My/L @ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON’BLE SHRI T. P. SHARMA & HON’BLE SHRI R.L. JHANWA J-J. Cr. Aggeai No.6?3f200? APPELLANT Jaknu alias Chandra Bhanu Rawat aged about 32 years, s/o Libhu alias Muktaram Rawat, Occupa 'on, Labourers R/o village Taparda, Police Station Pusaur, Distu'ct Raigarh(CG) Versus RESPONDENT The State of Chhattisgarh, through Police Station Pusaur, Raigarh. M CRIMINAL APPEAL UNDER SECTION 37412! OF THE CODE OF M CRIMINAL PROCEDURE 1973 Present: Shri Roop Naik and Shri Chandresh Shrivastava, Advocatss for the appellant. I Shn‘ Ashish Shukla, Government Advocate for the State. oRAL JUDGMENT (12.11.2009) Per T. P. Shanna, J. ‘ By this appeal, the appeHant has Challenged the legality and priority of the judgment of conviction and order of sentence dated 30.42002, passed by the Sessions Judge, S.T.No.l79/2001, whereby and whereunder the 1earmed Sessions Judge after holding the appellant guilty for commission of murder of Santlam, convicted him under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay a tine of @ Rs5000 I ‘, in default of payment of fme to further undergo RJ. for 2. The judg €nt of conviction and order of sentznce is challenged on the groumi that without there being any cmdible evidence, the learned Sessions Judge has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 6 months. 3. The case of the prosecution in brief is that on 31.7.2001, at about 12.00 pm at noon, the deceased— Santram was residing in his house at viliage Taparda, Police Station—Pusaur, District Raigarh. ‘Bachao Bachao’ Laxminbai(PW— of the deceased, 1), niece on of which, the deceased she came heard out from sound her house. She saw that the appellant was assaulting Santtam by an axe. She tried to intervene, but the appellant chased her and she ran away from the spot and narrated the incident to her uncle- Santo and brother Pahaddas. She again came on the spot along with Santo and Pahaddas, who saw the injuiies over the body of Santram. She immediately intimated to Police and Police registered the merg intimation vide EX.P]2 and registered merg intimation vide Ex. PI2vA. Dehati Nalishi was recorded vide EXP] 1 and FLR. was reg‘stered vide P] 14. After summoning the Witnesses vide EX.P[ 5, inquest over the body of the deceased was prepared. The dead body of the deceased was sent for autopsy vide EXP] 11—A. Autopsy Was conducted by Dr. H.S.Ur_aon(PW—4) vide EXP] 11, who i. . one incised wound of 3" x 1" over right arm found the following injuries: n one lacerated wound over right shoulder of 3"X1” 4" x 3". Internal part of the body was visible. m one lacerated wound over right shoulder aifecting ribs of 5" X iv. one incised Wound over left cheek of 3" x 1" x 1" over the right lungs was found. internal organs were congested and that was due to shock as a result of injuries.’ d gvc—AWL Site map was prepared vide EX. P/3 and Patwam' preparsd sité map vide EX. P/4. The accused made disclosure statement of axe vide EXP/7. At the instance of disclosure statement Ex. P/7 of the accused, axe was recovered Vide EXP/8. Blood stained soil and plain soil was recovered from the Spot vide Ex. P/ 10. Seized arficles Were sent for chemical examination vide EXP] 18. 4. Statements of the witness were recorded under Section 161 Cr.P.C., 1973(in short ’Code'’). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Raigarh, who in turn committed the case to the Court of Sessions, Raigarh. 5. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 8 witnesses. Statement of the accused] appellant was recorded under Section 313 Cr.P.C., in which, he denied the circumstances appearing against him and stated that he is innocent and has been falsely implicated in the caSE. 6. Learned Sessions Judge after affording an opportunity of hearing to the respective parties, convicted and sentenced the accused/ appellant as aforementioned. 7, We have heard Shri Roop Naik and Shri Chandresh Shiivastava, counsel for the appellant and Shri Ashish Shukla, Government Advocate for the State and perused the judgment impugned and record of the court below. 8. Learned counsel for the appellant vehemently argued that the case of the prosecution is solely based on the statement of Laxminbai(PW—l), niece of the deceased. Her statement is not reliable and does not inspire confidence, sufficient for convicting the appellant. 9, On the other hand, learned counscl for the State argued that Laxminbai(PW— 1), niece of the deceased and natural witness was present at the time of incident. After hearing the sound of ‘Bachao Bachao’ she came out flmm her house and saw that the accused/appellant was assaulting Santram with axe. When she tried to intervene, the appellant chased her. She has lodged the merg intimah'on and Dehati Nalishi Within two hours of the incident. Her statement is sufiicient to convict the appellant. The accused/appellant infh‘cted injuries to the deceased and thereby caused death of the deceased. 