W‘ Q?9 \ ’ Him—I CQEJRT Q1? CHHATTE$GARH AT BILASPUR DIVISmN BENCH CORAM: , HON’BLE MR. T.P. SHARMA & HON’BLE MR. ELK. AGARWAL, JJ. CRIMINAL APPEAL No. 68/2003 AN APPEAL U/S 374 I2) CLEO. Presentz— Shri DR. Shanna, Sr. Advocate with Ms. Rani Pathak, Advocate for the appellants. Shn‘ M.P.S. Bhatia, Dy.G.A. for the State/respondent. ORALJUDGEMENT (Passed on 07/0 1 [2010) The following judgment of the Court was passed bV ”LP. Shanna, J:— 1. Challenge in this appeal is to the judgment of conviction and a order of sentence dated 10/8/02 passed by 11nd Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 181/02 whereby and where under after holding the appellants guilty for the commission of the homicidal death amounting to murder of Sukhdev in sharing common intention and convicted the appellants under Section 302 d APPELLANTS 1‘, Suklu Alias Kave s/o Sudar Gond 1m JAIL) Aged about 25 years. 2. Budhram S/o Laxman Aged 22 years, Gond 3. Gandwa S/o Rainoo Gond Aged 19 years; Gond A11 resident of Khdakhagaon RS. Naryanpur District Bastar (C.G.). VERSUS RESPONDENT State of Chhattisgarh. - it l\ i read With Section 34 of the Indian Penal Code and sentenced imprisonment for life. The judgment is impugned on the ground that conviction is based on evidence of child witness which is not safe to rely that too for the conviction under Section 302 read with Section 34 of the indian Penal Code. Brief case of the prosecution on faithful day 16f2/02 at, about 7 RM. deceased Sukhdev was going for worship with his minor son Ghasiyaram aged about. 11 years. Appeilants were present at the place of incident appeliant Sukalu discussed with the deceased on the ground of Witchcraft and assaulted him all the appellants took the deceased and assaulted him by axe and burning wood he fell down and died. The son of the deceased Ghasiyaram went to his house and informed the incident to his relatives. PWI Buday Bai wife of deceased lodged First Information Repot vide Ex. P—l on next day. Investigating Officer left for the place of incident and after summoning the Witnesses prepared inquest over the dead body of Sukhdev. Dead Body was sent for autopsy to Primary Heath Center Narayanpur vide EX. P— 18. Autopsy was conducted by PW6 Dr. M.K. Suryawansi Vide EX. P—12 and found following injuries (1) Multiple abrasion over chest, back and buttock and scapular region (2) Incised wound over left jaw of 1 1/2” x V2 x 1/4 cm. (3} Lacerated wound over left ear 2 1/2 X 1 V2 x 1/2 cm. (4) Over left temporal reg’on 1" x o ’2. he ‘ @ x 1/2” X 1/2 c.1n. (5) Burn injuly over right side of the neck 3 x 3- 1/2” (6) Left shoulder 3 x 2” (7) Right knee 3 x 2”, fracture of 1eft temporal bone and haemotoma inside the brain. Death was due to shock as a result of head injury death was homicidal in nature. x 4. Plain and blood. stained soil were recovered vide Ex. P—6. Appellant Suka‘lu was taken into custody he made disclosure statement of axe vide EX. P—4. Axe was recovered at the instance of appellant Sukalu on his production from shrubs Vide Ex. P—lO. Appellant Budhram was taken into ustody he made disclosure statement of burn piece of wood "(Luthg vide EX. 13-5 same was recovered from the Budhram vide Ex. P-9, one blood stained Lungi was recovered from the appellant Gandwa Vide Ex. P—7, one blood stained shirt was recovered from the appellant Sukalu Vide EX. P—8. Seized article were sent for chemical analysis, spot map was prepared vide EX. P-SO. Presence of blood over Lungi of accused Gandwa, shirt and axe of accused Sukalu is confirmed Vide Ex. P-35. Statement of the Witnesses were recorded under Section 16 1 of the Code of Criminal Procedure, 1973 (in short ‘the Code’}. After completion of investigation charge sheet was filed before the Judicial Magistrate First Class, Naryanpur who in- turn% committed the case to the Court of Sessions Judge, ‘9 (J1 c (<L( y/ x Jagdalpur. Learned Additional SeSsions Judge received the caS€ 011 U‘al’lsf6r. 6. in order to prove the guilt of the appellants prosecution examined as weli as 8 Witnesses, appellants were examined under SectiOn 313 of the Code Where they denied the x circumstances appearing against them, innocency and false implication is clamed. 7. After affording an opportunity of hearing to the parties learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned. 8. Learned counsel for the parties are heard. Judgment impugned and record of Court below perused. 9. Learned counsel for the appellants vehemently argued that conviction is based on the evidence of child Witness PW2 Ghasiyaram which is not safe to rely. He is interested and relative witness there was previous enmity between the parties according to the case of the prosecution other persons were present at the time of incident but reasons best known to the prosecution, prosecution has not A examined them to unfold the real story. Learned counsel for the appellants further argued that suspension however grave cannot take the place of evidence. .On the other hand, learned Counsel for the State/respondent vehemently opposed the appeal and submits that deceased Sukhdev was going for worship along x With his son the presance of Son of the deceased was natural, PW2 Ghasiyaram son of the deceased has categorically deposed that appellants are the person who had caused fatal injuty resulting into the death of the deceased. His evidence inspire confldence, After commission x of the offence Panchayat was convened and before Panchayat All appellants had made extra judicial confession of their guilt. Weapons have been recovered at the instance of accused persons these all evidence are sufficient for drawing the inference that appellants are the person who had committed the offence. 