COURT OF CHHATTISGA'RHrBlLASPUR HIGH DIISION V BENCH CORAM: HON’BLE MR. SUNIL KUMAR SINHA AND HON’BLE MR. T.P. SHARMA, JJ. Criminal Aea No.1015 of 20 ppl 01 Chanl - Versus — tate of hattisgarh ‘ JUDGMENT FOR CONSIDERATION 55,..,..,.,, Sdl— T. P. Sharma Judge J”, J—1 2—201 O Sdl- Sunil Kumar Sinha Judge ,,,,,,.. <i*__1 2-204 ow .Post for pronouncement of judgment on 0 ’ Decembe‘r, 20_19~‘ Sd/— T.P. Sharma Judge 0432-201 0 N’BLE MR. JUSTICE SUNIL KUMAR SINHA ’ .r‘ \ etal S Ch ' r4 4 £ O M ‘ ¥ 4" y‘ q“ HIGH COURT OF CHHATTISGARHJ BILASPUR {Criminal‘aupeal under Section 374 (2) of the Code of Criminal Procedure, 1973} i Present: M‘r. Sudhir Verma, counsel for the appellant. M‘r. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. I JUDGMENT ' (Delivered on 04—December, 2010) The followinq judqment of the Court'was delivered by T.P. Sharma, J: — 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 29—8-2001 passed by the 3rd Additional Sessions Judge, Durg in Sessions Trial No.103/2001, whereby & whereunder learned ’Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting ’to murder of Gendlal, convicted the appellant under Section 302 of the l.P.C. and sentenced“ ‘ ' ‘ him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant and thereby \ committed illegality. ‘ 3. As per the case ofthe prosecution, appellant Chetanlal and his brother \ V Gendlal (since deceased) were residing in same house at village Kharra, ‘\ l DIVISION BENCH CORAM: HON’BLE MR. SUNIL KUMAR SINHA AND HON’BLE MR; T.P. SHARMA, JJ. Criminal Appeal No.1015 of 2001 APPELLANT/z ’ Chetanlal son of Bisoharam Nishad, aged (Accused) .about 45 years, resident of Kharra, P.S. ‘ (In Jail) , ‘ Gunderdehi, Distt. Durg (C.G.). Versus RESPONDENT: ’ State xof Chhattisgarh Through P.S. _ Gunderdehi, Distt. Durg (C.Gi). r 2 Police Station Gunderdehi, Distt. Durg in different portions. Fifteen days . prior to the date of incident, wife of the appellant had Ieft the house of the appellant. The appellant was having suspicion upon Gendlal that he had played active part in his family affairs. The appellant had gone for , search of his wife but she was not traceable. On the fateful day of'1-4-6- 2000 he came back to his house and at about 5 a.m. while Gendlal was sleeping inhis verandah and his sister-in-law Leela Bai (PW-2) was cleaning pots in the courtyard of same house, he took out a big size s stone and overthrown it upon the head of Gendlal and caused fatal injurie‘s.’ Wife of Gendlal‘namely Urmila Bai (PW-1) cried for help on“ V ‘ which the appellant fled away from the spot. Urmila Bai (PW-1) & Leela A Bai (PW-2) narrate‘d the incident to Sarpanch and other persons, Leela Bai (PW-2) went to the police station and lodged FIR vide Ex.P-1 on the ' same day within two hours of the incident. Bloodstained soil and plain soil were recovered from the spot along with bloodstained towel vide Ex.P—7. Spot map was prepared by the Investigating Omcer vide Ex.P-8. lnjuredGendlal was immediately shiftedg’to Primary Health Centre,” m Gunderdehi for treatment, vide Ex.P-14. He was examined by the doctor, his condition was serious and he was shifted to District Hospital, ' Durg where he was examined by Dr. S.K. Fating (PW—6), vide Ex.P—10, who found one lacerated wound on left cheek 3. c.m. below left eye of 2 1/2 c.m. x 1/2 c.m. x 1/2 c.m. and bleeding from both ears. injured Gendlal _ was complaining pain on both ears. He was restless and was admitted in the surgical ward. During the course of investigation, the appellant was taken into custody on 14-6-2000, he made discloser statement of bloodstained stone'which he has left near the place of incident, vide Ex.P-5 and same wasrecovered at the instance of the appellant vide Ex.P-6. Patwari prepared spot map vide Ex.P-2. Statements of the l . i‘l‘ witnesses were recorded under Section 161 of the CrPC. During the course of treatment, Gendlal @ Genduram died on 5-8—2000. Merg was recorded vide Ex.P-12. Police Station Durg recorded merg vide EXP-22 on the basis of information sent by the doctor vide Ex.P—21. After summoning the witnesses vide Ex.P—3, inquest over the dead body of the deceased was prepared vide Ex.P—4. Dead body was sent for autopsy to District Hospital, Durg vide EXP-23. Dr. R.N. Pandey (PW—8) conducted ‘ autopsy vide Ex.P—13 and'found following symptoms and injuries: - > Stitches were found over bone of scalp. § Fracture of parietal, temporal, frontal and occipital bones of right Side were found > Brain matter was coming out along With pus from the injury > Injuries were“ante mortem in nature > Cause of death was shock and septicemia as a result of ante, ‘1 mortem head injury. Seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur, vide Ex.P—17 and presence of‘blood was confirmed on the stone recovered at the instance of the appellant, vide EXP-18. i . After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Durg, who committed the case to the a Court of Sessions, Durg, from where learned Additional Sessions Judge. , , -. i 7 received the case on transfer for trial. . ln order to prove the guilt of the accused, the prosecution has examined as many as twelve witnesses The accused was examined under Section 313 of the CrPC in which he denied the Circumstances @ppearing against him and pleaded innocence & false implication in the crime in question. 3 ,7 Va ' 6. After affording opportunityi of hearing to the parties, learned Additional}, _ 'Sessions Judge convicted and sentenced the appellant 'as aforementioned. . We lhave heard learned co‘unsel for the parties, perused the judgment t ‘ andirecord of the trial Court. . Learned counsel for the appellant vehemently argued that conviction 'of ' the appellant is solely based on the evrdence of relative and interested Witnesses Urmila Bai (PW—1) & Leela Bat (PW 2) which does not Inspire I ’ coriftgence, not trustworthy and not safe to rely in absence of further corroboration fr‘om independent sources. A§ per the. case‘ of the prosecdtion, the appeilant was not having any motive for commission of 'cul‘pable homicide amounting to murder of his brother Gendlal. As per ». ’ the case of the prosecution the appellant has caused injury on 14-6— . 2000 but Gendlal died on 5 8-2000 after lapse of one month twenty-five days which shows that the appellant has not caused any Injury wrth Intent to cause the death of Gendlal Learned counsel placed reliance {Mantosh v The State of Madhya Pradesh (now the State of ‘ Chhattisgarh)} in which this Court has held that in absence of motive for causing homlCIdal death, conVIctlon of the appellant under Section 302 of the IPC is not sustainable and appropriate conviction would be under upon the judgment. dated 12-3—2008 passed in Cr.A.No.919/2002 i (Pandroo v State of Chhattisgarh) and the judgment dated 15-7-2009 L passed in CrA No 23/2005 (Leeladhar Yadav and another v State of Chhattisgarh) in which this Court has taken same View. I pon the judgment dated 7-9-2010 passed in Cr.A.No.816/1992 t‘ Section 304 Part—ll of the jPC. Learned counsel further placed reliance _ ”I. i \ 4 5. @ ’ 9. On the other hand, learned State counsel vehemently opposed the appeal and submitted that the appeHant was having definite motive for commission of cuipabie homicide amounting to murder of his brother, he was having suspicion upon the deceased that the deceased has _playedp u active part in his family matters and as a resuit of such part played by the deceased, wife of the appellant has left the house of the appellant and, therefore, while the deceased was sleeping and was in helpless position, the appellant has overthrown a big size stone on his head which shows that the appellant has caused fatal injuries of fracture ofalmost all major bonesgof head with intent to cause homicidal death of the deceased. i , After appreciating the evidenceavailable on record, the‘trial Court hgasl‘ ~ ‘ rightly éonvicted & sentenced the appellant. 10.ln order to appreciate the arguments advanced on behalf of the parties, we‘have examined the evidence adduced on behalf of the prosecution. 11.ln thekpresent case, homicidal death of deceased Gendlal as a result of fatal injuries found on his hea'd has not been substantially disputed on behalf of the appellant, othenlvise also, it is established by the evidence of Dr. S.K. Fating (PW-6),3medical examination report Ex.P-10, evidence“ of Dr. R.N. Pandey'(PW-8) and autopsy report EXP-13 that the death of the'deceased was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, conviction of the appellant is substantially based on the evidence of Urmila Bai (PW—1), Leela Bai (PW-2) & Dwarika Prasad (PW-3). ’ ”’ l 13AAs per the eVIdence of Urmila Bai (PW—1) — Wife of deceased Gendlal wufe of the appellant has left the house of the appellant earlier the appellant has gone foLsearch of his wife along with deceased Gendlal @ Genduram & one Romanlal; on the date of incident at about 4 a.m. the i appellant, deceased Gendlal & Romanlal came back to their house; deceased Gendlal went to sleep in his verandah and was sleeping in his verandah at about 7 a m she (this Witness) was cleaning her pots In the courtyard of same house Leela Bai (PW 2) & Dwanka Prasad (PW-3) were also present there; the appellant came from his room, picked up a L x stone lying near the gate and overthrown it upon the head of Genduram ’ ‘ i.e. her husband twice; thereafter, the appellant fled away frOm the spot“, _ g . She} shouted for help along with her sister-in-law Leela Bai (PW-2) and after hearing her sound, Sarpanch'and other persons came to the spot, they took Gendlal to the hospital and after some days finally, her husband died. Leela Bai (PW-2) — sister-in-lawtof deceased Gendlal & the appellant, has‘substantially corroborated the evidence of Urmila Bai (PW-1). 