^S ;;i^SE.-Ss^^'^feaE^^S^^@S@ r: HI6H COURT OF CHH/tTTtse/tRH. BIL/>SPyR DivisLon Bencli: Hon'ble Shri L.C. Bhadoo & Hon'ble Shri 5unil Kumar Sinha. JJ. Criminal ADpeal No. 169 of 2003 Dashrath 85 others yersus State of Chhattisgarh JU&6MEMT Judgment for consideration Sd/- Sunil Kumar Sinha \ Judge :?^s^^^-^§fc-S3y'"^ •:'wwv'.S:'^iS'^Ss3 Hon'bte Shri Justice L.C. Bhadoo. J ft%-^-E-^ -^T Sd/- L.C.BHADOO Judge Post for Judqment:^-7/01/2008 Sd/- '^^~mi72VOS~~ ^ 'VXS. '^.'aL'a ^•: KT^ 1'^- HI6H COURT OF CHHATTrS6ARH. BILASPUR Crimirial Appeal No. 169 of 2003 Appellants ifSRi^^ '-f^^^~H 1. Dashrath, s/o Samaru Satnami, aged about 47 years, 2. Sarvan alias Shravan, s/o Samaru Satnami, Aged about 32 years, 3. Shankar, s/o Samaru Satnami, aged about 44 years, 4. . Sada Kumar alias Bijali, S/o Dashrath Satnami, aged about 25 years, 5. Nehru alias Mangal Prasad, s/o Samaru Sataiami, aged about 34 years, 6. Shyam Singh alias Sham Singh, alias Batwa, s/o Dashrath Satnami, aged about 27 years, 7. Bhurwa alias Vishram s/o Shankar, aged about 24 years 8. Samaru, s/o Balram, aged about 70 years, All the appellants are permanent residents of village . Nathelapara, Police Station Pandariya, Distt. Bilaspur (C.G). Versus . t Respondent State of Chhattisgarh, Through:- Police Station - Pandariya, Distt. Bilaspur (C.G.) (ADpeal under SeCtion 374 (2) of Cr.P.C.) Appearance; Shri Rajesh Pandey and Shri Rakesh Pandey,counsel for the appellants. Shri Akhil Mishra, Panel Lawyer for the State/ respondent. Criminal Aprieal No. 169 of 2003 ^J (NVISION BENCH) HON'BLE SHRI L.C. BHADOO <& HON'BLE SHRI SUNIL KUMAR SINHA, JJ. JUD6MENT (2.?.01.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment of conviction and order of sentence dated 16.12.2002 passed by the II Addl. Sessions Judge (F.T.C), Mungeli, Distt. Bilaspur, in Sessions Trial No.317/2001, whereby the appellants have beeh convicted for the offence punishable u/ss 148, 341/149 & 302/149 of I.P.C. and sentenced to undergo R.I. for 3 years and to pay a fine of Rs.500/-, in default of paymentof fine to further undergo R.I. for 2 months; Simple Imprisonment for 1 month & imprisonment for life and to pay a fine of Rs.3000/-, in default of payment of fine to further undergo R.I, for 2 years with a direction to run the sentences concurrently. (2) The brief facts are that villa9es Nathelapara, Dadipara and Daukampa are situated adjacently. Ram Singh (since deceased) was the resident of villa9e Daukampa and the accused persons are the residents of village Nathelapara. On 23.6.2001 at about 4 p.m., Ram Sin9h and his wife Bajrhin Bai (P.W.l) were going to village Dadipara for collectin9 grain seeds. Village Nathelapara is situated on the way to village Oadipara. When they reached near Jait Kambh of village Nathelapara, the accused persons, who were armed with lathi,stopped them on the way and started abusing them. They attacked over Ram Singh by lathis. Ram Singh fell down on the spot. On hue and cry, many persons gathered there. Bajrhin Bai P.W.l immediately rushed to Sarpanch and Kotwar Sanpat Das. She narrated the story to them. She was taken to Police Station by the Kotwar and the First Information Report (Ex.P.2) was lodged at about 9 p.m., on the same day, on which, the investigation commenced. The Station House Officer lodged a Merg intimation (Ex.P.l) and another Merg was lodged under Ex.P.24 on I"h '<•'• i! ;Mi t IA.I l^ t^l j^l Criminal Appeal No. 169 of2003 24.6.2001. After giving notice to Panchas (Ex.P.3), inquest on the body of deceased was prepared under Ex.P.4, plain soil and blood stained soil along with a plastic shoe of the deceased were seized under Ex.P.5. The site plan was prepared by Station House Officer under Ex.P.6 and another site plan was also prepared by village Patwari under Ex.P.23. After taking the accused appellants in custody, their memorandum statements were recorded under Ex.P-7, P-9, P-11, P-13, P-15, P-17 and P-19, in pursuance of which, lathis were seized from the possession of the accused appellants except appellant no.8 Samaru. The dead body of the deceased was sent for postmortem examination, vuhich was conducted by Dr. V.P. Jaiswal (P.W.13) who prepared the postmortem report (Ex.P.32). He noticed the following injuries on the body of deceased: (i) A contusion in size of 15cm x 3cm on the right side of the chest. (ii) A contusion in size of 20cm x 3cm just 2cms below injury no.l. (iii) A contusion in size of 5cm x3cm on the right fore arm. (iv) An incised wound in size of lcm x 1/2cm x lcm on the upper outer part of right elbow. (v) A contusion in size of 6cm x 3cm on the outer side of left arm. (vi) An incised wound in size of lcm x 1/2cm x 1/2cm on the left elbow (vii) The right fore arm had curved at the wrist. (viii) Left fore arm hadalso curved at the wrist. Sound of crack of bone was coming while pressing injury nos.7 & 8. (ix) An incised wound in size of lcm x t/2cm x lcm on the distil region of the left leg. (x) A contusion in size of 10cm x 3cm on the right scapular region (xi) A contusion in size of 8cm x 3cm on the right supra scapular region (xii) A contusion in size of 7cm x 3cm on the lower part of right scapular region. (xiii) Several contusions of different sizes were foundon the right thigh (xiv) A contusion in size of 8cm x 3cm on the back portion of left thigh ii> »J:l ^. t' w EH ,s 1^1 lvl ;• II ^.M i: aiii ^ r :- '•'•'.,. ' Ite?. 1 ''"S:STM>..:^ ' • ^ Criminal Aopeal No. 169 of2003 (xv) Two contusions of different sizes were found on the back side of the left leg (xvi) A contusion in size of 5cm x 2cm on the back side of the right leg; (xvii) Two contusions in size of 15cm x 3cm and 14cm x 3cm on the lower portion of lumbar region. (xviii) One lacerated wound in size of 5cm x 2cm x lcm on the head just 5 cms above the left ear. On internal examination, he found fracture of right radius and ulna bone. There was also a fracture of left ulna bone. On dissection of head, he noticed a fracture of skull bone beneath the injury no.18. clotted blood was present in the brain. There was a fracture of 5 left rib and there was also a contusion admeasuring 7cm x 6cm x 6cm in the right lung. He gave his opinion that all the injuries were antemortem in nature. The incised wound vuas caused by sharp edged weapon whereas other injuries were caused by hapd and rough object. The cause of death was shock due to injuries on brain and lungs. (3) On 23.6.2001 accused Samaru had also lodged a First Information Report (Ex.P.29-A) against Ram Singh (since deceased), which was reduced into writing by Station House Officer K.P.S. Paikra and victims Samaru, Shyam Singh ©Batwa and Dashrath (all accused persons in this case), who had sustained injuries were sent for their medical examination and their medical reports (Ex.P/28, P/26 <& P/30) were collected: Since Ram Singh had died, further investigation in the matter of the sard F.I.R. (Ex.P.29-A) was dropped, however these documents were collected as evidence. (4) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Mungeli, who in turn committed the case to the Court of Sessions Judge, Bilaspur, from where, it was received on transfer by the Second Additional Sessions Judge (F.T.C.), Mungeli, who conducted the trial and convicted and sentenced the accused/appellants as aforementioned. i^rl N w IM :Jkg :IM iwtS j-lffiilll ,w r'i ^s" s&-,^ Criminal Appeal No. 169 of2003 ^i^iii? aiss' (5) The conviction of the appellants is based upon the testimony of sole eye witness namely Bajrhin Bai (P.W.l), who is the wife of the deceased. Though 3 other witnesses were examined by the prosecution claiming themselves to be eye witnesses, namely Dayaram (P.W.4), Amritlal (P.W.5) and Munna @ Jagdish (P.W.9), but their testimonies on the point of witnessing the occurrence were not believed because according to the trial Court, they reached to the plaee of occurrence after the incident was over, and the deceased was lying on the ground. Learned counsel for the appellants argued that the sole testimony of Bajrhin Bai (P.W.I) cannot be believed firstly on the ground that she happens to be an interested witness being the wife of deceased and secondly that she has not deposed about the injuries sustained by the accused persons, therefore, a correct version of the incident has not been disclosed by her. Regarding testimony of the sole eye witness, he retied on the decisions rendered in the matters of Syan Slnah and others -vs- State of M.P.. 2000f3) M.P.H. T. 50 (CiB} and Lallu Manihi wd another -vs- State of J'harkhand. f2003) 2 SCC 401. (6) In Gyan Singh Case (supra), the Division Bench of the M.P. High Court held that in so far as conviction based on testimony of sole witness is concerned, the Apex Court in case of Karunakaran Vs. State of Tamil Nadu. reeprted fn AIR 1976 SC 383, observed that w»herean accused is going to tose his life in a serious charge of murder, it is only necessary that the Court should be circumspect and closely scrutinize the evidence to come to an unhesitafing conclusion that the eye witness on whose testimony the conviction is based is absolutely reliable. Where the sole witness on whose testimony the conviction was based had himself given the FIR and there were serious departures in his evidence from the version given in FIR and the evidence was contradicted by the medical evidence, the said witness was wholly unreliable. (7) In Lallu Manjhi case (supra) the Apex Court held that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, ii !.( :1^ to'a !|^ !: i I. ' •^.. <i: ' i.;: \'^ f, K:.-..;?<!.. !l^""^g "^k ''y;^ 1 "% s ';^ ^' Crimmal Aroeal No. 169 of2003 ^.^9 namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or disearding the testimony of the sin9le witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, befor'e acting upon the testimony of a single witness. (8) In the matter of State of Pun.iab and Surme.i Sinah -vs- J'it Sinah and others. AIR 1994 S.C. 549, the Apex Court held that the evidence of the interested uvitness needs to be scrutinized considering probabilities, past statements and attending circumstances. In the said case, the F.I.R., and deposition of the witness before the Court were containing different versions as to purpose behind going to scene of occurrence and proper explanation for difference in versions, was not forthcoming. Even the presenceof witnesses at the scene of occurrence was doubtful and in that situation, version of the witness was held to be unreliable. (9) In the matter of Rizcm and another -«?- State of Chhattisaarh. throuuh the Chtef Secretary, Sovt. ^f Chhattisgarh. Raipur, AIR 2003 S.C. 976, in para 6, the Apex Court held that the relationship is not a factor to affect credibility of a witness. It is more often than not 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 a case, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. (10) In Namdeo -^s- State of Maharashtra. 2007 AIR SCW 1835. the Apex Court further held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness hassome direct or indirect 'interest' in having the accused somehow or other convicted due to ahimus or for some other oblique motive. The Apex Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. 4, :t l^' < ^' i^ M 1\ < 4-! •f^'' .-:-.,,..._^"-si, yf""^\ •'e-'Sa, f' t'sf.'' '. t":: i^^^y S^Sl::-fcS;'^ Criminal Apueal No. 169 of2003 ia"iEsi%tf-iffa His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The Apex Court also referred to the decision rendered in the matter of Hartians Kaur and another -Vs- State of Harvana. 2005 AIR SCW 2074, in which, it was held that there is no proposition in law that relatives are to be treated as' untruthful witnesses. On the contrary,reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. (11) Therefore in view of the above legal position, the evidence of P.W.l Bajhrin Bai has to be scrutinized with care and cautipn considering all probabilities, her past statements and the F.I.R. as also the attending circumstances and after such scrutiny if her evidence is found to be trust worthy or wholly reliable, conviction can be based on her such testimony and if her testimony appears to be neither wholly reliable nor wholly unreliable, whether on due corroboration from other evidence and attend- ing circumstances, she can be relied on and conviction can be based on it or not has to be seen. P.W.l has deposed that on thefateful.day at about 4 p.m., when she along with her husband reached near Jait Kambh of village Nathela para, accused Samru, met them on the way. After seeing Ramsin9h, he said that our enemy has come, thereafter Samru, dashrath, Shankar, Nehru, Shravan, Bathua (Shyam Singh), Bhurva (Vishram) and Bijali,all the accused persons present in the Court, surrounded her husband and they started beating him. They assaulted her husband repeatedly by means of Lathi and Tabbal. She has specifically mentioned that Nehru, Dashrath, Shrawan, Bijali and Bathua were armed with Tabbal (sharp edged weapon) whereas remaining accused persons were armed with lathi and they assaulted her husband by means of their Tabbals and lathis. The accused Shankar had ^> :-—:—^:a^:- ;'<CT .^^;^ Cruninal Apoeal No. 169 of2003 chased her to a long tistance at the time of Marpit. Thereafter, she called Tahtu Sanpat, Bhuwan Doctor and Sarpanch Dhana of village Dau Kapa saying that her husband is being beaten. Then she again reached near Jait Kambh taking Sanpat and Tahlu with her and saw that after assaulting her husband, he was dragged to the verandah of the house of accused Samru. Seeing this she sent Tahlu and Sanpat to see whether her husband is alive or dead. Sanpat told her that he was hardly breathing, on which, she went there and saw that by that time her husband has died. In the cross examination, vide para 10, she deposed that at the time of lodging the F.I.R. in Police station Pandariya, she had told that her husband was killed and it is incorrect to say that she had only told that her husband was surrounded. In para 11 of the cross examination she has denied this suggestion that she had not told to the Police that her husband was repeatedly assaulted by lathis and Tabbals. She has further deposed that it is incorrect to say that she had not told to the Police at the time of lodging the report that Nehru, bashrath, Shravan, Bijali were armed with Tabbal. She says that she had told this fact at the time of lodging the report. She has deposed that she had told that she was chased by Shankar to a long distance due to which she reached to the house of Kasiram and if these facts are not mentioned in the F.I.R. (Ex.P.2) or her police case diary statement Ex.b-1, she cannot tell the reasons for the same. (12) A perusal of the F.I.R. (Ex.P-2) as also the police case diary statement (Ex.D-1) of this witness would show that she has no where mentioned about the fact that some of the accused persons, as named above, were armed with Tabbal. She has mentioned on earlier occasions that they were armed with lathis. In her court evidence, she has made exaggerations in this regard on which she was cross examined by the defence counsel but in the cross examination, she gave explanation that she had told to the police about such weapons carried by the accused persons. If we look into the postmortem report (Ex.P.32), it would appear that the deceased has sustained 3 incised wounds of difference sizes, two of them on both the elbows and one on the distal region of the left le9. Certainly, these & u a •^ ffll w ^i :N Ki .-p1 '?!;.. ^' '»s». as ''fe f Criminal AooealNo. 169 of2003 ^^ injuries were caused by sharp edged weapons about which this witness has mentioned in the examination in chief, but she has not mentioned about such kind of weapons either in the F.I.R., or in her earlier statement, therefore, the omission of mentioning of these facts in the FIR or in the police statement is fatal and it creates doubt on the testimony of this witness, particularly, in the circumstance when she has made mention about the details of weapohs carried by the accused persons. Not only this, this witness has not at all deposed about the injuries sustained by the accused persons, for which, they were medically examined. P.W.13 Dr.V.P. Jaiswal, Assistant Surgeon, has deposed 1'hat on 24.6.2001 accused Samaru, s/o Baliram, aged about 70 years was brought before him for medical examination and he noticed thefollowing injuries on his person; (i) one lacerated wound in size of 6cm x icm x lcm on the head, 8cms above the right ear. (ii) one incised vuound in size of 3cm x 1^ cm x lcm on the head just lOcms above the left ear in the parietal region. He opined that injury no.l was caused by hapd and rough object whereas injury no.2 was caused by sharp edged object. He has also advised forX-Ray examination of the injuries and has prepared his Report Ex.P.30. Dr.P.L. Kurre (P.W.12) has deposed that on 26.6.2001, accused Dashrath, s/o Samaru was brought before him for examination under pequisition Ex.P.27. After examination, he noticed that many abrasions were there on the left side of his head. Membrane formation had already taken place on the wounds. The vuounds were within the duration of 4 days and were caused by hard and rough object, they were simple in nature. He prepared his report Ex.P.29. He had also examined Shyam Sin9h, s/o Dashrath on 26.6.2001 on the requisition of the Police, but no external injuries were found on his body. (13) Out of 3 accused persons, the injuries of Shyam 5ingh and Dashrath were not fatal injuries which could have called for any explanation by the prosecution, but as far as injury of Samaru, s/o Baliram is concerned; they were the fatal injuries both on his head and they certainly need explanation ^y •tl ^ .&' li-^»«« s^>, •^ 10 Criminal Aooeal No. 169 of2QQ3 ^ s!^s by the prosecution, particularly by P.W.l. In this regard, learned counselfor the appellant argued that non-explanation of these injuries, particularly sustained by accused Samaru, was fatal to the prosecution. He placed reliance on the decjsion of the Apex Court rendered in the matter of State of Rajasthan -vs- Rajendra Sinah. AIR 1998 S.C. 2554. In para 8 of the said decision, the Apex Court observed that all the witnesses had categorically stated that they had not beaten the respondent and seen any injury on the accused. But the evidence establishes that the respondent had two contused lacerated wounds: one on his face and one on his head. The injuries were bleeding injuries and visible and yet the witnessesstated that they had not seen any injury on the person of the respondent. The Apex Court held that it would mean that neither the family members of Harveer nor the two independent witnesses were willing to give a true version and had tried to suppress the part played by some of them which had resulted in causing injuries to the respondent. The Apex Court finally said that the High Court was, therefore, justified in not placing reliance oh their evidence. (14) So far as non-explanation of injury(s) caused to the accused(s) are concerned, the Apex Court held in the matter of State of Suirat ^s. Bai Fatima and another. (1975} 2 SCC 7, that when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow; (1) That the accused had inflicted the .injuries on the members of the prose'cution party in exercise of the right of self-defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. (15) Further in catena of decisions, it has been held by the Apex Court that if it is shown that accused sustained injuries in the course of the occurrence, prosecution has duty to offer an exptanation so as to satisfy the .1 .Kl:l ^ is •*sl:, w^, \y-'^ •^^s&sS^ 11 Criminal Aooeal No. 169 of2003 (;-arf court about the circumstances under which the injuries were caused. If the prosecution fails to do so, it may mean that: (1) the prosecution has suppressed the genesis and development and truth of the occurrence and has not presented the true version; or (2) The witnesses who denied the presence of such injuries are lying in regard-to a material part of the occurrence and therefore cannot be believed; or (3) The defense version which explains the injuries is rendered probable, so as to throw doubt on.the truth of the prosecution case. These inferences may not be drawn if (a) the injuries are not serious; or (b) if the evidence as a whole is so cogent, clear, consistent, credit worthy that it outweighs the effect of omission on the part of prosecution witnesses to explain the injuries. (16) So far as injuries of accused appellants Dashrath and Shyam Singh are concerned, those injuries may not be visible or noticeable, but the injuries sustained by accused Samaru were noticeable injuries and they were visible because both these injurieswereon the head having sizes of 6cm x 1/2cm x lcm and 3cm x i-cm x lcm and looking to the seriousness of the injuries, the Doctor has advised for X-Ray examination. But the witness Bajrhin Bai (P.W.l) has not deposed a single word regardmg those injuries sustained by the accysed appellant Samaru. In fact, if she had witnessed the entire incident and the manner in which the incident took place and if she was present at the scene of occurrence at the time of incident, then she coiild have certainly seen that the injuries were sustained by accused Samaru also and she could have mentioned about jt in her evidence. Even by other means also, the prosecution has not been able to explain the injuries sustained by appellant Somaru. In this