^ HKsHCOygT.OFuHHATTiSGARHAXBil.ASPUR DlviSsON BENCK: •"r^p^K^ • \/^itfi . ^Hon'bie Mr.T.P.Shsrma & Hon'bis Mr.R.L.Jhamvar. «wi««3tiiV»-<a<, w •:^^^^32:^ r-lt^irfdisai Criminai Apiseai No.S72 of 2003 Satjan S/o Gogeram, aged about 25 years, R/o Viltaes-Rajapur. Potlcs Station Ramanujnagar, District Surguja C.G.) Vs. .'! . State of Qhhattisgarh Through Police StaSion Ramanujnagar, Dlstt. Surguja ir't-.y.). (CrimjRal Appeal under Section 374(2) of Cr.P.C.) Present: Mr.L.C.Das, counsei forthe appsiiant. Mr.Ashlsh Shukia, Govt.Advocate for the Stats. ORAL JUDGMENT (Passed on 18"' OcSober, 2010) T.P.Sharma. J, 2. Chaiienese in this appeal is to the ludgmsnt of conviction & order of senteRce datsd 1S.2.2003 passed by the Additionat Sessions Jucge, Surajpur, in Sessions Triai No.268/2002, vvhereby & whereunder iearnsd Adci'.tlonai Sessions Judge whiie acquitting five accused/reistives of the appsiiant ana after hoidlng sppeiiant SaDan guiity for commission of cuipabie homicide of Manmafi (since dscsased) amoynting to murder convicted him under Section 302 of the I.P.C. and sentenced to undergo imprisonment for iife and to pay fine of Rs.500/, in defauit of paymsnt of fine to furiher undsrgo R.i. for frwo months. Conviction is chaiienged on ihe ground that wlthout thsrs bsing any iota of evsdence, ths trial Court has convlcted & sentenced ths appeliant as aforementioned and thsre&y commiStsd iiiegajsty. Case of the orosecution, in brief. is that on account of i-^.-.ft- ^ t of rice and some other artides by unknown persons, deceassd Manmat! was abusing ihs persons who had committsd thefi of her articies. On the basis of suspteipn that Msnmati is abusing ths appeiiant and his rsiaiives, relatsves of ths appeiiants (acquitted sccused persons) assauited her on 29.3.2002 i-^^SaliSBSSif ^SSSSW^ about 7 a.m. and Shersafter, st evensng time at about 5 p.m. the appeiiant aiong with other accused persons came to fhe house of Manmati (since dscsased), dragged her near Mahuwa tree snd assaulted her by stsck. She became unconscicus. Her husband Ramcharan (PAi-1) took her from the spot to ths Potic's Station and hospitai and iodged the F.i.R. vide Ex.P/1. Durtng the course of trsatment at Ramanujnagar hospitai, she d';ed on 31.3.2002. Merg was rscorded vids Ex.P/18. Shs was examined by Dr.H.P.Singh (PW-8) vide Ex.P/20 on 31.3.2002. She was unconscious. No visibis iRjury wqs seen on that day. She was admittsd In hospital for treatment. Husband ofthe deceaseci Ramcharan was aiso exafnlnsd by Dr.H.P.Singh (PW-8) vide Ex.P/21 and found I-KO injuries. Aftsr death of Manmati, the potice has summoned the witnesses vide Ex.P'2 ancs prspared ths inquest over the ciead body of iVianmati vide Ex.P/3. Dead body of Manmati was ssnt for autopsy to Community Heaith Centre, Ramanujnagar Vide Ex.P/19. Autopsy was conducted by Dr.D.K.Vishwatarma (PVV-19A) and found foliowing injuries:- i) SwelSing ovsr right cheek of 4 cm. x 3 cm. i'.) Sweiiing over occipita! region of 9 cm. x 7 cm. iii) Abrasion over teft hand of 1.5 cm. x 1 cm. iv) Contusion over ieft side of the back of 6.5 cm. x 2 cm. v) Abrasion ovsr rsght thigh of 4 cm. x 2 cm. vi) Hsamotoma was found inside the brsin. Brain membraiR was iacerated. Mode of death wss shock and death was homicidal in nature. Spot map was prepared by investigating officervide Ex.P/10. Patwari aiso prepared spot map vide Ex.P/7. Statements of the witnesses wers recorded under Section 161 of the Cr.P.C. and aSsr completion of investigation, charge shsst was flled befors the Judiciai Magistrate FirsS Ciass, Surajpur, who !R turn, commstted the case to ths Court of Sessions, Surguja (Ambikapur), from whsre ieamed AddltioRal Sessions Judgs rsceived the case on transfer for trisl. In order to prove the guiit of the accused/appeiiant, ths prosecution hss sxamined as many as ten witnesses. The accused were examsned under Section 313 of the Cr.P.C. In which thsy denied the clreumstances EiFi''-:t'" '^ 7. 9. appearing against them and pisacied i! tfte crime in question. and fates impiication in .-\ 12. Aftsr providing opportunify' of hearing to the parties; Searned Additionai Sessions Judge, Surajpur whise acquitting fiv'8 accused psrsons convlctsd & sentsncsd the appelianl as aforsmentlonsd. Ws have heard ieamed ceunsei for the parties; perused She juagment impugned and record ofthetria! Court. Lsarned counssi for th®appeiiant subinits that in the present cass, •I,. • •.'••• conviction is substantiaiiy bassd on the evidsnce of Mankunwar (PW-10), mother of dscessed Manmati- which does not insptre confstSsnce snd trustworthy. WSankunwar is chancs, retative anci Intsrssted v/itnsss, iherefore, her evidence requsres corroboratlon from ir.ciependsRt sourees and in the absenco of any corroboration, convictien ofths appeiiant under Section 302 of the IP.C. on the basls of chancs, relative and interesied witness is not justitied. On the other hand, isarnsd State counsei supported ths judgment impugned and submifs that Mankunwar (PW-10) is mother of the dsceased who was prssent in the house of Manmati on the dats cf incidsnt. She has seen the incident. Thera was no previeus enmity betwsen the parties. Mankunwar is neithsr chance vvitness. Reistion wouid bs the iast to scresn the rsal cuiprit and falseiy impiicate an mnocsnt person. Her evsdence snspires confidsnce and trustwertny. !n order to appreciate the arguments advaneed on behaif of the pariies, we have examined the evidence adduced cn behaif of the prosecution. in the presenf case, homicidal death of dsceased ?