N HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Sunil Kumar Sinha & ‘Hon’ble Shri R.N. Chandrakar, J,J. Criminal Aggeal No. 1029 of 2004 APPELLANT Gulab Kushwaha S/o Dallu Kushwaha, ‘ Aged- 42 yes, OccupatiOn- Agriculture lbour illage- Bengo, P.S. Basantpur, District- Surguja (C.G.) Versus RESPONDENT State of Chhattisgarh Through Police - Station Basantpur, District Surguja (C.G.) (Aggeai under Section 374 (2) of The Code of Criminal Procedurel Agpearance: Mr. Abhay Tiwari, Counsel for the appellant: Mr. Praveen Das, Dy. Govt. Advocate, for the State. JUDGMENT (13 .o5.2oos) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Gulab Kushwaha stands convicted u/s 302 IPC and . sentenced to undergo imprisonment for life and fine of Rs.10,000/-, in default of payment of fine to urther undergo imprisonment for 3 years, by the Additional Sessions Judge (F.T.C.),‘Ramanujganj, Distict Surguja (C.G.) in Sessions Trial No. 265/2003 on 19.1 1 .2004. (2) The facts, briefly stated, are as under:- Deceased Ramvilash Kushwaha wasthe younger brother of Tsix/N. the appellant. He was residing separately along withhis wife and ' h/ Ichildren. On 23.10.2002, some quarrel took place between the \ V / i , ar a, V f 2 Criminal Apyeal No. 1029 of 2004 brothers. The allegations are that at about 9.00 p.m., when the deceased and his wife Tara Kushwaha (PW-7) went out of their house to see motor-pump fitted in the well, the appellant attacked over the deceased with a tangia and caused injuries on neck and arm of the deceased. The deceased died on account of those injuries. The matter was reported to the police stationBasantpur on 24.10.2002 by Tara Kushwaha (PW-7), on which, the First Information Report (Ex—PM) was registered. Merg intimation (Ex.- ufP/3) was also registered. The Investigating Officer reached to the scene of occurrence on the same day, gave notice (Ex.—P/6) to the £ . Pachas and prepared inquest (Ex.-P/7) on the body of the deceased. Site plan was prepared under.V_Ex.-P/18. Plain soil and blood stained soil were also seized under Ex.-P/9. The dead body of the deceased was sent for its post-mortem to Government Hospital, Wadrafnagar under EX.—P/20, where the post-mortem examination was conducted by Dr.(Smt.) Manju Ekka (PW-14), who prepared her report Ex.-P/14. She noticed a deep incised wound on the left side of neck (in root part), size 12 cm x 7 cm x bone deep. Ail the arteries and vessels were cut beneath the injury. She also noticed another incised wound on the left arm, size 7 cm x 3 cm x 1 1/2 cm. The Autopsy Surgeon opined that the cause of death ws haemorrhagic shock due to excessive blood loss from the wound sites due to cut by sharp Weapon and it was homicidal in t naure. ln further inestigation, on 29.10.2002, a memorandum (Ex.- P/10) of the appellant u/s 27 of the Evidence Act was recorded a v 3 Criminal Appeal N0. 1029 of 2004 leading to discovery of tangia, which was seized at the instance of the appeiiant under Ex.-P/11. The tangia was sent for its examination to the Autopsy Surgeon, who found blood stains on tangia and gave her report Ex.-P/15 and suggested for its further examination about the origin and group of blood through the Forensic Science Laboratory. ‘ v (3)1 After completion of usual investigation, the charge-sheet was filed u ’f in the Court of Judicial Magistrate, First Class, Ramanujganj, who in turn committed the matter to the concerned Sessions Court, from where, it Li was received on “transfer by the Additional Sessions Judge (F.T.C.),‘, Ramanujganj, District Surguja, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (4) The conviction of the appellant is based on the eye witness account of Tara Kushwaha (PW-7), wife of the appellant, who was present along with the appellant at the time of incident when he was going to see motor-pump fitted in the well. (5) Mr. Abhay Tiwari, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Dr.(Smt.) Manju Ekka (PW—14) that the deceased sustained two incised wounds, one was on the base of the neck and the other was on the arm and opined that the cause of death lwas haemorrhagic shock due to excessive blood loss from the wound . sites due to cut by sharp weapon and it was homicidal in nature. 4 2?, Criminal Appeal No. 1029 of 2004 Therefore, it was established that the death of the deceased was homicidal in nature. (6) Mr. Abhay Tiwari has mainly argued that the sole eye witness namely Tara Kushwaha (PW-7) was the wife of the deceased, therefore, shei was an interested witness and the conviction based on her sole testimony cannot be sustained. He argued that it was a dark-night and there was no opportunity to this witness to see as to‘who assaulted the deceased, therefore, benefit of doubt may be extended to the appellant. (7) 0a the other hand, Mr. Praveen Das, learned Dy. Govt. Advocate appearing on behalf of the State, opposed theses arguments and " supported thejudgment and order passed by the Sessions Court. (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) In Harbans Kaur and another —Vs- State of Haryana, 2005 AIR SCW 2074, it was 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. (10) ln Namdeo —Vs- State of Maharashtra, 2007 AIR SCW 1835, the Apex Court held that a witness who is a relative of deceased or victim of Q; l ‘ I I) 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 \ l s Criminal Appeal No. 1029 of 2004 oblique motive. The Apex Court also observed that a close relative cannot be characterized as 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’ testinhony of such witness. Close relationship of witness with the deceased or victim is no ground t9 reject his evidence. On the contrary close relative of the deceased would normally'be most reluctant to spare the reat culprit and falsely implicate an innocent one. (11) Further, in the matter of Sonelal —Vs- State of M.P., 2008 AIR SCW 7988, the Apex Court again said that merely because the eye witnesses are family members their evidence cannot be per-se discarded. Relationship is not a factor to affect credibility of a witness. It is more often than not that arelation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. (12) Therefore, this argument cannot find,favour that the testimony of Tara Kushwaha (PW-7) cannot be relied on, only on the ground that she was the wife of the deceased. However, her evidence is to be scrutinized with due care and caution and if such evidence is found credible, the coitviction can well be based on her such testimony. l \ \ s ; l \wife or the deceased. \ (13) Now we shall look into the evidence of Tara Kushwaha (PW-7), \ l‘ _, ‘ ,\ _ Criminal_DQ A eal_6No. 1029 of2004 a _ (14) Tara Kushwaha, PW—7, deposed that on the fateful day i.e. on 23.10.2002, her husband had called a Iabour namely Sambhu Panika (PW—3) for some work in his house. in the evening, the appellant came to their house and asked Sambhu that tomorrow he will work in his house. The appellant also pressed Sambhu to take meai in his house. Her hushand (since deceased) objected to it and said that today he has worked in his house, therefore,,he will take meal here. Lastly, the appellant took Sambhu to his house, where he took his meal. When $ 1' Sambhu returned to their house, he said that now he will not stay and he went back to his village. ln the night, the appellant again visited their 3 a house and started quarreling with her husband saying that he had sent ‘. back Sambhu. At about 9.00 p.m., she along with .her husband came out from their house to go to the field to bring motor—pump. As soon as they came out to the courtyard, the appellant attacked over her husband by tangia. She has very categorically deposed in Paras 1 & 7 of her evidence that on the fateful day at about 9.00 p.m., the appellant committed murder of her husband by giving tangia blows to him. She has reported the matter in the police station, on which, merg intimation (Ex.— P/3) and the F.l.R. (Ex.-P/4) were recorded, which bear her signatures. (15) Though this witness was put to a lengthy cross examination by the defence but the defence has not been able to elicit any such circumstance on which either her testimony may be discarded or it may bg held that she is falsely implicating the appellant in crime in question. Admittedly, Tara Kushwaha (PW-7) is the wife of the deceased. Why she will shield the actual culprit of her husband and falsely implicate the appellant. No foundation has been led to substantiate the plea of false Criminal Appeal No. 1029 of 2004 implication. Mr. Abhay Tiwari has vehementiy argued that there was no Iight at the scene of occurrence, therefore, it was not possible for this; witness to identify the assailant. We do not find any force in this argument. it comes in Para-12 of PW—7 that at that time, the electric bulbs of the courtyard and the house were on and in light of the electric bulbs, sheihad seen the occurrence. PW—10, Ramnaresh, has also deposed in his e‘xamination-in-chief in Para-3‘that an electric pole was at a distance of 50 metres from the house of the deceased and the deceased had made‘tll‘egalconnection in his house for the electricity supply. However, it was not clarified by the defence as to whether on the fateful day, there s was Iight in the house of the deceased or not. Therefore, it was established that there was sufficient light in the courtyard of the deceased and credibility of Tara Kushwaha (PW—7) cannot be falsified on this account. ln appreciation, we find that the evidence of this witness is cogent and credible and the same was duly corroborated by the F.l.R., lodged by her on the ne'xt morning which also contains the complete details of the incident. ‘ (16) Learned Sessions Judge has rightly relied on the testimony of PW- 7, Tara Kushwaha, and the conviction based on her such testimony cannot be interfered in the appeal. (17) For the foregoing reasons, we do not find any substance in the appeal. The appeal is liable to be dismissed and is accordingly dismissed, 9km? A Sdl- W Sdl- Sinha R.N.Chandrakar l Sunil Kumar 1 Judge Judge