H!GH COURTOR CHHATTISGARH AT BiLASPUR Criminal Appeal No.802 of 2002 CORUM:' ApDellant (InJail) ResBondenJ Hon'ble IVIr. T.P. Sharma & Hon'ble Mr. R.L. Jhanwar, JJ. Kaiicharan Sai, S/o Bhupal Sai Kanwy, aged about 50 years, R/o Villags Jambahifr, Police Station Tapkara, Teh. Kunkun,' Jashpur (Chhattisgarh) Versus State of Ghhattisgarh, (CRIMINALAPPEALUNDERi®EG1;ION374f2')OFTHBGOD£OF eRt !INAt.FR©GEDl)RE) ! ShriArunShufda.counselfQrtheappsllant. i Shn' D.K. Gwaiare, Govt. Advocate forthe State/non-appUcapt. ' ORAL JUDGMEMT i, (PassedOn15tDecember,2009) I The judgment of the Court was delivered by T.P.Sharma, J.;- i 's: 1. By this appeai, the appellant tias challenged the legality arid proprie^l of the judgment of conviction and order of sentence dated 10-04-2002 passed by the Additional Sessions Judge, Jashpur in Sessiohs Trial No.187/2001 whereby & whereunder after holdingthe appellanti|guilty j ill. / . ! forthe commissionof homicidalmurder ofdeceased Somaru eon'j' the appellant for commission of offence punishable under Sectiorj 302 ofthe Indian Penal Cpde arid sentenced him toyndergolimprisCTl^rtent •- iil' for life and to pay afine ofRs.500/-,in default of payment of Iprteto furtherundergoimprisonmentfortwomonths. li< I •• 2. Judgment & order impugned; te challenged onlhegroundthatwitltoyt evidfence relating to, comroission of the bffence by the lapp^ilanf -learned Additional Sessions Judge^ Jashpur has convieted | laiid m :^^; '••f.b. 9 ''"^E^S: -2^- sentenced the appellantas aforementioned and therebycommitted an illegality. 3. Case of the prosecution in brief is that on the fateful day of incident on 08-07-2001 at about 6.00 P.M. deceased Somaru was sitting in his waranda on kitchen stool (pirha) at village Jambahar, Poiice Station,,; Tapkara, District - Jashpurand his wife PW/2 Sukhmani was cleaning '-, the pot, the aecused came with an axe and assaulted the deceased by axe. When Sukhmani tried to intervene then accused also chased PW/2 Sukhmani wife of the deceased then she ran away from the place of occurrence. PW/1 Nandkishore who was coming from the forest along with his wife has also seen the incident. One Lalit informed PW/4 Adhin son of deceased Somaru then he went to the spot and finally lodged the FIR vide Ex.P/1. On the same day as also iodge Merg intimation, vide Ex.P/10. Investigating officer proce?ded for the scene of occurrence. After summoning the witnesses, irjquest overthe body ofSomaru was prepared, vide Ex.P/2. Bloodstainedsoil, plain soil were recovered from the spot vide Ex.P/6. Dead body pf the ] deceased was sent for autopsy to Primary Health Centre, Ta[jikara. Autopsy Was conducted by Dr. G.S. Painkra vide Ex.P/8 and found following injuries:- i) One incisedwoundof 2% " x %" scalp deep over the rightside ofthe head. ii) Fracture of the bone injury one incised wound 2 %i % " brain deep right fronta! area. Brain material came up j ,from the injury. iii) Incised wouldover the right side of chine size 2" due to Komaatthe result of brain injury. i 4. Spot map was prepared by Ex.P/11 Patwari also prepared tti^ spot map vide Ex.P/7. Appellant was taRen in custody. He made di?;eloser "x2 x %" -^E^.l-^l.TTTh- *,J fe-4t-^ .-t-H ,^,^:SSs'S^^ 'A~'"°*s»». "'B&paiSi 1 "1 8 ''^iS?<,,!f "•*&..,X.^iP' • w ~3- statement vide Ex.P/3. Axe was recovered at the instance of the appellant from the field ofthe accused vide Ex.P/4. Bloodstained clothes of the accused were seized vide Ex.P/5. Sealed clothes of the deceased Somaruwereseized vide Ex.P/12. 5. Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Jashpur, who in turn committed the case to the Courtof the Sessiqns Judge, Raigarh from where Additional Sessions Judge,Jashpurreceivedthesameontransferfortrial. 6. In order to prove the guilt of the accused/appellant, prpsecution examined as many as 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cpde where he denied the cireumstances appearing against him and claimed innocence and false implication in the crime in question. 7. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 8. We have heard Mr. Arun Shukla, counsel for the appellant and Mr. D.K. Gwalare, Govt. Advocate for the State and perused the judgment impugned as also record ofthe Court below. 