HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Rajeev Gupta. C.J. & Hon'ble Shri Sunil KumarSinha.J. <e. € Criminal Appeal No. 915 of 2005 Bahoran @ Bahu Vs. State of Chhattisgarh JUDGMENT For consideration 1 Sd/- SunU Kumar Smha S Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J ^<-^^-x2—' c Sd/- Chief Justice Post for Judgment :2. ^02/2009 Sd/- Sunil Kumar Sinha Judge @ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT RESPONDENT Criminal Appeal No. 915 of 2005 Bahoran @ Bahu S/o Fagua Uraon, Aged about 40 years, Occupation Agriculture, R/o Village Sihar, P.S. Sankargarh, District Surguja (C.G.) Versus State of Chhattisgarh Through S.H.O. Darima, District Surguja (C.G.) (Appeal under Section 374 (21 ofThe Code of Criminal Procedure) Appearance: Ms. Nirupama Bajpai, Counsel for tha appellant. Shri U.N.S. Deo, Govt. Advocate, forthe State. JUDGMENT (2^.02.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellant Bahoran @ Bahu stands convicted u/s 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/-, in default of payment offine to further undergo R.l. for 1 month by the Sessions Judge, Surguja, Ambikapur, in Sessions Trial No. 208/05 on 22.11.2005. (2) Appellant Bahoran and his co-accused Laxman Ram were the neighbours of deceased Manajo Bai. The accused persons were keeping notion that the deceased was a tonahi (a lady practicing witchcraft against others). On 27.2.2005 at about 8.00 p.m., deceased Manajo Bai, her son Mahju Ram (PW-1 ) and husband Sundra (PW-2) were present in their house. Manajo Bai went out from the house to answer the call of Criminal Appeal No. 915 of 2005 nature. After a short while, Mahju Ram and Sundra heard cries of Manajo Bai. Mahju Ram (PW-1) rushed out from the house and saw that appellant Bahoran was assaulting her mother Manajo Bai with a tangia on her head. Co-accused Laxman Ram was also present there. After assaulting the deceased, the accused persons ran away from the place of occurrence. By that time, Sundra (PW-2) also came out from the house. PW-1, Mahju Ram, told all this to his father. They saw the injuries. Manajo Bai succumbed to those injuries. (3) Mahju Ram (PW-1) lodged the First Information Report (Ex.-P/1) on 28.2.2005, which contains the above details. It was a named F.I.R. Merg intimation (Ex.-P/2) was also lodged on the same day. The Investigating Officer reached to the scene of occurrence, gave notice (Ex.-P/S) to the Panchas and prepared inquest (Ex.-P/11) on the body of the deceased. After taking the appellant into custody, his memorandum (Ex.-P/12) u/s 27 of the Evidence Act was recorded and a tangia was seized on his instance under Ex.-P/13. Bloodstained soil and plain soil were seized under Ex.-P/15. Site maps were prepared under Ex.-P/4 & P/5. The dead body was sent for its post-mortem to C.H.C. Sankargarh under Ex.-P/7, where the post-mortem examination was conducted by a team of two Doctors namely Dr. N.L. Bhuaarya (PW-5) and Dr. A.K. Singh, who prepared their report Ex.-P/S. According to the Autopsy Surgeons, there were 4 incised wounds on the body of the deceased, out of which, 2 incised wounds were on the left parietal region and left occipital region, whereas, one was on the right shoulder and the other was on the right scapula. They also found fracture on the left parietal bone. The Autopsy Surgeons opined that the cause of death was excessive haemorrhage due to head injuries and it was homicidal in nature. (4) In further investigation, the seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.- P/24, from where a report Ex.-P/26 was obtained. According to the F.S.L. report, blood stains were found on all the articles, including tangia, except plain soil. ^ 7€^..^ Criminal Appeal No. 915 of 2005 '^ ^.... (5) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Ambikapur, who in turn, committed the matter to the Court of Sessions Judge, Ambikapur, where the trial was conducted and the accused appellant was convicted and sentenced as aforementioned. However, the co-accused namely Laxman Ram was acquitted. (6) The conviction of the appellant is based upon the eye witness testimony of Mahju Ram (PW-1) corroborated by the evidence of Sundra (PW-2) and further corroborated by the medical evidence of Dr. N.L. Bhuaarya (PW-5). (7) Ms. Nirupama Bajpai, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Mahju Ram (PW-1) and Sundra (PW-2) that the deceased was assaulted by the appellant by a tangia, who received many injuries and succumbed to those injuries. This evidence is supported by the evidence of Dr. N.L. Bhuaarya (PW-5), who conducted the post-mortem examination of the deceased and noticed as many as 4 incised wounds on different parts of her body and opined that the cause of death was excessive haemorrhage due to head injuries. He also noticed a fracture of left parietal bone and further opined that the death was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. (8) Ms. Bajpai mainly argued that the sole eye witness namely Mahju Ram (PW-1) and supporting witness Sundra (PW-2) are the son and husband ofthe deceased, therefore, they are interested witnesses and no reliance can be placed on their testimonies. Alternatively, she argued that it was a dark-night and it was not possible for the eye witness to identify the assailants, therefore, benefit of doubt should be extended to the appellant. (9) On the other hand, Shri U.N.S. Deo, learned Govt. Advocate, appearing for the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. •\, ^^sy^^^- Criminal Aroeal No. 915 of2005 (10) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (11) So far as argument regarding relative/interested witnesses is concerned, the Apex Court held in the matter of Harbans Kaur and another -Vs- State of Harvana. 