^' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE Mr.T.P.SHARIVIA & HON'BLEMr.R.N.CHANDRAKAR,JJ. Appellants (In Jail) Respondent. Appellant Accused No.5 (In Jail) Respondent Criminal Appeal No. 155 of 2009 2. Vs. Baleshwar Kumhar s/o. Shri Budhau Ram Kumhar, aged about 48 years. Harinarayan Kumhar, s/o. Shri Baleshwar Kumhar, aged about 30 years. Both r/o. village Marhidand, Kalyanpur, P.S. Darima, Distt. Surguja, Chhattssgarh. State of Chhattisgarh through Station House Officer, Police Station: Darima, Distt. Surguja, Chhattisgarh. Cnminal Appeal No. 318 of 2009 Ajay Dhobi, s/o. Sukhlal Dhobi, aged about 24 years, Agriculturist, resident of village Murhidand Kalyanpur, P.S. Darima, District Surguja (CG). Vs State of Chhattisgarh through Police Station: Darima, Distt. Surguja,(CG). & Criminal Appeal No. 486 of 2009 Appellants (In Jail) 1 Shuklal Dhobi s/o. Goura Ram Dhobi, aged 50 years. 2. Shukh Dev Dhobi, s/o. Goura Ram Dhobi, aged 45 years. Both r/o. village Murhidand Kalyanpur, P.S. Darima, Distt. Sarguja (CG), present address Central Jail, I^ON'V Vs. Respondent. Ambikapur. State of Chhattisgarh through Station Incharge, Police Station: Darima, Distt. Surguja, Chhattisgarh. (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. M.K. Baeg, counsel for the appellants in Criminal Appeal Nos. 155/2009and 318/2009. Mr. Avinash Mishra, counsel for appellants in Criminal Appeal No. 486 of 2009. Mr.Neeraj Mehta, Panel Lawyerforthe State. JUDGIVIENT (Deliveredon 22-11-2011) Per T.P.Sharma, J.:- 1, Criminal Appeal No. 155 of 2009 preferred by appellants Baleshwar Kumhar and Harinarayan, Criminal Appeal No. 318 of 2009 preferred by appellant Ajay Dhobi and Criminal Appeal No.486 of 2009 preferred by appellants Shukhlal Dhobi and Shukh Dev Dhobi are being disposed of by this common judgment as these appeals arise out of the judgment dated 23-1-2009 passed in Sessions Trial No. 153/2006. 2. By filing the aforesaid appeals, the appellants have challenged judgment of conviction and order of sentence dated 23-1-2009 passed by First Additional Sessions Judge, Ambikapur, in Sessions Trial No. 153/2006, whereby and whereunder learned Ist Additional Sessions Judge, Ambikapur, after holding the appellants guilty for formation of unlawful assembly, armed with deadly weapons having .^-' ^'^^ %?:?-. l"nl^»»/ common object for commission of murder of Mohar Sai and causing simple injuries to Bahoran Dhobi (PW/1) and Lahoran Dhobi (PW/20), has convicted appellants Baleshwar, Shukhlal Dhobi and Ajay Dhobi under Section 302/149 of the IPC and sentenced to undergo life imprisonment and fine of Rs.1000/- each, in defaultof payment offine to further undergo RI for one year, appellant Harinarayan under Section 323 of the IPC and sentenced him to undergo Rl for six months for causing simple injuries to Bahoran and Lahoran, appellant Shukh Dev Dhobi under Section 323 of the IPC and sentenced him to undergo Rl for six months for causing simple injuries to Bahoran. The Court below has also convicted the appellant Harinarayan under Section 148 of the IPC and sentenced him to undergo Rl for one year. 3. Conviction is impugned on the ground that without any iota of evidence, thetrial Court has convicted & sentenced the appellants as aforementioned and thereby committed illegality. 4. As per the case of the prosecution, on fateful night of 15-1-2006 at about 11.00 p.m., unfortunate deceased Mohar Sai was present in his house along with injured PW/1 Bahoran and PW/20 Lahoran and other family members and when they were sitting in the court-yard near fire, present appellants came to the court-yard of deceased Mohar Sai and assaulted Bahoran by axe and sticks on account of land dispute and while Lahoran intervening the matter, appellants also assaulted him and thereafter all the appellants forcibly dragged Mohar Sai to hand- pump where appellant Ajay Dhobi and other accused assaulted Mohar Sai by axe and sticks and caused serious injuries. During ^ course of traveling to hospital Mohar Sai died on the way on 16-1- 2006 at 9.15a.m. r^ 5. Injured eye-witness PW/1 Bahoran, son of deceased Mohar Sai went to Police Station and lodged merg vide Ex.P/1 and .first information report vide Ex.P/2. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/4, inquest over dead body of deceased was prepared vide Ex.P/5, spot map was prepared vide Ex.P/3, blood stained soil and plain soil were seized from the spot vide Ex.P/25, dead body was sent for autopsy to Primary Health Centre, Ambikapur vide Ex.P/17 where Dr. B.L. Kaushal (PW/12) conducted autopsy vide Ex.P/16 and found the following injuries; i) One lacerated wound of 3"x2" upto scalp deep over head with fracture of 5"x1/4" over middle of occipital region; ii) Contusion over left 11 and 12* rigs along with fracture of both ribs and puncture of spleen present and opined that mode of death was hypovolemic (hemorrhagic) shock due to head injury and death was homicidal in nature. 6. Injured eye-witness Bahoran (PW/1) was sent for medical examination vide Ex.P/29 and he was examined by Dr. B.L. Kaushal (PW/12) vide Ex.P/18 who found the following injuries; i) Lacerated wound over left parietal region of 1^" x 1/8 , clotted blood present; ii) Lacerated contusions red-in-colour over back of (a) 3"x2" (b) 2"x2" (c) 4"x2"; iii) Abrasion over left side of neck of 3"x1/8"; iv)' Abrasion over the neck of 3"x1/8" skin deep; and opined that injuries were simple in nature caused by hard and blunt object. ^ni^ 7. Injured eye-witness Lahoran (PW/20), son of deceased Mohar Sai was sent for medical examination vide Ex.P/30 and he was examined by Dr. B.L. Kaushal (PW/12) vide Ex.P/19 who found one lacerated wound oversmall fingerof left hand which was simple in nature. 8. During the course of investigation, appellant Ajay Dhobiwas taken into custody and he made a disclosure statement of axe vide Ex.P/8 and same was recovered at his instance vide Ex.P/9. Appellant Harinarayan also made a disclosurestatement of axe vide Ex.P/10 and same was recovered at his instance vide Ex.P/10. Appellant Sukhlal made a disclosure statement of stick vide Ex.P/13 and same was recovered at his instance vide Ex.P/11. Sealed clothes of deceased were seized vide Ex.P/15. Seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/38 and presence of blood over axe seized from appellants Harinarayan and Ajay Dhobi was confirmed vide Ex.P/C-1. 9. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Ambikapur, who in turn committed the case to the Court of Sessions, Ambikapur. Learned Additional Sessions Judge received the case on transfer for trial. 10. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 20 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. They have also examined defence witnesses Jeevan Prasad (DW-1) and Vijay Kumar Yadav (DW-2) who have deposed that on 15-1-2006 at about 10 p.m., quarrel took place in the village on the eve o^'Chherta" festival. Bihari (PW/16) informed DW/2 Vijay Kumar Yadav that Bahoran and Mohar Sai quarreled with him. 11, After providing opportunity of hearing to the parties, learned 1st Additional Sessions Judge, Ambikapur convicted & sentenced the appellants as aforementioned. 12. We have heard Mr. M.K. Baeg, counsel for the appellants in Criminal Appeal Nos. 155/2009 & 318/2009 and Mr. Avinash Mishra, counsel for appellant in Criminal Appeal No. 486 of 2009 & Mr. Neeraj Mehta, Panel Lawyer for the State, perused the judgment impugned and record of the trial Court. 13. Learned counsel appearing for the appellants vehemently argued that conviction is based on the evidence of alleged injured eye- witnesses Bahoran (PW/1) and Lahoran (PW/20) and the eye- witnesses Sunni Bai (PW/6) wife ofdeceased Mohar Sai, Tara (PW/9), wife of injured witness Bahoran (PW/1), Laliram (PW/10) s/o. injured witness Bahoran (PW/1), Birajo Bai (PW/14), sister of PW/1 Bahoran and other relatives who are residing in the same house. Their evidence does not inspire confidence and trustworthy. On the date of incident villagers were celebrating function of "chherta" festival and villagers were roaming in the village and independent witnesses are on the spot, but the prosecution has not examined any independent witnesses who have known the real story. Admittedly, appellants Baleshwar and Harinarayan do not have any grudge and motive for commission of offence, simply they have witnessed the land dispute and have deposed in favour of appellants Sukhlal and Sukhdev and on the ground of said evidence they have been falsely implicated in the crime in question. There are contradictions and omissions in the evidence of the aforesaid witnesses and in absence of any corroboration from independent sources, their evidence are not safe to rely for conviction of the appellants. Learned counsel for the appellants further submit that there is inconsistency between medical evidence and ocular evidence. As per evidence of eye-witnesses, injuries have been caused over the body of deceased Mohar Sai but Doctor has noticed only two injuries which falsifies the evidence of eye-witnesses and only two persons caused injuries to Mohar Sai resulting into his death. They further submit that evidence adduced on behalf of the prosecution may be sufficient for causing suspicion that the appellants may have committed the said offence but the same is not sufficient for drawing inference that the present appellants have committed the said offence. 