nandkumar he was only witness in Pawan murder case against deceased Nandkumar, Vishnu Yadav (PW-10) & Pardeshi Yadav, and on account of his evidence in Pawan murder case, he has been falsely implicate in the crime in question. 11.0n the other hand, learned State counsel opposed the appeal and submitted that evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellants have formed unlawful assembly having its common object to commit culpable homicide amounting to murder of Nandkumar and in furtherance of common object of the unlawful assembly, they have caused homicidal death of Nandkumar. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellants as aforementioned. 12.1norder toappreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 13.1n the present case, homicidal death of deceased Nandkumar as a result df fatal injuries found over •htil6"body'has not been substahtially disputed on behalf of the appellants,otherwise also, same is established by the evidence of Dr. S.K. Tiwari (PW-13) and autopsy report Ex.P-48 which reveal that three fatal injuries were found over head andone corresponding injury was also found over ear of the deceased which furthei" reveals that three assaults have been made upon the deceased at the time of causing such injuries and that death of Nandkumar was homicidal in nature. 14.As regards complicity of the appellants in the crim^ in question, conviction is substantialjy b^ase^on theeyidence pf Bisa^ha Ram (PW- 6), Vishnu Yadav (PW-10) & Renu (PW-11). 15.Bisauha Ram (PW-6) has initially not supported case of the prosecution and the prosecution has declared him hostile. In para 3 of his cross- examination he has deposed that initially while deceased Nandkumar & Vishnu Ya'dav (PW-10)'"were"pbughin9 the field, appellants Bodhan, Ghasi Ram & Sattu came with bat & stick, they quarrelled with Nandkumar and he fled from the spot. This part of evidence is un- rebuttedin his cross-examination. "^ .;..^'¥—7,'^ ffess.'! ^-•^A- ^ c. b-^' 16.As per evidence ofVishnu Yadav (PW-10) - son of Pardeshi Yadav and brother of Nandkumar, initially appellants Bodhan, Sattu & Ghasi Ram came to the field, Bodhan was having cricket bat and remaining accused were having sticks, they assaulted Nandkumar over his head, thereafter, Sattu caught hold of Nandkumar and Bodhan assaulted Nandkumar on hisleg & wrist, at the same time, Nandkumar fled away then all the accused chased him andassaulted him. Bodhan assaulted over head of Nandkumar.by bat on which Nandkumar fell down, thereafter Bodhan snatchedaxe from this witness and at the same time remaining four accused came and all the appellants assaulted Nandkumar by stick, bat & axe. Evidence of this witness is substantially corroborated by evidence of his sister namely Renu (PW-11) -14 years' aged witness. As per her evidence, all the appellants have caused injuries to Nandkumar by stick and after hearing the sound of quarrel when she came near the place of incideht; she had seen the incident. As per para 3 of herevidence, when she reached to the spot, body of Nandkumar was lying and Vishnu Yadav was standing near the place of incident. In para 5 she has admitted that she has deposed as told by her brother& sister. 17.Vishnu Yadav (PW-10) & Renu (PW-11) are relatives of the deceased having enmity with the appellants, but their evidence cannot be discarded only on the basisof their relation or inimical terms. Their evidence requires scrutiny with deepcare and caution. 18.0rdinarify,acloserelativewouldbe-thelasttoscreentherealculpritand falsely implicate an innocent person. While dealing with the question of evidentiary value of the relative witnesses, the Supreme Court in the matter of Dalip Singhand bthers v. The 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 accysed, towisli-tQ implicate him falsely. Ordinarily, a close relation wpuld be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause 1 AIR 1953 SC 364 ^^', .< g . ^^^^^;. 1 , for enmity, that there is atendency to drag in an innocent person against whom a witness has agrudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being afoundation 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." 19.While dealingwith same question the Supreme Court in the matterof Mohabbatand Ors. v. State of M.P. has held that relationship is not ground toaffectcredibilityQf-witoess.-foundationhasto be laid if plea of false implication is raised. Para 7 ofthe said judgment reads thus, "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the 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 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. Relationship is not a factor to affect credibility of a witness. It is moreoften than not that a relation would not conceal actuat culprit and make allegations against an inhocent person. Foundafion has to belaid 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." 2Q.Statements of the relative witnesses cannot be discarded only on the ground of their.r-e|atipnship,.^Tt-Le Courts are reqyired to scrutinize their evidence with great care and caution. 21.While dealing with the question of evidentiary value of interested witnessesand needof deep scrutiny, the Supreme Court jn the matter of Ramanand Yadav v. Prabhu Nath Jha and others has observed in para 15 that "But at the same time ifthe relatives or interested witnesses are examined, the Court has a duty to analyze the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility 22009 AIR SCW 1486 3AIR2004SC1053 't 8 towards the accused foundation for the same has to be laid. If the materials show that there is partisan approach, as indicated above the Court has to analyze the evidence with care and caution." 22.While dealing with same question in the light of relationship, the Supreme Court in the matter of Mst. Dalbir Kaurand others v. State of Punjab has held in para 13 that "A close relative, who is a verynatural wjtness in the circumstances of a case, cannot be regarded as an 'interested witness'. The term "interested" postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or theother convicted either because had some animus with the accused or for some other reason." 