,y'-f,i3 /•i 'i ? ^ / ^ (^- pl^ HI6H COURT OF CHH.4mS6ARH AT BILASPUR Criminai Aweai No.297 of 2GO& APPELL-4NTS (In Jaii) RESPON&ENT &ur/iesh Pr'adha" S/o PQf!chrtQ?rn Pradhan. Aoe 23 Years. ^(xlendra Sohoo S/o MohQ.StnQh Sohoo Aaed about-21 years. Tncl^r Si^h @ 5ui!a S/o P^ITTI Kr'isbe*" Dhruv Age 21 vears Al! Re^ldent of \ V>!!&ge ^ Toryci, P.S.BtlasDur Oistt.-BilasDur (C.G.) Ve-rsus State of Chhattisgcr'h Through-P.S. Torva Distt.BilasDur. (.4PPEAL UN&ER SECTEON 374 (2) OF THE CObE OF CRIMINAL PROCEbUftE, 1973) (SB; Hon'ble ,¥,r-. T.P. Shsrma, -J.) Prese-nt: M.P.J-A.Lohn"i, counse! for the c^ipellants. Mr.Akhil Mishra. &v.6ovt.Advocate for the State/resDondent. JU&©ttENT (Psssed sn 14+h July. 2009 This csoDsai iis d*r*®ct®dQnaif*st the iudQm<Bnt of conyict'on ond ord'sr of -o-+s—/-s-^-—¥a"iISA^nn^ n.-»o.-t hu +!"a Qtl' AA-jitinnn! ci!>flffl.—q.Tssrf'-p fc~Tf^. ^SiiiSSTiwSi UUiirfiLi wf.'t.i-^/^/^/ j^A.S.SSiiU >/jr i i iS^ y *~t«U»i iwi iUi ^S'J^iiwi iJ y LiUyCi ^i • i *^*^, BilcspLT^ ip. Ss33i2^s Trial N0.137/2002 whercby snd whersundsr team^d 9 Addit'oiQi Ssssior!< Judgs after hotding the op^siiants gui!!^ for* the offence punishsble under Section 304 Part-II of the Indian Penal Code each nf +hen'! sentencec! to underQO '"'oorous itnDnsonrnent for 8 vears ond to QQV o f'n'e of Rs.100/-, i" default of pay"'er't of fine to further' urlde''go sirnp!e impr'isonment frtr* r>Mte I'nnn'ri^ 2. Judgment of conyiction ond or'der of sentence is choltenged on the gr-ound that wi+hout there beina an iotn of eyidence the Court be!o>" has conyicted nnd sentenced the ODoe!!a-"ts as "foreme"tioned and thereby coi'iiritted ai ilieco.'i+y -•3. ! <A 3. Cass of the Dr*osffcutton. m brief. is that o" 31-12.2004 at n'aht FiavefiiT< AhtnQcl (since deceassd) was present neQr* Torwo. K!r't<?hi Upa.j M€mcl> Srt?nitt, BiSaspur with other persons who were enjoying the New Year'. So'ne' dispute arose be+wee" the decensed a"d present appe!!&"ts. The oiccused/appellonts assoajitsd the deceased with 5+ick ond stzjmQ. The deceased fe!! down. Biood was oozing from his head- Her sister Ku. Rijwa^a (PW-1), Shan'in' Ahmad (PW-2) and othsr ssrsons hrtvff sesn the inc'dB"t. T" jur<sd QE'SO nQtrrQted ths ir'cide'nt to his sister and father. They took hin> i" the CIMS Hospital where he d'ed. F.I.P" was lodged yide Ex-P/1 on 1.1.2005. Spot map was prepered yide Ex.P/2. Plm" &nd blood stc^id ^oil wsre !ne;cove;redl fr*o??1 the spot y'de Ex.P/3- Xn^u®stoyer* the dead bodv wss DrsDc*r*sc! yide E?<-P/6 o'ftsr su!7*??top!r*£3 the witnesse5. E^eod bodv was sent for autopsy. Autopsy was conducted by &t".V.K.M,cinu'A"i (PW-1?) "ide Ex.P/22 and following 'njuries were found oyer the body of ihe deceased" i) one cbrasion of 2.1 x 0.1 cm. oyer left ankle il) fwo abr'csior*s upon .5 c??i. v .7 cm. oyer h's right bock. "*) two o.b?lrts'o"s of size 2.2 x 1-1 cm. over* h's r'iQht knes w\ one iaceratec! wound of size 3.4 x -B x .9 csr'i oyer his DQF'etat bone o.nd fracturs of oar'ie+a! bone found - Fr*2ctu*te, a'f ternDor<2! bone was found. 4. The doctor* hess oo'ned that CQUse of death WQS as a r*esu!t of shock due t© o''ievous iniurv CL"d death was hoir.icidn! i" nature- On "the bas's of disclosure statement made by the accused vide Ex.P/8, one stick wns recoyered at his instoLnce yide Ex.P/15. AppeHait burgesh made disclosure statement of s+ump yide Ex-P/9. Sam6 was recoyered at the instance of appe!!a"t &u!"gesh 'j'ide Ex.P/14. Aooellant A!ok Kumor made disclosure stotement of s+ick yide E.v.P/10. 5n"ie wns recorered fr'om Alok Ku""* vide Ex-P/15. Inder Sinnh mnde disclosure stnten'-e"t of stick yide Ex.P/11- Sawe was recoyersd yide Ex.P/13. Accused were arrested and selzed ar'ticles wer'e sent for" che""cal anc'ysis- Merg intwo.tion wcts ?tgcorcted v'ds Ex.P/13. 5. After recordina the stotements of +hs wi+nesses under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Code') a"d ofter completio" of inyestigatio", one chiu'ge sheet was fited before •rt'.e -4dd'tio"al Chief Jud'cic! Maaistrate, Bitaspur who in turn committed the case to the Court- of Sessions, ^i'rt1'??*;)!?' •cyn"B L"h?*-*S31 Ifi-^-r'i*.-1 0th A-l^i+i"*".—!^sfe'sl^-'sei 'T'if^nsff' /P T /" ^ PS;!—i)-i'"" i^iiwirfji/Ui i i ^-iii BW-I iC,; <£, JSnAi i*C*U ^' r,Uwi i iVT iiAj ^K«3.?iyii«3 tj uUyCr ^i . 1 *w./^ i3i iwrfpui receiyed the same o" trcnsfer for triat. 6. In order to proye the guilt of the accused/appetl'ints, the pr'osecution has e^antined as mariy QS 16 wltnesses. Staterneri+s of the accused wsr®recorded under Ssction 313 of the Code where they denied the c'rcumstsnces appear'ing a"ai"st them a"d innocency cnid false in'nlicatio" is o'ecded. ! sy^y"t^f4 Q ^*'^^i'S' ''i^! ^^•ctfift"^ Tttf^ny fv^'*s»v ^•<F'?ft?*r'lr*'' "y* ^n*<i^y"*'i !"?'**.' ft"? h—CnJtii&oj ^ r\MtM* * i»»iiUli ^/C'^Jii/T f3t <j UUl^B« Uj i'&i Uk| j»'iUii iifl wu i lfiJ|^i/i iUiitiy t/i hear'nQ to the par'ties, conyjcted cmd sentenced ths oppe!!Q"ts as "foreme^nt'oned. 8. I hcxys he'ctrd Shr>' ^-.A,Lohcyfi", cou"ss! for thfi; c^?&?-!lGrnts Qnd Shri AA.ishra, Deputy Sover'nment Adyocate for the State/respo"de"t and perused the iudament imsuoned and record of the court be!ow. 9. Learned counse! for the appellants vehemently W9Lied that Ku.Rijwane (PW-1) and Shamim Ahmad (PW-2) are interested a"d relatiyes' wi+nesses and they haye not seen the incident. Their s+atements do "ot inspi'w cor'fidence aid QT€. >iot sufficient for conyict!no the appeHants. Le&r'ied counse! further arQusd thcit according to case of prosecution, Vinod Ma!'knn'> (PW-9) has deposed that whi'e he was retur"ing fr'on' the p'ace of enjoyineit, he saw the decsased was !y>nQ bes'de tfie roor". He took hi?n to his house oyd info^wsd the'r1 !ne!o't8ve$ rtnd her* sister co.me out fr*o?n inside ths house shows theit Ku.ftilwcyTa Q"d Sh<3*Tt*in Ahmad haye "ot seen the inc'dent and they deposed cgainst the appeHants on!y with a v'lem to imolicate the aooe!la"+s falselv. Leomed counse! aiso ar'c'-'ed that the deceased wcs of cr"T"na! cytecedent &"d hQ"in(! so fmny enwities a"d i" the cbsence of cogent and positiye eyidence, conyiction a"d sentence of the OBpe!!ants is not sustainable under the !aw- 10. On the other hand, leamed counse! for the State/respondent suppor'tsd the judgnnent tinpugned and argued +hat Ku.Rijwwto (PW-1) and Sharr'im Mohhamad (PW-2) are sister and fa+her of the deceas&d. They are rehtiyes wi+nesses but their Dresence ot the t'me of '"cident were "atijral. Incidsnt took D'ace in fro"t of the'r house a"d the relatiye would ke the last to screen +he rea! culprit (t"d falsely ii"p!ica+e an innocent person. Only o" the ground "f their .^ ^ .-? re!at'yesness stflitements corinot be disccirded* 'Hie Drosscut'oH hos decloired Vinod Mo!'k<"" (PW-9) as hostile. According to his statemwt, he was o"!y chonce witness and his sta+er»'e"trequ'res """utely scrutiny. He has "ot supported the staten'ent recor'ded undec Section 161 of the Code. 11. In or'dei" to appr'eciate the con+e"+ions of the par+ies, I haye examined tha evldenc^ oddycad on b<fths!f of "rt^s DCirt'es. Znlurv found ovsr 't1i% bodv of deceased Fayeem Ahmcd and ccuse of death as a resu!+ of injury is "o+ disputed by the (Upelfcnts, otherwise established by the ststement of Ku. Rijwana (PW-1), Shamim Ahmsd (PW-2), KalTO Ahmad (PW-7), Vinod M.ar.ka"' (PW-9), autopsy report (Ex.P/22), merg intimotio" (Ex.P/13) and promptly iodged F.I-R. (Ex.P/1). 6ead body of deceased was exa'nined by t)r.V.K.M.CL"wani (PW-12) u'ho was noticed four' in iures over the bodv of the deceased and in iur'ies were rf~ ~ - - - ^ . - ^ lacerflted wound; f*3ctur*e cnd corTesponding frGc+urs of teynpor>al bof^s Qnd cjause of dsath was shocksd QS o1 rssutt of >n|ury cyd decth was hofTticidal i^ nature. 12. X" or*d^r to esto.blish 'H^e comDtici'h/ of 'H^e ctnoel!ants in the cr'me in au^stion the prosecut'or* has exfltiTli"sd Ku^'JW<:mrt (PW-1), sistef of ths dscecised. who hos 'odQsd the F.X.R- yids Ex.P/1 who has deDosBc! i" hsr evirierlcs that on 31-12.2004 her brother Fflfyeew AhiTsed went out froi" her house +o ce'ebrate ths New Yea". In the irstsryer'ing night of 31st Dscsrr.be", 2Q04 and 1 January, 2005 he heard sound of quarrel andshe, her mother' cr'd her fcther opened the door aid cams out a"d they saw that the p>'e%nt appetlants ond one Monu were becting her bro+her by stump and stick. Her bro+her fel! dc-wr!, +he" the cppeUcn+s fled awoy from the spot. They tried to take her brother, at that tiine V'nod ,'^arkam (PW-9) and one Bun+y came there- They took i" iur'ed in front of door of her house- Bbod was oozirig f''om his head. He was unconscious. They took h!r" to CIMS Hospital by rickshaw and dur'ing the course of treatn'ent he died at 4-30 a.m. She has specifically deposed tho.t ot the tiwe of inciderit &u>'9ssh was havi"9 stump ond rests persons were haying stick c"d she hcs lodged +he F-I-R- (Ex.P/1). l-1er stateme"t is cor-roborated by the sto+sment of her father Shamim Ahmad. Kal'm -Ahmo'd (PW-7) bro+her of the d'?cecsed hos deposed that at +he time of incident he was sleeping in his house- Afte!* hear'ng '^ /^, ]! /^] sound of wesping^ he !®ftthe bed. No o'ny person w^s four*d inside his houss whsr's h's broths?* wc>$ !v*"ci- Mothsr. 