HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.1194 of 2001 APPELLANT Suraj Kuraar Sahu, s/o ChhedUal Sahu, aged about 25 years, Occiipation Agriculturist, R/o Chliote Khaira, P.S. TehsU Saraiigarh, Distt. Raigarh (C. G) Versus RE8PONDENT c' Y}-. State of Chhattisgarh, tlirough P.S. Sarangarh, TaIisU Saraiigarh, Distt, Raigarh (C.G) DB: HON'BLE SHRI JUSTICE L.C. BHADOO & HON'BLE SHRI JUSTICE SUNIL KUMAR SINHA, JJ. Appearaiice: Shri P. Diwakar, Sr. Advocate assisted by Shri Adil Miahaj, counsel for the appeUaiit. Shri Ashish Shukla, Govt. Advocate/Asst. PubUc Prosecutor for ttie State, OR&L JUDGMENT (03.01.2008) The followHig jiidgraent of ttie Court was passed by L.C. Bhadop,J, (1| This appeal is directed against tlie judgment of conviction aad order of senteuce dated 28th of Noveraber, 2001passed by the First AddL Sessions Juclge, Raigaili, m Sessious Trial No.86 of 2001 whereby and whereunder tlie leam.ed AddL Sessions Jiidge, after holdiag tlie accused appeUaDit Suraj Kuniai' Sahu guilty for commission of tiie offence punishable u/s 302 I.P.C., sentenced him to undergo imprisonment for life and to pay a fiiie ofRs.500/-, m default of payinent of lliie, to further undergo R.I. for 5 mdnflis. However, tlie leamed Addl. Sessions Judge acquitted th.e co- acczised persous uamely Chhedilal, Tribhuwan aad Narsiagh @ Paiidit saliu. (2) The case of the prosecution, in brief, is that ttiere was a laiid dispute be^eeu Dhibu Saliu (siace deceased] and tiie i</.. ..^ ^ accused persous for fhe last 4 years aad flie inatter was pendiag io. fhe Court of Sub-Divisional Magistrate, Saraagarh. The further case offhe prosecution is that at about 7— 8 p.in., in. tlie night of 16,3.2001, after haviag meals Dhibu Saliu went outside to sit ia the Chowk. At about 9 p.nl., he was retuniing to his house, when he reached iii front offhe house ofaccused appeUaat Suraj KuBiai' Sahu, the accused persons suiTounded aad attacked hiin witli knife {Khardd^, Speaj: [Bhald^ etc. The co-accused Chhedilal, Tribhuwaa aiid Nai'siagli @ Paiidit Sahu forcibly tliro^vn Dhibu on tlie ground and were staiidmg on the body of deceased whereas the accused Suraj attacked him wifh knife [Kharda], as a result of which, Dibhu sustained nicised nyuries on fhe neck, head and ofher parts of fhe body. Heariag tlie screaois of Dhibu, his wife aiid daughter-ia-law came near fhe place of occurrence and fhey also raised screaais. Hearing their screains, people of fhe viciiiity came over fhere. However fhe accused persons fled frora tlie scene. Dhibu died on account oftlie iQJziries sustaiaed by him, On account offear, the wife aiid daught.er-ia-law did not go to fhe Police station to report. ttie iiiatter, However, fhe next day moniiiig, wife of Dibhu naniely Satwati Bai alongwifh her brotlier-ui-la^ Babulal aad viUage Kotevar weut to Saraiigarh aiid lodged the report iii the police station at about 8 a.ra, Receiviag tlie report, tlie Station House offieer, PoUce Station registered flie M'erg iiitmiation Ex.P.17. He left for tiie scene of occurrence, prepai'ed the iaquest Ex. P.6 on flie body of Dhibu. He sent the body of deceased for post m.orteia exaBiiaation under Ex. P.19 to the Prmiaiy Healfh Center, Saraxigarh, where Dr. R.P.Patel (P.W.8) conducted tlie postGOLOrtein aiid preparcd tlie postoiorteni report (Ex. P.10). He prepared the site plan offhe place ofoccurrence Ex. P.20. He took iato possession ofblood staiiied soil ao.d plam soil under Ex, P-9. One wood was seized under Ex. P.7. He also seized oue electdc bulb aad a piece of wii'e under Ex. P.8. The accused appellaiit Suraj while ia poUce custody gave meiaoraiidum Ex.P.12 on 18.3,2001 aiid iii pursuaace of tliat one ii'on knife fKharda^was seized under Ex.P/13-A. The blood stsined clotlies of accused Suraj was seized under Ex.P.14. The documents relatiiig to laiid disl3ute r ® i.e., the ceitified copies ofjudgment aiid decree passed m Civil Suit No.42-A/98 etc., were also seized under Ex.P.21. The seized articles were sent to fhe Forensic Science Laboratoiy, Raipur under Ex.P,23 from where tiie report Ex. P.25 was received. (3) After completion. of tlie mvestigation, the charge sheet was filed agahist 4 accused persons ia fhe Court of Judicial Magistrate First Class, Saraiigarh, who ia tuni coinmitted the case to tlie Sessions Judge, Raigarh from where tlie leamed Fit'stAddl. Sessions Judge received the record for trial. (4) In order to estabUsh ftie charge agahist tiie accused persons, 15 witoesses were exaianied by the prosecution. The stateraent of the accused persons were recorded u/s 313 Cr.P.C. iii wliich tiiey denied flie material appearmg agaiast tiliein iiii the prosecution evidence aad stated tliat tliey are innocent, tliere was aiiimosity wifh Dhibu aad fhey did not attack Dhibu aiid only on suspicion they have been impUcated in flie crim-e. (5| The learaed Addl. Sessions Judge, after hearmg counsel for fhe respective parties, convicted aad sentenced accused appeUaat SuraJ as albreiaentioned whereas he acquitted fhe other co-accused persons. (6) We have heard Shri Adil Miahaj, learaed cozinsel for fhe appeltaat aad Shri Ashish Shukla, Govt Advocate for tiie State. (7) Haviag heard counsel for flie parties, we have scruthiized flie material available on record as well as tlie judgment of the tdal Court. At tlie out set, Mr. Adil Minliaj has not disputed ttie horaicidal death of Dhibu. More over, P.W.8 R.P. Patel has stated that on 17.3.2001, he conducted the postinortera on tlie body of Dhibu whUe working as Assistaiit Surgeou ia the Prmiaiy Health Centre, Sarangarh aiid he noticed as inany as 16 injuiies on his body out of which, 13 itijuries were iacised wounds, two itijuries were lacerated wounds aad there were ten contiisions on tlie chest. On intenial exaininatiou, he found that trachea was cut. 4 ^l- ••^ Botli sides of carotid, jugular vessels and thyroid vessels were cut. Recun'ent laryngeal nerve was also cut. Oesophagus was cut. Adjoiaing Biuscles aad tissiies were cut According to him, all tlie above itijuries were iacised wounds, aiitemort-em iii Mature aiid were caused by sharp edged weapons. Injur}r no.16 wifh iatemal iajuries was sufficient ia tlie ordiaaiy course of nature to caiise deatli. Therefore, iii view of tiie above inedical evidence, it is established tliat tlie deatli of Dhibu was hoixiicidal ia nature. (8| As fai' as the corapUcity of the accused iii crmie hi question is concemed, ia tliis case the conviction of tlie accused primarily rests ou tfie testioiony ofP.W. 1 Sabvati Bai, wtfe of tlie deceased aad P.W.2 Rita Bai, daughter-in-law of tlie deceased. The otlier witaesses naxaely Guddu @ Jairain (P.W.3) aiid Gaiiesh Ram Saliu (P.W.4) have not supported tlie prosecutlon case. (9| Leained counsel for flie appellaat argued tliat in fact botli the alleged eye witnesses P.W. 1 Satwati Bai & P.W.2 Rita Bai are close relatives of flie deceased, tliey are iaterested witoesses aad ia order to iaipUcate the accused persons, tliey have given false evidence. In fact, froin peinsal ofthe record it is not estabUshed tiiat fheyhad witaessed tlie crime because tlie tuixe of iacident was tlie night at about 9 p.m. and as per tlie evidence of prosecution witaesses fiiat ^vas a dai'k uight; tlierefore, ia tlie clai'k night it was not possible for theisi to witaess tlie iiicident. He furflier argued tiiat tlie above argument liacls support froni tlie fact tliat nobody reported tiie matter m. tlie night, had tlie wife aad daughter- ia-law of the deceased witaessed tlie nicident in the night itself then tliere was 110 occasion for keepmg tliemselves coiifined to tlieir house not uiformiag to aiiybody. He furtlier submitted that P.W. 1 Satwati Bai herselfhas stated ia Pai'a 5 ofher eviclence tiiat tlie police reached to tiie place ofmcident in tlie village in the saaie night and when tlie PoUce reached iii tlie same night why she did not approach them ? Why the poMce personnel did not corae to her ? Why Dehali Nalishiwa.s not lodged ia the night itself aiid the same was lodged m the next day inoi'nuig ? This suggests fhat fhese two witaesses - Iiad not witaessed fhe crmie. (10) On tlie otlier hand, Mr. Shukla, Govt Advocate, supported flie jiidgraent of tlie torial Court. (11) It is an admitted fact that Satvvati Bai (P.W. 1) & Ritabai (P,W.2) are wife aiid daughter-iii-law of tlie deceased. The settled law regardiiig relative wifatiess is tliat fhe evidence of fhe relative witiiess cannot be rejected out-rightly nierely because he is a relative witaess aad his or her evidence caiinot be characterized as aii "iaterested witaess^, he is a natural witaess, his evidence however, must be scratinized cai'efully. If on such scrutiay, his evidence is found to be iiitriiisically reliable, iaherenfly probable and wholly trusfcvorfliy, conviction caa be based on tlie 'sole' testmiony of such witoess, Close relationship ofwitiiess witii the deceased or victim. is no ground to reject his evidence. On the conti'ar}r, close relative of tlie deceased would normally be niost rcluctant to spai'e tlie real culprit aiid falsely ioipUcate an iiinocent person. The said view has been taken by the Apex Court in. the matter of Namdeo V. State of Maharashtra reported in 2007 AIR SCW 1835. {12} Siiuilar view has been taken by tlie Apex Court iii tlie eai'lier decisions rendered ia tlie matter of Dalbir Kaur (Mst.) -Vs- StGte ofPunjefb (1976) 4 SCC 158; and Harbans Kaur -Vs- State of Ha.ryana. (2005) 9 SCC 195 as also in tlie matter of Rizan and another Vs. State of Chhattisga-rh^ thr^ugh thc Secretary^ Govt. of Chhattisgarh^ Raipur AIR 2003 SC 976. Therefore, based on tlie above principle, we have to scrutmize tlie evidence of tliese tevo witiiesses whether tlieii' evidence mspires full confidence of tlie Court that tliey ia fact witiiessed the criine iii question when the accused Siiraj was attacking fhe deceased Dhibu. The first iaformation report Ex. P.1 was lodged by none else tlian P.W.l Satevati Bai, wife of deceased m which she has categoricaUy nientioned tliat at about 9 p.in., ni fhe night when she came out of her house ia order to aaswer tlie caU of nature she hearcl tlie cries ofher husband froin tlie side ofhouse ofSuraj @ saying that Suraj is attackmg hiia, he be saved. Then she saw fhatwhat has happened. She raised the cries. She called her daughter-iii-law Rita aad informed her that cries are of her fatlier-ia-law. She asked her to reaiaia staadiag neai' fhe door of the house. Her daughter-iii-law was staaduig near tiie door of tiie house whereas she proceeded towards tlie house of Suraj, She saw tliat her husbaiid was lyiiig on the ground, accused Chhedilal, Tribhuwaa aiid Narsiiigh @ Pandit Sahu all the 3 were staadiag on hini aad the acciised Suraj was attackiag hmi witli Kliai'da (knife), In ttie rEieaiitinie, Guddu @ JairaBi came aiid said tliat he be left She saw all fhis in. tlie Ilght of electdc bulb aad asked as to why they are attackiag her husbaiid, biit all tiie 4 accused persons entered tlie house aiid Guddu went to his house whereas iii flie examtn.atiou-iQ.-chief, she has stated tliat accused Pandit Saliu was caiT}iriiig Kharda (knife), Tribhuwan was carrying latlii, Suraj was canyin.g kuife, Chhedilal was canyiag Speax' aad fhey were attackiag him. When she alongwith her daughter-ia-law were going towards tlie scene of occuiTence they saw fliat accused persons were attackiiig, flierefore, they becam.e frightened aiid did not proceed fuither, they raised the cries, on which accused Suraj stayed back whereas tlie otlier three accused persons entered the house. Heariag the cries, Guddu caoie aiid asked fliat Dhibu should not be attacked 011 which Suraj asked him fliat he should leave the place otlien¥isehe will attack hioi, hearing tliis Guddu left tlie place, On account offeai', they also retunied to their house. In para 2, she has further stated that there was no liglit at flie place of occuiTence ia the whole night because the Ught was disconnected by flie accused persons, next day Bioiniag they went to the place of occiiiTence. In cross exainiaation, she has furtlier stated tiiat ia tlie night the matter was not disclosed by fhein to aaybody. She has furfher stated that iii ttie night itself the poUce came aiid tlie accused Suraj on his own accompaiiied the poUce. She has furtlier statecl that she along^dth her daughter in law went zipto tlie house of Rameshwar aiid from fliat place hidiag tliemselves they witaessed tlie crmie aiid raised the cries. She has also stated tliat tlie night was pitch dark and it is iiicoiTect tliat she did 's, --r- ^ / not see tlie accused Suraj, Chhedilal^ Tribhuwan on tlie place. She saw theni neai' froin tlie house of Raineshwar where th-e bush tree was fhere. In para 11 she has fui-tlier categorically stated that the Ught had gone offm tlie whole village at about 9 -9.30 p.m. iii th.e night. She has furfher stated tliat on accoiuit ofdarkness, she was not able to see beyond 20 feet (13| P.W.2 Rita Bai has stated tliat heaiiag cries of her fatlier-in-law, she carae out of tiie house alongwifh her motlier-iti-law upto Dumar bush aiid it was at a distance of 25 ft. froni her house. In front ofhouse of Chhedilal, accused Chhedilal, Tribhuwmi, Paaclit and Suraj all were attackiiig. Her father-ui- law was nuining here and tliere. The fhree accused persons went to tlieir house whereas fhe accused Siu'aj was stsnding tiiere. Her fatlier ia law was cryiag "Save", "Save" arid he was lymg on tlie groiincl. Suraj continued with beatiiig of her father m. law. In fhe meaii tmie, Guddu came and asked them not to attack hiin. Thereafter, tliey went to tlieir house aiid started weepmg. (14) Guddu @ Jah-am has been examined as P.W.3, who has stated tliat he alongvvith Gaiiesh was sitting 011 tlie square of the viUage. They heard the cries asave)?, asave??. Therefore, he alongwith Gan.esh went iii front of Uie house of Munna niaster where fhey saw flie accused Suraj aad deceased Dhibu. Nobody else was tliere. Accused Suraj was attacking Dhibu with fist, When he mtervened, Suraj raa away to his house. Dhibu was lyiag flat, Berag frightened, he went away to his house and iii the momiag at about 6 - 6.30 a.m. he came to know tiiat Dhibu expired. This witaess has beeu declared hostile and he has not suppoiled tlie prosecution case. Even P.W.4 Gaaesh Ram Sahu who was said to be present with Guddu has also stated fhat Suraj was attackmg Dhibu wifh Knife aiid Guddu interveiied, Dhibu was lyiag on Uie groiuid, He saw an mjury on tlie back of Dhibu. He has also been declared hostile axid in. para 7 of his cross examin.ation, iii the first iastance/ he has stated fhat it is iacorrect to say tiiat he did not see that fhe accused Suraj was attackmg Dhibu but in the next Ime he has furtlier stated '3^ ^T- ^" \- fhat it is correct to say ttiat he did not see tlie accused attackixig witli knife. (15) A perusal of tlie above evidence aad the first mfonnation report given by flie Satvati Bai (P,W. 1) shows ttiat Gaaesh Raia and Guddu have not supported the prosecution case. About fliree acquitted accused persons naoiely Chhedilal, Tribhuwaii aad Narsiiigh @ Paiidit, fhese two witiiesses have not stated that. they were present on fhe place of occuiTence or were attackiag fhe deceased Dhibu. Guddii has stated ttiat accused Suraj was attacking witli fist whereas Gaiiesh Ram has stated tliat Suraj was attackiag witli kiitfe .and as per tiie evidence of P.W.l Satwati Bai, iii tlie same uight police caine 011 the scene ofoccurrence. Ifitwas so, why tliese persons did uot disclose fhe fact to police aiid why tiie report was lodged iii tlie next clay moninig creates serious doubt fhat whetlier tiiese witaesses iii fact witnessed tiie ciiiiie. Even the evidence ofP.W.l Satavati Bai, P.W.2 Rita Bai does not inspire confidence of tlie Court on the follownig grounds fhat io. tlie first iiifbrmation report, Sat^vati Bai has categorically raentioned tliat she saw tlie uicident in the light of electric biilb whereas iti her court evicleiice, she has stated tliat ttiere was fuU darkness aiid the electiic conuection was disconnected by tlie accused persons. In tlie F.I,R., she has mentioned tliat aU tlie 4 accused persons left for the house v^hereas ia tlie Court evidence she has stated fliat when slie raised cries, except accused Suraj, 3 other accused persons entered fhe house whereas Suraj reraaias staiidiag fhere. It