9. Learned counsel f6r"fhe -appellant vehemently argued that although homicidal death ofthe deceased Somaru was not disputed by the ..appellant, but prosecution has not adduced any evidence againstthe ^ppeiiant to connect the appeiiant with crime.in question. Presence of f?W/1 Nandkishore at the time of inejdent is not supported by F.I.R. ~.1i". ' : : .' ! : : *s' i^l T7I^:.. -^-1- Ex. P/1. Another alteged eyewitness PW/2 Sukhmani Baiwife of deceased Somaru who is closed relative of the deceased has not supported the case ofthe prosecution. PW/2 Sukhmani Bai has turned hostile. In para 6 of her cross examination she has specifically deposed that at the time ofquarrei she was not present, therefore, she has not in a positionto see injuries over the body of the deceased. Counsel for the appeiiant further argued that the prosecution is under obligation to prove its case beyond reasonable doubt. In the present case prosecution has not prove the case. 10.0n the other hand, learned State counsel Shri D.K. Gwalare opposes the appeal and submits that prosecution has praved the case of beyond reasonable doubt. Presence of PW/1 Nandta'shore is not disputed and weli supported by theevidence of FW/4 Adhin Ram who lodged the F.1.R.. PW/2 Sukhmani has categorically deposed thatthel appellant is a person whp is caused fatal injury to her husband and when she tried to intervene then the appellant also chased her to assault. Further argusd that relativ® witnesses are the person reluctant to spare the real culprit and implicate ralselythe innocent. 11.1n order to appreciate the contentions of the parties, we have examined the evidence adduced on behalf of the parties. In the present case, homicidal death as a result of injury of deceased Somaru is not substantiaiiy disputed, otherwise also established by the evidence of Dr. G.S. Painkra (PW-8) and autopsy report (Ex.P/8), F.I.R. (Ex.P/1). Dr. G.S. Painkra (Ex.P/8) has specifically deposed and conducted autopsy of deceased Somaru on 09-07-2001 and found aforesaid three injuries. The cause of death due to brain injury and ~ was Koma. Nature of death was homicida! in nafaire. '^ IH liffl -^>- 12.1n order to establish the complicity of the accused/appellant in the crime in question, we have examined the evidence adduced on behalf of the prosecution. Nandkishore (PW-1) has deposed that at the time of incident, he was coming with his wife from the forest and While passing in front of house of deceased he saw that Somaru was sitting on the kitchen stool (pirha) at his waranda. Appellant was also present. Appellant was holding axe and assaulted the deceased by an axe over his forehead. The deceased fell down, then he went to house other way and narrated the ineident to his uncle Sukhram. PW/2 Sukhmani Bai wife of deceased and eye witnesses has deposed that at the time of incident she was cleaning the pots and her husband was sitting in the waranda upon the kitehen stool and applicant asked deceased that where ishis grand son, call him. Appellant was holding axe and assaulted her husband by axe. When she tried to intervene then appellant tried to attack upon her then she ran away towards village and she shouted. After sometime, when appellant ran away from the spot then she came with her daughter Sanmati and provided water to her husband. After some time her husband died. The injunes were found over the cheek, forehead of her husband. PW/4 Adhin Ram son of deceased Somaru who had lodged the report has deposed thatincident was narrated to him then he came to know about the incident by his mother and has also deposedthat he also came to know the fact that-RW/1;Nandkishore has also seen the incident while he was returning from forest. This fact has not mention in the F.I.R. or in the statement recorded under Section 161 of the Code. Defence has examined PW/1 Nandkishore in detail. In his cross-examination, /e hasadmitted that after some conversation between Somaru and Ka!icharari,Xalicharan inflicted injury over the headofthe deceased by •s~ ^l •^ 1 . ' t ^-^ •'.ly-^" €S.''' " if'i' i^?l'REra?