HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH MIL @ CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Agpea No.356 of 1989 l PPELLANTI: (Accus‘ed) Siddhnath, aged 45 years, S/o Rajman Gond, Agriculturist, Village Bhandardehi, Police Station Chirmiri, Tahsil Manendragarh, Distt. Surguja (M.P.) (now C.G.) Versus ’State of Madhya Pradesh (now Chhattisgarh) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} § P resent: Mr. A.K. Prasad, counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. RESPON ENT: AND Criminal Appeal No.913 of 1989 APPLICANT/: (Appellant) State of Madhya Pradesh (now Chhattisgarh) Versus sSiddhnath, S/o Rajman, aged 45 ‘ years, Occupation Agriculture & Labour, R/o Bhandaadehi, Police Station Chirmiri, Tahsil lylanendragarh, Distt. Surguja (Acquittal appeal under Section 378 (1) ofthe Code of Criminal Procedure, 1973} NON—APPLICANT/: (Respondent)/ (Accused) Present: Mr. Ashish Shukla, Govt. Advocate for the State/appellant. None present for the respondent/accused. ,. (Delivered on 30m November, 2009) The followinqjudqment ofthe Court was passed bvJ‘P. Sharma, J: - JUDGMENT A 1. Sin the aforesaid nl appea!s are arising out of the common ce two crimia judgment of conviction & order of sentence dated 13-3-1989 passed by the Additional Sessions Jud, Mandragrh in essions Trial ge nea S No1/87, they are being disposed of by this common judgment. .4 E 2. In r.A.No.356/89, appeilant Siddhnath has challenge lelity & 1C d ga prriety of the judgment of conviction & order of sentence dated 13-3- op 199 assed by the Additional Sessions Judge, Manendragarh in 8 p Sessions Trial No.41/87 and in Cr.A.No.913/89, th State has challenged e coviction & sentence of accused Siddhnath on the ground of u a inaequacy and pray for his conviction under Section 302 of the .P.C. d ed l an apropriate sentenc. d p e 3. By the judgment impugned, learned Additional Sessions Judge after f de holding accused Siddhnath guilty for commission of ofence unr Section 304 Part-ll of the l.P.C., sentenced him to uergo R.l. for five nd years. 4. Ce of the prosecution, in brief, is that on 3-11—86 accused Siddhnath inted Tilakdhari (since deceed) & his family to their house, b they vi as ut d O p nt di not go. n 4—1 1-86 at about 7 .m. Hirondia Bai (PW-4) was prese in her barn, accused Siddhnath came there, Matukdhari (PW—1) & Tilakdhari also reached to the said barn and aftér some altercation, accused Siddhnh inflicted injury with spear on the chest of Tilakdhari at and immediately Tilakdhari was taken to the hospital. Dying dlaration l of Tilakdhari was recorded vide EXP—9. He was examined by Dr R.R. Gajbhiye (PW-6)‘ vide' EXP-16A. During the course of treatment Tilakdhari died. Death of the deceased was intimated by the doctor to the pice vide Ex.P-14 and merg was recorded de EXP-20. ol vi Rojnamcha was recorded vide EX.P-24. F.l.R. was registered vide EX.P- n as ec . l .) 19. After summoning the witnesses vide EXP—1 1, inquest over the dead body of Tilakdhari was prepared vide EXP—12 and the dead body was sent for autopsy to Government Hospital, Chirmiri vide Ex.P-15. Autopsy was conducted by Dr. RR. Gajbhiye (PW-6) who found one punctured ’ wound over chest on 6‘“ inter coastal space of 2” x 1/2” x 2 1/2’Kdnd plura was also punctured. Cause of death was as a result of respiratory failuré. injuries were ante-mortem. Other two accused Sumer Singh & Mankunwar were also made co-accused. Co-accused Sumer Singh made disclosure statement relating to iron part of spear vide Ex.P-2 and same was recovered at‘his instance vide Ex.P—3. Blood stained clothes were recovered from co-accused Sumer Singh vide EXP-4. Other clothes w‘ere also recovered vide EXP—6. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. Seized articles were sent for chemical analysis vide EXP-21 and presence of blood over spear was confirmed vide EXP—22. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Manendragarh who in turn committed the case to the Court of Sessions, Ambikapur, from where the Additional Sessions Judge, Manendragarh received the case on transfer for trial. . In order to prove the guilt of the accused persons, the prosecution has examined as many as eight witnesses. The accused persons were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence & false implication. Defence has also examined Amol Singh (DW—1) who has deposed that wife of Tilakdh‘aWi was weeping and on being asked, father of Tilakdhari told that his another son Matukdhari has murdered Tilakdhari, therefore he will not lodge any report. @ 6. After appreciation of evidece, learned Additional Sessions Judge n Convicted & sentenced the accused as aforementioned. 