/' » 'BLS T. P. f ^, -jj^<l s^, Pandroo, son ofJagree Aged about 44 years, r/' viUage, Kapaaar, P.£ Kodenar, Distt. Ciiaattisgai-n 'asrar, Vs. State of Chliattisgai-h, through Police StaticD Kodenar, Distt. Bastar f2t ni m 'ntTTo's?. ' S^.^-?•^Sti<? <-?5^£i Ku. Nii'upama Bajpai, counsel tbr tlie appellaat. Sliri Akhil Mishra, Panel Lawyer, for the State. 'ia-a AA—'*3^< Tfie foUowiag judgiuent of fhe Court was passed by •S-*^-9 [li TIlis appeal is dtrectsd aiid flie judg'iuent of convicuon aad order ofseiitence dated 02.07.2002 passed by ttie IVAddl. Sessions Judg'e, Jagdalpur (Bastar) ia Sessions Trial No.47'1/2000, wliereby fhe appeUaat has been conv-icted u/s 302 I.P.C. and sentenced to unclergo imprisoimicnt for liie suid to pay a fuie of Rs.300/-, ia defaiilt of payiaent of fine, to furfaer underpo R.l. for 4 nioiiftis. (8) The case of fhe piwsecution is fhat. on 24.8.2000, deceased Butali smd Iiis wife Ganga Bai (P.W.4) had gone to •Kofaeuar laarket. In tlie everung when fhey were retiu~nixig back to their house, accused appeUaat Paiidroo was also coniing Cr.A.No.919/2002 % bebiad theni having an axe (Tangia) 311 his hands. When they reached near Silakjhodi railway station, accused appeUaiit started quarrelmg with fhe deceased sayiug fhat fhe brotb.er of fhe deceased has kept the wife of fhe accused as his own wif'e and duriiig ftie quarrel, he assaulted fhe deceased froin back portion of Tangia and thereafter he gave a knife blow on the cliest of fhe deceased, due to which, the deceased sustaiaed injuries and died. The inatter was reported to poMce sta'tion Kodenar on 25.8.2000 by ftie wife of deceased nainely Ganga Sal (P.W.4) on which, fhe flrst iirfonuation report (Ex.P.7) v,Tas registered. The F.1.R. contaias the nai&e off&e appellant. 1) Durmg fiie course of investiga.tion, site plan. was prepared under Ex. P.8. The m.quest on the body of deceased was prepared under Ex.P.3. Plain soil, blood staiaed soil, blood staiaed clofh i.e. lungi, one Taagia aad oae knite were seized under Ex.P.5. The dead bodv of the deceased was seiit for postinortein exanunatiou to Priiaaiy Health Centre Bade Kilepal aiid ttie postmortein exainm.s.tion was conducted bv Dr. Tensingh Nag (P.W.l), who prepared his report Ex.P.l. He noticed only one stab wound adineasuriag l" x 0.4" x 0.5" on fhe right side ofthe chest at the eiid of 5th rib. In tlie mtemal examiaation, he found that tliere was a fracture in fhe 5til rib. TiT.e braiii, lungs, liver and Kidnevs were congested and the pericardium was fult of blood as fhe right cham.ber of tlie hesTt was niptured. He gave his opiaion fh.at ffae cause of death was shock due to iutemal haemorrhage as a result of mjury- to tlie heart aiid fhe death was homicidal iu natlire. (4| After completion of usual mvestigation, charge sheet was tUed in fhe Court of u'udicial Magistrate Pirst Class, Jagdatour. who in tui-n committed tlie matter to the Court of Sessions Judge from where it. was received on trarisfer bv 4th Addl. Session Judge, Jagdalpur, who aiter conducfcmg fhe trial. convlcted aad sentenced tlie accused appeUant as i: 1 ———-. Cr.A.No.;.'19/2002 ^x^ |5) The convictiou of the appeBaut is 'based upon fhe sole testiiaony ofP.W.4 Gangabai, wife ofdeceased. (65 Leamed counsel for the appellaut argues fnat the sole testiiaony of Ganga Bai sbould not be believed as she happens to be fhe wil'e of deceased and therebv she is an interested v/itness ia fhe case. Secondly, she argues fhat even if fhe coiuplicity of tbe accused ia crime ia question is proved, the ofience coiamitted by him. would uot travel beyond section 304 Part II I.P.C. and the conviction u/s 302 of I.P.C. cannot be sustaiiied. (7j On fhe other haad, leamed State Counsel opposes these ai'giiinents and supports flie judginent and order passed by the tiial Court. We have heard leained counsel for tbe parti.es aad have also perused tlie records of the Sessions Trial. (9i So far as tlie first arguinent regarding sple eye \vitaess being the close relative of fhe deceased is concera.ed, it was beld by the Apex Court in fhe matter of ofCfahatttsparh.'Ktapur. AO? 2003 S.C. §76 in Pwa.6 that tfae relationsuip is not a tactor to attect credibility of a wimess. 3t is inore otten thaa not a relation would not conceal actual culprit aad make aUegations agaiast an innocent person. Foundation has to be laid ifplea offalse it&plication is raade. In siich a case, fhe Court has to adopt a carefiil approach and analyze evidence to fiiid out whether it 1s cogent aiid credible. 10} In case of Xanuieo -vs- St«xte of_ SCW 183S, fhe Apex Court furfh.er held fhat a witness who is a relative ol' deceased or victiru of tlie cnme caanot be characterized as 'iiiterested intia.ess'. Tlie term 'interested' postulates tiiat Uie witness has soine direct or indirect 'uiterest' ia haviag tlie accused somehow or ottier convicted due to aiiimus or for soine otber obMque luotive. T'he Apex Court also observed fbat a close relative caanot be characterized as sai 11 SS&i ysa^, :«f ^ 'S!K^.^ .^iC-"' ~'~-i:^3K.^'r s"» 'iaterested' witness. He is a 'natural* witn.ess. His evidence, nowever, m.ust be scrutuuzed carefully. Ifon sucii scrutuiy, his evidence is found to be intrtasic&lly reUable, iaherenfty probable aad wholly trust\vorthy, conviction can be based on tlie sole' testicuony of such witaess. Close relationslup of witaess wim ftie deceased or victnn is no ground to reject his evidence. On flie contrary close relative of tlie deceased would norm.atty be m.ost reluctant to spai^ ti.ie real culprit aad talsely iniplicate aa iiiuocent one. The Apex Court sj.so refei-red to the decisioa i^ndered m the matter of Bariia.ns Seair in which, it was held fhat fhere is no proposition in law that relatives are to be treated as untruthful witaesses. Oa fhe coiitraiy, reason has to 'be shoii'n when a plea of partiaUty is raised to show tliat the witoesses had reasoa to shield fhe actaal culprit aad t'alseb- impUcate flie accused, (111 Therefore, it is ciear uiat only on account of the sole eye- witaess beiag the close relative of tlie deceased; it cannot be beld tliat his or her testanony cannot be relied on. If, 011 due scrutuiy witli care and caution as uidicated by tiie apex Coiirt, iiis/iier testimony appeai-s to be tnistivortiiy aad depeiidabte, tiie convictioii can well be placed upon his/Iier sucb. testanony. (12) In Uie present case, it'we look into 1iie evidence of P.W.4 UEUiga Bai, she has deposed tliat on Uie fateful day when tliev were rehu-nmg toack from Uie market, tlie' accused was also commg behind them. She farfher deposed that when tliey were on the way tlie accused gave a kaite blow on the chest of ber husbaad ajicl when he was takiag out ffie pierced knife: her Iiusband succumbed to tlie mjuw sustamed by ^lim. This is lier version in tlie cozu-t evidence. In the F.I.R., she has meiitioned that when they were on fhe way, the accused came to ttiem having aa axe (Tangia; ia his hands aiid he gave 3 Tangia blows on the back