«r". j ''IBBfe ff -&- an axe and also admitted that he has seen one attack then he went to his house. Defence has cross-examined the witneeses in detai! but has not beenable to elicit anything plead in his cross-examination to discard his testimony. Another eyewitness PW/2 Sukhmani Bai wife of the deceased has denied in para 6 of her cross examination that she is implicating theaccused on the ground of previous quarrel, but stated that at the time of quarrelshe was not present. Therefore.she has not seen the injury, but in her examination and detailed cross-examination she has deposed that appetlant is a person who had caused the injury to her husbandand her husband has not received jn injuries otherwise by felling in the land. It is ciear from her evidence that her admission of the fact that she was not present at the time of quarrel is not. related to alleged incident and is related to some previous incident of quarrel because at the time of incident no quarrel took place. Simply the appellant came with axe asked for his her grandson and inflicted injury. : 13.Admittedly PW/2 Sukhmani Bai wife of deceased isrelative witness, but her evidence cannot be discarded only on the groundthat she is wife of the deceased and close relative. A witness is normally to be considered independently unless he orshesprings from sources, which are likely to be tainted, and that usualiy means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Close relation would be the last to screen the real culprit and falsely impttcate an innocent person. 14.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 "^ !-4l .1.- -7- Punjab has held that a witness is normally to be considered independent unless he or she springs fromsources which arelikely to be tainted. Para 26 of the said judgment reads as under:- "26. A witness is normally to beconsidered independent unless he or she springs from sources which are iikelyto betainted andthatusually 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 lastto screen the real culprit and falsely implicate an innocent person, It i& 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 along with the guilty, but foundation must be lajd 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 sv^eeping generalization. Each case must be judged; on its own facts. Our obsereatipns are only made to combat what isso often putforward in cases before us as a general rule Qfprudence. There is no such general rule. Each case must be limited to and be governed by its own facts." , - 15. Whiie dealing with the same question, the Apex Courtin the matter of Guli Chandiand others v. State of Rajasthan2 has held that mere fact that relative witness or his relations is not sufficient to discard his testimony. 16. The evidence of Nandkishore PW-1 and Sukhmani Bai PW/2and lodged FIR inspire confidenee, trustworthy and safe to rely. Proseeution has also adducedthe evidenceof recovery ofaxe.at the instance of appellant. PW/5 Ramnandan Ram has deposed that police had interrogatedthe accused and the accused tookthe police to his-'fi'gia _and produced axe from the field, which has recovered from the appellant/accused. PW/9Sub-lnspector S.R. Dhritlahare who has interrogated the appeilant has specifically ~1?AIR1953SC364 *2C1974) 3 SCC_.6.98 •f,< v !!\ 8 deposed that the appellant made disclosure. Statement of the fact that axe was in the pit situated at his field and subsequently he has produced the axe, although the presence of blood has not been proved onthe axe. 17. In the present case.the statement of PW/1 Nandkishore, PW/2 Sukhmani Bai supported by PW/4 Adhinram promptly todged FIR are sufficient for drawing the inference that appeltant is a person who is caused fatal injury to the Somaru and cause homicidat death of Somaru. 18. As regard the question of motive is concerned, it is only at in criminality. In case of direct evidence it looses its importance. Otherwise also motive can be inferred on the basis of nature of injury, weapon used, part of the body, another like'circumstances. In the present case deceased Somaru was sitting in his house, he was not holding any weapon. Appellant came with axe and assaulted the deceased who was armless and caused three- repeated fatal injury over his head i.e. vital part. Above circumstances is sufficient for drawing an inference that appellant has intentionally and knowingly caused fatal injury with an intend to causing his death. The act of appellant squarely falls within the ambits ofcausing homicidal death amounting 8f murder. 19. After appreciating the evidenee learned Court below has convicted and sentencecLtee'iappellant aforesaid mentioned the conviction of the appellant is based on the substantial and legal evidence sustainable under the law. On close scrutiny of the evidence we do not find any illegality or infirmity warranting jnterference. Appeal is <~\ ^- O) c 18 <0 T;c (B •o s OT u> nv s- 1-, ^l !»C? ». _61D v4 ( <^ 1 0> ^a (0 n T3c <s & 'L... o E >.css •5 •p 1 11 E <n T)ts0 J= « < « 'g'^S Vi VI ^hi 0)M •o'l' ^ «»-Sa.;te k, ^