/?F& HIGH COUBT OF CHHATTISGARH, BILASPUR I DIVISION BENCH ’CORAI‘M: HON’BLE MR. T.P. S’HARMA AND I HON’BLE. MR., R.L. JHANWAR,'JJ. Criminal Appeal No.1 1 00 of 2004 APPELLAN‘T: ”Sonu S/o Chergu @ Cheranga Caste (in Jail) ~»Muriya, aged about 36 years Rlc ViHage Chhotepara Kot P.S. Parpa (Prenjarpur) District Jagdalpur C.G. Versus. " I NON-APPEICANT: State of Chhattisgarh {Appeal Tmder Section 374 (2) of Code of Criminal Procedure 1973} i Present: ML. H.P. AgrawaL counsel for the appeliant. Mr. D.K. Gwalre. Govt. Advocate for the State/respondent. JUDGMENT (Delivered on 5" July, 201 1) The following iudgment of the Court was gassed by R.L. Jhanwar, J: - 1. Challenge in this appeal: is to the judgment of conviction &_order of sentence dated 31—8-2004 passed by the 2nd Additional Sessions Judge, Jagdalpur in Sessions Trial No.10/2004, whereby & whereunder learned Additional Sessions Judge while acquitting two accused persons held the appellant herein guilty for causing culpable homicide amounting to murder of Gutur Mahra, convicted the appella‘nt under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of ‘ Rs.500/—, in default of payment of tine to further undergo RI for one mogth. Conviction is impugned on theground that without any iota of evidence, the trial Court has convicted & sentenced the appellant and thereby committed illegality. i/ l 2 i r 3. As per case of the prosecution, on the fateful night of 17—11-2003 at about 91 p.m. unfortunate deceased Gutur Mahra was present in his house, he was sitting near tire aiong with Mitki Bai (PW—1) — his daughter, other famiiy membere and one Chergu of Village Devurgaon, on account of enmity relating to engagement of daughter of the deceasefd namely Gadarnani, the appellant herein along with two accusedi persons came to the house of the deceased and told to withdraw the report which the deceased has lodged, on refusal the, appellanit took out knife and caused single blow over chest of the deceased? fMitkj Bai (PW—’1) rushed from the spot and went to Village i Sosanpal where her uncle was residing. She narrated the incident to her é uncle Sunder and along with Sunder she went to Police Station Frejarpur which is 18 Kms. away from the place of incident. on 18-11-2003 at 7.10 a.m. and lodged FIR vide Ex.P—1 and merg vide Ex.P-2. The Investigating Officer leftoforr the scene of occurrence and after summoning the witnesses vide Ex.P—3, prepared inquest over the dead body of the deceased vide Ex.P-4. Bloodstained and plain soil were recovered from the spot vide Ex.P-10. Dead body was sent for autopsy to Maharani Hospital, Jagdalpur, vide Ex.P-12. Autopsy was conducted by Dr. Mrs. S. Nagwanshi (PW-7) vide Ex.P-19 and following injuries were found: - (1)0ne incised deep wound of 4" x 2" between 3rd & 4‘“ ribs penetrating into thoracic cavity along with cut injury over liver and left auricle of heart. (2) Lacerated wound over left side of left knee of 2" x 2”; Mode of death of the deceased was shock. During the course of investigation, the accused persons were taken into custody, the appellant herein made discloser statement of kadn' (knife) vide Ex.P-7 and same was recovered at the instance of the appellant vide Ex.P-8. 3 Bloodstained cloth of the appellant (sando banian) has been seized vide EXP—9.. Sealed attickesof the deceased were seized vide Ex.P-1 1. Spot map was prepared vide Ex.P—20. . Statements of the witnesses were recorded under Section 161 of the ' CrPCi After completion of investigation, charge sheet was med before . the Court of Chief Judicial Magistrate, Jagdaipur, who committed the case :to the Court of Sessions, Jagdalpur, from where iearned Additional Sessions Judge received the case on transfer for trial. . In order 'to prove the guilt of the accused persons, the prosecution has i u *‘ examined as‘ many as eight'witnesses. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them and pleaded innocence & false implication. a . After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting other co-accused persons, convicted & sentenced the appellant as aforementioned. . We have heard learned counsel for the parties, perused the judgment and record of the trial Court. . Mr. Hanuman Prasad Agrawal, learned counsel for the appellant, vehemently argued that conviction of the appellant is based on evidence of Mitki Bai (PW-1) & Balo Bai (PW-3), daughter & wife of the deceased, respectively, but their evidence is self-contradictory, does not inspire confidence and their evidence is not trustworthy. Evidence of another daughter of the deceased namely Gadamani (PW-2) is also contradictory to evidence of aforesaid witnesses. As per case of the prosecution, one Chergu was also present at the time of incident, but for the reasons best known to the prosecution, the prosecution has not examined Chergu. In f» t 4 the circumstances, evidence of interested and inimical witnesses does not inspire confidence, their evidence is not trustworthy and not safe to rely upon. Conviction of the appeilant especiaiiy in absence of evidence of independent witness Chergu is not sustainabie tinder the law. Mr. Hanuman Prasad Agrawal further argued that the trial Court has acquitted two accused persons on same set of evidence and convicted the appgellant herein on same set of evidence which is not permissible. r On the§other hand, Mr. D.K. Gwalreulearned Govt. Advocate appearing on behalf of the State/respondent opposed the appeal and sUbmitted that evidende‘é’f Mitki Bai (PW-1) is wen corroborated by FIR Ex.P-1 and merg Ex.P-2, her evidence inspires confidence and is trustwonhy. As s per evidence of Gadamani (PW—2) & Balo Bai (PW—3), they were not present near the place of incident, Gadamani (PW-2) was sleeping in her room and Baio Bai (PW-3) was cooking food. This shows that they were not in a position to say that Mitki Bai (PW-1) was present on the spot or not. In absence of evidence of Chergu, evidence of Gadamani (PW-2) & Balo Bai (PW-3), does not inspire confidence and is not trustworthy. \t 10.rln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 1 ,egg m L: 1 l 11.ln the present case, homicidal death of deceased Gutur Mahra as a result of fatal and dangerous injuries found over his body has not been substantially disputed on behalf of the appellant, even otherwise, it is ‘ f/ss w .