- ••Sw} HIGHCOURTOF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR^LJ. Criminal appeal No.2215 / 2000 APPELLANT (in Jail) RESPONDENT Shahdev son of Gulab Satnami, aged about 35 years, resident of Parvati Nagar, Panhari, Raipur, permanent resident of Village Lohar, P.S. Kurud, Distt. Dhamtari (MP) VERSUS The State of Madhya Pradesh, Through P.S. Pandari, Raipud, District Raipur (MP) C^jlVIINAL A^PEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROCEDURE CODE Appearance: Shri Ram Krishna Sharma, counsel for the appellant. Shri Ashish Shukla, G.A. forthe State. iggss PerT.P.Sharma,J. ORAL JUDGMENT (Passedon 27.08.2010) The challenge in this appeal is to the judgment of conviction and orderofsentencedated 31stJuly, 2000 passed in S.T.No.132/2000 by the 2 Additional Sessions Judge, Raipur whereby and whereunder after holding the appellants guilty for commission of culpable homicide amounting to murder of Premlal, the Court below convicted the appellant under Section 302 ofthe I.P.C. and sentenced to imprisonment for life and with default of Rs.2000/- and in default toundergo 6 months R.l. 2. The conviction is impugned on the ground that without iota of evidence, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Brief case of the prosecution is that the appellant has doubted upon Premlal, brother in law of the appellant, fhat he was having illicit relation with his wife - Shahsi Bai P.W.5 and on account of such suspicion on the date of incident i.e. 27.1.2000, the appellant called Premlal in his house ''NSggaiiig, | ~<fl 1 -?. and offered liquor to Premlal. After consuming liquor, he assaulted deceased Premlal and caused injuriesover his body including the head. As a result of assault, Premlal became unconscious. The incident was witnessed by P.W.5 Shashibai, wife of the appellant, P.W.1 Saraswati, wife of Premlal (since deceased) and P.W.2 Dharminbai, mother in law of the appellant. P.W.1 Saraswati, who was present on thespot took Premlal to the Police Station and lodged report Vide Ex.P.12. Premlal was sent for Medical College Hospital, Raipur for treatment where P.W.11 Dr. K.K.Gajbhiye examined the injured - Premlal vide Ex.p.13A and found one lacerated wound of2cmx 1 cmx 1 cm over scalp, one lacerated wound of2cmx 1 cmx 1 cm over chin and diffused swelling around both eyes. Blood was coming out from both nostrils. The deceased died on 27.1.2000 at 11.45 p.m. Death was intimated vide Ex.P.7 to the police station. Merg was recorded vide Ex.P.8 and also vide Ex.P.11. After summoning the witnesses, inquest over the dead body of the deceased was prepared vide Ex.P.2. Dead body was sent for autopsy to Medical College Hospita], Raipur. Vide Ex.P.IOA autopsy was conducted'by Dr. Ulhas Gonnade P.W.8 and found thefollowing injuries: 1) Stitched wound of 2 cm length over right side of body of mandible. 2) Abrasion over the thyroid cartilage. 3) Multipleabrasionsovertheneck. 4) Multiple abrasions over the face and chin. 5) Lacerated wound over the right side of scalp. 6) Abrasion of 5 x 5 cm. over skull. 7) Abrasion was found over nose. 8) Contusion was found over the lips. 9) An Impact Abrasion was found over left eyelid. 10) Abrasion was found over left shoulder. Cause of deathwas due to coma as a result of injuries. Accused was arrested vide Ex.P.6. Spot map was prepared vide Ex.P.14 and vide Ex.P.15 by Patwari, 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, who in turn commitfed the case to the Sessions A ^^' 1 Judge, Raipur. The learned Additional Sessions Judge received the case ontransfer for trial. 5. In order to prove the guilt of the appellants, the prosecution examined as many as 11 witnesses. The accused appellant was also examined under Section 313 of the Code in which he denied the circumstances appearing against him and claimed his innocence and false implication in this case. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. Shri Ram Krishna Sharma, earned counsel for the appellant as well as Shri Ashish Shukla, G.A. for respondent/State are heard at length. Perused the impugned judgment and record of Court below. 8. Learned counsel for the appellant vehemently argued that in the present case, statements of alteged eye witnesses P.W.1 Saraswatibai, P.W.2 Dharmin and P.W.5 Shashibai are contradictofy to each other and there are omissions and exaggeration. The above said witnesses are relative and interested witnesses. The conviction of the appellantcannot be based on the evidence of alleged eye witnesses. Statements of these Witnesses have not been corroborated by independent source. Their statement does not inspire confidence and trustworthy because they have not stated relating to weapon of offence i.e. pestle (lodha) in their police statements but they have exaggerated the statements relating to use of weapon. Doctors have also admitted in their cross-examination that injuries found over the body of the deceased could be caused due to fall on the stone and floor which normally appear because at the time of such injuries the deceased under intoxication. There was not even possibility that the deceased died due to injuries caused by the appeltant. The evidence of the prosecution may be sufficient for casting doubt that the appellant may have committed the offence but is not sufficient for proving thefact that the appellant has committed murder of Premlal. Suspension, however, cannot take place inlegal evidence. On these premises, learned counsel urged that the appellant is entitled tQ benefit of doubt. \-\.-... tf 9. On the other hand, learned counsel for the State opposed the appeal and submitted that evidence of eyewitnesses P.W.1 Saraswatibai, wife of the deceased - Premlal, P.W.2 Dharmin - mother in law of the appellant and the deceased and P.W.5 Shashibai, wife of the appellant is sufficient for drawing an inference that theappellant is the person who frequently was suspecting upon the deceased as to illicit relation with his wife and has intentionally invited the deceased and offered liquor. He further argued that when the deceased was fully under intoxication the appellant has brutally has committed murder of the deceased. The learned Court below has rightly after appreciating the evidence on record convicted and sentenced the appellant. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, as per evidence of P.W.1 Saraswati, P.W.2 Dharmin and P.W.5 Shashibai, the deceased was injured and was found in the house ofthe appellant. The deceased was shifted to hospital and was examined by P.W.11 Dr. K.K.Gajbiye vide Ex.P.13A. He died on the same day i.;e. 27.1.2000 at about 11.45 p.m. Thereafter, autopsy on dead body was conducted by P.W.8 Dr. Ulhas Gonnade vide Ex.P.10 which shows multiple injuries on several parts were found over the body especially by the sides of head and death was due to coma as a result of multiplier injuries found over the body. Both the Doctors have admitted in their cross-examination that injuries could be caused by fall on the ground orstone. 11. ln the present case, the appellant has not suggested as to his defence and has not examined any witness to show that the deceased received injuries by fall. In other words, the prosecution witnesses have specifically deposed that the present appellant has caused injuries to the deceased. Therefore, in the absence of any evidence relating to death by fall of the deceased, it is difficult to hold that the appellant has received injuries by fall. In the absence of such circumstances, it could be believed that the death of Premlal was homicidal in nature and injuries found over the body of the deceased were caused by none other than the appellant. 12. As regards complicity of the appellant in crime in question, the conviction is substantially based on the evidence of P.W.1 Saraswati, y s "€/ < P.W.2 Dharmin and P.W.5 Shashibai, wife of the appellant. As per evidence of P.W.5 Shashibai, she was present in her house at the time of incident. The appellant and the deceased (brother in law of this witness) were consuming liquor. The appellant offered liquor to the deceased. Thereafter, he assaulted deceased and when she tried to intervene, then the appellant pushed her. Thereafter, the appellant was continuously assaulting Premlal by pestle (hand grinder made of stone) over his mouth, nose, upon this she shouted for help and went out to tell the incident to the persons and at that time she saw her mother was on way to meet her. This witness further deposed that she informed about the incident to her mother and by eonveying this message she come back to the incident along with her mother and saw that her husband has brutally assaulted Premlal. When her mother intervened and objected, then the appellant hurled abuses to her. P.W.2 Dharmin has substantially corroborated the evidence of P.W.5 Shashibai and P.W.1 Saraswati, wife of the deceased whereas there are omissions found in their statements Ex.D.1, Ex.D.2 and Ex.D3 given before the Police. Ex.D.1, D.2 and Ex.D.3 are the brief of the statements recorded by the Police and the statements given in Court are in detail. Thoughcontradictions and omissions, either in statements given before the Police or in the evidence, by them are natural butcannot be brushed aside. In the present case, they have not stated anything relating to weapon of offence i.e. pestle and in the police statements they have specifically stated relating to use of pestle and only on account of exaggeration, the statements of these witnesses cannot be discarded. Even otherwise the maxim fa/sus /'n uno fa/sus in omnibus \s not applicable in the present case. 13. While dealing with the question of fa/sus in uno falsus in omnibus, the Apex Court in the matter of Laxman and others vs. State of Maharashtra, A.I.R. 1974 SC 308 has held as that witnesses cannot be brandedas liarsin toto and their testimpny rejected outright even if parts of their statements are demonstrable incorrect or doubtful. Relevant portion reads as under: "Before we discuss the evidence further, we may observe that Professor Munsterberg in a book ealled "On the Witness Stand" (p.51), "Law and Modern Mind (see: 1949 ed. P.106 gives instances of experiments conducted by enacting sudden unexpected preplanned episodes before persons who were then asked to write down, soon \ afterwards, what they had seen and heard. The astounding result was: "Words were put into the mouths of men who had been silent spectators during the whole short episode; actions were attributed to the chief participants of which not the slightest trace existed; and essential parts of the tragic- comedy were completely eliminated from the memory of a number of witnesses." Henee, the Professor concluded: "We never know, or imagine". Witnesses can not, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggefations and improbabilities which cannot be safely or prudentty accepted or acted upon. It is sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: fateus in uno falsus in omnibus". 