<f- HIGH COURT OF CHHAJ'TISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gypta, C.J^ & Hon'ble Shri Sunil Kumar SinhaLJ. Criminal Appeal No. 967 of 1992 Ramkumar & Others(dead) Vs. State of Madhya Pradesh (Now State of Chhattisgarh) K JUDGMENT For consideration -a- Sd/- , Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA Sd/- Chief Justice Post for Judgment : ^^709/2010 Sd/- Sunii Kumar Sinha Judge '^ ^M HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil KumarSinha, J. APPELLANTS N»» !»»» RESPONDENT Crjminal Appeal No. 967 of 1992 1 Ramkumar S/o Manbodhi Satnami, aged '24 years, R/o village Gondwara, P.S. Khamtarai, Tehsil & DistrictRaipur(C.G.) 2 Ganesh S/o Veersingh Satnami, aged 35 years, R/o village Gondwara, P.S. Khamtarai, Tehsil & District Raipur (C.G.) (Dead- Name deleted videorder dated 9.7.2010) 3 Toran S/o Manbodhi Satnami, aged 27 years, R/o village Gondwara, P.S. Khamtarai, Tehsil & District Raipur(C.G.) (Dead- Name deleted vide order dated 9.7.2010) 4 Chandrika @ Chander S/o Amoli Satnami, R/o village Gondwara, P.S. Khamtarai, Tehsil & District Raipur (C.G.) (Dead- Name deleted vide order dated 9.7.2010) Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through P.S. Khamtari, District Raipur (Criminal Appeal under Section 374 (2) of The Code of Criminal Prdcedure. 1973) Appearance: Mr. Arun Kochar, Advocate for the appellant. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. .^- '' Criminal Auoeal No. 967 of 1992 •syin JUDGh/IENT (25.09.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 20.8.1992 passed in Sessions Trial No. 45/90 by the First Additional Sessions Judge, Raipur. (2) By the impugned judgment, the appellants have been convicted u/ss 302/34 & 302/34 IPC and sentenced to undergo imprisonment for life (in two counts). Appellant- Ramkumar has been further convicted u/s 323 & 323 IPC. The other appellants have also been convicted u/ss 323/34 & 323/34 IPC and all have beensentenced to undergo R.l. for 3 months (in two counts). It is further directed that all thesentences shall run concurrently. (3) Appellant No.2- Ganesh, appellant No.3- Toran and appellant No.4- Chandrika died durin^ the pendency of the appeal. Their names have been deleted vide order dated 9.7.2010 and the appeal filed on behalf of appellants 2, 3 & 4 has been dismissed as abated. The facts, briefly stated, are as under:- ' /The appellants and the two deceased persons namely Mansingh & Sukhchand were residentsof village Gondwara. On 30.10.89 atabout 8.30 p.m.; deceased Mansingh and 4-5 other persons were returning from the house of Sukhchand after attending a dinner on the -eve of Deepawali Festival. When they reached near khaliyan of Sukhchand, the Criminal Apoeal No. 967 of 1992 Sh appellants surrounded them and they started assaulting Mansingh. Mansingh received multiple injuries. The persons accompanying Mansingh ran away and informed Sukhchand who was in his house. Sukhchand immediately reached to the place of oecurrerfce. His wife also came there. They saw that Mansingh was Jying on the ground. The appellants also assaulted Sukhchand by lathi & tabbal. Sukhchand also received multiple injuries. Mansingh and Sukhchand both succumbed to the injuries sustained by them. Manoj Kumar (PW-10) and Dashrath (PW-11) were also assaulted by the appellants. The incident was witnessed by four witnesses namely Puranlal (PW-1), Mohandas (PW-9), Manoj Kumar (PW-10) and Dashrath (PW-11). Puranlal (PW-1) lodged the First tnformation Repori: (Ex.-P/1) in police station Khamtarai withinone and half hour. The F.1.R. contains the names of all the assailants. The Investigating Officer reached to the place of occurrence, gave notices (Ex.-P/2) to the Panchas and prepared inquests (Ex.