<1anmati as a resuii of injuries has r,ot been substantiaiiy disputed on behaif of ths appeiiant, on fhe other hsnd, aiso estabtishsd bythe evidence of Dr.H.P.Singh (PW-8), medicaS report Ex.P/20, svidence of Dr.D.K.Vishwakarma (PW-9) and autopsy report Ex.P/19Athat death of Manmat! was homicidai in nature. As regards the compiteity of the appeiiant in fhe crlme in question, convictiori is substantiaily based on ths evidence of Mankunwar (PW-10), mother of the dsceaseti who has deposed IR hsr evidersce that at ihs tims of incid&nt shs was sitting in the houss of Manmati, sh~e was suffering from fever, appeitant Sajjan came to the house of the deceasea, he dragged -® ^^^s^^ i;;E^:;^§sa 13. her from her hous& near Mahuws tres and assau'ited her, she went naa? Mshuwa tree to rescue her daughter and trisd to save her, but appeiiant aiso assaultsd her, thsn she went from ihe piace of incident. Other persons wers trying to inten/en®biit the appeiianf assauifed Manmati. As per hsr evidenee, somstime before the incidsnt rice and Mshuwa of the deceased was stoien by unkrsown persons, she was abuslng the persorss who hati committed the theft of the aforesaid articies. Tha appeiiant was under impressson that the deceased was abusing him and OR ths aforesaid ground th®appsiiant dragged and assauited hsr. Defence has cross-examined this wltness ?jt iength. She has specmcaiiy dsposed in her cross-examination that ihe present appeiiant was the pereon who has assauitsd ner daughter. She has specificaiiy depossd In para 13 of her evldence fhat she was sitting with her daughter Manmati (since deceased) near firs at that tims, the appeiiant came and dragged her daughter. She has examined ths statement given by her to the poiice vide Ex.D/1 and has dsposed that incident took place in two parts. At about 7 a.m. her daughtsr was also assauited by the asssilants and at evening the appeiiant dragged her daughter from her houss when she was sitting near this witness. Thereafter, t'ne appeliant has assautted deceased. She has dsnied the ailegatton that she has not seen the incident. Definiteiy, Mankunwar (PW-10) is relative witnsss, but oniy on the ground that shs is reiativs, her evidence cannot bs discarded and it rsquires minute scrutiny. WhiEe deaiing with the question of retiabiiity of reiative witnsss the Apex Court in the matter of Daiip Ssngh and others v. The State of Punjab has heid that a witness is normaiiy to bs conskiered independentunless he or she springs from sources w'nich are iiksty fo &e taintsd. Para 26 of the said judgment reads as ander:- "26. A wstness is normaiiy to be considered indspsndent unless he or she springs from souroes which are likeiy to be tainted and that usuaily means un^ess ihe witness has cause, such as enmity against She accused, to wish to impiicate hsm faiseiy. Ordinariiy, a ciose retation wouid be the iast tp screen the rea! culprit and falseiy impiicate an innocent person. it is true, when feslings run high and there is persona! cause for enmity, that there is a tendency to drag in an innocent person againsi whom a witnsss has a grudge aiong with the guilty, but foundation must be iaid for such a criticism and the mere fact of relationship far from being a foundaSlon is offien s surs guarantee of truth. However, we are not attempting any AiR1953SC364 <^ swesping generaiization. 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 ruie of prudence. Thsre is no such genera! ruie. Each case must bs iimited to and be governed by its own facts." 14. Whiie deaiing with ths sams question, the Apsx Court in the matter of Guii Chand and others v. State of Rajasihan has heid ihat mere faci that rslative witness or his relations is no{ sufficient to discard his testlmony. 15. Nankunwar (PW-10) is not interestea witness, she is not intsrested in prosecution or conviction of, the appeiiant. Hsr evidence inspirss f.i •" . . . . confidence, Srustworthy and'is suffic'.ent for drawing infsrsnce that ihs appeiiant has dragged the c!ecsas6d from her house ar,d asssuited her. This fact is sufficient for drawing infersnce that tha appeiSant has intentionaiiy caused injuriss to the deceased and has caused her death. 16. After apprecisting the evidence avaiiabie on record, iearned AdditionaS Sessions judge has convicted & sentenceei the appeiiant as aforementionsd. 17. On ciose scrutiny of the eviaence, v/e do not find any iiieyaSity in ihe judgment impugned warranting any interfsrencs. Consequentiy, ihe appeai bemg devoid of merit is iiabie to be dismissed and it is hereby dismssseii. ——- Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge a(i974)3-SCC 698 1118