HIGH COURT OF CHEATTISGARH, BILASPUR Criminal AEEeal No.159 {2005 APPELLANT , Mohelal s/o Sumar Sa1, age 28 (In Jail) years, occupatlon agnculturc, RIO Vlllage Bandhpara, Kudela P S Patna, District Koria, CG VERSUS RESPONDENT The State of Chhattisgarh Through RS. Patna, District Koria (CG) CRIMINAL APPEAL Uls 374 [2] OF THE CODE OF CRIMINAL PROCUDERE Appearance Shrl A K Prasad counsel for the appenant. Ms, Madhu Nlsha bingh, Panel Lawyer for the State. Division Bench:- Hon’ble Shxi “LP. Sharma as Hon’ble Shri R.L.Jhanhar,JJ ORAL ENDGMENT (1101,2011) Per T.P.Sharma, J.‘ n Challenge in this appeal is to the judgment of conviction and order of sentence dated 29:11.2004, passed by the Additional Sessions Judge Baikunthpur (Koriya) (CG) in S.T,No.327/2004, whereby and Whereunder the learned Addin'onal Sessions Judge, after liolding the appellant guilty for commission of culpable homicide amounting to murder of Shamlal While acquittmg the co accused Fuleshwan Bai, conv1cted the appellant under Sectlon 302 of the IPC and sentenced for life imprisonment and fine of Rs.3000/ , 1n deiault of payment of nne to further undergo R.I. for 3 wmonths. 2. The conviétiOn is impugned on the ground that Without there ‘being any iota of evidence sumcient for conviction of the appellant, the leaxned Additional Sessions Judge has convicted ‘ and sentenced the appellant as aforesaid mentionedand thereby committed illegality. i 3. As per case of prosecution; on fateful day of 2.7.2004, at about 1.15 pm, deceased Shamlal brother of the appellant — Mohelal was present near thevWell. Appellant- along with his wife also reached near the Welland the appellant assaulted’Shamlal by a spade. He shouted for help; after hearing the sound for help PW-l — Hinnaniya, Wife of the deceased rushed to the Well, Where, l she saw that the appellant was again assaulting herkhusband hy the spade and his wire pushed the body of Shamiai m the Wen. V They also threw the bucket and rope in theWell and thereafter they fled from the spot with the spade, PW—l Hinnaniya immediately rushed end informed to Pw-2~ {Hoehram and one Sitaram‘ that the appellant had assaulted Shamlal on account of ‘ land dispute. ' On account of night and non availability of conveyance wife of the deceased Went to Police Station on second day and lodged FIR vide Ex. P/8. Merg'was also recorded. The Investigating Ohicer left for the scene of occurrence and‘after summoning witnesses Vide Ex. P/ 1, inquest over the dead body of the deceased was prepared vide Ex.‘ P/2 after‘removing the 1 body from the Well. Plain soil, bucket, rope and one Mala was V seized from the Well vide Ex P/5.. Dead body was sent for autopsy to Assistant Surgeon, govt. Hospital Patna, where. Dr. ‘ .A.K. Shanna (PW'—4) conducted autopsy vide Ex. P/6 and foundk 3‘ following injun‘e‘s. ‘ ‘ i. One bruise and swelling over left parietal region of 8 x 4f _ 11 Deep lacerated wound. over occipital region of 5 X 2” * I I Bone deep fracture of parietal,’ temporal and occipital regions. ' V u iv. BruiSe over the lsft side of faca of 1 X V2” 'Incised’wound on left side of the neck of Vl‘x V2 x512” 'Incised wound on left Pinna of the ear of 1 V2 x Vé x V2” Injutiss were; antc mortem innature. Mode of death was- coma and death was homicidal in nature. Spot map was ’ prepared vide Ex. P/9. Patwari pfepared spot map vide Ex: P/l2. ‘During the course of investigation, accused was taken into custody. He made disclosure statement of spade vide Ex.P[3; same was recovered at the instance of the appeHant vide EX. P/ 4, Statements of the Witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). After completion of investigation, charge sheet was tiled before the Chief Judicial Magistrate First Class Bailninthpur, who in turn, committed the case to the Court of Sessions, Ambikapur, nom where the learned Additional Sessions Judge received the case on transfer for trial 4. In order to prove. the. guilt of the accused/appellant, prosecution examined as many as 7 Witnesses Accused was > examined under Sectlon 313 of the Code, in which he denied the Circumstances appearing against him innocence and false implication 1n crime 1n question was claimed. He has examined defence witness Rupsai, who deposed that dead body of Shamlal 5.‘ was taken out from the Well by Police at that time rope was found over the body of Shamlal along with bucket, but as per his evidence he did not know how Shamlal died. 6. Afteraifording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the , appellant as aforesaid mentioned. 7. We have heard Shn' A.K. Prasad, learned counsel for the appellant and Ms.'Madhu Nisha Singh, learned Panel Lawyer for the State, perused the judgment impugned and record of he trial Court. 8. Learned counsel for the appellant vehemently argued that conwcuon of the appenant 1s based on the sohtary ev1dence of PW 1 Humamya, relatlve of the deceased and she 1s mterested witness, Her evidence ’ does not inspire confidence and Trustworthy Her evidence does not appear to be natural As per her ev1dence meldent took place at about 1 30 pm and dxstance of Pohce Stanon was 5 km and means of conveyance were avaJJable but she has lodged the FIR on second day. Even she has not requested any person for lodging the Ieport, it shows that she is not eyewitness; she has not seen the incident and When she came to know about the mmatural death of her hushand, then with a View to implicate the appellant, who is brother ‘of the deceased, havingienmity on account of land dispute, has falsely iniplicated the appellant He further submitted that even as per ev1dence of PW 1 Humamya she has seen only one Injury and 1f 1t 1s cons1dered to be true then conmdenng the enmity between the parhes and factum of one injury, the act of the appellant does not travel beyond the scope of Section 304 Part II of the IPC. r He _ placed reliance on the decisions of thisCourt rendered in the matter of Ramkeshra @ Rameshwar and others Vs. state of C G , 2008 [3ICGLJ 8 (DB), In which tlns Court has held that on the ground of unnatural conduct of solitary relative Witness conv1ct10n of the appellant 1s not sustainable under the law and 1n Surjanram and others Vs. State of CG, 2007 [2) CGLJ 309 his Court has held that 1n absence of ev1dence of sterling quality, evxdence of solitary Witness does not mspne confidence and. trustworthy 9. On the other hand learned counsel for the State‘ _ vehemently opposed these arguments and subm1tted that t t conviction. of the appellant is bascd‘ on lcgal and clinching evidence. In order to appreciate the arguments advanced on behalf of Q1e parties, We have examined the evidence adduced on behalf of the prosecution. 11 In the pmsent case appellant has not admxtted hom1c1da1 death of the deceased Shamlal Prosecutlon exammed Dr A K Shanna (PW 4) who has conducted autopsy v1de Ex P/6 H1s ev1dence clearly revealed that 2 mused Wounds were found over the neck and left pmna of the body along Wlth one fatal lacerated wound. and other abras1ons. Thrs shows that the deceased. has died as a result of aforesaid injun'es and not as a result of any accident or fallmg in the well and death was homicidal in nature. '12. As regards complicity of the accused] appellant in crime 1n question 1s concerned conv1ction of the appellant 1s substantially based on the ev1dence of Hnmamya (PW 1), a solitary eye -‘ ; w1mess who 1s Wife of the deceased On account of land dispute present appellant has caused fatal injury to her husband She has deposed that at about 2 00 p m she was present in her house. Her husband was taking bath on the well Situated bes1des her house, she heard the sound of her husband that Bha: 10. Maar Raha Hal then she came out npm the house At that time, r \‘i‘ appellant was assaulting her husband Shamlal by spade and thereafter, he threw the body of her husband in the well She shouted and went insade her house PW 2 Hoshram and one Sitaram came on the spot immediately whom she informed the incident and on account of heavy ram, she went to Police Station along with h‘er father and lodged FIR; Police;came on the spot and after removing the body from the well, they proceeded for further investigation. PW-2- Hoshrani has deposed that he was informed y -l — Hirmaniya that the appellant has killed her husband and thrown the body in the well. He immediately came near the well along with Sitaram, where he saw blood, one mala,‘ piece of ilesh and clothes near the well. Dead bodyof ,Shamlal r was not tloating in the well. Colour of water was somewhat Ied. PW-5 Narayan Prasad has corroborated the evidence of PW-2 Hoshram. \Defence has cross examined PW-l Hirmaniya at- length and in cmss examination para 5 she admitted that she has stated the distance of Police Station fmm her Village as 5 km and also admitted that there were means of conveyance She further admitted that she has informed the meldent to Sarpanch and Patel of the Village and there was land dispute between the r v = appellant and the deceased. In para 6 of herrcross examination she has stated in detailed relating to situation of the well. In para 7 of hercmss examination, she has denied the suggestion that after heating the sound of assault she reached to the spot She herself has deposed that after hearing the sound she went to the spot. She has denied the suggestion that she has not seen the incident. She has specifically deposed that she has seen the appellant assaulting her husband by a spade. Her evidence is r well corroborated by the evidence of Hoshmm (PW—2) and Narayan PraSad (PW—5), who have rushed to the spot just after . the incident and have seen mala, blood and other things near the well Dehnitely, Hirmaniya (PW— l) is a relative of the deceased and as per here ev1dence and FIR they were havmg enmity With the appellant but only account of enmlty and her relation With v v the deceased, her eVidence cannot be discarded, evenothenmse, v r : the relatives'are last persons to spare the real culprit. 13. While dealing with the question of evidentiary value of the relative witnesses, the Aex Court in the matter of Daliv Sinh b PW p p g and others v. The State of Punjab{ has held that awitness is normally to be considemd independent unless he or she' springs from sources which are likely to be tainted. Para 26 of the said ~ , judgment reads as under:— “26. A Witness is normally to be considered independent-unless he or she springs from sources wlqich are likely to be tainted and that usually means unless the Witness has cause, such as enmity again st the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true; when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against Whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far hom being a foundation is often a sure guarantee of truth. However, we are‘ not attempting V any‘ sweeping generalization. Each case must be judged. on its own facts. Our observations are only made to combat What is so often put forward in cases before us as a general rule of prudence. There is no such general rule. I Each case must be limited to, and be governed by its own facts.” 1 AIR 1953 so 364 While deah'ng with the same question, the Apex Court in n the matter of Ashok Kumar Chaudhary & Ors. v. state of ’ Biharz has held thus, « ...... 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 against the prosecution or that the testimony of a mlative of the Victim, which is otherwise credit-worthy, cannot be relied upon unless cormbomted 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 round of their interest in the prosecution. he relatiOnship per se does not aEect 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 interes 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.” Statements of the relative witnesses cannot be discarded » only on the ground of their relationship. The Courts are required to scrutinize their evidence’with great care and caution. In the 2 200 A SCW 3739 8 IR g T t matters of Ramkeshra @ Rameshwar and othms Vs. State of C.G., 2008 (3} CGLJ 86(DB), and rSurjanram and others Vs. ‘ State of CG, 2007 (2} CGLJ 309, evidence of alleged solitary ‘ eye Witnesses was found doubtful and their conduct was found unnatural. In both the cases, accused persOns were having enmity with the deceased. In case of Surjanram and others Vs. State of CG, 2007 l2) CGLJ 309. evidence of solitary witness is; not found truthful on the basis, ofmaferial disciepancy in his _ evidence along with the factnm of identification of the appellant, not resident of the same village. In case of convicn'on based on ' the evidence of interested witness, relative witness or solitary witness, if can: and caution relating to scrutiny of evidence is required and the evidence must be of sterling quality, presence of Witness and conduct should be natural. 14. i If the evidence of PW—l Hinnaniya is examined on the aforesaid touch stone of law, it would be clear that at about 2.00 pm her presence in her house is not unnatural. She has seen the incident, which took place near her house on the well. She went on the spot after hearing sound of her husband, who had gone for taking bath on the well, was also not unnatural. She was having opportunity to‘ depose that she has seen repeated assault made by the appellant, but she hasrnot exaggerated. Her evidence clearly revealed that after hearing the sound of her husband that his brother is assaulting him, she came out from ‘her house and saw that the appellant has assaulted her husband by spade. This shows that when she came out nom her house, at that time, her husband has already received more injuries and as a result of such injuries he shouted. Hinnaniya has not exaggerated the evidence. Her presence near the place of incident is natural. She is wife of deceased. She has informed Sarpanch and Patel and other persons of the village but, they have not gone to Police Station for‘lodging the report. As per FIR X. P/8, she put thumb impression, the distance was 15 km. fter murder of her husband, normally wife could not be in a osition to immediately rush to the police $tation that too from 15 km As per her evidence she had gone to Police Station on cond day With her father Her ev1dence is not unnatural Her i conduct and presence on the spot 1s also not unnatural Her ewdence mspnes conndence and trustworthy She has ctegorically deposed against the appellant hnds corroboratlon from the FIR Ex P/8 cnmmal ev1dence and statements of PW 2 Hoshram and PW~5 Narayan Prasad. The aforesaid ev1dence is sumcie-nt for drawing an inference that the appellant has caused, homicidal death of the deceased. 15. ' H th As regards motive is concerned as per evidence of PW—l irmamya and criminal ev1dence, 5 injuries were found over the body of the deceased. After causmg injuries, appellant has rown the body in the well full of water, shows that the appellant was ensured the death of the deceased and it is suffiCient to prove the fact that the appellant has caused injuries . to Shamlal With intent to cause his death After appreCiatmg the eVidence, learned Additional Sessmns Judge has conv1cted and - l sentenced the appellant as aforesaid mentioned. Conv1ction of r e appellant is based on legal, clinching and credible evidence sustainable under the law. 16. On close scrutiny of the ev1dence, we do not find any W legality or innimity in the conViction and sentence of the appellant, requiring any interference by this Court in exercise of - appellate jurisdiction. Consequently, the appeal being devoid of merits is liable to be dismissed and it is hereby dismissed. i .J‘ sw- R.L.Jhanwar V Jude wrin x g E E A p se a th il