has not been con'oborated by flie mdependent witoesses. Apart froni tliat, tiieii' evidence regardiag witaessing of tiie cx-mie becomes doubtful on this ground also tliat in. the FJ.R., Satwati Bai has 2iientioned th.at she asked her daughter 111 law to renxaia standiag neai' tlie gate of tlie house aiid she proceeded towai'ds tiie place of iiicident whereas iii ttie court. evidence she has stated tliat she alongwith her daiighter ia law went towai'ds tlie place of occurrence, when tiiey saw that tlie accused persons were attackiiig Dhibu, they became frightened and m otiier place she has stated fliat she alongwith her daughter-ia-law was witaessmg flie mcident from near tlie house of Rameshwar. ^v^ E CW7J ^s^'"^. ;^ ^" ^ ''^^w-^,0^' ^ l-»r (^) \^< -R. (16) In this connection, ifwe look into the site plan. Ex.P. 13, prepared by the Halka Patevari at flie iastaiice of Satwati Bai, fhe house of fhe deceased Dhibu is at Serial No. 1 which is said to havebeen at a distaace of 110 inetres froni the place ofoccurren.ee. More over, in. between the place ofoccuiTence and house no. 1, fhere is a tura in. the street, fherefore, it was not possible for Rita to witaess the iacident from. tliat place. Even as per tlie evidence of P.W. 10 Dohnard Rathiya (Patwari) fhere were trees on the baiik of fhe pond aad therefore, it was not possible for aiiybody to see froin tliat place eitlier froin 9th hoiise of Raiaeshwar or froni tlie house no. 1 of tlie deceased. It has been nientioned ia the site plaa that the distaiice beteveen fhe place of occurrence aiid fhe place where Sat^vati witnessed fhe ciiine ia fhe electric light is about 1 10 aietres whereas iu fhe evidence, Satwati. Bai has stated tliat she was watchin.g fhe uicident frora distance of 25 ft. Even the Patavaii has stated tliat tiiere was no Dumar tree on the place froni where Satwati Bai has claimed to witoo.ess tlie iiiciclent. In flie site plaii, it has been mentioned aad fhe Pat^ari has stated tliat Satavati disclosed him that she witaessed tiie ciime ia ttie electric light whereas in fhe court evidence she has stated tliat tliere was no electaiic Ught as tlie light was disconnected by fhe accused persons at about 9 ~ 9.30 p.ra aiid there was a pitch dark, Even P.W. 15 tiie Investigating OflScer, namely Pooraii Singh Beni io. para 13 ofhis evidence has stated fhat Satevati Bai is aii old lady and she caa walk with tfie help of soraeone, she caanot walk on her own aad she was suffeniig froin cataract. He has fuilher stated that durmg th.e night tlie body of Dhibu was beiag protected aad watched by Chowkidar and Constable, why fhe matter was not reported m the night itself and why Dehati Nalishi was not prepared ia the said night ? This shows tiiat WL fact, Sabvati Bai aad Rita did not kaow tlie iacident ia fhe night. They caine to know about tlie iiicident only iii the mommg when tlie matter was reported. If tliey witaiessed the iacident tlien fhese eonstables who were watchmg tlie body could have been produced before the Court and ia tiie evidence tliey coiild have disclosed version of tlie prosecutioa. case. Therefore, for tlie foregomg reasons we are. of the considered ,.>^A -""'N ^^.w^ ^ f 'x', ^ '%."^^/ "^:33sSf^w ^ Y-/ /Rao/ 10 opiaion that the evidence ofP.W.l Sat^vati Bai aad P.W.2 Rita Bai does not uispire full confidence ofthe Court that tliey had witaessed the crime io. question aiid even the iadependent witaesses Guddu @ Jairam (P.W.3) aiid Gaaeshram. Sahu (P.W.4) have not corroborated fhcir evidence. As szich tlie fiiidiag of flie tiial Court regardirig compUcity of tJie accused appeUant Suraj m attackiiig Dhibu with knife caanot be sustained. The same is liable to be set aside. (17| In the result, appeal filed by appeUant Suraj Kumai' Saliu succeeds. Tlie conviction and sentence iinposed upon him u/s 302 I.P.C. for coniiaittiiig tlie miirder of Dhibu are set aside. He is acquitted offhat chai'ge. It is stated that he is ia detention sin.ee 18.3.2001. He be set at Mberty fortliwitli, if not required io. aoy otih.er case. r Sd/- L.C, Bhadoo Judge Sd/- Sunil Kumar Sinha Judge "3 s