HIGH COURT OF CHHATTISGARH BILASPUR t RESPONDENT: State ThrougF1 of Chhattisgarh, P.S. Purani Bhilai, 1 Distt. Durg (CG) a A- ‘ ‘ AND OTHER CONNECTED APPEALS JUDGMENT FOR CONSIDERATION 5d!— L.C.BHADOO Judge ’ ’ 1 5—412’068 ’ HON’BLE MR. T.P. SHARMA, J. Sdl C , ;‘j, ., 7-,; T.P. Shanna ' _._J_—-v-4UUt§ POST ’ FOR JUDGMENT ON I/Wm sal- ' . ““" ‘ \ L.c.BHAD00 Judge ‘,W r, f r i ’ ’ Criminal Apgeal No.36o of 2003 APPELLANTS: Qln Jail) ‘ 1. Panchram, S/o Ratiram Gond, Aged about 46 years, (Died during the pendency of this ‘ § appeab § 2. Gendram, S/o Kashiram Gond, ‘ Aged about 19 years, ‘r Both R/o G'ram Jarway, P.S. § Purani Bhilai, Distt.'Durg (C.G.) a f - Versus — i HIGH COURT OF CHHATTISGARH, BILASPUR ‘ DIVISION BENCH: - HON’BLE SHRI L.C. BHADOO & HON’BLE SHRI T.P. SHARMA, JJ. Criminal Appeal No.360 of 2003 APPEULANTS: 1. Panchram, S/o Ratiram Gond, (In Jail) Aged about 46 years, (Died during the pendency of this appeal) 2. Gendram, S/o Kashiram Gond, Aged about 19 years, 'Both R/o Gram Jarway,,.P.-S. Purani r. Bhilai‘ Distt; Durg (C.G.) u f - Versus - i RESPONDENT: State of Chhat’eisgarh, Through P.S. Purani Bhilai, £ Distt. Durg (C.G) Criminal Appeal No.361 of 2003 APPELLANT: Vishnu, S/o Fekulal Soni, (ln Jail) Aged about 34 years, R/o Gram Jarway, P.S. Purani Bhilai, Distt. Durg (C.G.) - Versus — RESPONDENT: State of Chhattisgarh, , Through P.S. Purani Bhilai, Distt. Durgw(C.G) Criminal Appeal No.364 of 2003 APPELLANTS: 1. Ravindra Kumar, (in Jail) Aged about 25 years (23 years), 2. Hari alias Harish, Aged about 21 years (19 years), Both are sons of Shri Budhan Singh Gond, and residents of Village Jarvaye, Police Station Old Bhilai, Distt. Durg (C.G.) - Versus - RESPONDENT: The State of Chhattisgarh AND Criminal Apgeal No.376 of 2003 APPELLANT: Purushottam, S/o Ramkhilawan, , \\ , I \\§ (ln Jail) Aged about 26 years, R/o Gram Jarway, P.S. Purani Bhilai, Distt. Durg (C.G.) - Versus - State of Chhattisgarh, Through P.S. Purani Bhilai‘ Distt. Durg (C.G) RESPONDENT: Present: — Shri P.K.C. Tiwari, Sr. Advocate with Shri Rakesh Thakur, Advocate for the appellants in Cr.A. No.364/2003. Shri R.K. Jain & Smt. Kiran Jain, Advocates for the appellants in Cr.A. N‘os.360/2003, 361/2003 & 376/2003. Shri D.K. Gwalre, Additional Publio Prosecutor for the State/respondent. i r J U D G M E N T (Delivered on/pav April, 2008) The fcillowinqjgdgment of the Court was delivered by L.C. Bhadoo, J: — 1. At the outset, learned Additional Public Prosecutor submitted that Panchram, accused in Cr.A.No.360/2003, had expired on 1-6-2006 while undergoing treatment at Dr. Bhimrao Ambedkar Memorial Hospital, Raipur. He submitted a communication dated 4-4-2008 sent by Superintendent, Central Jail, Raipur tothis effect. Accordingly, Cr.A.No.360/2003 in respect of accused Panchram stands abated, as no application has been filed by legal heirs of Panchram to prosecute his appeal. 2. Accused Ashok Kumar had also filed Criminaf‘Appeal on 20/3/2003 against the impugned juggment and the same was registered as Cr.A.No.388/2003. The appeal was disposed of as abated vide order dated 6-1-2004 as accused Ashok Kumar had expired on 10-5-2003. 3. The aforesaid appeals are being disposed of by this common judgment as all these appeals are arising out of the judgment dated 25-2-2003 passed by the st“ Additional Sessions Judge (FTC), Durg, in s.T. No.324/2oo1. 4. By these appeals, the accused/appellants have questioned legality and correctness of the judgment of conviction and order of sentence dated 25-21, 2003 passed by the 8m Additionai Sessions Judge (FTC) Durg in s.T. No.324/2001 whereby & whereunder learned Additional Sessions Judge after holding the accused/appellants guilty for commission of offence under Sections 147, 148 and 302 read with Section 149 of the l.P.C., sentenced them to undergo imprisonment for life under Section 302 read with Section 149 of the l.P.C. and to undergo R.l. for one year under Section 148 ofthe \\7\ l.P.C. However, no separate sentence was passed undere‘Section 147 of the l.P.C. It was further directed that all the sentences shall run concurrently. lThe case of the prosecution, in brief, is that on 25-3—2001 at about 6.30 p.m. Syed Shekhawat Ali (since deceased) along with family members was at his residence. One of his relative Sumrai Ali of village Kherdha was also there. Dev Narayan Sahu and Phagulal Kurmi came there to purchase betel, at that time, accused Ashok came there and started abusing the ldeceased saying that he will finish him today, on which Dev Narayan and iPhagulaI intervened and they toolf him away. After some time, Ashok along with other accused persons-carrying Iathi, danda, rod and knife came there agdfstarted saying ‘attack attack‘ because he has constructed a house on the road: Th_ey will not allow him to reside in the village. Accused Ashok, Vishnu and Purushottam entered the house of the deceased. They dragged him out of the house on the road and started attacking him. When family members of the deceased came out in order to intervene, the ~- accused persons pushed them. Nazra Begum, wife of the deceased, was attacked by Vishnu with a club. She sustained injuries. When daughter of the deceased namely, Shahjadi intervened, accused Gendlal had attacked her. Somehow family members of the deceased were able to take him inside the house, the accuse?! persons started banging on the door of the house saying that the house be set on fire. Being frightened, Nazra asked her husband to leave'the house from thewback side. When deceased attempted to run away after scaling the wall, the accused persons rushed towards him and they took him on the road, attacked him with rod, club and knife, as a result of which Syed Shekhawat Ali succumbed to the injuries on the spot. The family members took shelter in the granary and their guest Sumrai Ali left the village. The police came on the spot. Nazra gave merg intimation Ex.P/10 and Dehati report EXP/9 to the police. The investigating officer after giving notice Ex.P/7 to the Panchas, prepared inquest Ex.P/8 on the body of deceased Syed Shekhawat Ali. Shahjadi, daughter of the deceased, was sent to the District Hospital, Durgf’for medical examination where Dr. P. Balkishore examined her and prepared injury report Ex.P/1. Nazra was also sent for medical examination to the District Hospital, Durg where Dr. P. Balkishore examined her and prepared injury report Ex.P/2. The body of the deceased was sent for postmortem examination under Ex.P/3 to the District Hospital, Durg where Dr. V.K. Sao conducted the postmortem. He opined that cause of death was shock and \ x 1 1 l x \ 4 i haemorrhage, as a result of ante mortem injuries. He prepared postmodem report Ex.P/12. Site plan Ex.P/4 was prepared by Patwari. One dagger Which was found on the spot was seized under Ex.P/5. Blood stained soil and plain soil was seized from the place of occurrence under Ex.P/6. 7. While in the police custody, accused Ashok gave memorandum EXP/13‘ in pursuance of that knife was seized under EXP/22. Accused Vishnu gave imemorandum Ex.P/14, in pursuance of that he got recovered iron pipe tinder Ex.P/23. Accused Panchram gave memorandum EXP/15‘ in jpursuance of that he got recovered one bamboo club under Ex.P/24. Accused Purushottam gave memorandum EXP/16, in pursuance of that he got recovered one Iathi under Ex.P/25.- Accused Ravindra gave memorandum Ex.P/17, in pursuance of that he got recovered one wooden plank under E-x.P/26. Accused Hari @ Harish gave memorandum Ex.P/18, in pursuance of that he got recovered one bamboo club under Ex.P/27. Accésed GendFam gave memorandum EXP/19, in pursuance of that he got recovered one lathi under EXP/28. One blood stained full pant of accused " Ashok was seized under Ex.P/20. One full pant of accused Vishnu was seized under Ex.P/21. One bamboo club from Hari was seized under EXP/27. Clothes of the deceased were seized under EXP/30. First information report Ex.P/31 was registered. Site plan EXP/32 was prepared . by the Sub inspector. Seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur under EXP/34, in response to that FSL report EXP/35 was received. 8. After completion of the investigation, charge sheet was filed in the Court of Judicial Magistrate, 15‘ Class, Durg, who, in turn, committed the case to the Sessions Judge, Durg from where learned Additional Sessions Judge received the case on transfer for trial. 9. The prosecution in order to establish the charges against the accused persons examined 18 witnesses. Statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which they denied material appearing against them in the prosecution evidence. They produced two witnesses in defence i.e. DW-1 Tejram and DW—2 Shivji Pandey. 10. Learned Additional Sessions Judge after hearing counsel for the respective parties convicted and sentenced the accused persons as aforesaid. . 11. We have heard learned counsel for the parties. \: i l i i l : 5 j2.Learned counsel for the accused/appellants have not isputed homicidal 1 death of the deceased. Moreover, Dr. V.K. Sao (PW#7) has stated that there were number of incised wounds abrasions & Iacerated wounds on various parts of the body of the deceased Even sternum was fractured 2“d to 7th ribs of right Side collar bone and 2"d to 6m left srde ribs were fractured Lung was punctured There was puncture in the right lung Pericardium was ruptured Right and left chambers of the heart were i punctured. Left atrium was also ruptured. Cause of death was injury to heart His report is Ex P/12 Death was homicidal as a result of coma shock and asphyXIa The above medical eVIdence is corroborated by the ocular eVIdence of PW 14 Shahjadi Begum daughter of the deceased PW- 15 Dilawar Ali son of the deceased and PW—6 Nazra Begum, Wife of the "déceased. They have categorically stated that the accused persons attacked the‘ deceased. Therefore, in view of the above medical and ocular evigence, it is established that the death of the deceased was homicidal in nature. i 13.As far as complicity of the accused persons in the crime in question is concerned, main accused Ashok Kumar and other accused namely, Panchram expired during the pendency of their appeals, therefore, Cr.A. No.388/2003 has been held to be abated on account of death of Ashok Kumar and the appeal of accused Panchram has also been held to be abated on account of his death. 14.Now, coming to the complicity of other accused persons namely, Vishnu, Purushottam, Ravindra Kumar, Hari @ Harish and Gendram in commission of the crime as also whether these accused persons were members of the unlawful assembly having common object with accused Ashok to commit the murder of Syed Shekhawat Ali & in furtherance of that common object all the accused persons attacked, committed the riot & the murder of deceased Syed Shekhawat Ali, in this connection, two witnesses said to have been present at the beginning of the incident when accused Ashok came and started abusing Syed Shekhawat Ali Both PW5 Phagulal Verma and PW 10 Devnarayan have turned hostile and they have not supported the prosecution case Therefore, the conVIction rests on the testimony of the injured eyewitness namely, PW-6 Nazra Begum, wife of the deceased, PW—11 Sukrat Ali, son of Nazra Begum’s sister, who happened to be there in the house of Syed Shekhawat Ali for about a week’s time he came there and was staying there as a guest PW 14 \\Shahjadi Begum injured Witness and daughter of the deceased and PW- .r" 1\\ :\ myt’rv‘wvv , ‘ ; 15 Dilawar Ali, son of the deceased. The other ground on which the prosecution has tried to establish the crime against the accused persons is circumstantial evidence i.e. recovery of the weapons at the instance of the accused persons which they were carrying at the time of commission of crime and they used these weapons in commission of crime. 15. PW—6 Nazra Begum, wife of the deceased, has stated that all the accused oersons are known to her as they are residents of the same village. She has further stated that at the time of the incident they used to reside in Village Jarvai The deceased was her husband. She has 3 children namely, Shahjadi Begum Jahjaad and Dilawar Dilawar is the elder son She was domg the Job of selling of bangles whereas her husband (smce deceased) was havmg a betel trolley shop and bicycle shop She has further stated that they were havmg an old house which was sold by her mother-In law and thereafter another house was constructed near Bajrang Squa$ at the place of the Incudent, which was constructed by none else than accused Ashok. She has further stated that Ashok was having grudge against them. When they were constructing toilet near the house, same was objected by him. They and the villagers were saying that why they have constructed the house on the Government land. Once accused Ashok attempted to push her mother—in-law in the well. On the fateful evening she and her family members were at their residence, at that time, accused Ashok came at the door of their house & started abusing, at that time, her son Dilawar and guest Sukrat had gone to-the pond. ln the meantime, Devnarayan and Phaguram came, intervened and took accused Ashok outside the house. Again Ashok along with Gend, Vishnu, Purushottam, Hari, Ravi & Pancharam, all the seven persons came. Accused Ashok was carrying knife. Accused Purushottam was carrying rod. Accused Panchram, Ravi, Vishnu, Hari and Gendram were carrying club and rafter. They after dragging her husband out of the house, took him near the door of her old house and started beating. When she went to intervene, accused Ashok attempted to attack her with knife, but she could manage to escape. Accused Purushottam attacked her son Dilawar with Lathi. Accused Gendlal attacked her daughter Shahjadi Begum on the finger with a sickle. Ashok again attempted to attack her and one accused attacked her with a Lathi on her thigh of left leg as a result of which her Lehanga Was torn. Her husband sustained injuries almost all over the body. The body was lying near the old house. She lodged the report Ex.P/9 and merg intimation EXP/10. 16 PW-11 Sukrat All who was staying at the reSIdence of the deceased as a E guest has also stated that on the fateful day at about 5 3O p m he and Dllawar son of NaZIra Begum had gone to pond When they were ‘returmng, he saw that 6 7 persons were noting near the house of Syed Shekhawat Alr They were attackmg him They were carrying club knife rod and other weapons 2 3 persons attacked him also The names of two persons who attacked were known to hrm They were Ashok and Purushottam He ran away to his Village Khertha He has further stated that he could Identlfy only Purushottam & Ashok and stated that he dld not see the other accused persons on the spot. 17. PW-14 Shahjadl Begum daughter of the deceased has stated that at about 6 1am they were at thelr resrdence The accused persons came carrying knife Guptl Lathl and Danda but she Is not In a posrtlon to tell exactly that which accused was carrymg whuch weapon They started abusrng her father The accused persons dragged her father and started attackrng hrm __ When she went to Intervene, accused ,Gend attacked her wrth a srckle which hit on the toe of right hand. When her brother Dilawar went to intervene, accused Purushottam attacked him with a Lathi. Her mother asked her and her brother to hide in the Paira from where they were watching. They saw that the accused persons dragged her father up to the house of Panchram which was about 200 meters. They attacked him there. Nobody came to intervene in the matter. 18. PW-15 Dilawar Ali, son of the deceased, has also stated that on the fateful day his father was on the Kirana shop. All the accused persons are known to him.. At about 6 p.m. in the evening when his father was sitting on the shop and the mother was inside cooking meal, the accused persons came and they started breaking the house. Ashok dragged his father out of the house, attacked with knife. The other accused persons attacked with rod and club. When his mother and sister intervened, he also came out and tried to intervene. Accused Vishnu attacked his mother. Accused LPurushottam attacked him with club. Accused Gend attacked his sister with a knife as a result of which she sustained injury on the finger Thereafter their mother asked them to hrde rn the Paira othenrvise they wrll krll them They were watching the rncrdent from that place 19 Shn P K C Tiwarr learned Senior Counsel and Shrr R K Jain Advocate for the appellants argued that In the first instance all the eyewrtnesses are close relative of the deceased and independent Witnesses have not V —'i 8 supported the prosecutlon case therefore explICIt rehance cannot be placed on their eVIdence partrcularly, when there Is lnc0nsrstency In the evrdence of these Witnesses In respect of time of the InCIdent place of the Incrdent and about the Injuries sustamed by Shahladl Begum They had grudge against Ashok They have stated that the Vll|agers were agamst them because Syed Shekhawat All had constructed a house on the Government land‘ therefore, m fact, Vll|agers had attacked him. The accused persons have been falsely implicated in the crime. The prosecution has not been able to clearly establish the motive of the accused persons for commission of crime. 20.éhri Tiwari further argued that there is overwriting in’the FIR Ex P/31 regarding time of the Incrdent Even accused Ashok was attacked by Syed Shekhawat All and a report (Ex D/4) to that effect was lodged by Ashok and other accused persons In the police station Immediately after the Incrdent Theygfurther argued that recovery of the weapons at the Instance of the accused persons have been disbelieved by the trial Court. They also ~- argued that main accused Ashok Kumar and other accused Panchram have already expired during the pendency of their appeals and there are no specific allegations against other accused persons, therefore, they are entitled for the benefit of doubt. They placed reliance on the judgment of the Apex Court in the matter of Sharad Birdhichand Sarda V. State of Maharashtra“ judgment of this Court in the matter of Ramcharan and etc State of hhatgarh2 and anotherJudgment of this Court in the matter of Sun Ram State of 3 21 . On th other hand, Shri Gwalre supported the judgment of the trial Court. 