- P/3 & P/4) on the bodies of the deceased persons. The dead bodies were sent for their post-mortem. The post-mortem examinations were conducted by Dr. D.C. Jain (PW-13). He noticed the following external injuries on the bodies of the deceased persons:- Deceased- Mansingh: (i) Incised wound 6 inch x 1 inch x 1 inch on the right portion of the skull. The skull bone was cut and the ' / brain matter has come out; (ii) Incised-wound 1 y-i inch x % inch x % inch on the left side of the forehead; (iii) Incised wound 1 1/2 inch x V* inch x 1/4 inch on back portion of skull; w: y, Criminal Arioeal No. 967 of 1992 (iv) Incised wound 1 Vv. inch x % inch x % inch on the left temporal region & (v) Contusion 6 inch x 1 inch on the left forearm. The fracture was also found beneath the said injury. On internal examination, he found that bones of right side of the skull were cut, due to which, the brain matter has come out and huge ampunt of blood was collected in brain. He opined that the above injuries were ante-mortem. Except injury No. (v) all the injuries were caused by sharp edged weapon. Injury No. (v) was caused by hard and blunt object like lathi. The injuries were sufficient to cause death in ordinary course of nature. The cause of death was coma due to above injuries and it was homicidal in nature. Deceased- Sukhchand: (i) Incised wound 3 inch x 1A inch x 1/^ inch on the middle of the skull. The bone was completely cut and the brain matter has come out; (ii) Lacerated wound 1 7z inch x Vz inch on the left temporal region; (iii) Contusion 5 inch x 1 % inch on the left side of skull & (iv) Lacerated wound 1 Vz inch x 16 inch on the left side oftheskull. On internal examination, he found that the skull bone was cut and brain matter has come out. There were fractures on the / left temporal bone. It has depressed inside. Huge amount of blood was preseriT in the brain. He opined that all the injuries were ante-mortem and injury No. (i) was caused by sharp edged weapon and the other injuries were caused by hard & blunt .object like lathi. The injuries were sufficient to cause death in ordinary course of nature. The cause of death was s Criminal Apueal No. 967 of 1992 coma due to aboveinjuries and it was homicidal in nature. The post-mortem report of Mansingh is Ex.-P/23 and the post- mortem report of Sukhchand is Ex.-P/24. In further investigation, the statements ofwitnesses were recorded and Manoj Kumar (PW-10) and Dashrath (PW-11) were sent for their medical examination. They were examined by Dr. Usha Gupta (PW-8). They had reeeived simple injuries. Injury report of Dashrath (PW-11) is Ex.-P/21 and injury report of Manoj Kumar (PW-10) is Ex.-P/22. Various articles including the weapons of offence were seized from the possessions of the appellants. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Raipur, who in turn committed the matter to the Sessions Court, Raipur, from where, it was received on transfer by the First Additional Sessions Judge, Raipur, who conducted the trial and convicted & sentenced the appellants as aforementioned. (5) The conviction of the appellants is based on the eye- witnesse's account of Puranlal (PW-1), Mohandas (PW-9), Manoj Kumar (PW-10) and Dashrath (PW-11). The learned Sessions Judge relied on the testimonies of these witnesses and held that the appellants assaulted the deceased by lathi & tabbal and they also caused simple injuries to Manoj Kumar (PW-10) and Dashrath (PW- 11), therefore, they were li^)te for punishment as above. (6) Mr. Arun Kochar, learnedcounsel appearing on behalf of appellant No.1, argued that Puranial (PW-1) & Mohanlal (PW-9) are nephews of deceased- Mansingh; Manoj Kumar (PW-10) is son of Criminal Appeal No. 967 of 1992 deceased- Mansingh; and Dashrath (PW-11) is nephew of deceased-Sukhchand, therefore, they are interested witnesses and the Sessions Court erred in law in relying on the testimonies of these witnesses. He also argued that it was dark night, therefore, it was not possible to ident'rfy the assailants in the dark night and on account of previous animosity of the appellants, the witnesses have taken their names. He also argued that there is discrepancy in the versions of the eye-witnesses and the medical evidence, therefore, on this account also their testimonies become doubtful. (7) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. fltS^fBa (8) We have heard the learned counsel for the parties at tength and have also perused the records of the sessions case. (9) In Harbans Kaur and another -Vs- State of Haryana, 2005 AIR SCW 2074, the Supreme Court held that there is no proposition inrlaw that relatives are to be treated as untruthful witnesses. On the contrary, r^ason has tobe shown when a plea of partiality is raised td show that the witnesses had reason to shield the actual culprit 'and falsely implicate the accused. (10) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Supreme Court held that a witness who is a relative of •>''• Criminal Appeal No. 967 of 1992 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 Supreme 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. If 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. (11) In Sone/a/ -Vs- State of M.P., 2008 AIR SCW 7988, the Supreme 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 a relation would not conceal actual culprit and make altegations against an innocent person. Foundation has to be laid if plea of false implication is roade. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. ;••• '.. ./' Criminal Appeal No. 967 of 1992 (12) Therefore, the argument relating to discarding the testimonies of relativR witnesses out-rightly, cannot be accepted. However their evidence is to be scrutinized with duecare and caution and if their evidence is found credible in appreciation, the conviction can well be based on their such testimonies. (13) Puranlal (PW-1) deposed that "On the fateful day at about 8.30 p.m., he was returning from the house of Sukhchand and was going to the house of Mansingh. He was accompanied by Manoj Kumar (PW-10), Mohandas (PW-9), Dashrath (PW-11) and Mansingh (deceased). As soon as they reached near the bayara (khaliyan) of Sukhchand and Dayaram, appellant- Ramkumar, Toran, Ganesh and Chander surrounded Mansingh and started assaulting him. They assaulted him by lathi & tangia etc. Tangia was looking like tabbal. Ramkumar was holding lathi, Ramkumar and Ganesh firstly obstructed the way of Mansingh, Chander and Toran were standing behind Mansingh. All assaulted Mansingh. Mansingh fell down on the ground. Seeing all this, he along with Dashrath, Mohan and Manoj ran away and went to the house of Sukhchand. They stated all this to Sukhchand. Sukhchand and his wife came with them to the place of occurrence. WhenSukhchand reached there, Chander asked'"to assau.It Sukhchand also, Then all the appellants assaulted Sukhchand. Ramkumar, Ganesh and Toran assaulted him by lathi and Chander assaulted him by tabbat'. • Puranlal claimed to witness the incident from a distance of about 20- x '^s^. .--§, •'^ ;-»^. \ vSSSss. ••-ai<g,l '%..;^ ' Criminal Appeal No. 967 of 1992 25 steps. Mohandas (PW-9) is nephew of deceased- Mansingh. Manoj Kumar (PW-10) is son of deceased- Mansingh and Dashrath (PW-11) is nephew of deceased-Sukhchand. They also deposed in similar fashion by taking the names of the appellants. These witnesses have been put to lengthy cross-examinations by the defence. An attempt was made by the defence to bring in their cross-examinations that it was a dark night, therefore, they were not able to identify the assailants. An attempt was also made to bring on record that these eye-witnesseswere not present at the place of occurrence. But nothing material could be brought on record to show that either these witnesses were not present at the place of occurrence orthey could not see the assailants or they are falsely implicating the appellants in crime in question. '•^ (14) Mr. Kochar argued that it was the next day of Deepawali. The incident took place at about 8.30 p.m. It was a dark night. Therefore, it was not possible for the witnesses to identify the assailants. We are unable to accept the said argument advanced by Mr. Kochar. It comes in the evidence of PW-1, Puranlal, that there was a factory at a distance of about one furlong from the place of occurrence and focus of ligMts of the factory was coming at the place of occurrence and there was no darkness'and he had identified the assailants. He very specifically deposed in Para-21 of his cross-examination that if any person of his village, previously known to him, meets him in the'nighf, he would easily identify him fraina distance of 20-25 steps. 