11. In order to appreciate the arguments advanced on behalf of the parties we have examined the evidence available on record. In the present case conviction rest on the evidence of eye witness (A) PW2 Ghasiyaram (B) Extra judicial confession made by the appellants before PW3 Magatu, PW4 Gajanand, PWS Tulsiram (C) Recovery of weapon at the instance of appellants and presence of blood over the weapon and cloths recovered from the appellants. i 12. Homicidal death as a result of fatal injury of Sukhdev has not been substantially disputed by the appellants otherwise also established by the evidence of PW6 Dr. MK. Suryawanshi, autopsy report Ex. P-12, which reveals that multiple abrasion, lacerated wounds, burn injuries, fracture $ \ of temporal bone homotoma in the brain was found injury were antimortem and death was homicidal in nature. 13. As regard the complicity of appellants with crime in question is concerned PW2 Ghasiyaram son of the deceased aged about 1 l years has categorically deposed that at the time of incident he was going with his father for worship. Appellants were already present near the place of worship, they were holding axe and burning wood, appellants assaulted his father deceased Sukhdev over his head, hand and leg, he has also deposed that prior to hrst part of the incident near Mauligudi appellants quarreled with his father and also assaulted him by hand then his father went to his house and came with axe then appellant Sukalu snatched the axe from his father and assaulted over his head and neck. Appellants Budhram and Gandwa assaulted his father by burning wood. His father fell down then he went back to his house and narrated incident to his mother again they went to the place of incident and second day Panchayat was convened. Member of Panchayat asked the appellants then i they also made extra judicial confession to the persons of Panchayat that they have killed the deceased Sukhdev. Defence has cross examined this witness at length. In Para - 7 of his cross examination he has cleared the ambiguity and specifically deposed that at the time of incident when appellants assaulted his father he was present. Defence has \ no? been able t0 illicit anything in thé cmSs examination of this WitneSS to discredit his teStimony. Admittedly, PW2 Ghasiyaram is a child witness aged about 11 years. Before recording his evidence the learned Additional Sessions Judge has taken proper care and after ensuring itself that \ Witness was in position to answer the question, has recorded his evidence. 14. in the present case PWQ Ghasiyaram is a child Witness in ease of child Witness as held in case of Rameshwar Vs. State1 by the Apex Court, Court is under obligation to record the opinion that Child understands the duty 0f speaking the truth. Admittedly, in ease of child Witness specially in case of sole eye witness of teenager his evidence has to be scrutinized with care and caution and if he is able to understand the test of cross examination successfully and there is no other infnmity then it should not be discarded lightly. In the present case Court below has taken proper care and has asked as well as 8 questions and after getting the proper answer and after arriving at a finding that the 1 witness understands the duty of speaking the truth has recorded his statement therefore, only on the ground of his teenager his evidence cannot be discarded. 15. PW2 Ghasiyaram is a son of deceased Sukhdev the close relative but his evidence cannot be discarded only on the ‘ AIR 1952 SC 54 (' \ ground that he is close relative of the deceased and interested in conviction of the accused. Close relatives are the persons reluctant to spare the real culprit and implicate an innocent present. 16. While dealing with the question of evidentiary value of the relative witnesses, the Apex Court in the matter of Dalip Singh and others v. The State of Punjab2 has held that a Witness is normally to be considered independent unless he or she springs nom sources which are likely to be tainted. Para 26 of the said judgment reads aS under:- “26. A witnesss is normally to be considered , independent unless he or she springs nom sources which are likely to be tainted and that usually means unless the Witness has cause’ such as enmity against the accused, to Wish to implicate him falsely. Ordinarily, a close relation would be the last to semen the real culprit and falsely implicate an innocent person. It is h‘ue, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom awitness has 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 are not attempting 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 ‘\ \\ \ 2 AIR 1953 SC 364 \ \ \ general rule. Each case must be limited to 311d be governed by its own facts.” 