22. Having heard learned counsel for the parties, we have perused the record and the judgment of the trial Court. First, coming to the question of evidence of relative witness, it is true that all the witnesses are close relative o Syed Shekhawat Ali. In the matter of Sarda (Supra), the Apex Court held that: ‘ s ................ In view of the close relationship and affection any person in the position of the witness would naturally l : have a tenency o exaggerate or add fats which may not have been stated to them at all. Not that this is done consciously but ven unonsciously the love and affection AIR 1984 SUPREME COU RT 1622 2007 CR 4223 ow 2) 309 V Ctls rja V C G e f d t e c l \ ‘ r L J ‘ \w ( c G L J w Wmm u~\v» 9 F1 ‘ for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has r to examine such evidence with very great care and caution." i 23. Inithe matter of Rizan and another V. State of Chhattisgarh, through the Chief Secretary, Govt. of Chhattisgarh, Raipur", the Apex Court in para— 6 held that:- “The relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea;of false implication is made. ln such a case, the Court has to adopt ‘* fa careful approach and analyze evidence to find out whether it is coge‘nt and credible." 24.ln the‘case of Namdeo V. State of Maharashtra5, the Apex Court held that:- “A witness who is a relative of deceased or victim of the crime cannot be characterized as ‘interested‘. The term ‘interested’ postulates that the witness has some direct or indirect ‘interest’ in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close‘ relative cannot be characterized a's an ‘interested‘ witness. He is a ‘natural’ witness. His evidence, however, must be scrutinized carefully. lf on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the ‘sole’ testimony of such witness. Close relationship of witness with the deceased or victim is no ground to‘reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.” , 25.ln the matter of Harijana Narayana and others V. State of Andhra Pradesh5, the Apex Court herd that: “Merely because witness happens to be related to or interested in parties on either side — No ground to reject their 4 5 AIR 2003 S.C. 976 6 2007 AIR SCW 1835 AIR 2003 SC 2851 \ i r \ ‘ \\ " r @ evidence — Factions based on communal disharmony\are on warpath with each other — Securing independent witness, impossible." 26in the matter of Kallu alias Masih & Ors. V. The State of Madhya Pradesh7‘ the Apex Court held that: “Evidence of eye-witnesses, who were injured, clear — Cannot be rejected on ground of previous enmity when enmity is not denied and prosecution case is that accused persons came to beat injured — Failure of eye—witnesses to name all who gave blows and exact nature of injuries caused — Cannot be ground to disbelieve them.” 27. ln"th‘e case of Harbans Kaur and another V. State of Haryanas, the Apex Court held that:— “There is no proposition in law that relatives are to be treated £ as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. The testimony of the solitary witness can be basis for conviction." 28.ln view of the above judgments of the Apex Court, the law relating to the related witness is well settled. Where the prosecution witnesses are related to victim of crime, the Court is required to scrutinize their evidence with care and circumspection in order to ascertain veracity of the evidence given by such witnesses. The Court cannot outrightly reject the evidence of related witnesses nor the Court can reject the evidence of witnesses where both parties i.e. the complainant and the accused persons are on inimical relations, in that case also, the Court is required to scrutinize the evidence with care and circumspection before accepting the evidence of witness of a complainant party. Conviction on the evidence of related witness can rest provided the evidence of such witness is intrinsically reliable, inherently probable and wholly trustwodhy. 29.Firstly, coming to the argument of learned counsel for the appellants that there is inconsistency in the evidence of the prosecution witnesses regarding time of occurrence, PW-6 Nazra Begum has stated that the incident took place at about 7 p.m. whereas, PW-14 Shahjadi Begum, F , \‘\ \ 7 2006 AIR scw 177 \ l ‘ a 2005 AIR SCW 2074 \ \ km 11 daughter of the deceased, in para-2 of her evidence has stated that