^•ffA' 'WV'0^ ^' HIGH COURT QFCHHATTISGARH. BILASPUR :M 5SW;, CORAM: Hon'ble Shri Raieev Gubta, C.J. & Hon'ble Shri SynilKumar Sinha. J. Criminal Appeal No. 647 of 1993 Patthar Singh @ Jagdish'& Others Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration . , Sdf- ~'!"' Suni! KuKiar Sinha Judge HON'BLE SHRI JUSTtCE RAJEEV GUPTA B ^-&. Sd/- ChiefJustice ::i;:'i •i ^'•L'. / 'i ..'. :(.';;1 Post for Judgment : ^J'/10/2010 Sd/- SuniiKuBiarSiBha Judge -^- lissi^ti' 1: Bi^: Bi;' lt!;l: 18. H$". HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT Criminal Appeal No. 647 of 1993 1 Patthar Singh alias Jagdish son of Gajpal Singh.Thakur, aged about 60 years 2 Santosh Singh son of Jagdish Singh Thakur, aged about 22 years 3 Nirmala Bai D/o Jagdish Singh Thakuf, afled aboyt 4.0,years All R/o Village- Kathmunda, P.S. Takhatpur, District Bilaspur Versus The State of Madhya Pradesh (NQW Stajtet Qf Chhattisgarh) : (Criminal Appeal under Section 374 (2)of The Code of Criminal Procedure. 19731 iilr 't ADpearance: * Mrs. Kiran Jain, Advocate for the appellants. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (21.10.2010) . FollowiTO judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 24.6.93 passed in Sessions Trial No. 512/91 by the Fourth Additional ^Sessions Judge, Bilaspur. "-< - • . ' • ••-'"^ ' -- .. /-!' ..^===,^ [i^.^^;;r-i!Fw Crimmal Appeal No. 647 of 1993 II. II liilt iitii' iffi! (2) By the impugned judgment, the appellants have been convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life. (3) The facts, briefly stated, are as under:- Deceased- Ramadhar was nephew of appellant No. 1 - Patthar Singh @ Jagdish. Two other appellants are son and daughter of appellant Patthar Singh. The deceased and the appellants were residing in separate portions of a common house. Their agricultural fields were also adjacent to each other. On 13.10.91 at about 4.00 a.m., the deceased went to his fields. He saw that the water coming from canal to his field was blocked. He removed the block and took the canal water to his fields. By this action the water flowing towards the field of accused persons was blocked. The allegations are that on this account, at about 9.00 a.m., the appellants assaulted the deceased; hear 'their' Hoasea by3ispade^nteng/apriron rod and crow-bar when he was going to his fields. The deceased fell down on the spot. According to the prosecution, the incident was witnessed by Kanti Bai (PW-4 - wife of the deceased), Rekha Bai (PW-6 - daughter of the,deceased), Shekhar, Nandu, Lomas @ Mangal'Stngh (PW--3) a'nd Prabha Bai (PW- 7). The deceased was taken to Takhatpur Hospital, where he was declared dead. Kanti Bai (PW-4) lodged the First Information Report (Ex.-P/15). The dead body ofthe deceased was ^ei^fi for; post-mortemsexaEninatidn whichiwas^conducted •by Dr. V.K. Soni (PW-.1). The post-mortem report is Ex.-P/1. He noticed followingjnjuries on the body of the deceased:- (i) Lacerated wound of 5 cm on the left side of forehead; (ii), Lacerated wound ot 6,gna;on tbe Jeft side of vertex; .•;/\ -:'> II: 1^1 ..=„.„„....-' t igit) :-! • ! ( t , I'.i- V.-ff'S ! III ;1 «il \^ i^'1 Criminal Appeal No. 647 of 1993 (iii) Lacerated wound on the posterior aspect of head size 6 cm x 1 cm x bone exposed having depressed fracture; (iv) Bruise of 1.5cm with slight laceration on upper aspect of left shoulder; (v) Bruise of 8 cm x 1.5 cm on the left infra scapular area; (vi) Bruise of 6 cm above injury No. 5 size 5 cm x 1 cm & (vii) Bruise on the right cheek 5 cm x 5 cm. Qn intemal3^<9TOin^t,ign,pCR^gpsQricjing .fra^ures were found to injury No. 1,2 & 3. There was sub-dural haemorrhage. He opined that the cause of death was injuries to the head and sub-dural & cereberal haemorrhage and it was homicidal innature. In further investigation one iron-spade was seized at the instance ofappellanf- Patthar Singh. One crow-barwas seized at the instance of appellant- Santosh Singh and one tangia was seized at the instance of appellant- Nirmala Bai. (4) Out of 4 eye-witnesses namely Kanti Bai (PW-4), Rekha Bai (PW-6), Lomas @ MangalSingh (PW-3) and Prabha Bai (PW-7), Lomas @ Mangal Singh (PW-3) and Prabha Bai (PW-7) turned hostile. Theytdid not support the case qf the prosecution. The learnedSessions Judge relied on the testimonies of Kanti Bai (PW- 4) & Rekha Bai (PVV-6) and held that the appellants had assaulted the deceasecl 6y the above weapons and were liable for punishment u/s 302/34 IPC. -k^-. (5) Mrs.Kiran Jain, learned counsel appearingon behalf of the appellants, argued that Kanti Biai,(PW-4) and Rekha Bai (PW-6) i;^r:l;^: ...I.-:.-TIRnTr7W!;ni:^mOT ^»-;^ Criminal Aoceal No. 647 of 1993 were wife and daughter of the deceased, therefore, their evidence was not reliable and conviction based on the testimonies of these 2 witnesses cannot be sustained. (6) On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf ofthe State, opposed these arguments andsupported thejudgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) In Harbans Kaur and another-Vs- State of Harvana. 2005 AIR SCW 2074, the Supreme Court 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 reaspn to .shield the,actual culprit and falsely implicate the accused. V. (9) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Supreme! CQurt.held tfiat.^.witness who^is a,relativeof deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has / somedirect or indirect 'interest' in having the accused somehow or otherconvicted due to animus orforsome other oblique motive. The Supreme Court alsoobserved that a close relative cannot be chgracterized asan 'interested' witness. He is a 'natural'witness. ..-•.^.. Cmmnal Appeal No. 647 of 1993 K, His evidence.however, must be scrutinized carefully. If on such scrutiny, hisevidence 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 witness with the deceased or victim is no.ground to reject his evidence. On the contrary close relative.of the dec.eased.iwould normally be most reluctant to spare the real culprit and falsely implicate an innocent one. (10) In Sone/a/ -Vs- State 6f M.P.. 2008 AIR SCW 7988, the Supreme Court again said that.merely because the eye witnesses are family members their evidence cannot beper-se discarded. Relationship js not a factor to affeGt^redibiljtyof.a witnesjs. It.js more often than not that a relation would not conceal actual Gulprit 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 artd ahalyse evidence' to find out whetherit is cogent and credible. (11) In Dharnidhar -Vs- State of Uttar Pradesh and Others & other tionnected appeals, (2010) 7 SCC 759, the Supreme Court further reiterated that there is no hard-and-fast rule that family ^ members can never be true witnesses to the occurrence and that they will always depose, falsely- before court. .The.Supreme Court held that a close relativeof deceased does not, per-se, become an Criminal Aopeal No. 647 of 1993 interested witness. An interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes and deposes before court only with that intention and not to further cause of justice.'However, version of interested witness cannot be thrown overbcrard, but has to be examined carefully before accepting the same. When their statements find corroboration by other witnesses, expert evidence and circumstances of case clearly depict completion of chain of evidence pointing out guilt of accysed, then statements of so-called "interested witnesses" can berelied upbn bycourt. (12) Therefore, this argument cannot find favour that the testimonies of relative witnesses cannot be relied on, only on the ground that they were :ttierelative5:.of.the d.ec&ased.. However their evidence is to be scrutinized with due care and caution and if such evidence is foundcredible in appreciation, the conviction can well be based ontheirsuch testimonies, •] / (13) Now we shall serutinized fbe evidence of Kanti Bai (PW-4) and Rekfia Bai (PW-6). t: . ,' \- "'^ !' -^., '. '• ;:' J . """ '- : . , 1 ; " " '(14) KanfrBai (PW-4) deposed that on the fateful day her husband t . (deceased) was going to seetiis fields. When he reached near their badi, appellant- Patthar Singh started abusing him and thereafter ~~^ ' . -.' • . . • . Patthar Singh assaulted him by spade. Appellant-Nirmala Bai gave crQW-bar to appellant- SantoshSingh and said him to kill the Cv • ^' ,(li!l Criminal Ameal No. 647 of 1993 deceased. On thisappellant- Santosh assaulted the deceased by crow-bar. Thereafter appellant- Patthar Singh again assaulted the deceased by spade. She further added that when her husband fell down, Nirmala assaulted hfm by tangia. Santosh assaulted him by crow-bar and appellant- P'atthar Singh (Jagdish) asgaulted him by spade and lathi. On scrutiny of evidence of PW-4, we find that she did not mention the fact-of exhortation and giving a crow-bar by appellant- Nirmala to appellant- Santosh in the F.1.R. (Ex.