HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hbn'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 436 of 2002 Mangal Ram <, Vs. The State of Chhattisgarh JUDGMENT Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEVGUPTA J ^L^-^^^- Sd/- ChiefJustice Chief Justice x ,^A- /06/2009 Post for Judgment AS/06/20Q9. Sd/- SuniS Kumar Sinha Judge F .& •ll] .:ie5-;:: 4&<?ri. HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT RESPONDENT Criminal Appeal No. 436 of 2002 Mangal Ram S/o Samant Gond @ Sawant Age about years, R/o Village- Rorepara, Kanharpuri, P.S. Korar, Distt. Kanker (C.G.) Versus •ff. /.l The State of Chhattisgarh Through : Police of P.S. Korar, Distt. Kanker (C.G.) (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. R.N. Jha, Counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT (26106.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Mangal Ram stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- with default sentence of R.l. for 6 months by the Additional Sessions Judge, Kanker in Sessions Trial No. 204/2000 on 13.3.2002. (2) The facts, briefly stated, are as under:- Deceased Samant was the father of the appellant. They were residing together along with otherfamily members. On 20.1.2000 at about 8.00 p.m,, a quarrel took place between the appellant and his father on account of claiming partition by the appellant. The allegations are that in the quarrel, the appellant gave a tangia blow ^,,IS-:HB3^ •W^-J J -2 Criminal Aroeal No. 436 of2002 on his father who received an injury on the back portion of his head. The incident was witnessed by Ankalu (PW-1, another son of the deceased), Chaiti Bai (PW-2, wife of the deceased) and Rewati (PW-3, daughter-in-law of the deceased). The deceased was taken to hospital, where he was examined and treated by Dr. A.K. Verma (PW-4), who prepared his report Ex.-P/2. The First Information Report (Ex.-P/13) was lodged. Weapon of offence (tangia) was •ff. seized under Ex.-P/10. During the course of treatment, the deceased died in the hospital on 25.1.2000. Merg Intimation (Ex.- P/18) was given to the concerned police station. Inquest (Ex.-P/7) on the body of the deceased was prepared and it was sent for its post-mortem. The post-mortem examination was conducted by Dr. J.S. Sahu (PW-5), who prepared his report Ex.-P/6 and opined that the cause of death was injury to brain and fracture of skull bone and it was homicidal in nature. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Bhanupratappur, who in turn committed the matter to the concerned Sessions Court, from where it was received on transfer by the Additional Sessions Judge, Kanker, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (3) The conviction of the appellant is based upon the eye witnesses account ofAnkalu (PW-1), Chaiti Bai (PW-2) and Rewati (PW-3). (4) Mr. R.N. Jha, learned counsel appearing on behalfofthe appellant, has not disputed the homicidal death of the deceased. Moreover, it v ,l"jiis* i!!.R-Sg ..^' •i...,.'-iaa '1<»<<11<!'' a>fci.,AB< ?;•'-:•-^'^--I Criminal Appeal No. 436 of2002 comes in the evidence ofAnkalu (PW-1), Chaiti Bai (PW-2) and Rewati (PW-3) that the deceased was attacked by his son Mangal and sustained injury on the skull; he was admitted in the hospital and died during the course of his treatment in the hpspital. The Autopsy Surgeon also found injury on the skull of the deceased and opined that the cause of death was injury to brain and fracture of skull bone and it was homickial in nature. Therefore, it was established that the death of the deceased was •ff. homicidal in nature. (5) Mr. Jha next cantended that the version of the eye witnesses may not be relied on as they are interested witnesses, therefore, the complicity of the appellant in crime in question was not established. (6) We do not find any force in such argument advanced by the counsel for the appellant. In catena of decisions, the Apex Court said that the relationship is not a factor to affect the credibility of a witness. It is more often than not that the relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be iaid if a plea offalse implication is made. In such cases, the Court has to adopt the careful approach and analyze the evidence to find out whether it is cogent and credible. In the present case, the eye witnesses are not only the relatives of the deceased. They are equally related to the appellant also. The deceased was father of the appellant and the eye witnesses are the wife, son and daughter-in-law of the deceased. Therefore, only on account of eye witnesses being the close relatives of the deceased, it cannot be held that their testimoniescannot be relied on. If, on due scrutiny with care and caution as indicated by the Apex Court, "'ilt!^-!::.,*!"' "•''^^arsS^"' Criminal Appeal No. 436 of2002 their testimonies appear to be trustworthy and dependable, the conviction can well be based upon such testimonies. (7) In the present case, all the 3 witnesses namely Ankalu (PW-1), Chaiti Bai (PW-2) and Rewati (PW-3) deposed that on the fateful day at about 8-9.00 p.m., the appellant came out from his room in drunken condition and started shouting. There was some quarrel between the appellant & the deceased.and'/the appellant attacked over the deceased with a tangia who sustained an injury on skull. Though these witnesses have been put to lengthy cross examination by the defence but the defence has not been able to elicit any such circumstance on which either their credibility may be doubted or it may be said that they are falsely implicating the appellant in crime in question. Therefore, complicity ofthe appellant in crime in question was fully established. Mr. Jha then argued that looking to the facts and circumstances of the case, the act of the appellant would not travel beyond Section 304 Part-11 IPC and conviction u/s 302 IPC cannot be sustained. (9) This argument was opposed by Mr. Ashish Shukla, learned Govt. Advocate for the State. He supported the judgment and order passed by the Sessions Court. (10) We have carefully considered the arguments advanced by Mr. Jha. Admittedly, the appellant and the deceased were residing together along with other family members including Ankalu (PW-1), Chaiti Bai (PW-2) and Rewati (PW-3). On the fateful.night, the appellant came out from his room in drunken condition. On intervention by father (deceased) some quarrel took place between them, on which, the appellant gave single ^ •sSi^' Criminal Appeal No. 436 of 2002 blow by tangia to the deceased who received above injury. The deceased was taken to the hospital in the morning. He was treated in the hospital, but he died during the course oftreatment on 25.1.2000 i.e. on the 6 day after the incident. None of the eye witnesses have said that the appellant was armed with tangia whep he came out from his room. They have also not deposed about any preparation of the appellant to commit murder of the deceased. According to these witnesses, the blow was preceded by mutual quarrel. Therefore, it is clear that there was no preparation or intention on the part of the appellant to commit murder of the deceased. The incident took place on the spur of moment in a sudden quarrel and the deceased received the above injury and died on the 6 day after the incident in the hospital. Taking prosecution evidence and medical evidence cumulatively, we are of the view that the conviction of the appellant cannot fall u/s 302 IPC but at the most he would be liable for conviction u/s 304 Part-11 IPC. (11) Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. Instead thereof, he is convicted u/s 304 Part-11 IPC and sentenced to undergo rigorous imprisonment for 10 years. It is stated that the appellant is in jail since 13.3.2002 i.e. from the date ofjudgment ofthe Sessions Court and he has also undergone a period of 5 months & 18 days during the pendency of trial. He shall be entitled to set-off the period already undergone by him. Sd/- ChiefJustiee Sd/- Sunil Kumar Sinha Judge vafl: