^^ HI6H COURT OF CHHATTISfiARH AT BILASPUft CrimlnaS Aoowt No. 1218 of 2003 APPELLANTS 1. Khedu Ram, age 42 yrs. S/o Shyam Ralan Kn Jaill Satnami, 2. ftajesh, Age 20 Yrs. S/o Khedumm 3. Pappu, Age 21 Yrs. S/o Kheduram Above aii R/o Village Farhada, P.S; Kharora, District Raipur (C.©.) RESPONDENT ^ersus State of Chhatt-isgarh, Through P.S. Kharora, District Raipur. (Appeal under Section 374(2) of Cr.P.C.) Division Bench; Hon'ble Mr. T.P.Sharma & Hon'ble Mr. N.iC. Aaarwal. JJ. Present: Shri Yashwant Tiwari, counsel for the appellants. Shri M.P.S. Bhatia, Dy. 6ovt. Advocate for the S-haW respondent. ORAL JUD6MENT (Passed on 8th day of January, 2010) P@r T.P. Sharma. J. ChalJenge Jn 1+iiis appeal is to the judgment of conviction and order of s@ntence dated 04-10-2003 passed by Six1+t Additional Sessions Judge ftaipur in S.T No,402/2002 whereby csnd whereunder teamed Adlditional Sesssons Judge after holdjng the appellont guilty for commission of murder of Lomas Satnami Jn sharing the common Intention convicted the appellants ynder Sectlon 302 read with ^ctjon 34 of the Indian Penat Code and ^ntenced •Hiem to undergo ri9orous imprisonment for life ond to pay fineof Rs.SOOOA each, in default of payment of fine to further undergo addttionai rigorous imprisorsment for three months each. 2. The jud9ment is impugned on the ground that without any clinch»n9and credible evidence, the learned Court below has convicted and ^entenced th® appellants as aforementioned and thereby commi^ed jllegality, r f^^%^ '^ ^^^^^ 3- Brief facts of pro^cutJon case are Itiat on the fateful day of 08-04- 2002 at about 7.45 P.M., deceased Lomas was coming wjth his son Dilip Kumar (PW-1) by motorcycte from Village Ko^rangi to Vitlage FQrhada. TTiey were intercepted by the present appeliants who were holding stick wid knife, The appetlant Rajesh damaged his motorcycle and tried to attack upon &ilip. Again the appeilants assaulted the deceased. TTie appellwit J^iedunexm assaultedl the deceased by knife and oi^er co-accused assauJted by stick. The cteceased fell and become unconscJous< His brol+ier Rajnarayan (PW-8) who was also present at the spot has $een the incident, They took the injyred Lomas atong with other persons to tfie Police Station, where Dilip Kumar (PW-1) lodgedl FJ.R. vide Ex< P-l. Injured was examined by Dr. S.ft, Bcunjare (PW-3) and on finding injuries vide Ex,P-ll^ (t) Two tocerated wounds over head from left parietal region to right parietal region of 1 i cm x i cmxi cm cxnd 1 cm x i cm x i cm. Btood was coming out< (2) One deep incised wound of^" xi- cm x lcm over the neek. (3) One incised lacerated wound offx 1 i cm xicm x icm ovar left' ssde of the head, (4) One incised wound ©f1 cmx^-em x ^ cm inside left cheek. (5) Five tee1+i were found brokers GJong with lacerated wound. (6) Tbree parallel contusions over Jeft hand of4 i x^"x 3 i"x2 ^1'. 4, He was unconscious and was taken for fur1+ier treatment During treatment, the deceased died at M.MJ. Hospital, Raipur. Merg was Jntimated vicie Ex. P-14. 5. After summoning 1+ie wilnesses vide Ex. P-8, inquest over 1f»e dead body of 1+ie deceased was prepared vide Ex. P-9. Body was sent for autopsy vide Ex< P-15 to Medical College Hospital, Raipur. Autopsy was conducted by Dr. @.P. Dewcmgan (PW-16) vide Ex. P-25 ouid found the foljowmg Snjunes: (1) Stitched surgical wound on right angle of moulfi; (2) Abrosion over Jeft 3Jde of chest; (3) Stitched surgicat wound over right pcrietal region on scalp; (4) Stitch@d surgjcal wound over left parietal region @f 1+se head; -^- ^{ .^ /1{1 ^ (5) Depression of mid parietal area posteriorly; (6) Fracture of 3rd to 8th ribs teft ta-terally; C7) Stitched surgical wound over the left side of mandibular on neck. 6. The cau^ of death was cardio respiratory faiiure as a resytt of head injury and its complication, Blood stained ctothes of the deceased were seized vjde Ex. P-6. Spot mcp was prepared vide Ex. P-7. Accused Nieduram was taken into custody, He made a di^closure statBment of knife vide Ex. P-18. The same was recovered at the instomce of accused Kheduram vide Ex. P-21, Accused Pappu made a discfosure statement of stick victe Ex. P-19 and the same was recovered at the instance of accusedt Pappy vidle Ex. PM-22, Accused Rajesh made statement of disclosure of stick vide Bx. P-20 and the same was recovered at the instance of accused Rajesh vid@ Ex. P-23. Seized articles were sent for chemical examinatjon vide Ex. P-26. 