7. We ave heard iearned counsei for the parties, perused the judgment h and ecord of the trial Court. r E 8 . Mr. A.K. Prasad, learned counsel appearing on behalf of accused Sidhnath in Cr.A.No.356/89, submitted that the accused has served the sennce imposed upon him and he was released. He further argued te thatthe prosecution has not roved its case beyond all reasonable l p douts and the evidence adduced on behalf of the prosecution was not suf‘i‘ent for convicting him under Section 304 Part-ll of the l.P.C. Learned counsel placed reliance in the matter of Laxminath v. State of § Chhattisgarh1 in which it has been held by the Apex Court that the Penal Code recognizes three degrees of culpable homicide, namely, gravest, medium or lowest for purpose of fixing punishment. It is degree of probability of death which determines whether culpable homicide is of gravest, medium or lowest dege. re 9. On the other hand, Mr. Ashish Shukla, leaed State counsel vehemently rn arged that accused Siddhnath was having spear at the time of incident. he ame with the weapon on the ground that Tilakdhari has not attended c his unction even after invitation and after altercatiorf he inflicted injury v‘ ov vital part of chest with spear which shows grave intention of causing er homicidal death amounting to murder, but learned Additional Sessions Jue has convicted him under Section 304 Part-ll ofthe l.P.C. Learned dg State counsel further submitted that the act of the accused falls within the ambit of causing homicidal death amounting to murder punishable unr Section 302 of the l.P.C. He placed reliance in the matter of de 1 AIR 2009 SC 1383 v.7, Wmsssr . V. W. mat d b hc u f ¢-\ x! @ Manubhai Atabhai v. Stae of Gujarat2 in which the Apex Cour‘t has he that thenature of intention has t be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon death Even in case of single blow, e “ th accused can be convicted under Section 302 of the l.P.C. 10.ln rder to appreciate the contentions of the parties, we have examined O th evidence adduced on behalf of the parties. Homicidal death of the e deeased as a result of ante-mortem injurie is not substantially disputed c s b he accused, on the other hand, it is established by the evidence of y t Dr. RR. Gajbhiye (PW-6) who has deposed in his evidence that on 5-1 1— 86 he has examined the injuries of Tilakdhari vie EX-16A and found d P stab injury over jnter coastal space of 2” x 1/2” x 2 1 injury was /2 dangerous and he died as a result of te said injury. H has also h e conducted autopsy and found punctur of plura which is suficient for e f causing death. Autopsy report is Ex.P-15A. 11.ln order to establish the complicity of the accused in the crime i n qustion, the prosecution has adduced the evidence of eyewitnesses e an placed reliance on the dying declaration of the deceased. 12.Mukdhri (PW-1), brother of the decease has deposed that on the ata d, 9 tful day the accused came along with two other cwaccused, mother of fae the deceased was present at the barn to whom also they were abusing, at that time deceased Tilakdhari & Matukdhari (PW-1) also reached to the barn, co-accused Mankunwar was holding spear and accused Siddhnath & co-accused.§\umer Singh were not holding any weapon. J Co-accused Mankunwar gave spear to Siddhnath on which Siddhnath immediately inflicted injury over the chest of Tilakdhari and took out the 2 (2007) 1o scc 358 l t ld ’ o d spear. Tilakdhari fel| down. Siddhnath gave the spear to Sumer Singh and they fled away from the spot. 13.Hirondia Bai (PW-4), mother of the deceased, has categorically stated in her evidence that the accused persons came to the barn where she was E present and abused‘her. She has corroborated the evidence of Matukdhari (PW-1), in detail. 