^. HjGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble^ShrLSymLKumaLSjnha^J, Criminal ARpeal No. 751 of 2003 Telum Gunda and others Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- SunU Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GU^TA 3 6^^y- <? Sd/- Ouef Justice ^ /04/2009 Post for Judgment : 2-:f-/W200Q ^_ Sd/- fc l/ HIGH CQURT^OF CHHATTISGARH, BILASPUR CORAM : Hon'ble Shri Raieev Gupta, C.J. SB Hon'ble Shri Sunil Kuinar Sinha, J. Cnminal Appeal Wo. 751 of 2003 APPELLANTS 1. 2. 3. RESPONDENT Telum Gynda, s/o Telum Barja, aged about 36 years, Telum Chaitu, s/o Telum Barja, aged 39 years, Telum Lakhamu, s/o Masa, aged 34 years All residents of village Tumnar, Police Station Bijapur, Distt. Dantewada Versus State of Chhattisgarh -X ^l Cttj CritninalAppeal under Section 374 (2) pfTheCodeof Criininal Procedure, 1973 Appearance: Mr. Shailendra Dubey, Counsel for the appellants. Mr. Ravindra Agrawal, Panel Lawyer, for the State. JUDGMENT L.04.2009) Following judgment of the Court was delivered by Sunil Kuinar Sinha, J. (1) The appellants have been convicted under section 302/34 IPC and sentenced to undergo imprisonment for life by the Addl. .Sessions Judge (F.T.C), Jagdalpur (Bastar) in Sessions Trial No.297/2002 on 17.02.2003. w Cr.A.No.751/2003 (2) The facts, briefly stated, are as under:- Deceased Telum Sonu and Telum Basanti (P.W.l) were living as husband and wife. In the night of 29.4.2002, they were sleeping in the courtyard of their house. The allegations are that about 12.00 in the midnight, the appellants carae there, appellants Teluin Lakhamu and Telum Chaitu caught hold of Basanti (P.W.l) and appellant Teluni Gunda gave Farsa blows on the chest and neck of the deceased. The deceased died on the spot. Telum Basanti (P.W.l) lodged the First Information Report (Ex.P.l) in Police Station Bijapur on 30.4.2002. The F.I.R., contains manner of assault including the naraes of the appellants. The Investigating Officer reached the scene of occurrence on 30.4.2002; prepared inquest Ex.P.3 on the body of the deceased; site plant Ex.P.2 was also prepared; blood stained soil, plain soil 8s clothes of the deceased were seized under Ex.P.14 and the dead body of the deceased was sent for its postmortem to Primary Health Center, Basaguda, where the postmortem examination was conducted by Dr. Sanjeev James (P.W.5), who prepared his report Ex.P.5. The Autopsy Surgeon noticed two incised wounds on the body of the deceased, one was on the right side of the chest and the other was on the neck measurin! 4" x 2" x 2" and 4° x 1" x 2 Va". On internal examination, he found that the trachea was cut; jugular vein and carotid artery were also cut; one rib was cut and first 8s second trachea veins were also cut. According to the opinion of the autopsy surgeon, the cause of death was hemorrhagic ll)|EI!lllll|T "»i'l!tl!Fi Cr.A.No.751/2003 shock, due to above injuries sustained by the deceased and it was homicidal in nature. In further investigation, appellant Telum Gunda was taken into custody and his memorandum u/s 27 of the Evidence Act, Ex.P.8, was recorded on 01.5.2002, in pursuance of which a Farsa was seized at his instance under Ex.P.9. (3) After completion of usual investigation, charge sheet was filed in the Court of Judicial Magistrate Pirst Class, Dantewada, who in turn comraitted the inatter to the Court of Sessions Judge, Jagdalpur, from where it was received on transfer by the IV Addl. Sessions Judge (F.T.C), Bastar, Jagdalpur, who conducted the trial and convicted and sentenced the appellants, as aforementioned. (4) The conviction of the appellants is based on the sole testimony of P.W. 1 Telum Basanti. (5) Shri Shailendra Dubey, learned counsel appearing on behalf o¥ the appellants has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Dr.Sandeep James (P.W.5) that he found the above external and internal injuries on the body of the.deceased which were caused by hard and sharp object and the cause of death was hemorrhagic shock on account of those injuries and the death was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. "^i^. Cr.A.No.751/2003 (6) Shri Dubey has mainly argued that the sole testimony of P.W. 1 Telum Basanti cannot be relied on as she was an interested witness being wife of the deceased. (7) On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer appearing for the State opposed these arguments and supported the judgment and order passed by the Sessions Court. (8( We have heard learned counsel for the parties at length and have also perused the records of the Sessions Court. (9) The Apex Court held in the matter of Rizan and another - Vs- State of Chhattisgarh, through the Chief Secretarfi, Govt. of Chhattissarh, Raipur, AIR 2003 S.C. 976, in para 6, that the relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false iinplication is made. In such a case, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. In Namdeo -Vs- State of VIaharaahtra, 2007 AIK SCW 1835, the Apex Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'iriterested'. 