Bs HI6H COURT OF CHHATTES6ARH, BILASPUR Division Bench: Hon'ble Shri Justice L.C. Bhadoo & Hon'ble Shri Justice Sunil Kumar Sinha, JJ. IS Criminal ApDeal No. 1185 of 2001 Dev Kumar & another Versus State of ChhattiS9arh JUD6MENT ss Jud9ment for consideration Sd/- Sunil Kumar Sinlia Judge Hon'ble Shri JusticeL.C. Bhadoo. J Sd/- L.C.BHADOO Judge Post for Judgmeot^yol/ZOOS Lp^. /4-/5a-2008 'jii- HIgH^OURT^yCHHAmS&ARH. BILASPUR Criminal Appeal No. 1155 of 2001 APPELLANTS 1 Dev Kumar aged about 30 years son of (Accused) Motilal 2 Dilip Kumar oged about 27 years son of Motilal Both are farmers and residents of Vikhampur, Police Station Nandghat, bistt. Durg (C.6.) Versus ' RESPONbENT State of Chhattisgarh, Through 5.H.O., P.S. Nandghat, distt. Durg (C.6.) (ADpeal under Section374 (2) of Cr.P.C.) ADBearance: 5hri K.A. Ansari, Sr. Advocate with Shri Firoz Siddiqui, counsel for the appellants. Shri U.K.S. Chandel, Panel Lawyer for the Stafe/ respondent. (DIVISION BWCH) HON'BLE SHRX L.C. BHADOO & HO^fBLE SHRI SUNIL KUMAR SINHA. JJ. JU&6MENT (/4.01.2008) Followin9 judgment of the Court was delivered by Sunil Kyma^_S!nha,^, (1) The two appellants have been convicted underSection 302/34 of the I.P.C. by the Second Additional Sessions Judge (F.T.C.), Bemetara, District Durg (C.G.) in Ses^ions Trial No. 262/2000 and sentenced to undergo imprisonment for life and to pay a fine of Rs.5.000/-, in default of payment of fine to further undergo R.I. for 6 months. (2) The brief facts are that Thanwar (PW-l), Khorbahara and Motilal were real brothers. Their houses are situated near each other in the same] locality. Three accused persons namely- Dev Kumar, Dilip and Raju dre thej ;!-;>] Criminal Aopeal No. 1155 of 2001 sons of Motilal. Shyamsunder (PW-3) is the son of Khorbahara and Thanwar (PW-1) is the father of deceased Ashwani. Since few years Motilal was living as an insane man and the accused persons were suspecting that Thanwar (PW-1) has played witchcraft against him, therefore, he is facing such condition. On the fateful day i.e. on 16.5.2000 at about 5.30 a.m., a child in the house of accused persons started crying, the accused persons apprehend that some witchcraft has been played against the child also. On this, they came out from their house and started abusing Thanwar. Thanwar and his son Ashwani (since deceased) went to the house of Shyamsunder (PW-3) and told that the accused persons are unnecessarily abusing them. Shyamsunder advised them and directed them to remain inside the house and he also advised the accused persons. After one hour, Ashwani went to answer the call of nature. On hearing the hue and cry of Ashwani, Bharat (PW-7) went to towards it and saw that the accused persons were assaulting Ashwani with axe, rod <& lathi, who died on the spot. He immediately returned back to the house and narrated the story. (3) A merg intimation (Ex.-P/24) was lodged by Thanwar (PW-1), based on which, the F.I.R. (Ex.-P/25) was registered against the accused persons, &ev Kumar, Raju, Dilip and Raj Kumar u/s 302/34 I.P.C. The Investigating Officer left for the scene of occurrence, gave notice (Ex.-P/l) to the Panchas and prepared inquest (Ex.-P/Z) on the body of the deceased. After taking accused persons into custody, he recorded memorandum of accused- Dev Kumar under Ex.-P/S, memorandum of accused Dilip Kumar under Ex.- P/6, memorandum of accused Raju under Ex.-P/7 and memorandum of accused Raj Kumar under Ex.-P/28. In pursuance^discoveries, an axe was seized at the instance of accused Dev Kumar under Ex.-P/S, another axe was seized from accused Dilip Kumar under Ex.-P/9, an iron rod was seized from accused Raju under Ex.-P/lO and a bamboo club was seized from the possession of Raj Kumar under Ex.-P/29. Plain sojl and blood stained soil were seized under Ex.-P/ll. One pair of chappel was seized, after removing it from the feet of the deceased who was lying on the place of occurrence itself, under Ex.-P/12. Clothes of the deceased were seized under Ex.-P/l3. !• gsB R' ''. £',."'<: 1 Br K Br"^..:ii! ..1.^'.:-.-:: "1'1S^^ w& Crimmal Appeal No. 1155 of2001 Shirt of accused Dev Kumar was seized under Ex.-P/M. Shirt of accused Dilip Kumar was seized under Ex.-P/15. A certificate for the purpose of age of accused Raj Kumar was seized under Ex.-P/4. Site plan was prepared under Ex.-P/17. The dead body of the deceased was sent for post-mortem examination to the Sovernment HoSpital Ngvagarh under Ex.