14. P.W.1 Saraswati and P.W.2 Dharmin are interested witnesses and in the light of alleged claim of illicit relation with Shashibai P.W.5, she is also an interested witness but the fact remain that Premlal was husband of Saraswati whereas the appellant is the husband of Shashibai thereby meaning that the appellant and the deceased are co-son in laws of Dharmin. Even otherwise, interested witnesses are the witnesses and their evidence cannot be discarded only on the ground of relationship. The Courts are required to scrutinize their evidence with great care and caution. Close relative of the deeeased will be reluctant to sparethe real culprit and implicate the innocent person falsely. While dealing with the question of evidentiary value of the relative witnesses, the Apex Court in the matter of Dalip Singh and others v. The State of Punjab AIR 1953 SC 364 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely 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 iikely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinariiy, a close relation would bethe 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 \ r T.-R ItS^ 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 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 forward in cases before us as a general ruleof prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." While dealing with the same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State ofBihar, 2008 AIRSCW 3739 has held thus, "...... it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relativeof the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned hassome director indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive." While dealing with the same question, the Apex Court in the matter of Hari v.State of Maharashtra, 2009 AIR SCW 2250 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, f7-c, •4 \- \ "21. It may be true that all the vital witnesses, namely, PW 1, 2 and 8 are relations of the deceased but that by itself cannot discredit their evidence. It is a fight between the relations 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 to the deceased, learned counsel for the appellant relied on a decision ofthisCourt in Avtar Singh vs. State of Punjab, (2006) 12 SCC 524. In that case the facts were totally different and it was opined by the learned Judges, in the peculiar facts of that case, that enmity and bad blood between the rival groups was established beyond doubt. In thaf case no report was lodged with the police regarding the occurrence and this Court looked into the evidence and opined that the story about making an effort to lodge a report earlier was not true. In that case the nambardar and the chowkidar who were alleged to have accompanied PW-1 to the police station were not examined and there was a categoric denial by PW6-Station House Officer about anyone reporting the incident to him before 4.12.1989. This Court found that the High Court has not at atl noticed the facts. In the background ofthose facts, this Court held that proper caution was not exereised by the High Court in appreciating 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 the house at the instance of fhe close relatives and in such a situation only relatives would be the witnesses. Of course, in the present case also there was some enmity in view of theland dispute but that by itself is not a ground to discard the evjdence of the witnesses, who are relatives when their evidence is cogent and credible. Factually, the decision of this Court in Avtar Singh (supra) stands on a completely different footing." 7 « In the matter of Mohabbat and Ors. v. State of M.P. 2009 AIR SCW 1486, the Apex Court has held that relationship is not ground 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, "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. 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 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." 15. In the present case, the evidence of P.W.1 Saraswati, P.W.2 Dharminand P.W.5 Shashibai, who are eye witnesses of the incident, inspires confidence and trustworthy and is sufficient for drawing inference that the present appellant is the person who hascaused fatal injuriesto Premlal in his house at about 7.00 p.m. The appellant was present in his house where the deceased was continuously assaulted by the appellant and as a result of such assault the deceased received fatal injuries. For this, the appellant hasnoteven offered any explanation that howthe deceased received injuries that too in intoxication condition. These circumstances are sufficient for drawinginference that the as a result of injuries on account of continuous assaults by the appellant the death of Premlal took place. 16. As regards the question of motive, in case of direct evidence, motive loses its importance, even otherwise, motive only aids in criminality and it can be inferred from the use of weapon, part on the body affected and other similar circumstances. In the present case, the appellant has invited the deceased in his house and offered liquor and after consuming \ 10 liquor, the appellant assaulted the deceased and caused multiple injuries which show the intention of the appellant to commit the murder of the deceased. 17. After appreciating the evidence available on record, the learned trial judge has rightly convicted and sentenced the appellant as aforementioned in paragraph 1 of this judgment. 18. On close scrutiny of the material available on record, we do not find any illegality or perversity in the judgment impugned warranting our interference. Thus, theconviction and sentence of the appellant is affirmed. 19. Consequently, the appeal being devoid of merit is liable to be and is dismissed. Sd/- Sd'- ^ R.L. Jhanwar T.P. Sharma Judge Judge X'