14.Defence has cross—examined Matukdhari (PW-1), brother of the deceased ’& Hirondia Bai (PW-4), mother of the deceased, in detail, but has not been able to elicit anything in their cross—examination to discredit “s their testimonies. Both these witnesses have categorically stated that all the three accused came to the barn where HirOndia Bai (PW—4) was present, the accused persons abused her on the ground that they have not attended the function, accused Siddhnath & his brother Sumer Singh were not armed with any weapon, wife of Sumer Singh co-accused Mankunwar was holding spear, at that time, Matukdhari (PW-1) & deceased Tilakdhari reached to the said barn and objected the accused that why they were abusing and using filthy language, and during the course of such discussion, suddenly co-accused Mankunwar gave spear. to accused Siddhnath and Siddhnath immediately inflicted the deceased with spear over his chest, took out the spear and‘fled away from the v‘ spot. The deceased died as a result of the aforesaid injury caused by accused Siddhnath. i l__ 15.Matukdhari (PW-1) & Hirondia Bai (PW—4) are close relatives of the deceased, Matukdhari (>P.V,.\L-1) is his brother & Hirondia Bai (PW-4) is his mother, but their evidence cannot be discarded only on the ground that they are’close relatives of the deceased and interested in conviction of @ the accused. Close rels re the persons reluctant to spare the real ative a culprit and implicate an innocent present. 16.Wle dealing with the question of evidentiary value of the relative hi witeses, the Apex Court in the matter of Dalip Singh and others v. ns The State of Punja3 has held that a witness is normally to be b cosidered independent unless he or she springs from sources which n ar likely to be tainted. Para 26 of the said judgment reads as under:— e “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 e, such as eny against the accused, to wish to implicate him falely. Ordinarily, a close‘relation would be the last to screen the real culprit and falsely implicate an innocent person. It is te, when feelings run high and there is personal cause for enmity, at there is a tendency t drag in an innocent erson againt whom a witness s 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 guarantee of truth. However, we re not attempting any sweeping generalization. Each cas must be jued on its own facts. Our obsertions are oly made to combat what is so often t forrd in cases before us as a general rule of prdee. There is no such generat rule. Each ca must b limited to and be governed by its own facts.” .Wile dealing with the same question, the Apex Court in the matter of 17h " Ashok Kumar Chaudhary & Ors. v. State of Bihar4 has held thus, u ix ...... it will be erroneous to lay down as a rule of ‘universal application that non-examination of a public witness by itself gives rise to an adverse inference l 3 AIR 1953 sc 364 4 2008 AIR scw 3739 r 1 ‘i caus mit s ru th o p s ha a e dg va n pu wa unc se e against the prosecution or that the testimpny of a relative of the victim, which is otherwise credit—worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit—worthiness of the evidence of relatives of the victim is concerned, it is well settled though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an “interested” witness. It is trite that the term “interested” postulates that the person concerned has some direct ‘or indirect interest in seeing that the accused is somehOW‘or the other convicted either because he had some animus with the accused or for some other oblique motive.” 5 2009 AIR SCW 2250 18.While dealing with the same question, the Apex Court in the matter of Hari v. State of Maharashtra5 has held that relationship by itself cannot be ground to discredit the evidence of eyewitnesses relatives of deased, more so, when deceased was murdered by his cousin (relative). Paras 21, 22 & 23 of the said judgment read thus, “21. lt may be true that all the vital witnesses, namely, PW 1, 2 and 8 are relations of the deceased but that by itself cannot discredit their evidence. It is a fight between the relations it has come on record that the appellant is the cousin of the deceased. In such a case, the relations are likely to be the most apprcpriate witnesses. 22. Certain‘i‘decisions have been cited at the Bar which need to be considered and explained. About appreciation of evidence of witnesses who are related to the deceased, learned counsel for the appellant relied " ce @ on a decision of this Court in Avtar Sing/1 vs. State of Punjab, (2006) 12 SCC 524. In that case the facts were totally different and it was opined by the learned Judges, in the peculiar facts of that case, that enmity and bad blood between the rival groups was established beyond doubt. ln that case no report was lodgedqwith the police regarding the occurrence and this Court l looked into the evidence and opined that the story about making an effort to lodge a report earlier was not true. In that case the nambardar and the chowkidar who were alleged to have accompanied PW-1 to the police station were not examined and there was a categoric denial by x e PW6—Station House Officer about anyone reporting the incident to him before 4.12.1989. This Court found that the High Court-has not at all noticed the facts. in the background of those facts, this Court held that proper caution was not exercised by the High Court in appreciating the highly partisan evidence adduced by the prosecution. 23. But in the instant case, the factual scenario is totally different. Here the occurrence took place withi'n the house at the instance of the close relatives and in such a situation only relatives would be the witnesses. Of course, in the present case also there was some enmity in view of the land dispute but that by itself is not a ground to discard the evidence of the witnesses, who are relatives when their evidence is cogent and credible. Factually, the decision of this Court in'Avtar Singh (supra) stands on a completely different footing.” 19.Funher, in the matter of Mohabbat and Ors. v. State of M.P.6 the Apex Court has held that relationship is not ground to affect credibility of Cwitness, foundation has tcxbe laid if plea of false implication is raised. Para 7 of the said judgment reads thus, ”7. Merely because the eye—witnesses are family members their evidence cannot per se be discarded. 6 2009 AIR SCW 1486 When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are Iikely 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 regar‘ding 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 9f false implication is made. In such V ‘ cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible." 20.ln the present case, evidence of Matukdhari (PW—1) & Hirondia Bai (PW- 4) is natural and their presence cannot be doubted. They have not exaggerated their statements and they have clearly deposed that firstly Hirondia Bai was present at the barn, thereafter, deceased Tilakdhari & his brother Matukdhari reached to the barn. 21.Amol Singh (DW—1) has deposed that while he was passing in front of his house at 3.30 a.m. (at night), father of Tilakdhari told him that Matukari dh has murdered Tilakdhari.‘ According to the case of the prosecution, the incident took place at about 7 p.m. Defence has cross-examined Matukdhari (PW-1) & Hirondia Bai (PW-4) in detail, but they have not suggested that the incident took place at about 3.30 a.m. (at night) and all of a sudden after lapse of more than 2 1/2 years Amol Singh (DW—1) has deposed that at about 3.30 a.m. (at night) he came to know that Matukdhari has murdered Tilakdhari. Dr. RR. Gajbhiye (PW-6) has deposed that on 5-11-86 at 12 noon Tilakdhari was brought to him, he has examined Tilakdhari, at that time, Tilakdhari was alive and he died at 12.20 p.m. on the same day. This is sufficient to discard the evidence of Amol Singh (DW—1). 22.Evidence of Matukdhari (PW-1) & Hirondia Bai (PW-4), relatives of the deceased, inspire confidence, their evidence is trustworthy and safe to rely upon. Their evidence is sufficient for drawing inference that the accused has caused the homicidal death of the deceased. Finding of the trial Court relating to causing homicidal death of the deceased by accused Siddhnath is sustainable under the law. 23.As regards the question of,intention and maintainability of conviction of l V " the: accused under Section 304 Part-ll of the l.P.C., admittedly three accused persons went to the barn where Hirondia Bai (PW-4) was present, they were using filthy language upon Hirondia Bai, accused Siddhnath was not holding any weapon but co—accused Mankunwar, wife of other co-accused Sumer Singh, was holding spear — the weapon of s offence, deceased Tilakdhari & Matukdhari (PW-1) also reached to the barn and during the course of altercation, suddenly