17. Further, in the matter of Mohabbat and Ors. v. State of M.P.3 the Apex Court has held that relationship is not ground to aifect credibility of witness, foundation has to be 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, When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discaid the evidence which is otheiwisepcogent and credible. We shall also deal with the contention regarding 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 of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out Whether it is cogent and credible.” 1‘8. In the present case PW’z child Witness Ghasiyaram has categorically deposed the incident and nothing has been brought in his cross examination to discard his testimony as sufficient to Show that he had been tutored. Prosecution has also adduced the evidence of extra judicia confession made l 3 2009 AIR SCW 1486 Q H,0«~/ \ by the accused persOns before PW3 Magatu, PW4 Gajanand, PWS Tulsiram and also before PW2 Ghasiyaram these Witnesses have deposed that after death of Sukhdev Panchayat was convened they called the appellants and asked them and all appellants made extra judicial confession that they have killed the Sukhdev and after their extra judicial confession the member of the Panchayat went to the place of incident Where the dead body was lying, defence has also cross examined these witnesses at length but defence has not been able to illicit anything to their cross examination to discredit their testimony. Extra judicial confession is a week type of evidence but once it is proved to be true then same may be safe to rely. . While dealing with the same question, the Apex Court in the matter of Mahd. Azad @ Samin v. State qf West Bengal4 has held that if extra—judicial confession made voluntarily and truth in a fit state of mind then it can be relied upon and confession will nave to prove like in any other evidence. Para 22 of the said judgment reads as under:— “22. An extra-judicial confession, if Voluntary and true and made in a fit state of mind, can be relied upon by the court, The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability \ 42009 AIR SCW 752 d \ \\\ r]! v/ of the wim65$ who gives the evidétlce. It is not open to any comt to start with a pmsumption that extra—judicial confeS$i0n is a Weak type of evidence. It would depend on the nature of The circumstances, the time when the confession was made a11d the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon the conviction can be founded thereon if the evidence about the confession comes from the mouth of Witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of Whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the Witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the Witness which may militate against it. After subjecting the evidence of the Witness to a rigorous test on the touchstone of credibility, the extrajudicial confession can be accepted and can be the basis of conviction if it passes the test of credibility” 20. In the present case evidence of eye witness P‘W2 Ghasiyaram evidence of PW2 Ghasiyaram, PW3 Magatu, PW4 Gajanand, PW5 Tulsiram relating to the extra judicial confession made by the appellant before them inspire confidence trustworthy and are safe to rely. Prosecution has also adduced the evidence relating to recovery of weapons at the instance of appellants Sukalu and Budhram and also blood stained cloths from appellant Gandwa After appreciating the evidence available on record learned Additional Sessions Judge arrived at a finding that aforesaid , \ 3 appellants have caused fatal injury to the Sukhdev and as a resu1t of such illjury Sukhdev died. 22. As regard the question of causing injury in sharing common intention and motive of commission of murder is concerned PW2 Ghasiyaram has specifically deposed that all the appellants were present at the time of incident they were holding axe and burning wood they have caused repeated injury over the vital part. PW2 Ghasiyaram, PWS Magatu, ‘PW4 Gajanand, PW5 Tulsiram have also deposed that all appellants have made extra judicial confession that they have killed Sukhdev. These witnesses are sufficient for drawing an inference that appeliants have caused fatal injury resulting into the death of Sukhdev in sharing common intention the manner in which they have caused the injury the weapon used and nature of injury is sufficient for drawing an inference that all the appellant have caused homicidal death of Sukhdev amounting to murder. After appreciating the evidence available on record learned Additional Sessions Judge has convicted the appellants under Section 302 read with Section 34 of the Indian Penal Code and awarded minimum sentence of imprisonment for life provided under the Indian Penal Code. 24-. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned warranting devoid of uently, the appeal is x any i11terf€rence. Consaq hereby dismissed. is, be dismissed merits is liable to Sd/— I Ty. SHAMIA. 3W A § _ N. K. Agarwa‘ Judge ‘ ludge K /-.