-P/15). According to Kanti Bai (PW-4), Nirmala assaulted the deceased by teng/'a but there was no incised wound on the body of the deceased. (15) Rekha Bai (PW-6) also deDOsed in similar fashion. She also deposed that Nirmala exhorted and said to Santosh to kill the deceased by crow-bar and ghe gave crow-bar to Santosh. She further added that Santosh assaulted the deceased by crow-bar which crossed'through &-><througtii:the;ihead..She alsp deposed that Nirmala had assaulted the deceased by tangia. (16) On appreciation of evidence ofthese 2 witnesses, particularly in -light of medical evidence.and their prev.iousstatements and the F.1.R. (Ex.-PA15),"we find that their evidence.so far as it relates to / ' ' appellant- Nirmala , appears to be shaky. Their version regarding the act attributed to apReltant- Njrmala.js.also noJtiCornQborated by the medical evidence as no incised wound was found on thebody of the deceased, The appellants and the deceased were membersof Criminal Appeal No. 647 of 1993 the two branches of thesame family. They were not in talking terms since long back. They were residing separately in different portions of the same house. In the facts and circumstances of the case, a possibility of over implicatton of appellant- Nirmala by these 2 witnesses cannot be fully rirted out. Therefore, considering the entire facts and circumstances of the case, the participationof appetlant No.3—Nirmala Bai appearsto be doubtful. Even we do notfeel it appropriate to attribute a common intention to appellant No. 3- Nirmala Bai and in the abovefactsand circumstances ofthecase, she is entitled for benefit of doubt. (17) So far as appellants No.1 & 2 (Patthar Singh @ Jagdish & Santosh Singh) are concerned, it was proved on the evidence of Kanti Bai (PW-4) & Rekha Bai (PW-6) that they had participated in assault and they had assaulted the deceased by spade and crow- bar due to which the deceased sustained above injuries and they wereliablefor punishment u/s 302/34 1PC. ^18) Mrs. Jain has also argued'.that appellant No.1- Patthar Singh @ Jagdish also received injuries and was examined on 13.10.91. His injury repQrt is Ex.-P/4-A.We find that according to his injury / — repod, he sustained one linear ibruise; on antero-latenal aspect of rigbt shoulder. It was superficial injury and in our opinion, appellants cannot claim benefit on the basis of this injury. Even the injury would not have been visible. Therefore, on the basis ofsustainihg such KSI? Crumnal Aooeal No. 647 of 1993 injury by appellant No.1 neither evidence of the prosecution witnesses may be discarded on account of its non-explanation nor it can be taken as sufficient for exercise of right of private defence by appellant No.1. Ih an incidert like the present one, a possibility of sustaining such injury during-the course of transactioneven without indulgence of the deceaseidviyasipos^ible^and no benefit can be claimed on account of such injury sustained by appellant No.1- Patthar Singh. (19) For the :&3regoing,,reasons,,,the-,appeal ,is,,part|ytallowed. The conviction and sentence awarded to appellant No.3- Nirmala Bai u/s 302/34 IPC are set aside. Appellant No.3- Nirmala Bai is^gcquitted of the charges framed against her. However, the conviction and sentences awarded to appellantNo.1- Patthar Singh @ Jagdish & appellant No.2- Santosh Singh u/s 302/34 IPC are maintained. The appellants are on bail. Their bail bonds are cancelled. Appellant No. 1 - Patthar Singh @ 'Jagdish & a*ppeITa'ht N6.2- Sanlosh Singh are directed to surrender immediately to undergo the remaining sentence imposed against them. Sd/- ChiefJustice Sd/- Sunil Kusiar Sinha Judge •\;^-. Vjtli i;...;^.^:.