of fcer husband aad before giving tnose blows he said to her husbaad tliat the brotlier of her 1-iusband has kept his wife as his o\vn wife and sayiag fhis he ^ T— 'r.A. was quarrellmg wiih hiru and at'ter all tliis, tbe knite blow was given by him. on fhe chest of fhe deceased causing stab wound. [131 The atbresaid evidence of tfais witness 1s supported by niedical evidence of Dr.Tenusing;h Nag (P.W.li, who conducted fhe postinorteiu on the body ofdeceased oil 27.8.2000. He had aoticed one sta.b wouiid on tiie chest of tlie deceased aiid bacl ' i also noticed that fhere was ruoture of right chamber of fhe beai't. TIierefore, on ftiis evidence, tlie arguinent advanced by leamed counsel for fhe appellant that tlie version of P.W.4 Gaaga Bai, being wife of the deceased stiould not be relied on, caiinot be accepted and fhe same has to be turaed down. It is established on record fhat ia fact, me aupeUaiit had ca.used iiljuiy to the deceased, which has resulted in tiis deatli and ttie coiapUcity of fhe acciised appellant ia cnme ui question is fulty estabUshed in fhis case. [141 So far as fhe second argiiiuent regarding otfeiice not ti'ayeUing beyond section 304 Part II ofthe I.P.C. is coucero.ed, tlie contents ofthe F.I.R (Ex. P.7) would show ftiat. ftie deceased, his wite aad fbe appeUant all had gone to the inarlcet aiid tbey were retuniiiig back to theii~ house. The accused appeUant was ibllowing the deceased and his wlte and he was having an axe in Iiis haad and when they reached near Silakjhodi railway sta.tion fhe appeUaiit came to the deceased and started quarreUiai sayiag fhat the brofher offtie deceased tias kept his wite as his own wife aiid if fhe version of tlie F.I.R. is believed, he gave 3 Tangia blows on fbe back of fhe deceased and thereafter, he ;ave a knile blow on his cliest. It' the postmorteia report is looked into, tliere are no injuries on his back, fh.erefore, it cannot be held fhat it. is estabUshed that in fact tlie appeilailt was keeping an iatention to cause fhe laiu-der of fhe deceased. Had he been keepiag such an iatention, he would have caused mjuries to flie deceased with the Iielp of Tangia itself which he was cam'm.g ia his hand aiid according to the version ofP.W.4 Gaiiga Bai iii FIR, fhe accused had given 3 Tangia blows frosa its back side on the back of deceased, but none of those blows •liad caused any iajiuy to hiiu. It is after all thj.s, ttie app&Uant Cr.A.No.919/2M2 gave single blow on fbe chest of fh.e deceased which proved fatal. Therefore, ia the facts aad circuinstaiices oftliis case, it is apparent th.at the appellaat was having no inteiition to cause tlie deafh of deceased and his iiitention caruiot be attnbuted froia the evidence on record alfhough the evidence on i-ecord would clearly show fhat he was haviag kuowledge ttiat while causiag sucli uijuiy to fhe deceased, it niay cause his deatb aiid therefore, fhe oifence coruinitted by the appellaat would not travel beyond section 304 Part II of I.P.C. aud we hold it accordiagly. (15) In ftie resiilt, fhe appeal is partly aUowed. The conviction aud sentence awarded to flie appeUant u/s 302 I.P.C. are set aside. Instead thereof, fhe appellaat is convicted u/s 304 Part [I of I.P.C. aiid he is seistenced to undergo rigorous iniprisoniiient fbr 8 years. It is stated ftiat the appeUaut is ia jail since 21.9.2000. ttierefore, he would be entitled for the set- otfofthe period already undergone by him.. Rao Sd/- SunU Kumar Sinha Judge Sd/- T.P. Sharma Judge