;t^,-s5 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: APPELLANT INJAIL 'a:'t^tegl RESPONDENT HON'BLE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR. JJ. Cr. Appeal No. 722 of 2003 Sanjeev Kumar Pradhan S/o Jashwant Pradhan, aged about 24 years, occupation cultivation, Resident ofvlll^e Bholumuda, P.S. Sariya, Tehsil Sarar^arh, Distnct Ralgarh (CG). Versus The State of Chhattisgarh Through the District Magistrate Raigarh (CG). AND Cr. Appeal No. 1176 of 2(X>3 APPELLANT INJAIL Versus RESPONDENT Jashwant Pradhan S/o Maheshwar Pradhan aged 47 years, occupation Cultivation, resident of Village Bholumuda, Police Station Sariya, Tehsil Sarangarh District Raigarh (CG). The State of Chhattisgarh Through the District M^istrate, Raigarh. MBMORANDUM OF CRIMINAL APPEAL UNDER SBCTION 374 12} OF Cr.P.C. Present:- Shri Ashok Swamkar, Advocate for the appeUant (In Cr. A. Nos. 722/2003 & 1176/2003). Shri N.K. Mehta, P.L. for fhe State/respondent. ORAL-JUDGEMBNT (Passedoa 07/12/2010) The following iudgment of the Court was passed by T.P. Sharma, Js- , ,,.;.^ ;:g^ —ws Cr. A. No. 722/2003 filed on behalf of the appeUant Sanjeev Kumar Pradhan and Cr. A. No. 1176/2003 filed on behalf of the appeUant Jashwant Pradhan are arising out of the common judgment dated 20/5/03 passed by 4th Additional Sessions Judge (F.T.C.), Raigarh in Sessions Trial No. 217/2002 are being disposed of by this commonjudgment. By these two appeals, appellants have challenged fhe legality and propriety of the judgment of conviction and order of sentence dated 20/5/03 passed by 4th Additional Sessions Judge (F.T.C.),Raigarh in Sessions Trial No. 217/2002 whereby and where under leamed 4th Additional Sessions Judge (F.T.C.), Raigarh has convicted fhe appellants under Sections 302/34 & 323/34 of the Indian Penal Code and sentenced each of fhem to iindergo imprisonment for Ufe and fine of Rs. 5000/- in default of flne amoiint additional rigorous imprisonment for 6 months and rigorous imprisonment for 6 monfhs and fine of Rs. 500/- in default of fine amount additional rigorous unprisonment for 1 month. Conviction is impugned on the ground that wifhout anv iota of evidence sufBcient for conviction of fhe appeUants, Court below has convicted and sentenced the appellants as aforementioned and fhereby committed an illegalifrv. ^l 7 ? !L o WW As per case of fhe prosecution, deceased Nehru Pradhan was interested to start busmess m one room at Wls^e Bholumuda Police Station Sariya District Raigarh but appeUants were not ready on account of aforesaid dispute. On fateful day of 23/8/02 at about 2.45 P.M. ttiey assaiilted the deceased Nehru Pradhan by cricket bat and stick and caused repeated injury, when his wife PW15 Bhanumati F'radhan tried to rescue to him then they also assaulted Bhanumati Pradhan and caused injuiy. Bhanumati Pradhan went to the police station and lodged First Infonnation Report vide Ex. P-10. Iniiired Nehru Pradhan was sent for medical examination vide Ex. P-11,to Pruaary Health Center, Baramkela. He was examined by PW13 Dr. Govind Sahu Vide Ex. P-22 and found following injtiries:. (i) Bruise of 10 x 6 C.M. over left foot. (ii) Bruise of 6 x 4 C.M. over left foot. (iii) Brulse of 7 x 4 C.M. below injuiy No. 2. (iv) Bruise of 5 x 3 C.M. over left hand. (v) Bruise of6 x 3 C.M. over back below Scapula. (vi) Brulse of 4 x 3 C.M. over left parietal region. (vii) Bruise of 4 % x 3 C.M. over right side of ttie vertex. (viii) Lacerated wound of 2 x % C.M. x bone deep over chtn. (ix) Lacerated woiind of5x 3 C.M. x bone deep over forehead. -^l 7 z- y "•V.i.ji^'"..