23.While dealihg with'!same q'uestT6n'nthe Supreme Co^^^ in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar5 has held that relationship per se does not affect credibility ofwitness; merely because witness happensto bea relative of victim of crime, he/she cannot be characterized as "interested" witness. The Supreme Court has observed in para 7 as follows: - "........even otherwise itwill beerroneous 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- ^, cannpt be reljed upon_ unless corroborated by •J"t't:--;.-<-^-:i-.^<';<-^_^^itt-_at?^^UQ^_^>-_^^.^--L-:^.^ _;__'_r^ .' ' ' public witnesses. Insbfar as the question of credit- worthiness of the evidence of relatives of the victim is concerned, it jswell settled that though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on thesole groundof 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 Qr.fQr.sqmejDther obliciye^motiye/'. 24.1n the matter of Sandeep v. State of Haryana the Supreme Court has held that in casewhere victimand accused are known to witness, his 4AIR1977SC472 5AIR 2008 SC 2436 6AIR2001 SC 1103 .^S^K: 9 evidencewould be material andcannot be criticized on ground that as witness was knowing the father of the accused, he is interested witness. 25.1n case ofinterestedor inimical witnesses the Court is required to scrutinize their evidence with greatcare and caution. 26.As per evidence of aforesaid witnesses, firstly three persons came, thereafter, four persons came and they have assaulted the deceased causing his death. This shows that all appellants have formed unlawful assembly. In case of formation of unla^A^ul assembly, once it is proved that unlawful assembly is formed, every member of the assembly is liable for the act of each member or the act of all members ofunlawful assembly and no separate act or overt act of any member is required to be proved. 27.1n the presentcase, Vishnu Yadav (PW-10) & Renu (PW-11) are relative witnesses. As per evidence of Bisauha Ram (PW-6), three accused were present on the spot.even as per evidence of Vjshnu Yadav (PW- 10), three appellants namely.Bodhan, Sattu & Ghasi Ram were present on_the spot, the.^were holdir^g, ^ba.t ^.stipk and they hav^ assaulted the deceased. As per autopsy report Ex.P-48 and evidence of Dr. S.K. Tiwari (PW-13), three fatal injuries were found over head of the deceased with corresponding injury over ear which reveals that three assaults have been made upon the deceased. Vishnu Yadav (PW-10) has lodged merg and FIR within 45 minutes of the incident vide Exs.P-43 & P-44, respectively. As per merg Ex.P-43 and FIR Ex.P-44, aforesaid three appellants firstly reached to the spot, Bodhan was holding cricket bat and remaining two accused were holding sticks, and on account of some dispute firstly Bodhan assaulted Nandkumar by bat over his head from backside, thereafteF, Sattu caught hold of Vishnu Yadav and assaulted upon his right leg & right wrist at that time Nandkumar rushed towards the village. Aforesaid three appellants chased Nandkumar and took him to the field of Kartik Ram. Appellant Bodhan again assaulted Nandkumar by bat over his head and appellant Ghasiram assaulted Nandkumar by stick over his head. When the deceased fell down, remaining four accused came and assaulted him. As per Exs.P-43 & P- 44, immediately lodged merg & FIR, three major head injuries were caused by Bodhan & Ghasiram in sharing common intention with Sattu. Injury found over earof deceased Nandkumar was corresponding injury ^ ^: 10 to the aforesaid injuries. As per medical evidence, no injury was found over back or other parts of the body of the deceased which excludes the possibility of causing injury by seven persons or after causing aforesaid three injuries, by any of the accused persons. Vishnu Yadav (PW-10) & Renu (PW-11) are relative witnesses and their evidence requires minute and deep scrutiny. Their part of evidence corroborated by the promptly lodged merg Ex.P-43 and FIR Ex.P-44 reveal that appellants Bodhan, Sattu & Ghasi Ram were initially present on the spot, they were holding bat & stick, Bodhan & Ghasi Ram have caused injuries to Nandkumar and Sattu was assisting them. Evidence relating to causing injury by four accused namely Krishna, Bhuneshwar, Harish & Chunuramafter falling down of Nandkumar does not find support from medical evidence. 28.1nthese circumstances, evidence ofaforesaid witnesses is not reliableto the extentof causing jnjyry< by seven persons after falling down of Nandkumar, but their entire evidence cannot be discarded. Evidence of aforesaid witnessescorroborated by the promptly lodged FIR Ex.P-44 & merg Ex.P-43, medical evidence and evidence of Bisauha Ram (PW-6) are sufficient for drawing inference that appellants Bodhan & Ghasi Ram have caused homicidal death of Nandkumar in sharingcommon intention with appellant Sattu. 29.After appreciating the evidence available on record, learnedAdditional Sessions Judge convicted & sentenced the appellants in the aforesaid rpanner, but has not considered the evidence of aforesaid interested and :•••.••...'/-.":-"' - • - ••••;-":---^ •:'-i.-.y;-.:-':y.. ^;--••••'--. .... -..•'• -' .'.••- .-....• ••-....•-... inimical witnesses, especially their first version to the police vide Exs.P- 43 & P-44 which are well corroborated by medical evidence, and thereby committed illegality. 30. For the foregoing reasons, the appeal is partly allowed. - <1) Gonviction & sentences-imposed- upon appellants Krishna Yadav, BhuneshwarYadav, Harish @ Harishchandra & Chunuram under Sections 147 & 302 read with Section 149 of the IPC are hereby set aside and they are acquitted of the said charges. They be set at liberty forthwith,if not required in any othercase. (2)Conviction & sentence imposed upon appellants Bodhan Yadav, Ghasi Ram Yadav & Sattu @ Satyanarayan under Section 147 of the IPC are hereby set aside and they are acquitted of the said charge. t'" ^^^••^ ^., Soma 11 (3) Conviction of appellants Bodhan Yadav, Ghasi Ram Yadav & Sattu @ Satyanarayan under Section 302 read with Section 149 of the IPC is set aside, instead thereof they are convicted under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life & pay fine of Rs.500/- each, in default of payment offine to further undergo Rl for three months. (4)Appellant Ghasi Ram Yadav has been granted bail videorder dated 7-12-2009, he shall surrender himself immediately before the Court of 7 Additional Sessions Judge, Raipur in Sessions Trial No.397/2006 forserving remaining sentence. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^