®.'cB®:aSt.^©'r£e'l.s/Q,''?%aa<i¥^, ;",,»t(TeSTBg''9q.B'.iE;i-s'F:ssw':~:! gj^^3K®t o.at{gi''iqaiBfiSTq,':ye^T.[t[£)^30'^3:tB:},s..^;;;..; SsSKS: AtW03:M3daV^.NON ^ •../•"'^j1 ^-/<A^I-i3 ^•^^..^ ~ .^<3^:- .:•.* |||g|s^tgiii^.s^s*'H^gHEa^|g ••s'cTey^-e'as^^;.;,-; ^^^^^^^SfS^:^^^Qy^^S^-;SS^'[^T3@3K^ ^ g^|:i^mS^S3g^:;|@g:;^':^tO^^.'@3^^|l&^i^Ui[^^$: IJIggl' 'sjSS'ES^^^ytK^StS •.^'S^V^B'13^'3'^^1?:.^—! ^%^ :^ ••n®--''^i ••"' ;..-''-y:''';;' B^Sii^ ^saswEsasi^.:- ^@^^Sa:©'^^,Ysi/ %a|^^s|I:iSs':^, ^%a^^ Q^^SlS>i tQ&'lfesa^ ^;'WaxHSaS:f. jB%ilS.I^SIISB^i@i^s$f';%Sa%&%3®N®'^^a^^;H^ •i^is •i-g.-l 163 Kli ;\^^^L^i^^^L;..._-;^:;. *~i -:'^fs:. »•>,a 'diisssawatS: HIQH COURT OF CHHATnSCyUtH AT BILASPUR a-imiaal AppealMO. 104/2001 SuraJ 8In^i Vs. State of caihatttsgarh ni! JUDOMEKT For consideration 'Judge •>7-2006 Hon?Me SIul Justlce DUreadra MIshra.J Sd/- DH»@roRAMBHRA judge Post forb -7-2006 Sd/- Fakhruddin Judge /-; <" M^ &^ HiGH COURT OF CHHATnSGARH AT BILASPUR Ca-lminal Aopeal N0. 104/2001 Suraj sln^t vs. State pf CWwtUsgfsh Coram: Hon'ble Shri Faldiruddln aad Hon'ble Shrl Dhl»eadi,(iMlshra, JJ '/ \. Present: Stui Saurabh Dangi, counsel for fhe appeUant. Shri Sudbir Bajpai, Dy. Govt. Advocate, for fhe State. JUDGMBNT PerFakhTudd,m.,<L Heard lcarued cottnsel.for the partics. 2. The appeUaat has preferred this appeal against the judgment delivered on 24-11-2000 in Sessions Trial No.49/99 by the IIth Additional Sessmns Judge, Raigarh, whereby he has been convicted under Section 302 offhe Indian Penal Code and sentenced to undei^o im.prisoiuneut for life aad fine of Rs. 500/-, in default of payment of fine, to further undergo R.I. for 4 inonfhs, for comnutting miirder of his brofher Shashibhushan. 3. Briefly stated the prosecution story is that PW-1 Shivlal had four sons. Deceased Sliaslubhushan, accused Suraj, Jwala aud D^ambar. Accused Suraj, deceased Shashibhushau, Jwala wcre livin^ wiui the father PW-1 Shwlal. Sura] was eamin^ separately. Five months before the date of iacident, all the four brpfhjeis had given a loan to fheir brofher-ia-law Digri (PW-5). The dece^ed took back Rs.2000/- fiTOin Dj^ri without disclosing this fact to fhe accused. When Suraj caiue to Jaiow this'fact he got annoyed with Shashibhushaa aad used to remain "«S3S:^i^^S^^H^^y^ a quiet and inspite of^kmg he was not speaking much. On 23-4-1998 (Thursday) they took ineate u^ the n^ht Shashibhushaa slept in the coiu-iyard and adjoinit^ to him Suraj, Guddu @ Kailash (daiigfater's son ofSIuvlal) also slcpt. Wife of Deceased Shashibhushan naniely Basanti. was sleeping in her rooin. Shivlal was sleeping inside the rooia near the door. On 24-4-1998 at about 4.00 a.m. Shwlal heari fhe sound of assault - khach kkach, then he weut to courtyard and saw that Shashibhushan was lying dead and hevhad injuries on his neck aad blood was oozing. Accused Suraj was not there m tiie adjoiniag cot He noticed that Suraj was going firoin backside towards jungle, T'hen Shlvlal weut to Bengandih and told fhe incident to Kotwar jagdish aad went alongwith Jagdish to Police Stetion and lodged the First Information Report (Ex.P/1), J.P. Singh (PW-14) recorded the FIR and merg No. 20/1998 (Ex.P/26). The Investigatmg OfBcer went to the spot and prepared spot map (Ex.P/2). Notice (Ex.P/5) was given to Psaaclsas and panctmaiaa (Ex.P/17) of the dead body was prepared. Dead body was sent for post uiorteni. Post laortem was conducted by Dr. R.P. Patel (PW-7) aad fhe report is Ex.P/10. The deceased sustaiued six iajuries. T'he accused was arrested aad Ex.P/13 nieinorandum was recorded. On his ineinoraadtuu blood staiaed Tangi as per Ex.P/ 14 was seized. The plain earth aad blood stamed earth was seized. A cotton Lungi fi?om. fhc person of fhe accused waa seized as per Ex.P/18 and was sent to FSL. After the invcst^atiou chatlau was filed. 4, The accused/appeUant abjured fhe guilt and contended that hc has been falsely impUcated. 5, Leamed Trial Judge relying upon the material ou record convicted aud sentenced f&e.accused/appeUaat as stated above against wlu.ch the appcBatit has preferred ttus appeal. iiii' |ii:I!