\\ $, established by evidence of Dr. Mrs- S. Nagwanshi (PW-7) and autopsy repgrt Ex.P—1 9 that death of the deceased was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, conviction is substantially based on evidence of Mitki Bai (PW-1) — daughter of the deceased, As per evidence of Mitki Bai (PW-1), on the fateful night, the f ; t w 32 }§ 5. appellant came along with other accused persons and on account of engagement of marriage (bhandl) &,lodging of repon, caused\knife blow over chest of the deceased and also threatened that they will kill her sister, lthen her sister fled away from the spot, she (this witness) also l rushed from the spot and went to Village Sosanpal where her uncle was residinig, she narrated the incident to him. Thereafter, they went to EoliceiStation Frejarpur and lodged FIR vide Ex.P-1 and merg vide'Ex.P- 2. Defence has cross~examined this witness at length. ln para 9 of her cross—examination she has admitted'the fact that kadri &,.'knife are not one aricLsame. She has also admitted that when the appellant came, at that time he was not holding any weapon, but he was hiding the weapon knife. ln‘ para 10‘ of her cross-examination she has denied the suggestion that when the appellan‘t came and assaulted her father, she along with her sister fled away form the spot, but she has admitted the fact that except the appellant herein namely Sonu other accused persons were not present on the spot. In para 12 of her cross-examination, she has admitted the suggestion that in the light of fire, she has seen the incident. ln her cross-examination she has also admitted that there was darkness. 13.Gadamani (PW-.2) — sister of Mitki Bai (PW-1) and Balo Bai (PW-3) -— W ,._,_.,M_W%k 1 mother of Mitki Bai (PW-tl‘have deposed in their evidence that at the time of incident they were present in their house, but they were not present on the spot. As per their evidence Mitki Bai (PW-1) was also not present on the spot and she had gone for bhandi, local custom relating, to engagement of marriage. They have admitted the presence of Chergu - on the spot. 14.The prosecution has not examined witness Chergu, but only on account of non-examination of witness Chergu, evidence of Mitki Bai (PW-1), 6 Gadamani (PW-2) & Balo Bai (PW-3) cannot be discarded. They are relative witnesses and as per their evidence they were having enmity wrth the appellant Enmlty Is a by—edged weapon it can be used for false implication as also for cause of commissron of offence, These Witnesses- are relative Witnesses. They are close relatives of the deceased, but their evidence cannot be discarded on the ground that they are relative (witnesses. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. 15. While: dealing with the question of evidentiary value of inimcal, interested and relative witnesses, the Supreme Court in the matter of Dalip Singh and others v. The State of Punjab1, Ashok Kumar Chaudhary & Ors. ‘v. State of Biharz, Hari v. State of Maharashtra3 and Mohabbat and Ors. ‘v. State of M.P.4 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Statements‘of the relative witnesses cannot be discarded only on the ground of their relationship. The Courts are required to scrutinize their evidence with great care and caution. s r A a. 16.Virtually, evidence of Gadamani (PW-2) & Balo Bai (PW-3) is reliable to the extent that the appellant was having enmity with them, at the timegf incident the appellant was present and that Gutur (since deceased) sustained serious injuries, but they were not present on the spot and, ’ therefore, they were not in a position to state whether Mitki Bai (PW-1) was present on the spot er'not. Evidence of Mitki Bai (PW-1) is well corroborated by FIR Ex.P-1 and merg Ex.P-2 lodged by her in which she 7 ha: given details of the incident. ' Her evidence is well corroborated by 1AIR 1953 sc 364 . 2008 AIR scw 3739 3 2009 AIR scw 2250 4 2009 AIR scw 1486 i 7 medical evidence and same is safe to reiy to the extent that the appeliant herein came at night in her house and caused fatal injuries over chest of the deceased by dangerous weapon knife resulting in death of Gutur and thereby the appeliant has caused homicidal death of Gutur. 17.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury a‘nd other similar circumstances. 18.l‘n the present case, although‘trhe appellant has caused single blow by knife, but by causing such injuries, the appellant has Caused fatal incised o *s “3 ” Wound upon‘heart & liver,rvital parts of the body. This is not the case :v wher‘e the appellant took out the weapon from the place and on sudden quarrel, he has caused such injuries, but he came with dangerous weapon knife and caused fatal injuries upon the deceased which shows his grave intention of causing homicidal death of the deceased. 19.After appreciating the evidence available on record, the trial Court has w convicted and sentenced the appellant in the aforesaid manner. On close scrutiny of evidence, we do not find any illegality or infirmity in the judgment. The appeal is devoid of merit, same is liable to be dismissed / Soma and it is hereby dismissed. “skii- Sd/- R.L.Jhanwar T.P. Sharama Judge Judge o—I—2011