^' ''^k&.ft''' 6. (x) Lacerated wound of 3x2% C.M. x bone deep over forehead. (xi) Lacerated wound of 8 x 3 C.M. x bone deep on the parttal region. He was admitted in Baramkela Hospital for treatment on same day at 2.45 he died. Death was intimated vide Ex. P-22. On the basis ofEx. P-22 Marg mtimation was recorded vide Ex. P-2. Injured Bhaniimati Pradhan was also examined by PW13 Dr. Govind Sahu vide Ex. P-12- A and found followinginjuries:- (i) Bruise of 5 x 3 C.M. over back ofthe head. (ti) Bruise of 4 x 3 C.M. back part ofthe he&d. (iii) Bruise of 1 x 6 C.M. over left thigh. (iv) Bruise of5 x 3 C.M. over left knee. (v) Brulse of 3 x 2 C.M. below left eye; Investigating Officer left for scene of occurrence and after sumnioning the witoesses vide Ex. P-1A, inquest over the dead body of deceased Neharu Pradhan was prepared vide Ex. P-1. Blood stained and plain soil were recovered from the courtyard of appellant Jashwant Pradhan vide Ex. P-3. Panchnama of blood foiind on the floor of court^'ard to appellant Jashwant Pradhan was prepared vide Ex. P-4. Dead body was sent for autopsy to Govt. Hospital Baramkela Vide Ex. P-22A. PW13 Dr. Govmd Sahu conducted autopsy vide Ex. P-23 and foiind injmy as aforementioned and noted vide Ex. P- 22 including fracture of tibia fibnla of left leg and frontal bone, partial bone & occipital bone. tajuiy were ^ y y ante-mortem in nature and deafh was homiddal in natiire. Fu-st Infonnation Report was intimated to Magisti'ate Vide Ex. P-21. Sealed clofhs ofthe deceased were seized vide Ex. P-5. During coiirse of investigation accused Jashwant Pradhan was taken into custody. He made discloser statement of stick vide Ex. P-6 same was recovered at his instance vide Ex. P-9. Appellant Sanjeev Kumar Pradhan son of Jashwant Pradhan was also taken into custody, he made discloser statement of cricket bat vide Ex. P-7 same was recovered from his house vide Ex. P-8 at his instance. Spot map was prepared vide Ex. P-13. Patvyari also prepared spot map vide Ex. P-14. Seized articles were sent for chemical examination vide Ex. P-20. Statements of the witnesses were recorded under Section 161 ofthe Code ofGrimmal Procedure, 1973 (in short the Code'). After completion of the investigation charge sheet was filed before fhe Judicial Magistrate First Class, Raigarh who in tum comimtted the case to fhe Couirt of Sessions, Raigarh froiu where leamed 4th Additional Sessions Judge (P.T.C.), Raigarh received the case on transfer for trial. In order to prove the guilt of the appellants/accused prosecution examined as many as 16 witnesses. Accused/appeUants were examined under Section 313 ^j y ? 2- y ^ .-i^ of fhe Code where they dexiied the cu-cumstances appearing against them, innocency and false unplication are claimed. They have also exainined defence witness Sushil Nishad who has deposed that as per his information quarrel took place between PW16 Damru and Nehru Pradhan fhereafter" Nehru Pradhan died. 9. After affording an opportunity of hearing to fhe parties leamed 4th Additional Sessions Judge (F.T.C.), Ralgarh has convicted and sentenced the appeUants as aforementioned. 10. Shri Ashok Swamkar, leanned coi.msel for the appellants and Shri N.K. Mehta, P.L. for the State/respondent are heard. Judgment impugned and record of Court below perused. 11. Leamed counsel for the appellants vehementiy argued that present appellants have not committed any ofience, they have been falsely implicated in the offence. Evidence of mterested and inimical witiiesses PW15 Bhanumati Pradhan wife of deceased Nehru Pradhan and PW16 Damru does not inspire confidence, trust worfhy and are not safe to rely for conviction of fhe appellants even other wise they have not caused any injury with intent to cause fhe deafh of Nehru Pradhan therefore, tf the act of appellants are ^l / / 'L '} considered as gospel truth then even the act attributed to the appeUants does not travel beyond fhe scope of under Section 304 Part-II of the Indian Penal Code. 12. On the ofher hand, learned counsel for fhe respondent/State opposed the appeal and submits that evidence of PW15 Bhanumati Pradhah injured witness and FW16 Damru well corroborated by the medical evidence and are sufficient for drawing an tnference that only appeltants have caused fatal injuiy to the deceased Nehru Pradhan and Bhanumati Pradhan. Multiple injuries i.e. about 11 injuries and fracture of almost big bone of head and tibia & fibula bone shows that appellants have caused homicidal death of Nehru Pradhan wifh intent to cause his death. After apprecia.ting the evidence avaUable on record, Court below has rightly convicted and sentenced fhe appellants as aforementioned. 13. In order to appreciate fhe ai^imient advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 14. In the present case homicidal deatfa as a resirit of fatal multiple mjiiries found over fhe body of deceased Nehru Pradhan and injuries to Bhanumati Pradhan have not been substantiaUy disputed on behalf of fhe 9T>'-)eIlants on the other hand, otherwlse also ^l / 7 p i. ^ .y 3! establlshed by the evidence of PW13 Dr. Govind Sahu, injury report of Nehru Pradhan Ex. P-22, autopsy report Ex. P-23 and injury report of Bhaniunati Pradhan Ex. P-12A. Death of Nehru Pradhan was homicidal in nature and 5 injuries were found upon the body of Bhanumati Pradhan. 15. As regard the complicity of the appeUants in crime in question, conviction is substantiaUy based on tihe evidence of injured and relative eye witnesses PW15 BhanLimati Pradhan and PW16 Damru. As per evidence of PW15 Bhaniimati Pradhan she has also received injuries at the tune of incident, Bhanumati Pradhan is a wtfe of deceased Nehru Pradhan and on account of some dispute accused persons have caused injuries to them, this shows that appellants and this witness were not cordial. 16. As per evidence of PW16 Damru appellant Jashwant Pradhan has also been sent for medical exammation and one lacerated wound of 2 x % x Vs C.M. was foi.ind over right eye brow but it was not bleeding and injiiry was simple. PW15 Bhanumati Pradhan & PW16 Damru have examined to the assistance bUingual translator both the witnesses easUy understand Udiya lar^uage. As per evidence of Para-7 of PW 15 Bhanumati Pradhan she is also able to understand and talk ui Hindi. As per ^i ^l ^ !1 o Para-10 of her evidence she also knew Hindi and Chhattisgarhi more spectfically vide examination of defence witness ShushU Nishad itself has taken defence as per Para-3 of DW1 Shushil Nishad that Bhaniimati Pradhan knew Htndi, Chhattisgarhi and Udiya. Damaru also knew Hindi and Udiya. PW10 C.L. Pandey, Investigating Officer has specifically admitted m ^us evidence that he also knew Udiya, in these circumstances fhere was no problem m recording Flrst Information Report or her stateinent by Investigating Ofilcer. 17. PW15 Bhanumati Pradhan has specifically deposed that on account of dispute of room and taking of door of the room by appeUants, appellants has used fllthy language to deceased Nehru Pradhan and her and thereafter Jashwant Pradhan assaulted by stick and Sanjeev Kumar Pradhan assaulted by cricket bat and they caused injury, when she tried to rescue her husband fhen they assaulted to her then she catled Damaru. As per evidence of PW16 Damaru he is also witoness of inddent, defence has cross examined fhis witness at length but they have not been able to illicit anything in their cross exammation to discredit fheir testiinony. Evidence of fhis witness is weU corroborated from fhe promptly lodged First Information Report vlde ^ ^j /1 1 <L y •^wtS&Si 19. Ex. P-10 and mjuiy report i.e. medical evidence. PW15 Bhanumati Pradhan is a relative of deceased Nehru Pradhan but her evidence cannot be discarded on fhe ground of relation even ofherwise relative are last person to spare real culprit and to implicate falsely mnocent person. WIule dealing wifh the question of relative witnesses, in the matter of Ashok Kuinar Chaudhary SB Ors. v. State ofBiharl_Supreme Court has held thus:- ".......,.,it wUl be erroneous to lay dowu as a rule of uiiiversal application that non-examination of a pubUc witness by itself gives rise to aa adverse inference against the prosecution or that fhe testunony of a relative of tb.e victun, which is otherwise credit-worthy, cannot be relied upon 'unless corroborated by public witnesses. Insofar as fhe question of credit- worihmess of the evidcnce of relatives of the victim. is concemed, it is wcll setded though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discari.ed on the sole ground of their iuterest iu fhe prosecution. The relationship per se does not affect the credibility of a witoess. Merely because a wituess happens to be a relative of the victua of ftie crune, he/she carmot be cbaracterized as aa "iaterested" witness, It is trite that the tenu "interested" postulates fhat fbe person couceraed has some direct or indircct interest ia seeing that fhe accused is soinehow or the other convicted either because he had some animus with the accused or for soine other obUque niotive . While dealmg wifh the same question, tn the matter of Dalip Singh and Others v. The State of Punjab2 <L ^ y 2008 AIRSCW 3739 ^tS}:i^ Supreme Court has held that relative witnesses are fhe persons reluctant to spare the real culprit and falsely implicate an innocent person, but tn case of enmity close relatives have a tendency to exaggerate or add facts which may not have been stated to them at aU to unplicate and to ensure conviction of the accused persons. 20. While deaUng with the same question, In the matter of Sharad Birdhichand Sarda v. State of Maharashtra3 Supreme Court has held that close relatives of fhe victtm have tendency to exa^erate or add facts, Court should examine theu- evidence with great care and caution. Para 48 of the judgment offhe Supreme Court in fhe above cited case reads thus:- "48. Before discussing fhe evidence of the witnesses we might laeution a few preliminaiy reinarks against the background of which the oral stateinents are to be considered. AU persons to whoin the oral stateiuents are said to have been inade by Manju when she visited Beed for the last tiine, are close relatives aad fiiends of the deceased. In view of fhe close relationship aud affection aay person in fhe position of fhe witaess would naturatly have a tendency to exaggerate or add facts which may aot Iiave been stated to them at aU. Not fhat this is doae consciously but even unconsciously the love aad affection for the deceased would create a psychological hatred against the supposed niurderer aad, therefore, the Court has to exainine such evidence with veiy great care aad caution. Eveii if 2 AIR 19S3 SC 364 3 AIR 1984 SC 1622 -')! / ^ JL •o D fhe witoesses werc speakine a part of the trufh or perhaps the whole of it, they would be guided by a spirit of revenge or neinesis agauist the accused person aad ia this process certain facts which may not or could not have been stated iiiay be imagined to have been stated unconsciously by the witnesses in order to see that the offender is piuushed. This is humau psychology and no one can help if°. As per law propounded by fhe Supreme Court in the aforesaid matters, the Court is required to analyze the evidence of relative witness, injured witness and interested witness wifh great care and caution. 21. Evidence of PW15 Bhanumati Pradhan & PW16 Damaru inspire confidence, trustworthy and same is sufiicient for drawtng an inference fhat appellants have caused homicidal deafh of deceased Nehru Pradhan and also caused injuiy to Bhanumati Pradhan in sharing common intention. 22. As regard the question of motive is concemed, fhe motive is only aid in criminality and loses its unportance. In case of direct evidence even otherwise motive can be inferred on the basis of the nature of injury, part of fhe body where injiiry was caused, weapon used and other Uke circiimstances. 23. In the present case as per medical report Ex, P- 12A and autopsy report Ex. P-23, 11 injnries have been found over fhe body ofdeceased including fracture ofParietal, frontal and occipital bone of the head and left tibia and 3 ^ ^' y y A <0 ^w^w si"<t'St fibula bone. Appellants have also caused injuries to Bhanumati Pradhan fhis shows theu- grievous intention of causing honiicidal deafh of Nehru F'radhan. 24. After appreriating fhe evidence available on record leamed 4th Additional Sessions Judge (F.T.C.), Raigarh has rightly convicted & sentence fhe appellants as aforementioned Conviction of the appellants is based on credible, clinching and legal evldence sustatnable under the law. 25. On close scrutiny of fhe evidence, we do not find any Ulegallty m fhe conviction and sentence imposed upon the appeUants. Consequently, Cr. A. No. 722/2003 filed on behalf of the appellant Sanjeev Kumar Pradhan and Cr. A. No. 1176/2003 ffled on behalf of the appeUant Jashwant Pradhan are liable to be dismissed and is hereby dismissed. 3 ^ i, 7 ^ •UL •/o Sd/- '•K Siiarma Judge Sd/- R.L. Jhanwar Judge