co-accused Mankunwar gave the spear to Siddhnath and Siddhnath immediately inflicted stab injury over the chest of the deceased. These facts are- suggestive that originally all the accused persons went to the barn to condemn the act- of Hirondia Bai and their family, but during the course of ‘ v‘ discussion/altercation, when deceased & his brother Matukdhari (PW-1) reached to the barn, suddenly co-accused Mankunwar gave the spear to accused Siddhnath and Siddhnath immediately inflicted injury upon the deceased. This shows that the accused persons have not went to the barn to cause any injury to Tilakdhari who was not even present at the barn initially, but when Tilakdhari reached to the spot, all of a sudden, Siddhnath caused injury on his person. ‘ix 24.ln the matter of Manubh’a’i (supra), whi5e dealing with the question of nature of intention, the Apex Court in para 8 of its judgment has held ‘ thus, “8. The nature of intention has to be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon death. In the instant case the'accused had used a knife, the blade of which had a length of 6 inches. The injury was caused just below the stomach and had affected a vital part i.e. liver. Knife had gone as deep as 6 cm in the body which clearly is indicative of thefact that blow was given with great force and the outcome of the injury was that the deceased expired instantaneously. The deceased as it is. admitted was trying to ‘pacify the parties and there was no part played by him in the exchange of words which was taking place.” u 25.ln the matter of Manubhai (supra), the accused came with open knife and other co—accused persons were holding axe & iron pipe, the accused inflicted injury over chest of the deceased by knife, depth of the injury was 6 cms., and corresponding incised wound was found over liver and the deceased expired instantaneously. The facts of Manubhai (supra). reveal that the accused came with open knife along with other two persons who were also holding dangerous weaponfs and the accused caused injury over chest as a result of which the deceased died on the spot. But in the present case, the accused was not holding any weapon and the deceased was also not present at the barn initially, however, during the course of altercation the deceased along with his brother came to the barn and all of a sudden the co-accused who was holding spear gave it to accused Siddhnath and Siddhnath immediately caused injury on the person of the deceased. The case of Manubhai (supra) is l distinguishable on facts to that of the present case. @g; @ 26.ln the matter of Laxminath (supra), the Apex Cdgrt has held that considering the solitary injury of arrow shot the accused is liable to be convicted under Section 304 Part I of the l.P.C. in Laxminath’s case, the accused came with bow & arrow and shot arrow on the deceased and also shot arrow on the injured. This shows the grave intention of the accused of causing death of the deceased. The accused came with the weapon and has used bow & arrow twice. But in the present case, the accused was not holding any weapon and all of a sudden when the weapon was given by the co-accused, he caused single blow on the deceased. The case of Laxminath (supra) is also distinguishable on facts to that of the present case. 27.ln the present case, the accused has caused injury with spear over the chest of the deceased when the weapon was given to him by the co- accused and when the deceased came to the spot. This shows that at the time of causing such injury the accused was having knowledge that it is likely to cause death but he caused the injury without intention to cause death. Therefore, the act of the accused does not travel beyond Section 304 Part-ll of the l.P.C. The accused has suffered the sentence and has been released. 28.0n close scrUtiny and considering the factual scettario of the case, we are of the considered opinion that the Additional Sessions Judge has rightly convicted the accused under Section 304 Part-II of the l.P.C. The Additional Sessions Judge has not committed any illegality warranting any interference. Both‘the appeals (Cr.A.Nos.356/1989 & 913/1989) are, therefore, liable to be dismissed and they are hereby dismisse/d.1 / V ~~f.':x.,s) e i Soma r l Sd/— R'L' Jhanwar T. P. Sharma . JudgeI/r: a a/a/ Judge