7. Statement of witnes^ss were recorded under Section 161 of the Cocte of Criminal Procedure, 1973 (for short tthe Code^ ^fter comptetion of investigation, charge-sheetwas filed befor®the Judicial Magistrate. First Class, Raipur who in turn commi^ed the case to the Court of Sessjons, Raipur. Leamed Additional Sessions Judge, Raipur recesved the cass on transfer for trial, 8, In order to prove guitt of the flppellants, prosecution excimined as many as 18 witnes^s* The accused were examined under Section 313 of the Code where 1+iey denied 1+ie circumstan<^iS appearing against •Hiem and hav®taken the defence that they were in JnJmical terms wi1+i the complaint party on 1+ie ground of ^IJs'ng illicit (Jquor and have been falsely impliaaited on 1tie ground of enmity, 9. Accused examined Jogsingh (OW-1). He depofited 1+iat deceased Lomas and his son Dilip Kumar (PW-1) used to se^ illicjt liquor in the ViKage and 1+ie deceased died as a result of motor accident. 10. After affording opportunity of hearing to the part'ies, leamed Additjonal Sessions Judge convicted and s<^itenced the appeltants as aforementioned. 11. We have heard learned counsel for the part-jes, pemsed the jydgment impugned and record of Court below. r x\ ^^^.^•^ s w^y % ..1 YV 12, Shri Yashwant Tiwari, (earned coun^l cppearing for 1+ie qspellants, vehemently argued that the evidence of alleged eye witness of Dilip Kumar (PW-l) son of deceased o id Rajnarayan (PW-8) brother of the deceased are contradictory, Both the witnesses have not seen the jncident and have falsely impJicated the appellants Jn crime Jn question on the ground of previousenmity relating to selling of illicit liquor. Even accordhg to •riie prosecution, the only grievous injury found over the body was breakin9 of tool+i which Js neither dangerous nor fatal for the life, Decea^d died after 1+iree days of incident, At the time of commission of offence, the appellants were Jn a position to finish the deceased but they have not caused instantaneous death, They have not caused the injury with intent to causing his death but they have caused injury with a view to teach him lesson in which at 11ie worst the offence woyid be punishable under Section 326/34 of the I.P,C. Learrwgd coun^ei further argued that the present appellants are in custody since 19-04<-2002 and have completed more than seven years in custody for the aforesaicf offence, 13. On the other hand, Shri Bhatia, leamed coynssl appearing for 't+ie State/respondent, vehemently opposed the appeal and submits that the case of prosecution is ba^d on 1+ie eyidence of eye w?1ness who have se^r? 1+ie jncident and has categorically supported the case of pro^cution, &Jlip l^itnar (PW-1) is son ond Rajnarayoui yw-8) js brolfier of deceased. They are close relatives of the deceased. Their pre^ncc on the spot is natyral, Their evidence cannot be discarded on 1+»e ground that they are close relatives of the decea^d, The relatives are the persons reluctant to spare the n&al culprit and to implicate an innocent person falsety, Lecrned counsel Gppearing for the State/respondent further argued that evidence of Dilip faimar (PW-1) and Rajnarayan (PW-8) inspire the confjdence ond trustworthy, Tlie appellants have caused more 1+ian sjx fatal injuries by dcngerous WMpon (knife and stick), so 1+ieir intention of causing homicidal dea1+t amounting to murder. 14. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. In the present case, homicidal death of the deceased as a resuit of injury is not substantially disputed by 1+ie appellants, otherwide established by 1+ie evidence of Or, S,ft, Banjare (PW-3), medical report Ex. P-11, Dr. @.P. Dewangan (PW-16) and autopsy report 6x, P-25 which reveal that more than six injurjes were cayfiBd over the body of the deceased including head, neck and mouth, Jhe syrgery of head was conducted durinQ treatment and death was as a result ef bsad Jnjury, TTie injuries were ante-mortem and the death was honiicidal m natyre, 15. As regards the compJicit/ of the accused in crime in question is concemed, conviction of the accusted persons are substantiaJly based on the evidence of eye wilness Dilip Kumar (PW-1) and Rajnarayon (PWa-8). Dilip Kumar (PW-1) has d@posed in his evictence that at 1+ie time of incident/he was coming w11^ hls fother deceased Lomas by motorcycle. TTrey were intercepted by the appellcmts. While they were coming to their vilJage. appeilant Rajesh damaged his motorcycte ond also tried to attack ypon him, then he ran away from the spot and went to the house of Jeevrakhan for help but Jeevrokhan did not come to l^e ptace of incidence to inter^ene, then again he came back to the spot, His uncle Rajnarayc^i (PW-8) was also coniin9 to 1t?e village from Ko^irongj