'fo'thcr'. s'stsr wd othsr oersons wsrls c'Jso Dfe;seMt thers. ~n^^ dececsBd told hi?n that he was be^xten bv the accused Dsrsois. the*^ he becof®unconscsous- Thsv took injursd to CXMS MosDitol whffr*s he died at 4.30 <!.ttt. Vinod Ma.rkQm (PW-9) hos o^ly suDDor+ed ths cetse of prosecutio" up to the extent thct he sciw the injured and he took hi"' i" front of his house (L"d informed his rela+iyes- The pr'osecution has declarsd hi'r! hostile- In his cross-exarninatio" he has not suppor+ed the case of prosecu+io" and Qis" d1sD<?$e<i tiirtt <?t th^ tiwe of 'nc'dent, street hciht wcfs not burr'ed. Vinod MQrlkclm (PW-9) is a chQnc^ witrtess. Hs was not residence &f vicin't^ wherB th$ iri!cid^r>t took Dlace. H^ wois co"linQ Q'f+ep cetebro.tinQ the New Ysar. H€ hQS t^iQt hs sc'w thot the in iurec! wois !vinn bft<>c!s 'His pocic! 'riien h^ took hi!^. 'n fr'ont of his houss ond infor'rned h's re!crtiyes. He is chcincs witnsss cry!d stcits!nent of chancs wtness i^suires F?li"uts!y scrutinv b&fo?*s Dlc'cln's QHV re!iemce. 13. In Bahal Ss^gh v. Stats of Haryana, *he Apex Court has he!d that s+"'ter"e"t of chance witness is "ot necessari'y incredible or unbe!ie"ab!e but does require cautious a"d c'ose scr'utiny. Para 10 of the said judgment reads as uncier':- "10. As to the Dresence of P.Ws.4 a"d 5 ot the time and oiace of occurrence the trial Court entertained qrave doubts. If by coincidence or chance u person happens to be at tne piace of occnt>r^£nc^ at the; time it is t<il<inQ Dlace he is ca!!sd o choncs witness. And if such a oerson hapoens to be a relative or friend of the victim or inlmically disposed towaras the accused then his b&iio €ichonc^ witness 's ylewed w*th susD'cio?'. Such a D'SC® of evidence is not necessarily incredibie or unbeiievabie but does require cautious and close Scrutiny. In the instant case, P.Ws-4 ^* 5 wer*e annl3t»crelKtions of ths d^cecised-one of 'H^em a close one. The reason aiven by them for beinq at the place of occurrence did not dppear to be true to tiie triai Court. There WQS not onv co?nDslltr1Q or sufficie-nt r^sson frtrl "the Hi<|h CoL'rt to differ from 1ne evaiuation of the evidence of the two chance witne35es. Tt ?ns>y wetl be ns r'emctpl^ed by the High Court thcit the respondent was also their coilateral but they appeared to be partisan witnesses on the side of the prosecution and hence their* testi"lonv w<s< vjewed with su<nicto" bv the tr**a! -JuciQe" 'AIR 1976 SC 2032 ••^ 14. Viy"?d Mrtrtk<?m (PW-9) hcss not suE?5or'ted the case of Drosescution in toto oytc! Dro^scut'ori dgsc'ored hlT( hosti'e but he hois suoDorted ths ca'ss of DF'osecut'o1" UD to the extent thctt he saw the iniured. In tihe !'Qht of the cforesQid leQCt! propositiio^ the ey'deic^e of V'nod MGrk/?-m (PW-9) ls rfiliabls o"!y UD to the extent thQt he h<?s se?w the In iursd. 15. Ku-Rijwa"a (PW-1), Shamim /t.hmad (PW-2) nnd K-alim Ahm.ad (P¥/-7) are closed re'atiyes of the deceased ond residence of same house. The prosecu+ion hns sxnl71iirled Ku^ilwana fPW-1) *" detotil. She ho,s S5®clficcr!!y€ici?n*ttBdthQt hBf •v'" v '= / ——- -^--. ^-> .—.- . —p.»». ; .—- n..^ -^—., br'other fel! dow" wiltiir* 'tf'is distrtnc^ of 8 to 10 stfiQS fro'n her house. She hos denied the su"<>estion in Dfliroi-8 of her cr'oss-exawinQtio" thDt one Gov'n.d Chondel cnd his so" Suraj assaulted the deceased the" ron a'A'cy fror" the spot and can'e towards her house to scye himself. -After knocking the door by neighbour's she hns opened the door. Shs has dlso dented the suggestio" of Ctbssncs o'f strsct !ioht 0'nd sr?elci'ficQ!lv d%nossc! 'H^ot i" the street i'oht she hns ss^" the incid'snt OJOHQ wi'H'i h®rmoth®rCL"d foith®rthouQh shs hos cid'?l*ttsd thQt her* adyocotc1- HQ^ Qctyi<$rl h$r to stc'+e on 'H^e basjs of hsr ^oHce stc'ternsnt but 'n cietai! cr*oss-e?<cirn'nation she has not stcttecl! Qrtyltmq that she has not ssen the inc'dsnt. The D^'osecution hos o.!so exo'Tnined Shsn»'?" .Ahm<ad ^5W~2'] fctther of l^e dssceased but ir> his d^ta'! cr'oss-exrtinltnQt*on. the defsnce has not been ctb!e to e.!ic!t cytyl^i'ng to discarci hls testirnony. Hs is cor'robor'stfid the stntement of her daunhter Ku-R' Iwma. Ka'im Ahinnd fPW-7) has olso s+a+sd that when he carn^ out froTt the house at that tirne his brother Ivtna oyid he has not see" the incident. He is not evewtness. He is witness of dying dec'anitio" a"d has d^Dosed "ttiat ir'iu^d has stQ+'ed before him that he was cxssauSted by "ri^e p.-—^— ... „ . „ .^-».-^—..— „ . „. —^_— ; ^. _ . -„,- -. -_„ - - _ -- _-_ „- - - - - - ^ accused oe?'so"s and he become unconscious ond Instly he died. Po!ice ha< recorded his statement under Section 161 of the Code as Ex.D/1- This fact a!so finds "'ace in Ex.D/1. He has stated the factum of dyinQ declarctio". 16. I" •Hiis case, Ku.ftnwtma (PW-1), Shan'-i"' Ahirad (PW-2) ond |<o!im Ahmttc! (PW-7) are closed relatives of the deceosed but only on the ground of their' re!ationshin thev ccLn"ot be characterised as in+erested witness. Whi'e dealinq with the case of relatiye witness ns In+er'ested w'tnesses, m bal'p 6'ryh ". C4. State sf Pusjsb , ths Apex Caisrt has he'd that a wit-iess is ?!o"n",a!!y to be CGis'dersd inde-Dc"clent unles^ h®or* she SDr(n<3S frorn sources which are 'ikely to be t&intsd. Para 26 of the sald iudQme"t re&ds CES under!- 26. fa. witness 's nornial'y to be considered i"depe"dent unfess he or she springs from sources whjch are likely to be tainted and that usuaiiy means uniess the witness has cause, such as ^niinity agcinst the accused, to wish to imp'icate hi?" falsely. Ordinarily, a close reiative would be the IdSt to screen tiie reai cuiprit and faiseiy impiicate an innocent person. It is true, wnen feelings ru" high and there is persona! cause for enmity, that there is a Tendency to drag in cn innocent person against whom a witness hcs a grudge aiong with the guiity, but foundation must bs laid for such o. crittcisw emd the were fQct of rebtionship far from being a foundation is often a sure guarantee of truth" 17. 'A/hils desling w.'ith ths sarr.e -questioi" 1" Masajti v. Stats sf U.P. , ths -A&ex Court h&s held thrtt sta+srn^nt of the relQ+iv® wtness shouid "ot be discarded o"!v o" the around of interested or oar+isc" witness. Witnesses should n<?t be discoirded on the Qrouind thot it is svid^tic^ o'F Q DQrtisQin OF* interested witness- 18. White dealinq with the san'e auestion in R'zfl" S. Aw. v. Stats of Chhatti^arh , 1+se Apex Court has obser'/ed that rsiGtio.ishsp i3 not a factor to Q'ffact cred>bi!>ty of <x w*tnes5. Zt is n'ofe o'fteyi thon not Q F's'o.tion wou'd not co"c«clthe actual culDfit ond maks oillegations a"ainst the i""oce"t oerso". 19. White de"!i"g wi+h +he sa"le question in N"md<o ". State of Maharashtris , the Apex Court has held that a c'ose re'ctivs cannot bs cha^Qcterized o.s a" "interested" witr*ess. He is a "QiturQ! witness. H's evide^ce,, howeyer", inust be scrutinised carefully. If on such scr'utiny, h's eyiden-ce is found to b^ i!11>t?''nsicci!!v reHabl'e. !nherw!nit!v Drobab!e and who!!v trustworthy, conyiction c&" be based o" the 'so'e' testimony of ajch witness. C!ose relationship of wi+ness wi+h the deceased o'' victiw is "o ground to '•eject his v E(1954) 1 SCR 145 3fl9641 8 SCR ! 33 "2003 AIR SCm 469 62007 AIR SCW 1835 ^..-flff eyider*ce< Orr if^e cor?tr'aT^/. clos^ rslo+'ve of ths de'cea'sad wou!d no'*rTtallv be most s^lyctant to SDQr*s the rsc1) cu'Drit ond 'f^i^etv i«nQ!ic<3t€'0^1 !Mrioc«>rttc'n$ 20. Z?n the o?<s<ent c<2se. d$ftr1iteh/ Kr-^ilwsnQ fPW-lY ShGrnf?n .Ahmad fPW-2^ onc! Kn!int Ah*noid (PW-7) QFS ciossd reicxtiyes of th®dec^cissd. Incidcnt took Qfcics ln fr'ont of ^t*eir houss. Accor'diyiQ to 'titeir stQtewent, 1^i®yhciye sssi 'frfis incident fro"* yery c'ose distance show that they haye seen the incident froni 18 to 20 fcet ir> ths stregt iiQht. Thsy hoiyc wnsdiQtsly took the iniur'ed to ths hospita! where he died at nbout 4.30 p-"' show that-they are the persons who im?ner!>Qte1y rushed the spot i.e. by ope"i"g the c!oor onc! CQme out wher®they haye see" the ir>cide"t. Their presence in their house is notura!- Their presence is suppor'ted by the subsequent act of inBmediate shifting to iniured to the hospita! and lodging the F.1.ft. Theif stateinents are corroborated by the stat^ments of each other*s Qnd a!so bv Dr>omDt IodQino F.I-R* Tl^e defence has "ot be<er> ob!e to s!icit anyi+tin^ fo show that thsy ar% 'r"sp!><^ted tfie pr^sent Qione!!rtn+5 on the or'ound of srsvious en>n>ty or sornc? other OQUSS. Their stQts'nenfs insDir'e confidencs (yid trustworthv. Their* stcitew^n+s mav bs sa'fs'y re!ied upon tmd sre sufficient for drawing infere"ce that the dppeNants were the persons who have ccused in 'ury to the deceased- 21. After apprecia+ing the eyidenc^ ayai'able on record, the Cour't below has conyicted and sentenced the oppeNants as aforeinentioned. Staternents of the wltnesses Qre "ot discQfded o" ths bosis of 'Kieir* reiationshiD. Lsorried Co'jr't b^!ow has r'Qhtiv convictsd osnd sentsncec! the (2nQe!!o.nt, CQnyictio" ond sentencs is sustcinabie under the law and is based o" the !ega! and credible eyidencs. Thfe®<iccu<&d hoye coused inJury to 11ie decsctsed c"id as a rs^jlt of such •njury ha disd wl+h'*i 4 hours dtjri!nft h>s tr®rttment.The Court bs!ow hcls convictsd ths onns!!ants uride!" Section 304 Part-II of the Indion Pena! Code and sentenced thern rioorous impr'isoriment for 8 years. Tcik'ng into consideTOt'oy the CQUSS of denth of the deceased by '"fl'cting injn!ny, sentence i?nposed upo" 'Hie o^ipe!!ants is neither excessiye "or unjust. No i"terferenc«is called for. 2.2.. Conseauerlt!v. 'Nhe^ oDDeo1! has no mer'lt. sar"©is !iab!e +o b®disrnissed <1Lnd is accordinalv dismissed. „-—-—" -—' T.P. Sbarma Judge