14. On the other hand, learned Panel Lawyer for the State/respondent opposed the appeal and argued that the incident took place at 11.00 p.m., on the date of incident and presence of the aforesaid witnesses i.e., relatives who were residing in the same house was natural and they have not exaggerated their evidence. Appellants have not explained their presence at the time of incident at 1 1.00 p.m. in the house of complainant party and for dragging Mohar Sai from his house upto hand pump and causing injuries resulting into his death shows grave intention, unlawful assembly with common object for commission of murder of Mohar Sai and simple injuries to Bahoran and Lahoran. 15. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 16. In thepresent case, homicidal death as a result offatal injuries found over body of deceased Mohar Sai has not been substantially disputed on behalf of the appellants. On the other hand, it is also established by the evidence of Doctor PW/12 B.L. Kaushal and autopsy report (Ex.P/16) that the death of Mohar Sai Was homicidal in nature, likewise simpte injuries found over body of Bahoran and Lahoran have not been disputed on behalf of the appellants. On the other hand, it is also established by the evidence of Doctor PW/12 B.L. Kaushal and medical reports (Ex.P/18 & P/19). 17. As regards the complicity of the appellants in the crime in question, conviction is substantially based on the evidence alleged injured eye- witnesses Bahoran (PW/1) and Lahoran (PW/1), Sunni Bai (PW/6) wife of deceased Mohar Sai, Tara (PW/9), wife of injured witness Bahoran (PW/1), Laliram (PW/10) s/o. injured witness Bahoran (PW/1) and Birajo Bai (PW/14), sister of PW/1 Bahoran and other relatives who are residing in the same house. As per their evidence there was enmity between the aforesaid witnesses, deceased Mohar Sai and present appellants Sukhlal, Sukhdev and Ajay. They have also admitted that appellants Baleshwar and Harinarayan have given evidence in favour of Sukhlal and Sukhdev against the complainant ^ ^' party. Defence has cross-examined DW/1 Jeevan Prasad who has deposed that on 15-1-2006 at about 10 p.m. quarrel took place in the village, Mohar Sai was also present at the time of quarrel. On the secpnd day, Mohar Sai died. Mohar Sai also assaulted Bihari (PW/16), but as per his evidence, virtually he has not seen the incident but has heard the sound. As per evidence of DW/2 Vijay Kumar Yadav, Sukhlal and Sukhdev demanded Rs.50/- from him for consuming liquor on the eve of "chherta" festival. He consumed liquor in excess and was not in a position to walk. Bihari resident of Kalyanpur also came to him and informed that Mohar Sai and Bahoran quarreled with him. As per evidence of these witnesses, the aforesaid incident took place between 6 -7 p.m., but as per case of prosecution, the incident took place at 11.00 p.m., therefore, evidence of these witnesses are of no use to any of the parties. 18. As per evidence of PW/1 Bahoran, on the date of incident at about 11.00 p,m, he along with deceased Mohar Sai and the aforesaid witnesses were present and they were sitting in the courtyard near fire, at that time Harinarayan came and called him, when he came out at that time Sukhdev and other accused persons were present. Appellant Sukhdev assaulted the deceased Mohar Sai by stick as a result ofwhichhe fell down and hlarinarayan assaulted the deceased by axe, then he shouted for help and PW/20 Lahoran came and tried to save him to whom appellant Harinayaran assaulted by axe and caused injuries over his finger, thereafter, all his relatives came to save him, then appellants entered into the courtyard of this witness and took Mohar Sai to hand pump where Ajay, Harinarayan and other £' .f ii... '^ P '^^^ 1 T: ? - '^^ ^ \K.3? / \.^'-^^-- ^- 10 ^ accused persons assaulted him and caused fatal injuries. They took the injured Mohar Sai to their house, thereafter when they were taking him to hospital Mohar Sai died on the way, then he lodged first information reportin Police Station. 19. PW/20 Lahoran is also another injured eye-witness and his evidence is corroborated by the evidence of eye-witnesses Bahoran (PW/1), Sunni Bai (PW/6) wife of deceased Mohar Sai, Tara (PW/9), wife of injured witness Bahoran (PW/1), Laliram (PW/10) s/o injured witness Bahoran (PW/1), Birajo Bai (PW/14), sister of PW/1 Bahoran. All the aforesaid witnesses are also relative witnesses and there may be enmity between them and the appellants, but only on the ground of relationship or enmity their evidence cannot be discarded. It requires minute scrutiny before accepting it. 20. While dealing with the question of evidentiary value of relatives, interested and inimical witnesses, the Supreme Court in the matter of Dalip Singh v. State of Punjab has held that a witness isnormally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:- "26. A witness is