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 •I'.. 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. The Apex Court also referred to the decision rendered in the matter of Harbans Kaur and another - Vs- State of Haryana. 2005 AIR SCW 2074, in which, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contraiy, 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 iinplicate the accused. (11) Therefore, in view of the above, it cannot be held that the testimony of P.W.l Telum Basanti cannot be relied on only on the ground that she was the wife of deceased. We are to scrutinize her evidence with due care and caution and if her evidence passes the test of credibility in appreciation by applying the above principles, the conviction can well be based on her such testimony. (12) Telum Basanti deposed that at the relevant time, Telura Chaitu and Telum Lakhamu caught hold of her and Telum Gunda committed murder of her husband by giving Farsa blows; her husband received injuries on the neck; earlier also, the accused persons came to her house to commit murder of her husband but they could not find him; again in the night at 12 O' clock, they ffi-rr-7! s.u^'1 Cr.A.No.751/2003 f-' came to her house and committed murder of her husband by giving Farsa blows to him. She further deposed that Telum Gunda is the uncle of her husband and he also happens to be her maternal uncle. When the accused persons came to her house in the night, she was sleeping in the courtyard of her house along with her husband. In fact, her husband had slept but she was awaking. She could identify all the appellants in the moon light. (13) Though this witness has been put to a lengthy cross examination by the counsel for the defence but nothing material could be brought on record on which either her testimony may be discarded or it may be held that she is falsely implicating the appellants in crime in question. The question of identiBcation can also not be disbelieved because the appellants were previously known to this witness. Why this witness would conceal the actual culprit and will inake allegations against the innocent persons. The defence has not laid any foundation for taking the plea of false implication. Her version is duly corroborated by the contents of the F.I.R. promptly lodged by her in the next morning in the concerned police station. On due scrutiny of evidence of this witness, we rely on her testimony and hold that the conviction on her sole testimony was possible in this case. it was established by the prosecution that in the intervening night of 29th/30th ofApril 2002 at about 120' clock, the appellants came to the house of the deceased armed with deadly weapon; appellant Telum Chaitu and Telum Lakhamu caught hold of the wife of the deceased and thereafter appellant Telum Gunda gave repeated Farsa blows on the chest and neck of the deceased causing above external and internal injuries. The acf of appellants 2 85 3 would show that Rao Cr.A.No.751/2003 .'-.<>• they had gone to the house of deceased along with appellant no. 1 who was armed with a deadly weapon like Farsa and appellants 2 6s 3 facilitated appellant no. 1 to commit murder of the deceased by holding his wife Basanti (P.W.l) so that she may not intervene or call the neighbourers etc., for rescue. This shows that appellants 2 & 3 were sharing common intention with appellant no.l to cominit the murder of the deceased. (14) For the foregoing reasons, we do not find any illegality or infirinity in the impugned judgment passed by the learned Sessions Judgewarranting interference in this appeal. The appeal has no merits. The same is liable to be disraissed and is accordingly dismissed. It is stated that appellant no.l is in jail and appellants 2 & 3 have been enlarged on bail after suspendin^ their sentences awarded by the Sessions Court. Appellants 2 & 3 shall immediately surrender to undergo the remaining sentence iraposed against them. Sd/- Chief Justice Sd/- SunU Kumar Sinha Judge linilili:!";:1-?