10 Criminal Appeal No. 967 of 1992 Manoj Kumar (PW-10) and Dashrath (PW-11) have also deposed about the presence of lights on the place of occurrence. (15) Ganguram (PW-3) is an independent witness. He was a village Panch. He was called by the police to participate in Inquests. He was throughout with the potice when the investigation was being conducted in the night. He was cross-examined by the defence on the point of availability of light at the place of occurrence. He very categorically deposed that there was no darkness at the ptace of occurrence and there was light as there are many factories near the place of occurrence. He categorically denied the suggestion that the factory's lights were not coming on the place of occurrence. Therefore, on the evidence of above witnesses, it is clear that there was no darkness at the place of occurrence and the eye-witnesses cannot be disbelieved on the ground that on account insufficient lights they were unable to identify the assaitants. (16) Manoj Kumar (PW-IO)and Dashrath (PW-11) are the injured eye-witnesses. Manoj Kumar is the son of deceased- Mansingh. Apart from the story relating to assault given to the two deceased persons, he also deposed that when his father fell down then the appellante also tried to assault him. He very specifically deposed ^ . that Ramkumar assaultecT him by l^thi. Doctor also found contusion and abrasion on his person. Nothing has been brought on record to showthatthe injuries sustained by hinawere self inflicted. Therefore, ,: tbere is no reason to doubt the presence of this witness. Dashrath 11 Criminal Appeal No. 967 of 1992 (PW-11) is the nephew of Sukhchand. He is alsoan injured witness. We do not find any reason to doubt his presence at the ptace of occurrence. If the persons of the same village are fighting in the above manner, there is hardly any doubt to hold that they would not be able to identify each other. Had there been a case of assault by strangers, then the situation would have been different. Deceased- Mansingh was nephew of deceased-Sukhchand. Two personsofthe same family lost their lives. Why their son and nephews would teave the actual culprits and they witl falsely implicate the appetlants in the above manner. vmK (17) We further note that this was an incident of 8.30 p.m. on 30.10.89 and the F.I.R. (Ex.-P/1) was promptly lodged on the same day at 9.35 p.m. in the concemed police station, which is at a distance of 3 Kms. The F.1.R. was lodged by an eye-witness who has taken the names of the assailants and has also stated about role attributed to them. (18) Mr. Kochar has also argued about the discrepancies in the evidence of eye-witnesses and the medical evidence. We do not find any jdiscrepancy like that. The eye-witnesses have deposed that ^ / the deceased persons were assaulted by lathi & tabbal. We find that Sukhchand had received one indsed wound, fwo lacerated wounds and one contusion and Mansingh had received four incised wounds and one contusion. These injuries could be caused by hard & blunt object and sharp edged weapon, which has also been admitted by 12 Criminal Apoeal No. 967 of 1992 the Doctor, who conducted the post-mortem examinations. Therefore, there is no discrepancy in the evidence of the eye- witnesses and the medical evidence. On the contrary, the medical evidence corroborates the evidence of eye-witnesses in the above manner. (19) On appreciation of the ertireevidence on record, we do not find the evidence of the above eye-witnesses to be unreliable and their testimonies cannot be discarded on the ground that they were relatives of the deceased persons and they were interested witnesses. The evidence of the above witnesses were fully reliable; the Sessions Court has rightly relied on their testimonies for convicting the appellantsfor the above offences. |:Bi»F»r (20) For the forgoing reasons, we do not find anysubstance in the appeal. The appeal filed by appellant No.1- Ramkumar, therefore, is iiable to be dismissed and is hereby dismissed. It is stated that. appellant No.1 is on bail. His bail bonds are cancellgd. He is directed to surrender immediately to serve the sentences imposed upon him. ^..^- §d/-' Chief Justice Sd/- Sunil Kumar Sinha Judge vatti