HIGH COURT OF CHHATTISGARH AT BILASPUR >r^. D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.944 of 1995 Ganesh versus State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- R.S. Sharma Judge Hon'ble Shri Sunil Kumar Sinha. J.: ^ ^-^^e€^ ^-^±^ Sd/- Sunil Kumar Sinha Judge Postfor 2-7-09-2011 Sd/- R.S. Sharma Judge -S?'" ...^^.'.•r-!- ^' ^"" ^ ll:'spjl] ^^ ^ . ^IFIC HIGH COURT OF CHHATTISGARH AT BILASPUR D-B-: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.944 of 1995 Appellant versus Respondent Ganesh, son of Ramgulam Sarthi, aged about 24 years, resident of Sindhi Colony, Kasturba Nagar, Police Station Civil Lines, District Bilaspur (Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Present: Shri N.L.Soni, counsel forthe appellant. Shri Ashish Shukla, Government Advocate for the State/respondent. Criminal Appeal under Section 374f2) of the Code of Criminal Procedure JUDGMENT (Delivered on 2^ ^ September, 2011) Per Radhe Shvam Sharma, J.: This appeal is directed against the judgment dated 21-6-1995 passed by Session Judge, Bilaspur in Session Trial No.426/1991. By the impugned judgment, appellant Ganesh has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: On the fateful day, i.e., 13-4-1991, at about 4:30 P.M., deceased Shyamsunder was taking meals at his house. At that time, one Mehtar boy was throwing stones in the bush behind the house of the deceased for taking out his kite. The stones were falling on the roof-tiles of the house of the deceased and breaking k .:^. y,^.:^:-:.:-^:., the tiles. The deceased went to stop the boy throwing stones. His wife Surajabai (PW-1) accompanied him. The deceased asked the boy to stop throwing stones and take out the kite by climbing on the tree. At that time, the appellant and his brother Ballu alias Naresh Kumar (co-accused), armed with Lathi, came there from their house. The appellant assaulted the deceased with Lathi first, due to which, the deceased fell down. On this, Surajabai (PW-1) shouted. The appellant and the co-accused chased her. After running to some distance, she stopped. In the meantime, daughter of the deceased, namely, Ranibai (PW-4) also came there. Both, the appellant and the co-accused gave Lathi blows on the head of the deceased. On account of this, the deceased diedthere. Surajabai (PW-1) lodged the First Information Report (Ex.P-1) on the date of incident itself. Merg Intimation (Ex.P-12) was also recorded. The investigating officer reached the place of occurrence, gave notice (Ex. P-3) to Panchas and prepared inquest (Ex. P-4) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Government Hospital, Bilaspur vide Ex.P-14. Post mortem examination was conducted by Dr. K.K. Sao (PW-5), who gave his report Ex.P-14A. He found (i) one depressed fracture on the right side of face over the maxilla and mandible, right eye ball was pushed inside, (ii) lacerated wound on the right side of face 5"x11A" vertical in position bone deep, (iii) lacerated wound over chin transversely situated 3"x1" irregular bone deep, (iv) lacerated wound belowthe angle of right mandible 1"x%", (v) lacerated. wound on the right ear lobule 1"x%", (vi) lacerated wound on the right side of occipital region 2"x1/2" scalp deep, vertically situated and (vii) 3 ^^,»^,a5^i^w..:ws-...^v^ ,^^ ^y^' /t^ -^^^11 lacerated wound behind the right ear transversely present 1"x1/^". He opined that cause of the death was head injury causing syncope. In further investigation, plain earth and blood stained earth were seized vide Ex.P-5. Memorandum statement (Ex.P-8) of the appellant was recorded under Section 27 of the Evidence Act on 14- 4-1997 and at his instance, a Bamboo (Lathi) was seized vide Ex.P- 10. The seized articles were sent for chemical examination to Director, Forensic Science Laboratory, Sagar vide Ex.P-17 and a report Ex.P-18 was received. In the FSL report Ex.P-18, articles A, D, E1, E2 and G1 to G5 were found stained with blood. After completion of the investigation, charge-sheet was filed against the appellant and the co-accused in the Court of Chief Judicial Magistrate, Bilaspur, who, in turn, committed the case to the Court of Session Judge, who conducted the trial and convicted and sentenced the appellant as mentioned above. The learned Session Judge acquitted co-accused Ballu alias Naresh Kumar of the charges framedagainst him. 3. Shri N.L.Soni, learned counsel for the appellant argued that there is no independent eye-witness. Surajabai (PW-1) is widow of the deceased. She is relative and highly interested witness. There is contraction in the First Information Report (Ex.P-1) lodged by her and in her evidence before the Court. On the same set of evidence, co-accused Ballu alias Naresh Kumar was acquitted by the Court of Session, therefore, the appellant also deserves to be acquitted. Solitary evidence of Surajabai (PW-1) is not cogent and reliable and, therefore, cannot be based for conviction of the appellant. Learned ^;»^^..^,,.,,^,.^..^....^,,,.^ /r^ "^ I ^NI 1 '^5,^'^ :^^-'~ ^y ^6 counsel placed reliance on Santosh Singh vs. State of M.P. (now State of Chhattisgarh), 2011 (1) CGLRW 303 (DB) and Ugar Ahir and others vs. The State of Bihar, AIR 1965 SC 277. 4. On the contrary, Shri Ashish Shukla, learned Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Session Judge, do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of the session case. The conviction of the appellant under Section 302 IPC is based onthe solitary evidence of Surajabai (PW-1). 6. In Dharnidhar vs. State of Uttar Pradesh and others, (2010) 7 SCC 759, the Hon'ble Supreme Court held as follows: "12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a pei-son closely related to the victim. The Court held as under: (SCC p. 213,paras23-24) ^. 'v '^ .. ^ €) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim." 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P., (2010) 1 SCC 722, where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." 7. In Brahm Swaroop and another vs. State of U.P., AIR 2011 SC 280, the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a jwitness, moreso, a relation would not conceal the actual ^-^. ^*»iui»' culprit and make allegations against an innocent person. A party has to lay down a faetual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh & Ors. V. State of Punjab, AIR 1953 SC 364; Masalti v. State of U.P., AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC 76; and Rizan & Anr. V. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh, (2003) 2 SCC 661) : (AIR 2003 SC 976)." {See also Shaukat vs. State of Uttaranchal, (2010) 5 SCC 68 (Paragraphs 35 and 36)} 8. It is not disputed that Surajabai (PW-1) is widow of the deceased. It is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the Court is satisfied that the evidence of the interested witness has a ring of truth such evidence could be relied upon even without corroboration. The fact of being a relative cannot by itself discredit the evidence. When the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. ^% ff ^yM^ 1 '?^ :^?'y 9. In Ranjit Singh and others vs. State of Madhya Pradesh, AIR 2011 SC 255, the Hon'ble Supreme Court held as follows: "19. ........ "There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification ofan accused as a memberofan unlawful assembly. All the same when the size of the unlawful assembly is quite large (as in this case) and manv persons would have witnessed the incident,.........." 10. In Namdeo vs. State of Maharashtra, (2007) 14 SCC 150, the Hon'ble Supreme Court held that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. It is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be a particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. h 8 11. So far as plea of same set of evidence is concerned, in Balraje alias Trimbak vs. State of Maharashtra, (2010) 6 SCC 673, the Hon'ble Supreme Court held as follows: "29. Law is fairly well settled that even if acquittal is recorded in respect of the co-accused on the ground that there were exaggerations and embellishments, yet conviction can be recorded if the evidence is found cogent, credible and truthful in respect of another accused. The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence." 12. In Waman and others vs. State of Maharashtra, (2011) 7 SCC 295, the Hon'ble Supreme Court held as follows: "17. In Balraje v. Stete of Maharashtra, (2010) 6 SCC 673, this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, this Court held that: (SCC p. 679, para 30) "30. ..... if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." tli^»1 9 19. The above principles have been once again reiterated in State of U.P. v. Naresh, (2011) 4 SCC 324. Here again, this Court has emphasized that relatjonship cannot be a factor to affect the credibility of a witness. The following statement of law on this point is relevant: (SCC p. 334, para 29) "29. .... The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jamail Singh v. State of Punjab, (2009) 9 SCC 719, Vishnu v. State of Raj'asthan, (2009) 10 SCC 477 and Balraje, (2010) 6 SCC 673.)" 13. Surajabai (PW-1) deposed that on 13-4-1991, on which the incident took place, at about 4 P.M., she, her daughter Ranibai (PW- 4) and her husband Shyamsunder (the deceased) were having meals at home. Her daughter was aged about 18 years. Someone threw stones in their house. Those stones fell on the roof-tiles of their house. Her husband went out to see the person throwing stones. She also accompanied him. When she came out, she saw that her husband was talking to one Mehtar boy. When she and her husband were standing out of their house after going away the Mehtar boy, the accused persons came to her husband. Accused Ganesh was armed with a Lathi but the co-accused was not armed with any weapon. Accused Ganesh assaulted her husband with the 10 Lathi and co-accused Ballu remained present there. The Lathi blow was given by accused Ganesh on the head of her husband. Her husband fell down there. Thereafter, accused Ganesh again gave 2-3 Lathi blows to her husband. Those blows were given on the head and mouth. In cross-examination, she deposed that accused Ganesh had given 3-4 Lathi blows to her husband. When accused Ganesh was assaulting her husband with the Lathi, she was standing there few steps away. When the accused persons caused her to run, she fled towards the tenants. 3-4 tenants came out there. The accused persons chased her upto some distance and they remained stood in the agricultural field. 14. Surajabai (PW-1) lodged the First Information Report (Ex.P-1) on 13-4-1991 at 5 P.M. The inddent took place on 13-4-1991 at about 4:30 P.M. The distance of police station is 2 Kilometres from her house. The First Information Report (Ex.P-1) was lodged within 1/2 an hour of the incident. In the First Information Report (Ex.P-1), it is mentioned that Ganesh Sarathi and his brother Ballu Sarathi came from their house armed with Lathiyan. Ganesh assaulted her husband with the Lathi first on the head, due to which, he fell down. First Information Report (Ex.P-1) was lodged promptly and it contains name of the appellant/accused as assailant, therefore, evidence of Surajabai (PW-1) is supported by the FIR. 15. Dr. K.K.Sao (PW-5) deposed that in post mortem examination of the deceased he found above seven injuries. Therefore, evidence of Surajabai (PW-1) is supported by medical evidence also. We have perused the evidence of Surajabai (PW-1) with utmost i f "" a^K^^& /fS:^ ^^^sm^^ N ^i^^l^ i . 1 ., v^'^ v^sy Gopal ^ 11 circumspection. Her evidence is cogent, clinching and trustworthy and corroborated by the FIR and medical evidence. The doctor has opined that cause of the death was head injury causing syncope. The death was homicidal in nature. Her presence at the place of occurrence cannot be doubted. It was a day time occurrence and her presence near her house was natural. 16. For the foregoing reasons, we do not find any infirmity in the finding recorded by the learned Session Judge that it was none else but the appellant who inflicted injury on the skull of the deceased withthe Lathi and the deceased succumbed to the injury caused by him. 17. Consequently, the judgment under appeal, being flawless, is affirmed and the appeal is dismissed. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge