.,<... y~<»^\ w. COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR.T.P.SHARMA & HON'BLE MR.PrashantKumar ishra. JJ. Criminal Appeal NQ.529 of 200' Mahangu Ram, aged 45 yrs. S/o Gudaru Baiga R/o Tingipur, Thana - Kota. District Bitasour (C.G.'i Appellant (in Jail) The State of Chhattisgarh, Through P.S. Kota District Biiaspur (C.G.) (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Ms- Sipra Biswas, counsel for the appellant. Ms. Madhunisha Singh, Panei Lawyerforthe State. ^yv' (Passed on 24th February, 2011) Per T.P.Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction S order of sentence dated 01.04.2005 passed by the Sessions Judge, Bilaspur, in Sessions Tria! No.336/2004, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of offence of culpabie homiclde of Malikram Baiga (since deceased) amounting to murdsr convteted under Section 302 ofthe !.P.C. and sentenced him to undergo imprisonm&nt for life and to pay fine of Rs.1000/-, in default of payment of fine to further undergo R.l. for three months. 2. Conviction is impuaned on the around that y/ithout there beina anv iota of evidence, the Court below has convicted & sentencsd the appe'lant as aforementioned and thereby committed iffegaffty. —:••^''^'^, 3. Case ofthe prosecution, in brief, is that on fateful day i.e. on 20.05.2004 at about 6:30 p.m. appellant and unfortunate deceased Malikram were present in the house of Maiikram. The present appellant wss demandtng Rs.250/- from deceased, which was given earlier to him in connection with such demand ths appsllant assautted Malikram by Banki (a kind of knife) over his axila and also caused repeated injury. Mal'kram fsll down and died on the spot. Itwara Bai (PW/5) wife of the deceased ws present at the time of incident. Shriram (PW/1) who went to po!ics station, Kota, and lodged the F.1.R. (Ex.P/2). Morgue was recorded vids Ex.P/.l. Investigating officer left for the scene of occurrence and after summoning the witnesses vide Ex.P/9, inquest over dead body of Matikram was prepared vide Ex.P/8. Bioodstained and plain soil were recovered from fhe spot vide Ex.P/7. Dead body was sent for autopsy to Primary Health Centre, Lormi vide Ex.P/15. Dr. G.S. Dau conducted autopsy vide Ex.P/16 and found foltowing injuries:- i) ii) 11) Incised wound 7" x 3" muscle deep, 5 cm below from post border of left axila. Incised wound 13" x 4" muscle deep. Post part of left arm over Triceps. Mode of death was homicidal in nature. 4. During course of investigation the appellant was taken into custody. He made disclosure statement of Banki (a kind of knife) vide Ex.P/3 and the same was recovered at the instance of the appetlant vide Ex.P/4. Blood stained clothes were seized vide Ex.P/5. Spot map was prepared by investigating officer vide Ex.P/21. Seized articles were sent for chemical examination vide Ex.P/22. Presence of blood on clothes and on banki (knife) seteed at the instance of the appellant wers confirmed vlde Ex.P/23. u^ 5. Statements of the witnesses were recorded under Ssction 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Court of Additional Chief Judteial Magistrate, Bilaspiir, who i" turn commltted the case to the Court of Sessions, Bllaspur. 6. In order to prove the guilt of the accused/appellant, the prosecutlon has examined as many as twelve witnesses. Statement of the accused/appeltant was recorded under Section 313 ofthe Cr.P.C. where he denied the circumstances appearing against hlm and pleaded innocencs and false imp!ication in the crime in question. 7. After providing opportunity of hearing to the parties, learned Sessicns Judge, Bilaspur convicted & sentenced the appe!!ant as aforementioned. '>. We have heard learned counse! for the parties, perused the judgmsnt impugned and record of the trial Court. 9. Learned counsel for the appellant vehemsntty argued that evidence of Itoara Bai (PW/5) does not inspire cQnfidsnce and trustoorthy. She Is wife of the deceased and eye witness to the incident and her presence 'n the house was natural. Learned counse! for the appetlant further submite that in the light of evidence of Itwara Bai (PW/5) and evidence of other witnesses he is not disputing the homicidal death of the Malikram caused by the appeltant. Incident took place on sudden quarret without pre-meditation and on spur of moment; therefore, if the evidence of prosecution is considered as true, the case of the prosecution does not travel beyond the scope of Section 304 Part-11 ofthe t.P.C. / 10.0n the other hand, learned State counsel supported the judgment impugned and submits that the evidsnce of eye witness Itwara Bai (PW/5) wife of the deceased does not inspire confidence and trustworthy. She is natural witness and her presence In her house was natural for evidence. Shriram (PW/1) who lodged the F.I.R. vide Ex.P/2 and evidence adduced on behalf of the prosecution shows that the preset appellant has caused fatal injury on his axila resulting into his instantaneously death shows his grave Intention of causing homicidal death of the deceassd. After appreciating the evidence availabte on record, the trial Court has rightly convicted & sentenced the appellant as aforementioned. 