10. In order to appreciate the contention of the parties, we have examined the evidence adduced on behalf ofthe prosecution. There are statements of Dr. H.S.Uraon(PW-4) and Laxminbai(PW-1), Manglibai(PW—2), Ramkumar(PW—3), merg intimation Ex.P/ 2, Dehati Nahshi EXP] l and registered merg intimation Ex. P/2-A. F.I.R. EXP] 14 and Autopsy report EXP/11, in which, Dr.H.S.Uraon(PW’4) has deposed that on 1.8.2001 he examined the dead body of Santram and found the said injuries, which were sufficient to cause death. The cause of death was shock, as a result of injuries and the death was homicidal in nature. 1 1. In regard to complicity of the accused} appellant in question, the prosecution has examined Laxminbai(PW— 1), the eye-witness of the incident, who deposed in her evidence that at the time of incident, she was present in her house. Deceased Santram was h‘er neighbour. She heard cries of Santram ‘Bachao Bachao’ then she came out of her house and saw mat the appellant inflicted two injuries over the body of Santram by axe, first over the shoulder and second over the right hand. When she tried to intewene, the accused] appellant chased her and she ran away from the spot and informed to Santodas and Pahaddas. She also lodged report @ EXP] 1 and Merg intimation EXP/2. In her detailed cross examinatiom she has admitted in para 4 of her Evidence that there was disputa between the deceased and his wife and Wife of the deceased was residing separately. She has specifically deposed in para 6 that she could identify me person who made the sound. She has denied the suggestion that after reaching on the spot, she tried to ran away and has deposed that when the accused tried to chase her then she ran away. She has also denied in para 10 that she has not lodged any report, but has deposed in para 1 1 and 12 that she has stated the incident to police thrice. She is a rustic lady, residing in village and it is not expected from a rustic lady that she would be in a position to differentiate the FlRlDehati Naiishi and statement given to police. Then the fact remains tha she has intimated the police within 2 hours of the incident vide EXP] 2 and merg intimation EXP] 1. 12. The case is based on the single witness LaxminbaitPW-l), who is a relative of the deceased, but her statement cannot be discarded on the ground that she is a relative. While dealing with the question of reliability of relative witness the Apex Court in the case of Dalip Singh and others V. The State of Punjab, reported in A.I.R. 1953 SC 364- has held that ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. Para 26 of the above judgment reads as under :— w” "A Witness is normally to be considered independent unless he or she springs from sources which re 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 c10se relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high & 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 laid for such a criticism and the mere k t fact of relationship far fmm bling 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 oniy made to combat What is so often put foxward in cases before us as a geneml rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts”. 13. While dealing with the same question in the case of Guli Chand and others V. state Rajasthan, reported in (1974) 3 SCC 698, the Apex Court has held that mere fact that relative Witness or his relations is not sufficient to disoaid his testimony. l4. By placing reliance in the matter of Daiip(supra), the Apex Comt in the case of Israr V. State of U.P., reported in AIR 2005 SC 249 has held that evidence of friends and relatives cannot be discarded on the ground of their relations, only minute scrutiny is required. 15 The prosecution case rests on the evidence of sole eyewitness Laxminbai (PW—l), relative of the deceased, who has seen the incident and has nairated the incident immediately to other Witnesses, who have supported the factum of narration of the incident to them. Her evidence is corroborated by documentaiy evidence of merg, Dehati Nalishi and also by medical evidence. Defense has cross-examined this witness at length, but has not been able to elicit anything in her cross-examination to discredit her testimony. Her evidence inspires confidence, it is trustworthy and safe for reliance. After appreciating the evidence of Laxminbai (PW- 1) and other corroborative piece of evidence, learned court below has convicted and sentenced the appellant as aforementioned. Conviction of the appellant is based on substantial evidence and is sustainable under the law. . @D 16. For the for€going reasons, we do not find any ilkgah‘ty or iniixmity in the judgment impugnsd warranting intelference in the appeal. The appeal being dcvoid of merit 1's liable to be dismissed and iwsmissed. i¥-x§ Sd/- Sd/~ R.L. Jhanwar T. P. Sharma Judge V Judge