-p--::|- •~v* swmc^ ^v <>,—--^ 6. Shri. Saurabh Dangi, leamed couasel appearmg for the appeUaat, assailed the findmgs recorded ,by the leamed Trial Court. He contended that there is no legal aad reUable evidence agauist fhe appeUant to connect him with fhe ofifence. He furfher contended fhat so far as the recoveiy of the Tangi is concemcd, it was seized fl-oin fhe spot and it te not a recovery. Counsel further contended that the prosecution has faUed to prove auy inotive in the pjcesent case aad fhe appeUaut has bcen convicted on fhe notions and surmises and on the basis of fhe conduct of the appeBant, which caanot be fhe sok basis for convicnon. 7. Sttri Bajpai, leamed counsel appearing for fhe State, on fhe ofher hand supported fhe judginent and contended fhat the appeUaut has righffy been couvicted. 8. We have heard fhe leamed counsel fbr the parties and gone fhrough the raateiial on record. The iacident had taken. place ia the house admittedly where PW-1 Shivlal, deceased Shashibhushaa aad accused Suiaj were sleeping. PW-1 Shivlal heard the souad ofassault - Khacft Khach. He came out of fhe house aad saw fhat his son Sura] was going towards the jungk. He foUowed and enquired from. hJTn as to what have you done. The accused reinauied quiet. Thereafiber he went to Kotwar J^dish (PW-5) and alongwith him went to the PoUce Statkin and lodged fhe FIR. lu the FIR (Ex.P/1) he has stated ffaat he saw fhe deceased iajured, the blood was oozms out. He did aot nnd Suraj fhere and saw fhat Suraj was going fix>in backside towards jungie. 9. PecuUar fact which has em.ei^ed in. the present case is that fhe FIR has been lodged by PW-1 Shivlal who is father of the deceased -Shashibhushan as well as father ofaccused Suraj. The eviden.ee ia fhe preseut case consists ofShivlal (PW-1) aad tfae ciicuiastances stated by him. So far as Shivlal is concemed, his evidence has been considered by the leamed tnal Judge in para 20 offhe judgment, 10. Shri Saurabb Dangi, leamed couusel appeanng for fhe appeUant veheiaently aryied fhat fhe evidence of P.W. 1 Shiylal is uitreliable and uiitrustworfhy. He contended'that he is not eye-witaess to fhe incident actd on assuinption, he reached to the conclusion fhat fhe appellaat is fhe person who has kUted. It is also contended that there is no inotive. 11. We have carefuUy considered the evidence ofP.W. 1 Shivlal. He is lather of fhe accused- as weU as fafher of fhe deceased. Both, fhe accused and the deceased are sons of P.W. 1 Shivlal. Hfe presence on fhe spot is not disputed, He was sleeping ia the nearby room. He had heard the sound of Khach Khach and mitiaily he pretended fhat it is not a serious inatter but when the soimd stopped, he got up fi»m. fhe cot aad then munediately fouad Suraj leaving fhe place. When he questioned to Suraj as to what did you do, he reinaiaed quiet uuusuauy and did not answer. When he asked where are you goiag, he repUed that he was going Saraaggarh. T'o us, he is fhe person who has given truthful account, He is the person who is fhe complainaut as weU as fafher and being father of the deceased aad accused, his conduct is veiy natural, He has dcposed what was observed aud seen by him. Here Sections 6, 7 and 8 of fhe Indian. Evidence Act is relevaat aad quoted below:- ''6. Relevaacy of facts formiag part of same transactloa.- Facts which fhough not in issue, are so coanected wifh a fact ia issue as to form. part of the same transaction, are relevaat, whether fhey occurred at the same tune aad place or at different tuaes and places. 7. Facts whicfa are the occaslon, cause or efrect of facts in issue.- Facts which are the occasion, cause, or effect, JTnmediate or ofherwise, of retevant facts or facts in issue, ' ^or wbich constitute the state of ftungs under which fhey ".^^; I. happened, or which aflForded aa opportunily for fheir occurrence or tiaasaction, are relevaat. \ 8. Motlve, prepaiatloa aad prevlons or subseqnent conduct.- Any act is relevant which shows or constitutes a motive or preparation for auy fact in issue or relevant fact T'he conduct of aoy party, or of any agent to any party, to any suit or procseding, in reference to such suit or proceeding, or in reference to aay fact in issue therein or relevant fhereto, and the conduct of any person an offence against whoin'is fhc subject ofaay proccednig, is relevant, if such conduct influences or is influenc«l by any fact in issue or relevaat fact,;'aud whefher it was previous or subscquent thereto." 