normally to be considered independent unless 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 falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and 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 fact of relationship far from being a foundation is often a sure guaranteeoftruth" 1(1954) 1 SCR 145 11 r^ p>^ni»ri. 21. As held by the Apex Court in the matter of Mohabbat and Ors.v. State of M.P.2, relationship is not ground to affect credibility of witness, foundation has to be laid if plea offalse implication is raised. Para 7 of the said judgment reads as under, "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt acareful approach and analyze evidence to find out whether it is cogent and credible." 22. While dealing with the same question, the Supreme Court in the matter of Guli Chand and others v. State of Rajasthan3 has held that mere fact that relative witness or his relations is not sufficient to discard his testimony. 23. While dealing with the same question, the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra held that in view of the close relationship and affection any person related to the deceased would have, such a witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, 22009 AIR SCW 1486 3(1974) 3 SCC 698 /AIR 1984 SC 1622 E: 12 the Court has to examine such evidence with very great care and caution. Para 48 of the said judgment reads as under:- "48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidencewith very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined tohave been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it." 24. If we examine the evidence of the aforesaid witnesses on the basis of dictum of Supreme Court as mentioned herein above, it is clear that these witnesses are relatives of the deceased Mohar Sai and residents of the same house and their presence on the date of incident at 11.00 p.m., in the odd hours, was not unnatural. All these witnesses have specifically and categorically deposed and admitted the presence of appellants/accused persons with axe and sticks on the date of incident i.e., on the eve of "Chherta" festival. At the time of incident i.e., at 11.p.m., there was no propriety for presence of the aforesaid appellants/accused in front of the house of PW/1 Bahoran and even they were dragging or taking Mohar Sai from his courtyard upto hand-pump for causing injuries to him. There is discrepancy relating to number of assaults and use of weapon. Doctor has not noticed incised wound over the body of deceased but it has been ^ ^^--^^^ ^:^^% "^. !t % 13 \' clarified by PW/10 Laliram. In his evidence he has specifically deposed that Ajay had caused injuries by axe over the head of Mohar Sai by blunt part of the axe. As per evidence of the aforesaid witnesses all the appellants were present on the spot i.e., in front of the house of PW/1 Bahoran. They have entered into the courtyard of the house of Bahoran, thereafter they took Mohar Sai upto hand pump and caused injuries to MoharSai, resulting into his death. Their presence on the date of incident at 11 .00 p.m. in the odd hours and their act of taking Mohar Sai from courtyard to hand pump clearly establish the formation of unlawful assembly. Their presence with deadly weapons further establishes their common object. The evidence adduced on behalf of the prosecution is sufficient to establish the fact that all the appellants have formed unlawful assembly having common object and causing homicide amounting to murder of Mohar Sai and causing injuries to others and in furtherance of common object they have caused injuries to Bahoran and Lahoran and homicidal death of Mohar Sai. 25. After appreciating the evidence available on record, learned court below has rightly convicted and sentenced all the appellants under Sections 302/149 of the IPC and also convicted the appellants Harinarayan and Sukhdev under Section 323 of IPC, appellants Harinarayan and Ajay under Section 148 ofthe IPC and sentenced as aforementioned. While convicting and sentencing the appellants as aforementioned, the court below has not committed any illegality requiring any interference in exercise of appellate jurisdiction by this Court. ";^. 14 26. Consequently, Criminal Appeal No. 155 of 2009 preferred by appellants Baleshwar Kumhar and Harinarayan, Criminal Appeal No. 318 of 2009 preferred by appellant Ajay Dhobi and Criminal Appeal No.486 preferred by appellants Shukhlal Dhobi and Shukh Dev Dhobi being devoid of merits are liable to be dismissed and are hereby dismissed. 27. Appellants Baleshwar' Kumhar and Harinarayan are on bail. They shall immediately surrender before the First Additional Sessions Judge, Ambikapur to serve out the remaining sentence. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Raju l^l^B'