-P/26. The post- mortem was conducted by Dr. S.K. Sharma (PW-8), who prepared his report under Ex.-P/16. The Autopsy Surgeon noticed the following injuries on the body of the deceased;- i) An incised wound size ly inch x l? inch x muscle deep at the right angle of mandible, obliquely placed, dry clotted blood was present; ii) An incised wound size 2i inch x l inch x bone deep below left lateral ang\e of mouth, obliquely placed, dry clotted blood was present; . iii) An incised wound size li inch x i- inch x skin deep at the middle of left cheek; iv) An incised wound size 2i- inch x 1 inch x deeply involving upper end of trachea (larying cut present), dry clotted blood was present; v) An incised wound size 2i inch x 1 inch x bone deep on the temporal region, brain matter coming out of wound, dry clotted blood present; vi) An incised wound size 2 inch x 1/3 inch x skin deep just above injury No.5 and vii) An incised wound size 3 inches x 1 inch x bone deep horizontally placed at the middle of the skull, skull bone cut, the brain was damaged, dry clotted blood was present. According to his opinion, all the injuries were antemortem in nature, caused by heavy cutting weapon and the cause of death was multiple homicjdal wounds on the vital parts of the body i.e. head and neck. It was homiciddl in nature. ^ Criminal Aooeal No.J_1^5_of20Ql (4) In further investigafion, the weapons of the offence i.e. axe, two in number, one iron rod and one bamboo club were sent for their examination to the Doctor under Ex.-P/18-A, P/19-A, P/20-A & P/21-A, on which, the reports were given under Ex.P/18, P/19, P/20 & P/21. Blood like stains were noticed by Doctor on these articles. They were advised to be examined by Forensic Expert. The seized articles were sent to FSL, Raipur under Ex.- P/30, from where the report Ex.-P/32 was received. According to the report, blood stains were not found on the rod and bamboo club seized from accused Raju and Raj Kumar and also on the plain soil. However, the blood stains were found on all other articles. (5) After completion of usual investigation, the charge-sheet was filed against accused Dev Kumar, Dilip and Roju iri the Court of Judicial Magistrate First Class, Bemetara, whereas the case of accused Rgj Kumar was separated and the charge-sheet against him was filed before the Juvenile Board. The case against the accused bev Kumac, Dilip andRaju was committed to the Court of Sessions Judge, Owg, from where it was received on transfer by the Second Additiondl Sessions Judge (FTC), Bemetara, who conducted the trial and convicted and sentenced the accused/appellants as aforementioned and acquitted the co-accused Raju. (6) We have heard Shri K.A. /Insari, Sr. Advocate, on behalf of appellants and Shri U.K.S. Chandel, Panel Lawyer, on behalf of the State. (7) Shri K.A. Ansari has not disputed the homicidal death of the deceased Ashwani. Moreover, it comes in the evidence of PW-7 Bharat Kumar that the deceased was assaulted by bev Kumar, Dilip, ROJU and Raj! Kumar; The above ocular evidence of Bharat Kumar is supported by the^ medical evidence of t)r. 5.K. Sharma (PW-8), who conducted the post- mortem examination bn the body of the deceased and noticed the above 7 incised wounds on the vital partsof the body of the deceased. According to his opinion, these injuries were antemortem in nature and were caused by heavy cuttin9 weapons andthe causeof death was multiple homicidal wounds ;and the death was homicidal in nature. Therefore, on the basis of above 11 1»1 ^•^ ^..•Ai^.t.fcf Sai ^ .^-^'iT Criminal Aptieal No. 1155 of2001 ocular and medical evidence, it is established that the death of the deceased Ashwani was homicidal in nature. (8) As far as complicity of accused/appellants in crime in question is concerned, learned Sr. Advocate argued that Bharat Kumar is the real brother of the deceased. He is an interested witness. His conduct is unnatural as he did not disclose the facts to his family members, particularly his father Thanwar (PW-1), even he did not 90 to save the life of his brother. The map prepared by Patwari does not show his presence or the place, where this witness was present at the time of incident. Even this witness has not supported the memorandum, given by the accused persons for discovery of weapons of offence. Therefore, for the above reasons, his sole testimony cannot be relied on. l-1e atso argued that the discovery memos have not been signed by theaccused persons, therefore, the discovery as also the seizures are doubtful. He referred to the decisions of the Apex Court rendered in the matters of J'ackaran Slnah Vs. State of Putilab. AIR 1995 SC 2345 ond Narpaf Sinah and others Vs. State of Haryana. 1977 CH.L.J: 642. (9) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Apex Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. 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 carefiilly. If on such scrutiny, his evidence is found to be intrinsically reliable,inherently probabte 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 thedeceased would normally be most reluctant to spare the real culprit and falsely implicatean innocent one. The Apex Court also referred to thedecision rendered in;the maWer of Hgdfges Km/r^nd^inotfier^-ys- State of Haryana. 200SJAXR I— y En^mT^j ^l Criminal Appeal No. 1155 of2001 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 contrary, reason has to be shown when a plea of partiality is rai'sed to show that the witnesseshad reason toshield the actual culprit and falsely impticate the accused. (10) If we look into the evidence of 1-his witness Bharat Kumar (PW-7), he deposed that on the fateful day at about 5.00-quarter to 5.00 a.m., he heard the sound of cn'es of a child which was coming from the house of his uncle Motital, thepeafter he heard the voice of bev Kumar, tiilip, Raju and Raj Kumar. They were sayin9 that Thanwar come out how much witchcraft you do, today we willsee", then they started abusing. On this, he called Ashwani Kumar and Shyamsunder saying that brother see, they are abusing, on which, Shayamsunder came there and advised them and sent them inside the house and closed the doors of the house. After this, his brother Ashwani went out to answer the callof nature. Then he hedrd his cries, on this, he .went towards it and saw that Dev Kumar, Dilip, Raju and Raj Kumar were assaulting his brother Ashwm'i by axe, rod and Danda.. They also chased him, due to which, he went inside his house and told his mother and father not to 90 outside as he is going to the house of Shyamsunder. When he was sitting in the house of Shyamsunder, Shayamsunder came from outside (as he was not in the house) and told that his brother has been kilted. On his request, Shyamsunder come upto gali but he denied to go to the place of occurrence. Then, he said Shyamsunder to take him to the house of Sarpanch. This witness has also deposed that Kejaha had also told him that the accused persons have killed his brother, on this, he had said Kejaha that yes, on account of suspicion of witchcraft, they have killed his brother. He further deposed that when the police come to the village and the accused persons were taken into custody by them, they had disclosed that they i have assaulted by axe, tangia, rod and Danda . But he has added one linei that before his reaching to the school, where accused persons were therej axe, tangia, rod and Danda were seized by the police and the policehas takenjhis signatures over the seizure memos. He admitted his signatures over* the .^—s"^ 1. f 1 i i Criminal Apceal No. 1155 of2001 memorandums of the accused persons and also over the seizure memos in pursuance of the memorandums. This witness has been put to the cross- examination by the defence but not a single question has been asked from him regarding the version about the incident claimed to be witnessed by him. 2-3 simple questions regarding omissions have been asked, which are not very relevant on the face of the ocular version given by him. Therefore, the evidence of this witness to this effect, that he himself had witnessed the commission of crime by actually seeing that the accused persons were assaulting the deceased, has not at all been chalten9ed by the defence and the same remains intact. (11) For disbelieving the testimony of this witness, as stated above, learned counsel for the appellqnts has argued that hjs conduct was unnatural because he has not disclosed the facts to the parents. This argument cannot be sustained in light of the contents of the F.I.R. The F.I.R. has been lodged by the father of the deceased, in which, he has named all the 4 accused persons. According to the FJ.R., the incident took place at about 5.30" a.m. and the F.I.R. was lodged at about 9.15 a.m. The contents of the F.I.R, would show that the maker, Thanwar, PW-1, himself has witnessed the complete occurrence but in the court evidence, he deposed that when after hearing the cries of the deceased, his younger son Bharat went towards the place of occurrence, he also followed him and Bharat, after seeing the accused persons assaulting the deceased, ran away from the place of occurrence and went to the house of Shyamsunder, on which, he thought that if he will go to place of occurrence, he will also be killed and he ran away from there and| come to his house. Thereafter, Kejaha came there and told thathisson is| lying at the place of occurrence and the villagers have assembled there. It is| on This basis, it is argued that in fact, this witness has not seen the| occurrence and he has made the F.I.R. on hearsayand the informaticin to him| was given by Kejaha, who has not been examined in this case. Firstly, on th^ basis of his evidence in Para-3, it is clear that he has also gone near th^ place of occurrence aton9 with his son Bharat (PW-7) after hearing thecrie^ of his other son Ashwani (since deceased) and he has seen the beginning ofl Criminal Aoueal No. 1155 of2001 the occurrence. Even assuming that he has not seen the occurrence and he was informed by Kejaha and Bharat (PW-7) did not disclose the story to him, the conduct of Bharat cannot be doubted only on this 9round because the beg'mnity of the occurrence was known to every body (including his father) and seeing the assault, Bharat (PW-7) had gone to the house of Shyamsunder and when he returned back to his house, everything was known to his father. Therefore, nothing was there with him to be specifically disclosed to his father and no doubts can be raised on his such conduct. (12) So far as conduct of PW-7, Bharat Kumar, about not going to save the live of his brother is concerned, it is apparent from the evidence of PW-7 that when he went to the place of occurrence, he was chased by the accused persons, on this, he went to his house and thereafter to the house of Shyamsunder. PW-1, Thanwar, has also deposed in Para-3 that when he followed his son Bharat Kumar for 9oing to the place of incident, he saw that after seeing the incident, Bharat ran away to the house of Shyamsunder. He thought that if he will go to the spot, he will' also be killed, therefore, he returned back to his house. On the evidence of PW-7 and PW-1, it is clear that both the persons were apprehending danger to their lives and for that they did not 90 to save the life of Ashwani Kumar and in the facts and circumstances of the case, the conduct of PW-7 that he did not 90 to the place of occurrence to save the life of his brother, is quite natural and on this only, his testimony cannot be discarded. (13) As far as not mentioning the position of the eye witness in the map (EX.-P/17), given by the Patwari (PW-9) is concerned, not a single question has been asked from the Patwari that why the position of this witness has not been shown in the map, whereas the map (Ex.-P/17) bears the signature of eye witness (PW-7). Even no question has been put to PW-7 Bharat also that whether the map was prepared on his instructions and whether he had told the Patwari that he saw the occurrence from a particular place. Therefore, it is not clear that on whose omission, the position of this witness is not shown in the map. If the Patwari has committed mistake and he has not shown the position of this witness in the map, that by itself does .! 'S3 Criminal Aoueal No. 1155 of2001 not render the case of the prosecution unreliable and this witness untrustworthy. It's a mere irregularity, which does not go to the root of the matter and on this only, the version of PW-7 cannot be discarded. (14) 5o far as not taking the si9natures of the accused persons on their memorandums is concerned, learned Sr. Counsel referred to the decision of Jackaran's case (supra). In the said case, sole eye witness namely Surinder Kumar, PW-4 was held to be untruthful and it was doubtful if he had at all witnessed the occurrence and besides the evidence of PW-4, there was no other direct evidence to connect the appellant with the cn'me. The disclosure statement was said to be inspiring no confidence on the ground that none of the two Panch witnesses were examined at the trial and that the disclosure statement does not bear the si9natures or the thumb impression of the appellant, and the appellant was acquitted. As stated above in the said case, the sole eye witness was held to be unreliable and except the circumstance of disclosure statement, no other circumstance was pressed into aid by the prosecution to connect the appellant with the crime and two panch witnesses of the disclosure statement were not examined at the trial to testify the authenticity of disclosure statement and in that situation, the Apex Court said that in absence of signature or thumb impression over the disclosure statement renders such statement not inspiring confidence of the Court. (15) The present is not a case like that. In this case, Panch witnesses have been examined, the testimony of PW-7 is intact on record and same is corroborated by the F.I.R. as also the evidenceof PW-1 Thanwar to the extent that the accused persons were abusing them and that Thanwar has seen the beginning of the occurrence, when he has followed his son PW-7, Bharat Kuamr and he says about involvements of the accused persons. The case is distinguishable, therefore, in this situation, if the signatures of fhe accused persons were not taken on the disclosure statements, no advantdge can be given to the appellants. )^l3tfil) !:i(iJi]I AJIIiilUkuiillll 10 Criminal Apceal No. 1155 of2001 %' (16) The next argument challenging the reliability of PW-7 was that he has not supported the memorandums and the seizures of the weapons made from the possession of the accused persons, therefore, his sole testimony should be discarded. For this Mr. Ansari hasreferred to the decision of the Apex Court rendered in the matter of Narpal Singh's case (supra). In the said case, the eye witness Surudial Singh was held to be an independent and disinterested witness by the court below. He and Investigatin9 Officer, both had deposed on oath regarding the recovery of seven empties from the spot and no other witness of recovery was examined by the prosecution. The Apex Court said that merely because other witnesses were not examined would be no ground to reject their evidence. The Apex Court cautioned that "we would, however, like to point out that in future the Investigating Officer, should not associate any eye witness with the recovery memos, because that pertakes of an attempt to mahe the witness omnibus" and saying this, the recovery was held to be proved beyond reasonable doubt. (17) In the present case, though the eye witness, Bharat (PW-7), has been made the witness of disclosure and recovery but in fact, he has not proved these documents. He says that the accused persons had said to the police aboutassaulting the deceased by axe, tangia, rod and Danda but those articles were seized prior to his reachin9 to that place,that means,according to him,the recovery was not made in consequence of disclosure. Sadhram (PW-6) and Investigating Officer (PW-11) are the other witness of memorandums and recoveries who have proved the same. Even if we discard the evidence of PW-7 pertaining to memorandums and seizures of the weapons of theoffence, his evidence pertaining to the incident is intact and to that extent he cannot be disbelieved on the above grounds. (18) Therefore, it is clear that so far as eye witneSs part is concerned, witness (PW-7) appears to be fully reliable and conviction can be based on such testimony, which is supported by the contents of the F.I.R. and the - evidence of his father Thanwar (PW-1). It is further corroborated by the evidence of Shyamsunder (PW-3), who after deposing the incident of first ^phase of abuse etc, has deposed in Para -3 that when he returned after 11 CrimmalAripealNo. 1155 of2001 answering the call of nature, Bharat was sitting in his house and he told him that Dilip, &ev Kumar etc. are assaulting his brother. He has asked for accompanying him, on which, he went to the gali, where he found Tihari and Thanwar, they all asked him to go to the place of occurrence but he denied. In fact, they did not decide to go to place of occurrence from gali and ultimately Kejaha came and told them that the dead body of Ashwani is lying in front of house of Samaylal. (19) It is in this situation, the trial Court has relied on testimony of PW-7 and looking to the 7 incised injuries sustained by the deceased, convicted the two accused/appellants, wHo were armed with tangia, on which the blood stains were also confirmed by the Serologists and has acquitted the third accused namely Raju, who was armed with lathi and no blood stains were found on it. (20) We do not find any infirmity in the judgment of conviction recorded by the trial Court, the same is based on cogent, dinching, reliabte an^l trustworthy evidence. (21) The appeal deserves to be dismissed. It is accordingly dismissed. Sd/- L.C.BHADOO Judge Sd/- SunU Kumar Sinha Judge vatti