12. Section 6 of the Evidence Act is an exception to fhe rule of evidence that hearsay evidence is not adnussible. The test for appfyiag fhe rule of res-gestae is fhat the statement should be spontanjeous and should fonn part of tbe sanie traasaction, ruluig out any possibility of convictmn. la Qentela Wemcmturdheui Rtw Vs. Steete of AnShra Fraidesh reported in A.I.R.-1996-S.C.-2791 para-15, it was held as follows: "Section-6 of the Evidence Act and some of the succeedin^ sections einbody fhe rule ofaduussion of evidence relating to what is coimmonly known as res gestae. They are in fhe nature of exception to '"hearsay" rule. Sectipn-6 pertnits proof of coUateial stateinents which are so coitaccted with the facts in issue as to form part of fhe same transaction. Whefher fhe slatement inadc by a witness was a part of the same tocansaction or not is to be considered in. fhe l^ht of the circunistances of cach case. The principlc M tbat it should be so intimately connected with the fact ia issue as to be a spoutaucous ultciaucc iuspired by thc cxcitciueul of fhe occasion or a spontaneous reaction fhereof, fhere being no opportunit;'' for deliberatety fabricating the stateinent. In other words, the stateincnt which is a part of res-gestae does not narrate a past event, but it is the evcnt itself speakiag throiigh .a person thiis excliiding the. possibllily ofauy design tiiehlnd it" 13. Now in fhe instaat case, P.W. 1 Shiylalwas sleepiag. As stated by him, ne usuglfy wafces up iu the aioming at 4.00-5.00 A.M. He got up and ' heard, fhe sound. He mitialfy thought that it was a result of "^w^s i^te^ mimiciy or ofherwise but whcn sound stopped, he realized tltat soiaethin^ taas happened. He came out aad saw tbat his son Shashibhushaa was lyiag drenched wifh blood aad saw his aaofher sou Suraj leaviug the spot aad going towards Jaagle. He foBowed watching his conduct. He questioned him, the accused-sou was sitent Others at fhe spot were child and lady. Whatever he has done aad iiarrated is nonnaL Whatever he has stated is corroborated by his conduct like <j. ;, pioiupt lodguig of F'irst Iiiformatioli Report, nauung his son. We do not find aaything iu fhe cross-examination deinolishing his version. On the ofher haad, what baa coine ia fhe evidence is that he has stated to fhe police fhat it is Suraj who has kUled Shashibhusban. A suggestion was made to him fhat he has made aBegation against the accuscd at fhe behest of Jagdish and D^ginbar, but he denied. Nothing has been pointed out fhat he has anyeiuuily wifh Surai. Wc do not fmd any inateriaL 14. The accused has also not stated ttiat P.W, 1 has aay gnidgc against luxa. On fhe contauy, ia reply question No. 3 under Section 313 of Cr.P.C. that P.W. 1 has said fhat ia fhe nigfat aU persons took ineals, Jwala went to see fhe field aad Shashibhushaa, Basanti, Suraj and Piiibai were in fhe house, he stated fhat it is true. The question No, 5 TUider Section 313 ofCr.P.C., was put to accused that P.W. 1 has stated that in the night at 4.00 AM sound of Dham. Dham canic froia Shashibhushan and he though fhat it is as a result of municiy, what is your sayiag, the accused replied that it is true. He further accepted that Suiaj and Pilibai were sleepiag aad Shashibhushan went to waBc. Question No. 7 is about fhe conduct of fhe accused. The question was asked that on asldag by P.W.l, he kept quiet, is it true, he replied that it is true. When it was ^iked that is it true that he was asked by P.W, 1 151.',--: • where he was goiag, he replied that he was Going to Sarangarh, accused repUed fhat it is true. 15. In our opinion, fhe P.W. 1 is trufhful witoess aad whatever he has deposed, fhey are not conjectures and sunnises. He has described what had happened in the lught'These facts stated by him are relevaat because they fonn part of the same traasaction. They are coming fi-oin fhe mouth of the fafher and fhat of fhe deceased. T'hey are relevaat under Sections 6, 7 and 8 of the ludian? Evidence Act as he has stated aboutfhe previous and subsequentconductofthe accused. 