HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon^ble Shri Raieev Gupta, C.J. & Hon^ble Shri Sunil Kumar Sinha, J. Criminal Aooeal No. 194 of 1993 Budhwar Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON»BLE SHRI JUSTICE RAJEEV GUPTA 3 ^L^r^^- 6J — Sd/- Chief Justice Post for Judgment :Z?/07/2010 1 Sd/- Sunil Kumar Sinha Judge BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 13:09:09 +0530 L.: HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri RaieevGupta, C.J. & Hon^ble Shri Sunil KumarSinha, J. APPELLANT RESPONDENT Criminal Appeal No. 194 of 1993 Budhwar son of Baratoo, aged 23 years, Dhanuhar resident of Imlichhapar Kusmunda, P.S. Kusmunda, Tahsil Korba, Distt. Bilaspur (Now Korba) Versus State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Aooeal under Section 374 (2) of The Code of Criminal Procedure, 19731 Aooearance: Mr. Yogeshwar Sharma, Advocate for the appellant. Mr. Kishore Bhaduri, Additional Advocate General, for the State. JUDGMBNT (Z5.07.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Two accused persons were convicted u/ss 302/34, 323/34 & 341 IPC & sentenced to under Imprisonment for life, Imprisonment for one year and Imprisonnient for one month with direction to run the sentences concurrently. The conviction and sentences were awarded in Sessions Trial No. 262/91 by the Sessions Judge, Bilaspur vide judgment 85 order dated 20th of January, 1993. ,,^-w^.^ /'c^ 'IJt^-; § ~:yisi^ Criminal Appeal No. 194 of 1993 (2) The facts, briefly stated, are as under:- Complainant- Shantilal (PW-11) was earning his livelihood by plying tanga. On 27.3.91, he was coming on his tanga froni Churakachhar. There were many passengers iri tanga. His father Mohitram was also present in tanga. The allegations are that the 2 accused persons stopped the tanga on the way and started quarreling with the complainant. The accused persons were armed with lathis. They assaulted the complainant and his father Mohitram (since deceased). The passengers of tanga namely Brijram (PW-12), Maniram (PW- 14) and Sukhiram (PW-15) etc. also witnessed the incident. The complainant and his father were taken to the hospital. Complainant Shantilal (PW-1) lodged the First Information Report (Ex.-P/17). The deceased was firstly examined by Dr. R.S. Kanwar (PW-5) at about 11.45 a.m. on the same day who noticed multiple injuries on the deceased. He was referred to the District Hospital immediately. The complainant Shantilal was also examinedby Dr. R.S. Kanwar (PW-5). There were many lacerated wounds on his parietal & occipital regions. Other injuries were also found on the scalp. Mohitram succumbed to his injuries. His post- mortem examination was also conducted by Dr. R.S. Kanwar (PW-5) on 28.3.91. He notices the following injuries:- (i) Abrasion on the right side of forehead, 2 inch x 1 inch above eye-brow; (ii) Contusion of blackish colour on both upper 85 lower lid of right eye, 3 inch x 3 inch; (iii) Abrasion 1 Va inch x 1 inch on medial aspect of front of right shoulder; (iv) Bleeding from both nostrils & (v) Bleeding present in right ear. On internal examination, he noticed contusion on right forehead and there were fractures of right frontal, parietal 85 occipital bones. The brain membrane and brain matter were Criminal Aroeal No. 194 of 1993 lacerated. There was also a compressed fracture with niultiple bone pieces of size of 3 inch x 2 inch x 1/8 inch on left occipital bone. Right temporal bone had also broken into many pieces. The Autopsy Surgeon noticed that skull bones were extensively fractured with multiple small bone pieces with haemotoma present below the fracture on right side. There were multiple fractures on right mandible. Heopined that all the injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. The prosecution examined many witnesses, including the coinplainant and passengers of tanga, but, the passengers turned hostile. The conviction of the appellant and his co-accused was based on the evidence of complainant- Shantilal (PW-11). The learned Sessions Judge believed the testimony of Shantilal and held that the deceased and complainant were assaulted by accused persons by lathis. Co-accused Budhwar Singh S/o Motiram filed a separate appeal vide Criminal Appeal No. 193/93. The aforesaid appeal came up for hearing on 30.4.2008. On the said date, it was informed to the Court that appellant Budhwar Singh S/o Motiram had expired two years back. On this account, the appeal filed by co-accused Budhwar Singh S/o Motiram was dismissed as abated. (3) Mr. Yogeshwar Sharma, learned counsel appearing on behalf of the appellant, has not disputed the honiicidal death of the deceased. He has argued that the testimony of Shantilal (PW-11) was not reliable; he was an interested witness being son of the deceased; therefore, the conviction based on his sole testimony cannot be sustained. '^•S&^S^vsawga ('^ Criminal Apueal No. 194 of 1993 (4) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (6) In Harbans Kaur and another -Vs- State of Haryana, 2005 AIR SCW 2074, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. 