! (^) HIGH COURT OF CHHATTIS6ARH AT BILASPUR APPELLANT CCn custody) RESPON&ENT Criminal Appeal No.500 of 2003 VERSV^ Cievari Ram Sahu s/o Jharu Ram Schu age 55 years, R/o Nevsa P.5. Ratanpur, District Bilaspur The 5'tate of Chhatt'isgarh Police Station- Ratonpur, District Bilaspur (C6) Appeorance: Shri R.K. Jain, counsei for the appeliant. Shri Ashish Shukla, Government Advocate for the State. S-khw^s^ |ri!'l":l:^';fi;5s,) Division Bench:- Hon'ble Shri T.P. Sharma & Hon'bEe Shri R.L.Jhanwfir.JJ ORAL JUbGMENT (7.9.2010) .J. 1. Chailenge in this appeal is to the judgment of conviction and order of sentence dated 31.1.2003, passed by the Third Additional Sessions Judge, Biiaspur, Chhattisgarh in Sessions Triat No. 368/2002, whereby and whereunder, the learned Third Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide, announting to murder of Sevak Ram, convicted the appellant under Sections 302 of the IPC ond sentenced to undergo ^:Mi^^ y'tfah \\L. '9 1 'ilb. 1 i''"p / :'N»':;;^"" ~\ F imprisonment for life ond to pay a fine of Rs.2000/-, in default of pcyment of fine to further undergo R.I. for 4 months. 2. The conviction is impugned on the ground that without any iota of evidence, the Court below has convicted and sentenced the appeHant as aforementioned and thereby committ-ed ille9alit/. <s, 3. As per brief case of the prosecution, Sevak Ramsince deceased was present in the house of accused Devari Ram i.e. in the matrimonial house of Narendra Kumari 5ahu (PW-3). On fateful cfay of 9.7.2002, Sevak Ram and Chandrakali 5ahu (PW-9) were present in the matrimonial house of Narendra Kumari Sahu for bringing Narendra Kumari Sahu (PW-3) to her maternal house. Relations between the appellant and parents of Narendra Kumari Sohu were not cordial. At about 11.30 p.m., injured Sevak Ram was sleeping in the room, where the appellant was atso present. The appellcait assaulted Sevak Ram by a Sandasa over his head twice ond on his hcmd and caused fatal injury to him. On this, Sevak Ram shouted then Narendra Kumari Sahu (PW- 3) and Chandrakali Sahu (PW-9) came and saw that the appellant was coming out from the room, bolting the door. Finally, retatives of Sevak Ram took the appellont to Police Station Ratanpur, where EER vide Ex. P/20 was lodged. Sevak ftam was sent for medical examination vide Ex. P/38. He was examined by Dr. A.K. Shrivastava (PW-8) vide Ex. P/9 and found followin9 injuries : 1. One incised lacerated wound over right side of head of lOx li-x i cm 2. One deep incised wound of7x 1 i xicm near injury No.t. ^J) 3. Incised wound of Ix I- xicm over middte finger of the left hand Condition of Sevak Ram was serious. He was admitted to Hospital for further treatment; finally he diedon 15.7.2002. Merg intimation was lodged vide Ex. P/15. After summoning witnesses vide Ex. P/6, inquest over the deact body of the deceased wos prepared vide Ex. P/7. Dead body was serit for autopsy to District hospitat, Bilaspur, where &r. Madharia (PW-22) conducted autopsy vide Ex. P/42 and found fatal injury, including fracture of bone of head and cause of death was homicidal in nature. Blood stained clothes were seized vide Ex. P/l. The accused was taken into custody; he made disclosure statement of Gandoaa and blood stained clothes vide Ex. P/3. B!ood stained Sandasa and blood stained ciothes were seized at the instance of the appellont vide Ex. P/2. Blood stained soil <md plain sosl was recovered vide Ex. P/4. Spot map was prepared vide Ex. P/27. Seized articles were sent for chemical examination vide Ex.P/40. Presence of blood was confirmed over the clothes of the tippellont and ©andasavide Ex. P/41. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 4. After completion of the investigation, charge sheet was filed before the Chief Judicial Magistrate Bilaspur, who in tum, commitl-ed the case to the Court of Sessions, Bilaspur, from where the Third Additional Sessions Judge, received the cose on transfer for trial. 5. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 22 witnesses. The accused was f^ u. • -•.!). K A-' t^t- .I'S'' ^' -%l!te •1:^ ......i.A examined under Section 313 of the Code, where he denied the circumstances appearing against him, innocence and false implication in erime in question was claimed. The appellont took specific defence that at the time of said incident, he was sitting with Dwarika Prasad in a shop, where he heard sound of Narendra Kumari (PW-3) that somebody has assoulted her bfpther. He along with Dwarika went inside the house, where they saw thgt Narendra Kumari (PW-3) was closing the door and injured body of Sevak Ram was lying inside the room. He has examined tiwarika Prasad (&W-1) as defence witness. but he has not supported the coss of defence. l-1e hos atso examined Basant Kumar (&W-2) as defence witness, who has depo^d that at the tiine of incident he heard sound and came out from his house. People were gathered near the shop of the appellant <md one person was lying stained with blood; then they took him to Police Station. 6. After affording opportunity of hearing to the parties, the learned Third Additional Sessions Judge has convicted and sentenced the appetlant as aforementioned. 7. We hwe heard Shri R.K. Jain, leamed counsel for the appellont and Shri Ashish Shukla, learned 6.A. for the State, perused the judgnnent impugned and record of the Court below. 8. Learned counsel for the appelbnt vehemently argued that conviction of. the appellant is based on the evidence of Narendra Kumari Sahu (PW-3), daughter in law of the appellont ond mother of Narendra Kumari Sahu, Chandrakali 5ahu (PW-9). Both were interested and inimical witnesses having enmity with the oppellant: ...SSnB •^-s-'.xSssi'ea ^SS'SgSg; w^«s^ they were interested in implication of the appellomt. Narendra Kumari 5ahu (PW-3) has not proved the facfum of extro judicial confession made by the appeltant to her. Evidence of these two witnesses is not sufficient for drawing an inference that the appellont has committed murder of Sevak Ram. It is clear froni the medical report that serious injury was found o¥ertbe body of Sevak Ram and he was alive for 7 dcys, which shows That even the appellont was hwing sufficient opportunity for finishing the deceased, but he has not oousKd more injuries to the deceased. It shows that the present appellont has not caused ony fatal injury to the deceased with intent tocommit culpable homicide amounting to murder of the deceased. Therefore, even if he case, of prosecution is admitted, then also the case of the appetkmt does not trave! beyond Section 304 part II of the IPC. He further argued that the oppellant is in custody for inore than 8 years, which would be the sufficient sentence for the act attributed to the appellont. 9. On the other hand.learned counsel for the State opposed the petition and submitted that as per evidence of Narendra Kumari Sflhu (PW-3) and Chandrakali Sahu (PW-9), the appellant was present in the room, whers Sevak Ram received fatal injuries. They heard sound and immediately rushed to the spot; at that time, appellant was coming out from the room and was bolting the door from outside. He argued that the oppellant hos not offered ouiy explanation that how Sevak Ram received injury; he has offered false explanation that he was sitting with bwarika Prasad (DW-1) in his shop. Dwarika Prasad haa not supported the case of defence. / ??^-- ua! (^ i5s3:S]SNS^ 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. •'•',- 11. In the present cdse, homicidal death as a result of ante mortem fatal injuries to the deceased- Sevak Ram has not been substantially disputed on behalf of the appellant; on the other hand, it is established by the evidence of Dr. A.K. Shrivastam (PW-8), his medical report Ex. P/9, documents Ex. P/18 and Ex. P/19, evidence of &r. AAadharia (PW-22) and autopsy report Ex. P/42, which revealed that fata! injuries were found over the head comprising with fracture of head bone and removal of head bone and death was homicidal in nature. 12. As regards the complicity of the accused/appellant in crime in question is concerned, conviction of the dppellant is based on circumstantial evidence. As per evidence of Narendra Kumari Sahu (PW-3), daughter in law of the appeltant, she aaid her mother, Chandrakali Sahu (PW-9), were present in the house. Injured Sevak Ram was sieeping in a room; this appelloait was also present in that room; they heard sound of Sevak Ram and rushed towards the room, where Sevak Ram was sleeping and saw that the appellant was coming out from.the room and was bolting the door from outside. They immediately opened the door and saw badly injured body of Sevak Ram stained with btood. Chandrakali Sahu (PW-9) has also deposed relating to extra judicial confession made by the appellcuit to her ! ' /" ^ !t~;'!f£"ssi"ga •wm^. daughter. In para 5 of her evidence, Narendra Kumari (PW-3) has deposed that the appellant had told her that he has assaulted her brother by Sandasa. But Chandrakali Sahu (PW-9) has not supported the factum of such extra judicial confession made by the appellant. She has specificaliy deposed in paro 6 of her evidence that Narendra Kumari asked the appellant, but he did not repty anything. ••<,. 13. The appellant has also taken specific defence that at the time of incident he was sitting with Dwarika Prasad omd when he heard sound of Narendra Kumdri (PW-3), he along with E>warika Prasad went inside the house, where they saw injured body of Sevak Rom <snd Narendra Kumari was closing the door. He has examined &warjka Prasad as t>W-l, who has statednothing in support of defenceof the appellant. As per statement of Basant Kumar (DW-2) he has seen the injured body of Sevak Ram, which is not disputed. 14. Defence has cross examined these two witnesses at length, but has not been able to elicit anything to discredit their evidence that when they heard the sound of Sevak Ram and rushed towards the room of Seyak Rann, appellant was not present there ond he was not coming out from the room and has not bolted the door from outside. The oppellont has not offered any explonation that who has caused injury to Sevak Ram. Then the only hypothesis would be possible that the appe!lant was -Hie only person, present inside the room. He was requirsd to offer explanation in terms of Section 106 of the Evidence Act, but he has not offered any explanation. &efinitely Narendra Kumari Sahu (PW-3) and Chandrakali Sahu (PW-9) were interested /' > / /• >' ••' witnesses ond even they might have inimical relations, but only on the ground of their enmity, their evidence cannot be discarded. Their presence was but naturaton the place of incident, which was the house of Narendra Kumari. liss^... !::^:S»jl 15. While dealing with tWe question of inimical witnesses, the Apex Court in the mafter of ShMwd Birdhlchand Sarda V. State af Maharashtra. reported in (1984) 4 SCC 116 held that in vtew of the close relationship and affection any person related to the deceased would have, such a witness would naturally have a tendeney to exaggerate or add facts which moy not have beenstated to them at ali. Not •rti<xt this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer cmd, therefore. the Court has to examine such evidence with very great care and caution. Para 48 of the said jud9ment reads as under : "48. Before discussing the evidence of the witnesses we might mention a few preliminar/ 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 lost 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 ali. Not that this is done consciously but even unconsciously ttie love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore. the Court has to examine such evidence with great care ond coution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, -rfiey would be guided by a spirit of revenge or nemesis against The accused person and in this 'S'IiSi ;S8 ['•!iI;i;-;Ki^°3i'!s'A process certain facts which may not or could not have been stated may be imagined to have 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." In the present case. appellant was under obligation to offer explanation relating to injury caused inside the room to the deceased. •'.;- The appellant was preserit there, but he has not offered ony explanation. 16. While dealing with the offence committed in secrecy ond requirement of explanation, the Apex Court held in case of Trlmukh Manfti Klrkan V. State af Maharashtra (2006) 10 SCC 681. in case murder committed in secrecy inside a house, the initial burden to establish the cass would undoubtedly be upon the prosecution,but the nature and amount of evidence to be led by it to establish the charge cannot be of the sarpe degree as is required in other cases of circumstantia] eyidence. Para 15, of the said judgment reads os under: 15. Where an offence like murder is committed in secrecy inside a hou^ 1iie initial burden +o establish the caae would undoubtedly be upon the prosecu+ion, but -the nature and amount of evidence to be led by it to establidi the charge cannotbe of the same degree as is required in other cases of circums+antial evidencs. The burden would ofa compwwtively lighter diaracter. In view of Section 106 of the Evidence Act Ihere will be a corresponding burden on ihe inmates of Ihe house to give a cogent oylanation as to how Ihe crime was commitl'ed. Jhe inmates of 1he house ccnnot get away by simply keeping quiet mid offering no exfilmiation on the supposed premise that the burden to establidi its case lies entirely upon the prosecution and Ihere is no dutyatallon an accused to offer any oylanation". ,.»,^ SSSii' ^ 10 In the aforesaid circumstonces, only presumption would be possible that the present appellant, who was present in the room with Sevak Ram, has cased fatal injury to him. 17. As regards the question of motive is concerned, in case of direct evidence, question of'.motive losses its importance. Even otherwise, motive aidsin criminaH'ty oaid it can be inferred from the kind of weapon used, part of body affected and nature of injury and other circumstcmces. 18. In the present coas, repeated injury has been caused by the appeltant to the deceased over his head, which were fatal in nature. Those injuries were sufficient for drawing an inference that the appellont has assaulted Ssvak Ram with intent to cause his death. 19. After appreciating the evidence available on record, the Court below has convicted ond sentenced the appellant as aforementioned. The conviction and sentence of the oppellant is based on credible, clinching and legal evidence, sustainable under the taw. 20. On close scrutiny of the evidence, we do not find ony illegalit/ or infirmity in the judgment impugned warranting any interference. The appeal being devoid of merits is liable to be dismissed ond it is hereby dismissed. Sd/- T.P. Siiarma Judge Sd/- R.L. Jhanwar Judge ^y>^i,'>^\^i •