16. The leamed trial Judge had fhc occasion to watch the deiaeaaor and it has reUed upon the conduct of fhe P.W. 1. We havc also gone fhrough the evidence on record aad of fhe considered opuuou fhat his evideace is not just based on conjcctures and surmises but sam.e is such which in totality estabUshes beyond leasonable doubt that it is Suraj who had kiBed Shashibhushaa. 17. Learued counsel for fhe appeDaat relied upon the judgment of Hon'ble Supreme Court ia the case of State of Orissa -v- Babaii Charaa Mohanty and aaofher reDorted in 120031 10 SCC 57 and referred to para 17. Ai^ument is fhat the conduct of the accused pcrsons aflter the iacident had teken place may be very unnatural aiul creates a strong suspicion agamst fheni; but, that by itselfis not sufficient to convict the accused, especially when no strong inotive to put au end to the life of a son/torofher is inade out In that case, P.W. 1 was wife and she deposed, which was aot relied upon. There were soine dtecrepaades aad ofhcr cu-ciuastaaces were broug&t by fhe prosecution. In fhe instent case, nothiag bas been pointed out to discredit the evidence of P.W. 1. •Each case has to be judged on its owu facts. 18. Leamed counsel veheiaently argued fhat Uie P.W. 1 was fhe sole witaess. He relied ou the decision of Hon'ble Supreine Court iu the case of Joseph -v- State of Kerala reuorted in (2003)1 SCC 465 and contended ffaat where there is a sole witness to Ute incident his evidence has to be accepted wifh an. amount of caution aad after testmg it on the touchstone of the evidence tendered by fhe other witnesses or evidence as recorded. It is further conteuded that Section 134 of fhe tJ. Indian Evidence Act provides that no particular nuraber of witaesses shall in any case be required for fhe proof of aay fact and, therefore, it is permissible for a court to record aad sustaui a convictiou on flie evidence of a solitary eyewitoess. But at the same tune, such a course can be adopted oniy if the evidence tendered by such witness is cogent, reliable aad iu tune with probabilities and inspires impUcit confidence. By this standard, when the prosecution case rests m.amly on the sole testunony of aa eyewitoess, it should be wholly reliable. If fhe evidence of sole witness is such on which impUcit relian.ee can be placed, conviction cari be based on it. We have gone fhrough fhe evidence tuae aud again and found fhat his testunony is whoUy reUable. So far as eyewitness related to deceased as well as accused is concemed, iu fhe case of Preiu Saaar vs. Dharambir and ofhers reported ia (200411 SCC 113 fhe Supreme Court held fhat iu such a case there was no reason as to why he would falsely tmplicate fhe accused person. It is fhe assuraace or persuasiveness ofthe evidence which inspires confidence. 19, We have ininutely gone fhrough the evidence of P.W. 1. There is nofhiag to rebut the sanie. Circuiastaaces have been laentioned ia fh.e evidence. The iajunes have been found in post niorteia aud ftie autopsy conducted by P.W. 7 Dr. R.P. Patel and report is Ex. P-10. So the evidence of father is also corroborated bv inedical evideuce. Evidence is •ss-'ss r~~^s<x~.s,,. such which itsetf is sufficieut. It is corroborated by imlnediate lodguig fhe F.I.R. where circuinstances have been inentioned, He is not a tutored witness also. 20. Having considered the facts and circuinstaaces of the case aad material on record aad ia view of fhe evidence ofrecord, which has been reUed upon by the trialXtourt aad discussed hereiuabove, we are offhe considered opmion that the findiing, conviction aud senteuce passed by the trial Court do not suffer from aay JTifirmily, which naay cau for any iuterference by this Court in its appeUate jurisdiction, 21. Appeal fails aad is disiuissed. 22. Before partuig, fhis Court very inuch appreciates the assistance of Shri Saurabh Daagi, leamed counsel appearing for fhe appeUant about fhorough preparatioi^ of the case and ineticiilous arguments advanced. ^ ___ Sd/- Fakhruddin Sd/- DHIRENDRA MISHRA Judge I'lr'iT^ti'w^ '^^^^B •:^-^.^^^—