14.Dwarika Prasad (PW-3) has deposed in his evidence that at the time~of,, incident he was providing fodder to the cattle, at that time he heard the sound saying, “the appellant has overthrown stone upon Gendlal and has fled away from the spot" on which he immediately came out from his house, the appellant met him near Arjunda road, he (PW-3) caught hold of the appellant and broughthim to the village and handed over to the Sarpanch. ' 15.Definitely, Urmila Bai (PW-1), Leela Bai (PW—2) and probably Dwarikaw v a. Prasad (PW—3) are not only relatives of deceased Gendlal @ Genduram, but they are also relatives of the appellant Defence has cross examined these Witnesses at length but has not been able to elicn anything In their l ‘ cross-examination to discredit their testimony. On the other hand, they have substantially corroborated the factum of overthrowing stone by the i appellant upon the head of the deceased Gendlal. a 7 @ 16.FIR’ Ex.P—1 lodged by Urmila Bai (PW-1) reveals that the appeHant'Was having, suspicion upon the deceased that the deceased has played active part in his family matter which shows that there were some strain“ ‘ relations between the parties, but only on account of strain relations or relationship, evidence of relative witnesses cannot be discarded straight away. 17.0rdiharily, a close relative would be the last to screen the real culprit and falsely implicate an innocent persqn. While dealing with the question Vof videntiary value of the relative witnesses, the Supreme Court in the u f y _ matter of Dalip S_ingh andl others v. The State of Punjab1 has held that,‘ u ,t J ( a witness is normally to be considered independent unless he or she £ prings from sources which are likely to be tainted. Para 26 of the said judgment reads as under;— a “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 V L unless the witness has cause, such as enmity against ‘ the accused,towishtoimplicate him falsely. Ordinarilyi a close relation would be the last to screen the real‘ culprit and falsely implicate an innocent person. It i true, when feelings run 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 foundationis 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. V is so often put fonNard in cases before us as a general . rule of prudence. There is no such general rule. Each. L ‘AIR 1953 sc 364‘ e s s I 8 case must be Iimited to and be governed by its own facts." 18.While dealing with same question, the Supreme Court in the matter of Asok Kumar Chaudhary & 0rs. v. State of Biharz has held thus, . it will b nou o Ia dn re f " ..... e erroes t y ow as a ul o va licao tt n piic w y its gvs to a ds iee at h psecutn r tat t sty of ‘ rae o he victim wc i o credt—wrt caot reid n unless ooat by publi iesss ins as te q redwhiness e of relativs of te tm i cered, it iswsetted gh e ur has crtinize such ednc wh gt a autn bt suh hei Ineret In the pection The retionship per se nt affe the redibility f Witne Merey; bus a w hapen to be of te vcti f e cme e ca be c as a e itnes. i tre t e tem “itersed uniersi apptin ha non-examinatioof a ub itness b elf, ie rise n avere nfernc gains te roio o h he teimon a ' eltiv f t , hih s therwise iohy, nn be le upo orrbored c wtne. ofar h uestion of cit-ort of the evidenc e h vici s conn ‘ell‘l thou th Cot to su viee it reaer care nd cio u c e o be rdd n e grd of eVIdnce cannt discae o the sol oun tr ts rosu la does o ct c o a ss. l ecae itness ps a relative h im or indirc ir seeha t u i ome t e ovc er s me u h th acu r m r ’ oblique motive.” L 19.While dealing with same question, the Supreme'Court in the mattersof, Hari v. State of Maharashtra3 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 lt may be true that all the Vital Witnesses I ' t namely, PW 1, 2 and 8 are relations of the deceased > but that by itself cannot discredit their evidence. It is a i 2 2008 AIR scw 3739 3 2009 AIR scw 2250 h _ o th ri, h/she nnot charaterized g n “interestd" ws lt s it tha th r net“ ostulate ht son conrned s dic ps ta the per ce ha some ret et nteest in inggtt he accsed s show or he othr cnited eith becaue he had so anims wit e csed o for soe othe ' ' 9 fight between the relatione 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 t the deceased, learned counsel for the appellant relie on a decision of this Court in Avtar Singh vs. State o Punjab, (2006) 12 SCC 524. In that case the facts were totally different and itgwas opined by the learned dges, in the peculiar facts of, that case, that enmity ad bad blood between the rival groups was established , yond doubt. ln that case no reportr.was lodged wit the police regarding the occurrence and this Court I oked into the evidence and opined that the story abot making an effort to lodge a report earlier was not true. ln that casethe nambardar and the chowkidar who wer alleged to have accompanied PW-1 to the police statio were not examined and there was a categoric denial b_ PW6-Station House Officer about anyone reporting the incident to him before 4.12.1989} . This Court found th he High Court. has not at all noticed the facts. In t ‘ ackground of those facts, this Court held that proper ’ caution was not exercised by the High‘Court in , ppreciating the highly partisan evidence adduced by the prosecution. 