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 culprit and falsely implicate the accused. (7) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Apex Court held that a witness who is a relative of deceased or victini 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 sorne 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 reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of '7 c^: Criminal Apoeal No. 194 of 1993 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. (8) In Sonelal -Vs- State ofM.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 raake 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 analyse evidence to firid out whether it is cogent and credible. (9) Therefore,'the argument of Mr. Yogeshwar Sharma that the testimony of the son of the deceased cannot be relied on, only on the ground that he was the relative of the deceased cannot be accepted. However, his evidence is to be scrutinized with due care and caution and if such evidence is found credible in appreciation, the conviction can well be based on his sole testiraony< (10) Now we shall examine the evidence of Shantilal (PW-1 1). (11) Shantilal (PW-11) deposed that on the fateful day, he was taking the passengers to the railway station on his tanga. His father Mohitrain was also present in tanga. When iheir tanga j-eached near village Imlichhapar, accused person met them near a i 1%®^, 'l 1 r%i"i i \ %.-.w/ 6 Criminal Appeal No. 194 of 1993 culvert. They stopped the tanga and started quarrelling with him. They were insisting to go on tanga which was denied by the complainant, on which, both the accused persons assaulted hini by a danda. When his father tried to intervene, they assaulted his father. Shantilal was put to cross-examination by the defence, but nothing could be elicited in the cross-examination which may suggest that his version was unreliable or he was falsely implicating the accused persons in crime in question. The said version ofPW-11 is duly corroborated by the contents of the F.I.R. (Ex.-P/17) which was immediately lodged by him. The appellant is named in the F.I.R. The evidence of PW-11 is further corroborated by the medical evidence of Dr. R.S. Kanwar (PW-5). PW-11 has also received many injuries, the presence of this witness cannot be doubted. In appreciation of the entire evidence available on record, we do not find any infirmity in the testimony of Shantilal (PW-11). In our considered view, the Sessions Judge was fully justifled in relying bn the testimony of Shantilal (PW-11) and in awarding the conviction to the accused persons on his sole testimony. (12) Mr. Yogeshwar Sharma has also argued that in the facts and circumstances of the case, an offence u/s 302 IPC would not be made out and the appellant shall be liable for punishment u/s 304 Part-II IPC. He takes us to the evidence of Shantilal (PW-11), in which, he stated that the quarrel begun on account of not permitting the accused persons to sit on tanga. We note that it ^ ^J v^...'''"'-'..... Criminal Appeal No. 194 of 1993 was quarrel between the accused persons and the complainant, whereas, the accused persons assaulted the father of the complainant, who, in fact, tried to intervene. Mr. Sharma had mainly argued on Exception 4. Exception 4 of Section 300 IPC is attracted when the act is committed without preineditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In the present case, firstly, there was no quarrel between the accused persons and the deceased. It was not a case of sudden fight between them. Moreover, the injuries sustained by the deceased would show that the accused persons have taken undue advantage and they also acted in a cruel manner by giving repeated assaults to the deceased. (13) For the foregoing reasons, we do not find any infirmity in the judgment and finding recorded by the Sessions Court. (14) The appeal filed by the appellant, therefore, is liable to be dismissed and is hereby dismissed. (15) The appellant is on bail. He is directed to surrender immediately to serve the remaining sentences awarded to him. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti