‘i zgrPQ. <@ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.974 of 2002 APPELLANT: » Jurbi Korva, S/o Jaguaa, aged 38 years, (In Jail) Occupation Labour, R/o Village i Vinayakpur, Police Station Shankargarh, Distt. Surguja (Chhattisgarh). Versus RESRONDENT: State ' of Chhattisgarh, .Through P.S. Shankargarh, Distt. Surguja (Chhattisgarh). I {Crintirt‘afappgal under Section 374 (2) of the Code of Criminal Procedure, 1973} =Mr. Abhay Tiwari, counsel for the appellant. ‘Mr. Ashish Shukla, Govt. Advocate for the State/respondent. JUDGMENT ( 27" November, 2009) The followinq judqment of the Court was passed by T.P. Sharma, J: - 1. By this appeal, the appellant has challenged legality & propriety of the judgment of conviction & order of sentence dated 27-8-2002 passed by the 4‘“ Additional Sessions Judge, Ambikapur, in Sessions Trial No.12/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of the offence of causing homicidal death of his wife Ritlo Bai, amounting to murder, convicted him under Section 302 of the l.P.C. and sentenced him to undergo imprisonment for life & pay tine of Rs.1,000/—, in defaultpf payment of fine to further undergo R.l. for six months. Q) 2. Judgment of conviction & order of sentence is challenged on the ground that without any credible and clinching evidence learned Additional Sessions Judge has convicted & sentenced the appellant and thereby committed illegaiity. 3. Case of the prosecution, in brief, is that Ritlo Bai (since deceased), who was wife of the appellant, was residing with the appellant at Village Vinayakpur, Police Station Shankargarh,.Distt. Surguja, on 20-11-2001 at about 9 p.m. the appellant was quarrelling with his wife Ritlo Bai, he chased Ritlo Bai for causing injury to her with axe, Ritlo Bai ran away frorri her house and went to the house of Bhuranda (PW-4), brother of Ritlo Bar The appellant Infllcted injury over the temporal region of Ritlo Bar with axe Ritlo Bai fell down and died on the spot Bhuranda (PW- 4), brother of the deceased, lodged the F.l.R. on 21-11-2001 vrde Exf- 3. Merg was recorded vide Ex.P-2. The Investigating Officer left for the place of occurrence and after summoning the witnesses vide Ex.P—10, prepared inquest over the dead body of Ritlo Bai vide Ex.P-11. Dead body of Ritlo Bai was sent for autopsy vide Ex.P-8A to Primary Health Centre, Shankargarh and autopsy was conducted by Dr. Smt. J. Kujur (PW—14) who found one incised wound over right temporal region extending from right occipital region to front of right ear of 4.5” x 1" x 2“ and one incised wound over right upper part of cervical region of 1.5" x 1A” x 1/2 On internal examination, cartilage of right ear, right occipital bone and temporal bones were found cut. Injuries were ante-mortem and cause of death was excessive haemorrhage as a result of head injury. Blood stained clothes of the deceased were sealed & seized vide Ex.P-1. Blood stained axe was recovered from the accused vide Ex.P-4. sBlood stained & plain soil and broken bangles were recovered from the spot vide Ex.P-6. The axe was examined by the doctor vide Ex.P-9. The Patwari prepared the spot map vide Ex.P—5. Seized articles were sent for chemical analysis vide Ex.P-15. Statements of the witnesses r S m .n @z were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Ambikapur, who in turn, committed the case to the Court of Sessions, Ambikapur, from where the 4‘“ Additionai Sessions Judge, Ambikapur, received the case on transfer for trial. 4. in order to prove the guilt of the appellant, the prosecution has examined aslmany as sixteen witnesses. The accused was examined under l Section 313 of the Cr.P.C. in which he denied the circumstances ‘ appearing against him, pleaded innocence and false implication. q ‘ 5. Wé have heard learned counsel for the parties, perused the impugned judgment and record of the trial Court. £ 6. Learned counsel f’or the appellant vehemently argued that without any ~- credible and clinching evidence the Court below has convicted and sentenced the appellant. Statements of the alleged eyewitnesses Dasri Bai (PW-5) & Bodhan (PW-6) are not reliable and the witnesses have not supported the case of the prosecution. 7. ln order to appreciate the contentions of the parties, we have examined the statements of the witnesses. Homicidal death of deceased Ritlo Bai, wife of the appellant, as a result of ante-mortem fatal injuries is not substantially disputed by the appellant, on the other hand, it is established from the evidence of Tekva (PW-1), Smt. Gulmi (PW-2), Bhurunda (PW-4), Dasri Bai (PW—5), Bodhan (PW-6), Dr. Smt. J. Kujur (PW-14), merg intimation Ex.P-2, F.l.R. Ex.P-3 & autopsy report Ex.P-8 which reveal that two incised injuries were found over the occipital region & cervical region of the deceased and cut injury beneath injury No.1 of occipital & temporal bones & cartilage were found which were sufhcient j for causing the death of deceased Ritlo Bai. 8. Case of the prosecution rests on direct evidence and extra judicial confession. In order to estabiish the complicity of the appellant in the crime in question, the prosecution has examined eyewitnesses Dasri Bai (PW-5), mother—in-iaw of the appellant & Bodhan (PW—6), uncie of the deceased (ohacha).. 9. Tekva (PW-1) is the person before whom the appellant has made extra judicial confession. Dasri Bai (PW-5) has deposed in her evidence that l thelappellant assaulted her daughter Ritlo Bai with axe and caused her death. She has tried to intercept the incident, but the appellant has causedfatal injury to Ritlo Bai in her courtyard at night. ' t 10.Bodhan (PW-6) has deposed in his evidence that the appellant inflicted $ injury to Ritlo Bai with axe, when he tried to snatch the axe, the accused n assaulted him also whereupon he ran away. He has also deposed that the appellant took axe from his house and went to the house of his mother—in-law Dasri where be caused injury to Ritlo Bai. He has further deposed that after hearing the sound of Dasri Bai he went to her house and saw the dead body of Ritlo Bai. Dasri Bai told him that the accused has caused injury to Ritlo Bai. .In her cross-examination, Dasri Bai (PW-5) has admitted that at the time of incident the deceased & the appellant have consumed liquor, again she said that only the appellant had consumed liquor. The appellant was under intoxication, he went to his house and came with axe. But she has denied the suggestion that her daughter Ritlo Bai fell down and died as a result of injury caused by fall. She has specifically denied the suggestion that the appellant had not assaulted his wife. Her detailed statement m reveals that she is the person who has seen the incident which took l, place in her courtyard and before the incident the appellant & the deceased came to her house. 12.Tekva (PW-1) has deposed in his evidence that the appellant told him that he has caused the death of his wife. But in his cross-examination he has admitted that there was no conversation between the appeliantand himself relating to murder. ..13.Smt. Gulmi (PW-2) has deposed that before the incident the appellant was chasing his wife, he was holding axe and after some time she saw the dead body of Ritlo Bai in her courtyard. This witness is relative of the deceased {sister-in-Iaw (bhabh/)}. Bhurunda (PW-4), brother of the r deceased, has aiso deposed that the appeliant has inflicted injury to his wife Ritlo Bai and Ritlo Bai died as a result of the injuries sustained by her. In his cross-examination, this witness has admitted that the £ deceased & the appellant have consumed liquor and they were falling down due to intoxication. He has also admitted that he has not seen the incident. 14. ln the present case, Dasri Bai (PW-5), mother of the deceased & mother- in-law of the appellant, has specifically deposed that the appellant is the person who has caused f'atal injuries to his wife Ritlo Bai in her courtyard and Ritlo Bai died as a resultéof fatal injuries caused by the appellant. Defence has cross-examined this witness at length, but it has not been able to elicit anything in her cross—examination to discredit her testimony. She is the eyewitness and relative of the deceased a‘s well as of the appellant, but her statement cannot be discarded only on the ground that she is mother of the deceased. The relative witness is the last to screen the real culprit and falsely implicate an innocent person. While dealing ”With the question of reliability of relative witness the Apex Court in the matter of Dalip Singh and others v. The State of Punjab1 has held that a witness is normally to be considered independent unless he or she ~\n<. , 1AIR 1953 sc 364 springs from sources which are Iikely to be tainted. Para 26 of the said judgment reads as under:- “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 unless the witness has cause; ‘such as enmity against the accused,”to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and 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 witness has a grudge i along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from beihg a foundation is 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 is so often put fonNard in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 15.While dealing with the same question, the Apex Court in the matter of Arumugam v. Statez has held that “Relationship is not a factor to affect credibility of a witness. lt 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. ln such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible." b 16.ln the present case, statement of solitary relative witness Dasri Bai (PW- 5) inspires confidence, it is trustworthy and safe to rely upon. After ,9 appreciating the evidence available on record, learned Additional l 008 AIR SCW 735'4 i 2 @iI Sessions Judge has arrived at a funding that the appellant is the person who has caused fatal injuries to the deceased resulting into her death. \ ‘ f\\ 17.As regards motive of the accused in the crime in question, in case of direct evidence motive loses its importance.‘ Even otherwise, motive can be inferred on the basis of the weapons used, injury caused, part of the body affected by the injury and the manner in which the injury was cau‘sed. 18.ln the present case, according to Dasri Bai (PW—5), hrstiy the appellant was sitting in her house without any weapon, but he went to his house and ‘br‘ought the axe and caused fatal injuries to the deceased. This shows the grave intention of the appellant which is sufncient for drawing .t inference that the appellant has intentionaiiy caused repeated fatal N injuries resulted into the death of deceased Ritio Bai. 19.After appreciating the evidence availabie on record, learned Additional Sessions Judge has convicted the appellant for causing homicidal death of the deceased (his wife) amounting to murder and has convicted & sentenced him in the aforesaid manner. vThe impugned judgment of conviction and order of Sentence of the appellant is based on clinching and credible evidence sustainable under the law. . 20.After close scrutiny of the evidence available on record, we do not find any illegality or infirmity in the judgment impugned warranting any interference. The appeal being devoid of merit is liable to be dismissed ‘ . and itis hereby dismissed. Sd/- R.L. Jhanwar i K . Sdl- g_ Judge’ ‘ ,3. ”T. P. Sharma Judge ‘ . ‘ ’ 27"“;1 1-200’91. Soma