to Farhada, He has further depofi^d that appejlant (^ieduram assaulted his father by knife over his neck. Ano1+ier co- accuaed assuulted his father by stick. Tliey have also chased him. When his uhcle Rajnarayan came to 1+ie ptace of incident then he again cairB witti Jeevrakhan near the place of incident, Ihen the appellants fted awcEy from the spot, They took hjs father to Police Station and hospital, Rajnarayan (PW-8) brol+iier of deceased has substantially corroborated 1+ie evidence of DiJip Kumar (PW1) who has deposed jn his evidence that Gppellont Khedu assaulted his brother by knife and rest of appetlants assaulted his brother by stick. He shouted for help and calied Jeevrakhan, then Jeevrakhain and Dilip came Itien the appellants fled away from the spot. Jeevrakhan (PW-12) has not supported the case of prosecution. The prosecution has declarod him <xs hostile, 16. Defence has cross-examined Dilip Kumar (PW-1) at Jength. In his detailed cross-ssxaminatjon, he hcxs ^ecifically depo^^d that -riie appellonts are 1fie persons who have assaulted his father, He has admitfred in pora 15 of his evidence that firstly his father was admitted in Medical Gollege Hospital, 6 Raipur then they could admit in M.M.I. Hospital, ftaipur where he died on 11- 04-2002. He has denied that -t+ie appelbnts have not assaulted his father and hjs father received injuries on account of motor accident^ Defence has also cross-examined Rajnarayan (PW-8) in detail. In his cross-examinatjon, he has admitted that after purchasing medicine, he was comtng from vrllage Kosarangi. He has also admitt'ed Jn his cross-examination that his brother was treated in two hospitals. In the cr'o^s-examination of these wilnesses, defence has not been able to bring anything to discredit the testimony to the effect tiiat appellants have not caused injuries to the deceased, Defence has examined Jogsingh (DW-1) who has deposed that the decea^d Lomas and his son Dilip Kumar (PW-l) used to sell the illicit liquor and had heard that Lomas died as a result of motor accident but his examination or detailed cross- examination, he has not stated that how he came to know 1+iat Lomas died as a result of motor accident and who have informed such fact to him* Oispute reiating to iliicit liquor is not substantially dtenied. Jogsingh (DW-1) is not a witness of any incident, Diljp Kumar 0>W-1) and Rajnarayan (PW-8) are 1+ie son cuid brother of deceased and are closed relatives but 1+ieir statement cannot be discarded on the ground of their relatJonship. There are some omJssions and contradictions in the statement of Dilip Kumar (PW-l) aid Rajnanofyon (PW-8) occurred into their evidence, The appeltants were ihree m number, they have caused more 1+iwi slx injuries, In case of one a^sertion and more 1+ion one weapon omtesion and contradiction even exaggeration are riatural but only on the ground of omission, contradiction. exaggeration or the fact that 1+ie part of 1+ie statement is false, their statement/evidence cannot be thrown. 17. It is duty of the Court to separate truth of grain from -t+ie chaff of falsehood if possible. While dealing with the question of reliabiltty of the evidence of the person who has exaggerated and patiently given false statement up to some extent, the Apex Court in the matter of Laxman and others v. State of Maharashtra has held that witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts of Ifieir 1AIR 1974 SC 308 -^^A statements are demonstrable incorrect or doubtful. Relevant portion reads as under; "Before we discuss the evidence further, we may observe that Professor AAunsterberg in a book called "On ifce Witness Stand" (p.51), "Law ond the Modern Mind" (see: 1949 ed. P.106) gives instotnces of experiments conducted by enacting sudden unexpected preplonned episodes before persons who we.re then asked to write down, soon afterwards, what they had seen and heard. The astoundin9 r^sutt was: "Words were put into the moutiis of men who had been silent spectators during the whole short episode; actions were att-ributed to the chief participants of which not the slightest trace existed; oind essential parts of ^e tre®1c- comedy were completely ejiminated from the memory of a number of wi1nesses"» 18, Hence, the Professor concluded: "We never know, or imagine", Witnesses can not, 1+rerefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrabiy incorrect or doubtful, The astute judge can separate the grajns of acceptable trulfi from the chaff of exaggerations <md improbabjtjtjes wrfiich cannot be safely or prudently accepted or acted upon. It is sound