11.1n order to apprsciate the arguments adyanced on behaff of the parties, we have sxamined the evidence available on record. 12.1n ths present csse, homicidal death ofMalikram as a result offatal jnjui-y found over vital part i.e. axila has not been disputed on behalf of th( appeilant, on the othsr hand, also established by ths evidence of Dr. G.S. Dau (PW-11) and autopsy report Ex.P/16, which re'/eals that incised wound 7" x 3" muscle deep, 5 cm below from post border of left axila and incised wound 13" x 4" muscle deep, post part of left arm over Triceps were found. The death of Malikram was homicida! in nature. 13.As regards the complicity of appeliant in crime in question conyiction of the appellant is substantially based on evidence of !h>?ara Bai (PW/5) wife of the deceased. As per her evidence, her husband was present in the house and was sitting in varanda. Present appellant came with banki (a kind of knife) and assauited her husband by banki on his chest, thereafter, fled from the spot. In her detailed cross-examination, she has specifically deposed that the appellant has caused injun/ fo her husband. Defence has not been able to eticit anything in her cross-examlnation to discord it her testimony relsting to causing such injup/ by the appe!lant As per evidence of hostile writness Shriram (PW/1) who was informed by Itwara Bai (PW/5) about the incident, went to the police station and lodged F.1.R. Ex.P/2 and merg intimation was recorded vide Ex.P/1 Although, Itwara Bai (PW/5) eye witness of incident and is vrife of tha deceased Malikram, but her evidence cannot be discarded on the ground ofher relation. The present appellant is relative ofthe deceased and rea! culprit in the incident. 14.0rdinarily, a close relative would be the last to screen the real culprit and fslsely implicate an innocent person. Whlte dealing with the question of svidentiary value of the relative witnesses, the Apex Court in the matter of Dalip Singh and others v. The State of Punjab has heid that a witness is normally to be considered independent unless he or she springs from sources which are iikety to be taintsd. Para 26 of the said judgmsnt reads as under:- "26. A witness is norma!!y to be considered independent unlsss he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him fslsely. Ordinarily, a close relation would be the last to screen the rea! culprit and faisely implicate an innocent person. It Is true, when feelings run high and thers is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudgs along with the guilty, but foundation must be laid for 1AIR 1953 SC 364 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 sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 15.While dealing with the same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar2 has hetd thus, "...... it wil! be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives riss to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is wetl settled though the Court has to scrutinize such evidence with greatsr care and caution but such evtdence cannot be discarded on the sole ground of their interest in the prosecution. The relationship perse does not affect the credibitity of a witness. Mersly becsuse a witness happens to be a relative of the victim of the crime, hs/she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive." •i 2008 AIR SCW 3739 ^^ 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. 16.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 and other similar circumstances. 17.1n the present case, although defence has not suggested the eye witness. Itwara Bai (PW/5) relating to sudden quarre! or circumstances in which the present appellant has caused injury to the deceased, but as per F.1.R. (Ex.P/2) and as per para 5 of evidence of Shrirsm (PW./1) the incident took place on account of demand of money. Thereafter, present appetlant assaulted deceased by banki and caused injury. Thess circumstances shows that initially appellant demanded Rs. 250/- which was given sariier to the deceased by the present appel!ant, thereafter, some quarrel Sook p!ace between them and the present appellant caused injury to the deceased which shows that he has caused homicidal death of deceased. At the time causing such fatal injury upon chest and axil of the deceased he was havlng knowledge that by his act deceased Malikram may die. Thus, the act attributed to the appel'ant does not fal! within the ambit of Section 302 of IPC and squarely falls within the ambit of Section 304 Part-1! of Indian Penal Code. 18.While convicting the appellant under Section 302 of the I.P.C., l&arned Sessions Judge has not considered the aforesaid circumstances and thereby committed the illegality. 19.For the foregoing reasons, the appeal is partly allowed- Conviction and sentence ofthe appellant under Section 302 ofthe t.P.C. are set aside and instead thereof he is convicted under Section Part-!l of the I.P.C. and sentsnced to undergo R-l. for seven years and pay fine of Rs.200/-, in default of payment of fine to furthsr undergo R.l. for one month. Sd/- T.P. Sharma Judge Sd/- Prashant Kumar Mishra Judge