"'i?).. -''i!^J "SB^.4- ^,S--''fj /\^< HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANTS: (In Jail) RESPONDENT: Criminal Appeal No.252 of 2004 1. Katloo @ Binam S/o Hiralal aged about 22 years. •l,, 2. Dinesh @ Billoo S/o Hiralal, aged about 25 years. Both residents Chandani Chowk Mayapur, Ambikapur, Distt. Surguja (Chhattisgarh). Versus State of Chhattisgarh Through S.H.O. P.S. Ambr^apur Distt. Surguja (C.G.) {Criminal appeal under Section 374 (2) of Cr.P.C.} Present: Mr. Abhay Tiwari, counsel for the appellants. Mr. Sanjeev KumarAgrawal, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar. JJ ORAL JUDGMENT (14-2-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 21-2-2004 passed by the Sessions Judge, Ambikapur in Sessions Trial No.23/2003, whereby & whereunder learned Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Devanand Ghasiya, convicted the appellants under Section 302 of the IPC and sentenced them to undergo imprisonment for life & pay fine of Rs.1,000/- each, in default of payment of fine to furth.er undergo Sl for two months. Appel.lant No.1 Kalloo @ Binam has also been convicted under Section 25 (1B) (b) of the Arms Act and sentenced to undergo Rl for two years & pay fine of Rs.500/-, in default of fine to further undergo Sl for one month. ><^. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 3. I.A.No.1 has been filed on behalf of appellant No.2 Dinesh @ Billoo under Section 427 of the CrPC for direction to run the sentences imposed upon him in the present case and in S.T.No.69/2000 by the 1 Additional Sessions Judge, Ambikapur vide judgment dated 4-2-2002 in which learned Additional Sessions Judge has convicted him under Section 307 of the IPC and sentenced him to undergo Rl for five years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl forsix months, concurrently. ,',' 4. As per case of the prosecution,'on thfe fateful day of 17-8-2002 at about 5.45 p.m. on account of removal of material lying in the court yard of Devanand (since deceased) as a result of falling of wall, while Devanand was talking with his wife Anita (PW-1), all the accused came, they were holding sword, they abused Devanand, appellant Kallu pushed Anita (PW-1) on which she fell down on floor, thereafter, they chased Devanand and assaulted him by sword & other weapons and chopped neck of Devanand. Anita (PW-1) shouted for help, thereafter, she went to the house of Fakhru and narrated the incident to him. She came to the spot where chopped body of her husband was lying. Other persons have also seen the incident. She immediately went to the police station and lodged FIR within 30 minutes vide Ex.P-1. Merg was recorded vide Ex.P-22. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-17, prepared inquest over the dead body of the deceased vide Ex.P-18. Photographs were taken vide Exs.P-2 to P-5. Spot maps were prepared vide Exs.P-6 & P-7. Dead body was sent for autopsy to Government Hospital, Ambikapur vide Ex.P-15. Dr. A. Bhagat (PW-11) conducted autopsy vide Ex.P-16 and found following injuries: - (1) Incised wound over back of neck in semi lunar shape, most parts of neck were found cut, size 16c.m. x 10 c.m. x bone cut. (2) Incised wound just above first injury, size 10 c.m. x 3 c.m. x bone deep. (3) Incised wound over back of right shoulder, size 12 c.m. x 0.5 c.m. x 0.5 c.m. ^ (4) Incised wound over back of left shoulder, size 8 c.m. x 4 c.m. x bone cut. (5) Incisedwound over left forearm, size6c.m. x6c.m. xbonecut. (6) Incised wound over left palm, size 9c.m. x 2 c.m. x bone deep. (7) Incised wound over tight palm, size 6 c.m. x 2 c.m. x bone deep. (8) Incised wound over right forehead, size 8 c.m. x 2 c.m. x bone cut. (9) Incised wound over left orbito temporal region, size 9 c.m. x 2 c.m. x bone cut. (10) Incised wound over left tempero-parietal region, size 11 c.m. x 2 c.m. x bone deep. (11) Incised wound over left forghead, size 7 c.m. x 2 c.m. x bone cut. ^l1. (12) Indsed wound over left parietal region, size 9 c.m. x 2 c.m. x bone cut. (13) Incised wound .over left maxillary region, size 3 c.m. x 0.5 c.m. x 0.5 c.m. (14) Incised wound over right parietal region, size 5 c.m. x 1 c.m. x bone cut. (15) Incised wound over right occipito-parietal region, size 10 c.m. x 1 c.m. x bone cut. (16) Incised wound cut through right ear lobe upper part only, lower region intact 6 c.m. in length. Right frontal bone, right occipital bone, left parietal bone and left frontal bone were found cut. Mode of death was syncope and death was homiddal in nature. 5. During the course of investigation, appellant Kallu was taken into custody, he made discloser statement of bloodstained clothes and sword vide Ex.P-11, same were recovered vide Exs.P-12, P-13 & P-14. Appellant Dinesh was also taken into custody, he made discloser statement of stick vide Ex. P-20 and same was recovered at his instance vide Ex.P-19. Bloodstained and plain soil were recovered from the spot vide Ex.P-23. Clothes of the deceased were seized vide Ex.P-24. Patwari prepared sot map vide Ex. P-33. Seized articles were sent for chemical examinatioh vide Ex.P-31 and presence of blood was confirmed on sword, clothes of appellant Kallu and stick recovered from Dinesh. ;:«I"gi'- 6. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed against the appellants before the Court of Chief Judicial Magistrate, Ambikapur who committed the case to the Court of Sessions, Ambikapur. •I,, 7. It appears that on account of age of third accused Ravi, separate charge sheet has been filed against him before the Juvenile Justice Board. 8. In order to prove the guilt of the accused, the prosecution has examined as many as seventeen witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleadecj innocence and false implication in the crime in question. 9. After affording opportunity of hearing to the parties, learned Sessions Judge, convicted & sentenced the appellants as aforementioned. 10. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 11.Learned counsel for the appellants vehemently argued that the appellants have not committed any offence, ever as per case of the prosecution they have caused injury to Devanand on sudden provocation without any premeditation, on the spur of the moment and, therefore, if evidence of the prosecution is admitted as gospel truth, act of the appellant does not travel beyond the scope of Section 304 Part-1 of the IPC. Learned counsel further argued that appellant Dinesh has also been convicted under Section 307 of the IPC by the 1 Additional Sessions Judge, Ambikapur in Sessions Trial No.69/2000 and sentenced to undergo Rl for five years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for six months. Appellant Dinesh has filed application under Section 427 ofthe CrPC for ordering to direct the sentences to be run concurrently, though he has also filed separate appeal bearing Criminal Appeal No. 155/2002 which is pending consideration. 12.0n the other hand, learned State counsel opposed the appeal and submitted that in the present case, the appellants have not caused injury on sudden provocation or on the spur of the moment or without premeditation. The appellants came with dangerous weapons like stick, sword & dagger (gupti) and have caused as many as sixteen fatal injuries over body of the deceased which shows their grave intention of causing culpable homicide amounting to murder of the deceased by dangerous weapons. Evidence of Smt. Anita (PW-1) - wife of the deceased, who was present at the time of incident, is sufficient for drawing the aforesaid infference. 13.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 14.1n the present case, homicidal death of deceased Devanand as a result of fatal injuries found over vital parts of the body has not been substantially disputed on beha|f of the appellants, otherwise also, it is established by the evidence of Dr. Dr. A. Bhagat (PW-11) and autopsy report Ex.P-16 that death of Devanahd was homicidal in nature. 15.As regards complicity of the appellants in the crime in question, conviction is based on the solitary evidence of Smt. Anita (PW-1). As per her evidence, the appellants are neighbours of the deceased, before the incident on account of falling of wall of the appellants, material was lying in the courtyard of deceased Devanand andat the time of incident, Devanand told his wife that since the appellants have not removed the material, they (the deceased party) will remove the material with the help of labour. After telling aforesaid facts, while deceased Devanand was going from his house and passing in front ofthe house ofthe appellants, the appellants came out from their house, appellant Kalu was holding sword, he pushed her (this witness) on which she shouted 'bhago bhago', her husband rushed to save him and all the accused/appellants chased him up to shrubs Qahdi) 'ipomia beshram' where they caused injuries to him by sword, dagger & stick mercilessly. Devanand shouted for help 'bachao bachao' and fell down on which the appellants tried to come towards this witness, then she became frightened and rushed towards the house of Fakhru to whom she narrated the incident. Thereafter, they came near the place where her husband was lying and saw the injuries and dead body of her husband, then she went to the police station and lodged FIR. 16.As per evidence of Shiv Prasad (PW-2), Ganesh (PW-3), Sonamati (PW- 4) and other witnesses, they have seen badly injured dead body of Devanand near ipomia beshram shrubs. IMiU 17.Defence has cross-examined Smt. Anita (PW-1) in detail in which she has categorically deposed that at the time of incident she was present on the spot, the appellants chased her husband, she had not gone to the house of Fakhru when the appellants chased her husband, but she has seen the incident and 'the appellants have caused injuries to her husband, only when her husband fell down she went to the house of Fakhru. She is wife of deceased Devanand and relative witness. As per her evidence, there is some enmity between both the parties, but only on account of enmity or relation, her evidence cannot be discarded. Virtually relatives are the persons to spare real culprit and implicate innocent person falsely. „ .'••s . 18.0rdinarily, a close relative woujd be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the question of evidentiary value of the relative witnesses, the Supreme Court in the matter of Dalip Singh and others v. The State of Punjab has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:- "26. A witness is normally to be considered independent unless he or she springs from 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 screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person againstwhom a witness 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 general rule. Each case must be limited to and be governed by its own facts." 19.While dealing with same question, the Supreme Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar^ has held thus, "...... it will be erroneous to lay down as a rule of universal application that non-examination of a public 1AIR 1953 SC 364 2 2008 A1R SCW 3739 ijiin witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled thteugh the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in theprosecution. The relationship perse does not affect the credibility of a witness. Merely because a witness-happens to be a relative ofthe victim of the crime, he/she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest i^ seeing that the accused is somehow or the other, teonvicted either because he had some animus with the accused or for some other oblique motive." 20.Evidence of Smt. Anita (PW-1) has been substantially corroborated by the promptly lodged FIR Ex.P-1 and medical evidence. She has admitted execution of affidavit, but she has denied the contents of affidavit Ex. D-1 which reveals that the appellants have not caused any injury to her husband and some persons have caused such injuries, which she has denied in paras 20 & 21 of her cross-examination. Her evidence corroborated by the promptly lodged FIR and medical evidence inspires confidence, it is trustworthy and is safe to rely that the appellants have caused fatal injuries to Devanand resulting in his death, thereby they have caused homicidal death of Devanand. 21.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 22.Definitely, as per case of the prosecution, the incident took place on account of removal of material lying in the courtyard of deceased Devanand. But as per evidence of Smt. Anita (PW-1), while Devanand was going from his house and was passing in front of the house of the appellants, the appellants came with sword & dagger, they chased Devanand up to a considerable distance and thereafter, they caused as many as sixteen fatal injuries by dangerous weapons including fracture of right frontal bone, right occipital-parietal bone, left parietal bone and ileft frontal bone. This shows their grave intention of causing homicidal '"y Soma death of deceased Devanand. This further shows that they have caused injuries upon deceased Devanand mercilessly. 23.After appreciating evidence available on record, learned Sessions Judge convicted & sentenced the appellants under Section 302 of the IPC for committing murder of Devanand. Conviction & sentences of the appellants under Section 302 of the IPC are based on credible, clinching and legalevidence sustainable underthe law. 24.As regards conviction & sentences of appellant Kallu under Section 25 (1 B) (b) of the Arms Act, evidence adduced on behalf of the prosecution is also sufficient for drawing inference that he was found in possession of tf. prohibited arm sword. Therefofe, conviction & sentences of appellant Kallu under Section 25 (1B) (b) of'the Arms Act are also based on credible, clinching and legal evidence sustainable under the law. 25.For the foregoing reasons, the appeal deserves to be dismissed and it is hereby dismissed. 26.Considering pendency of appeal (Criminal Appeal No. 155/2002) relating to conviction of appellant Dinesh in S.T.No.69/2000, I.A.No.1/2010 is dismissed summarily. However, appellant Dinesh may file appropriate application in the aforesaid criminal appeal or file suitable petition under Section 482 of the CrPC. -— - Sd/- R.L. Jhanwar sd/~ / Judge TP. Sharma Judge u