commonseiise to refuse to apply mechanically, in asse^sing tiie worth of necessarily imperfect human testimony, the maxim.' "falsus in uno falsus in omnibus,11 t9. While dealing with the questson of relJobiJjty of relatjve witness the Apex Court in the matter of Dalip Sir^h and others v, The Statc of Punjab2 has held that a witness is normaJly to be considered independent untess he or she springs from sources which are likely to be tainted. Para 26 of 1+iie ^aid judgment reads as under:- tt26. A witness is normaJJy to be considered independent unless he or she springs from sources which are Jikely to be tainted and that usually means unless the witness has cause, such os enmity against the accused, to wish to implicate him fatsely. Ordinarily, a close relation would be ti^e last to screen 1+ie real culprit ond falsely implicate an innocent person, It is 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 witnes^ has a 9rud9e along wi1+i the 9uilty, but foundation must be iaid for such a criticism anct the 2 AIR 1953 SC 364 ^-^.^ ^l. mere fact of relatjonship far from beiing a foundation is often a sure gyar<mt@e of truth* However, we are not attemptjng any sweeping gsneraljzation. 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. There is no such general rule. Each case must be limited to and be governed by its own facts." 20. Further, in the maUer of ttohabbat and Ors. v. Stat®of M.P.3 the Apex Court has held that relationship is not 9round to affect credibility of witness, foundation has to be laid if plea of false implication is raised, Para 7 of the said judgment reads thus, W7. Merely because 1+ie eye-wi1yies%s are family members their evidence c<annot per se be dis^arded. When there is allegation of interestedness, the sanie has to be established, Mere statement that bein9 reiatives of the deceased tiiey are Jikely to faisely jmplicate the accused couinot be a ground to discard the evidence which is otherwise cogent cind credible. We shall also deal with the contentian regarding interestedness of the witnesses for furthering the prosecution version, Relationship is not a factor to affect credibility of a wi'hiess. It is more often than not that Q reJation would not conceal actual culprit cmd make alle9<xtions against an innocent person, Feundation has to be laid if plea of fal^ impiication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogcnt <xnd credibte." 21, In the present cose, the presence of Dilip Kumar 0?W-1) and Rlajnaraycyi (PW-8) were natural. Dilip l&imar (f>Wwi) was accompanying the deceased by a motorcycle and PW-8 Rajnarayan who was coming after purchasing rnedicine from Kosarangi to his Village Farhada, they are relatives but their evidence inspjre confidence and trustworthy and safe to rely and sufficient for drawin9 inference that the appellcxnts are the persons who are caused fQtal injuries resutting Jnto death of 1+ie deceased. 22. As regards motive is concerned, 1+ie injuries caused by Khedu over the neck of the deceased was not found fatal after assaulting tiie deceased, the ^ 3 2009 AIR SCW 1486 \ appellants fled away from the spot but they hwe not Jeft the place of occurrence suo-moto when Ifiree persons came to the place of incident then they fled away from the spot. During cowse of incident. even they have tried to attack upon Dilip Kumar (pW"i) who had tried to intervene the incident, 1+iey have assailed tiie deceased by knife and stick fluid caused more -Hian six injuri'es- The injuries found over the head were fatal and sufficjent to cause of deatii shows the grave intention of causing homicidd death of Ihe deceased amounting to murder. 23. AJI 1+ie appellants have caused injuries to 1+ie deceased, Firstly they intercepted the deceased cmd his son, 1+ien they <aused jnjuries, slhows 1+»ir sharing of common intention in commission of the offence, 24. After appreciating the evidence available on record, tearned Additienal Sessions Judge has convicted -ttie appellcmt under Section 302/34 of 1+ie I.P.C aind ^entenced to undergo rigorous imprisonment for life and fine of Rs.5000/- each in default of payment of fjne of Rs.5000/- eadi, to further undergo rjgorous imprjsonment for 1+iree mon-riis, Conviction of the appellants is based on clinching and credible evidence sustainable under -tfie law. 25. On close scrutjny of -Hie evidence adduced on behalf of the parties, we do not find any Jllegality or infirmity in Itie judgment Jmpugned warrcnting ony s'ftterference. The appeal being devoid of merit is IJable to be and is hereby dismissed. — Sd/- Sd/- N.K.Agarwal T.P. Sharma Judge Judge Kvr