23. But in the instant case, the factual scenario is totally different. Here the occurrence took place within I the house at theinstance of’ther close relatives and in such a situation only relatives would be the witnesses. O e L a o re relatives when their evidence is cogent and credible. actually, the decision of this Court in Avtar Singh (supra) stands on a completely different footing.” f course, in the present case also there was some nmity in view of the, land‘dispute’ but that by itself is not ground to discard the evidence of the witneSSes, wh a l F @5 o d f Ju n be h ‘ lo u ‘ e n y at t he 2 b a . 20.ln the matter of Mohabbat and Ors. v. State of M.P.4 the Supreme Court has held that relationship is not ground to affect credibility of witness, foundation has to be Iaid if plea of false implication is raised. Para 7 of the said judgment reads thus, 10 “7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. V _ ‘ l“ 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 v 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 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- analyze evidence to find out whether it is cogent and credible.” 21.While dealing with the aforesaid question, the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra5 has held that close relatives of the victim have tendency to exaggerate or add facts, Court should examine their evidence with great care and caution. Para 48 of the judgment of the Apex Court in the above cited case reads thus, “48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited _ . ‘ " tr, 4 2009 AIR scw 1486 5 AIR 1984 sc 1622 . ‘ ‘ l 1 1 Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and. affection any person in the position of the witness would ‘ naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the 'Iove and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses ‘ were speaking a part of.the truth or perhaps the whole of it, they would be guided by a spirit of reVenge or nemesis against the accused person and in this process certain-facts which may not or could, not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.” 22.Statements of the relative witnesses cannot be discarded only on the ' ground of their relationship. The Courts are required to scrutinizetheir l evidence with great care and caution. “ ,i' ,2. ‘4‘. 23.In the light of the law propounded by the Supreme Court, only minute serutiny of the evidence of relative witnesses is required. On close scrutiny of the evidence of Urmila Bai (PW-1), Leela Bai (PW-2) and Dwarika Prasad (PW-3), we do not find anything in their evidence which makes their evidence unreliable. \‘.\ . 24.ln the present case, the prosecution has also adduced evidence relating' . , K; to recovery, of stone at the'instance of the appellant. As per the case of 9the prosecution, the accused/appellant has made discloser statement of stone vide Ex.P—5 and same was recovered at the instance of the appellant vide Ex.P—6.""Without going into the merits of the case and evidence, these two documents (Exs.P-5 & P-6) clearly reveal that the ,.. stone was Iying near the place of incident where the injured body of Gendlal was Iying, it was not in hidden position and same was within the knowledge of aii persons, even these facts have been mentioned in Ex.P-1, the FIR. After overthrowing the stone, the appellant fled away from the spot. This shows‘that the appellant has not made any disclosen V statement of stone which was only within his knowledge or was not within the knowledge of other persons including the investigating Officer who has inspected the spot and prepared the map Ex.P-8. Therefore, we are not impressed by such evidence of discloser of facts. 25.Evidence of Urmila Bai (PW-1), Leela Bai (PW-2) and Dwarika Prasad (PW-3) is sufficient for drawing inference that the appellant has caused £ 'fatal injuries to the deceased resulting in his death. Their evidencekis“ sufficient for drawing inference that the appellant has caused homicidal death of the deceased. L 26.As regards motive behind the offence, motive only aids in criminality and ‘ in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body'effected, nature of' injury and other similar circumstances. l "27.ln the matters of Mantos‘h, Pandroo and Leeladhar Yadav (supr“a),v‘v“ relied upon by learned counsel for the appellant, this Court has held that in absence of motive for commission of offence but knowledge'of the result cf the act, conViction of the accused is not sustainable under . Section.302 of th‘e IPC, however, 'the act of the accused falls. under Exception‘4 to Section 300 of theilPC and in these circumstances, the accused would be liable for punishment under Part-ll of Section 304 of PC the I. @ 28.ln the present case, as per the/evidence of Urmila Bai (PW-1), the , r. appellant had gone in search of his wife along with the deceased &’ one Romanlal, though the appellant was having suspicion upon the deCeased, both were brothers and they were residing in same premises in different portions. Both the appellant & the