2005 AIR SCW 2074 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 reason to shield the actual culprit and falsely implicate the accused. (12) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Apex Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence 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 deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. (13) Recently, in the matter of Sone/a/ -Vs- State of M.P.. 2008 AIR SCW 7988, the Apex Court again said that merely because the eye witnesses are family members their evidence cannot be per-se discarded. 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 analyse evidence to find out whether it is cogent and credible. Criminal Aopeal No. 915 of2005 (14) Therefore, this argument cannot be sustained that the testimonies of these witnesses cannot be relied on, only on the ground that they were the relatives of the deceased. However, their evidence is to be scrutinized with due care and caution and if such evidence is found credible in appreciation, the conviction can well be based on their such testimonies. |liiniimi ^ ^ (15) Now we shall scrutinize the evidence of PW-1, Mahju Ram. (16) PW-1, Mahju Ram, deposed that "the accused persons were well known to him. He was residing jointly along with his mother and father. Deceased Manajo Bai was his mother. The incident took place at about 8.00 p.m. on 27 February, 2005. At that time, he was present in the house and was taking meals. His father was sleeping. His mother and niece namely Anju went out towards their badi to answer the call of nature. After a short while, he heard the cries of his mother, on which, he came out from the house and saw that appellant Bahoran was assaulting her mother with a tangia on herheadand neck. Co-accused Laxman Ram was also standing there. When the accused persons saw him, they ran away from the place of occurrence. hier mother fell down and she died after sometime. He thereafter called the chowkidar. His father went to call his elder brother and sister-in-law, who were residing in a different house. He reported the matter to the concerned police station on 28.2.2005, on which, the F.I.R. (Ex.-P/1) and merg intimation (Ex.-P/2) were recorded, which bear his signatures". In the cross examination, he admitted that it was a dark-night. But, he added that he had seen the accused persons from a distance of 5-6 steps. He has also denied that there was a darkness at the place of occurrence, therefore, he could not identify the accused persons. He himself has clarified that the accused persons were his neighbour and why he will not identify them. The version of this witness would show that he had seen the assailants from a distance of 5-6 feet and it was not such dark that he would not identify them. Admittedly, theywere the persons of same locality and were daily meeting with each other. It is not a case where the faces of the assailants were covered with cloths etc. They were having open faces and it could not be said that a person who is well acquainted with the other person . ^^f' .^ ""'^ ':^ Criminal Aopeal No. 915 of2005 would not be able to identify him from a distance of 5 feet, in thenight, particularly when he is claiming that there was no darkness. Since nothing adverse could be elicited in the cross examination of this witness, therefore, the evidence of this witness appears to be reliable. The version of PW-1, Mahju Ram, is supported by the version of PW-2, Sundra, whp immediately rushed to the spot and saw that the dead body of his wife> was lying and it was told to him by his son Mahju Ram (PW-1) that his wife was assaulted byappellant Bahoran. Had there been any mistake in the identity of the appellant, Mahju Ram (PW-1) would not have immediately disclosed the name of the appellant to his father Sundra (PW-2) and would have taken sometime to disclose the identity of the assailants. Even the matter does not appear to be of false implication. Why this person would falsely implicated the appellant and allowed the actual culprits to escape. (17) We, therefore, hold that the trial Court has rightly believed the testimony of PW-1, Mahju Ram, and has held that it was the appellant who assaulted the deceased with a tangia causing her death. (18) We do not find any illegality or infirmity in such finding recorded by the trial Court. (19) The appeal has no merit, the same is liable to be dismissed and is accordingly dismissed. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti