HIGH COURT OF CHHATTISGARHJ BILASPUR CORAM: Hon’ble Shri Rajeev Guptai C.J. & Hon’ble Shri Sunil Kumar Sinha, J. v Criminal Appeal No. 803 of 1990 Preetamlal & Others Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON’BLE SHRI JUSTICE RAJEEV GUPTA i1 m/ié’m Sdl- Chief Jusu'ce Post for JugglnmggLJLzog/201 o Sd/— Sunil Kumar Sinha \Judge /08/26‘1 0 t?! A HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha J.‘ ‘ Criminal Apgeal No. 803 of 1990 APPELLANTS 1 Preetamlal, son of Motiram Kalar, aged 23 years 2 'Ghanshyam, son of Motiram Kalar‘ aged 26 years (Appellant No.2 dead, appeal dismissed as abated vide order dated 9.4.2010) Both residents of village Pipar Khar. P.S. and Tahsil Dongargarh, District Rajnandgaon MSt. Kala Bai, .daughter of Motiram Kalar, aged 38 years, resident of village Kurshipar-Kala, P.S. and Tahsil Dongargaon, District Rajnandgaon (Appellant No.3 dead, appeal dismissed as abated vide order dated 9.4.2010) Versus RESPONDENT State of Madhya Pradesh 9 (Now State of Chhattisgarhh (Criminal Appeal under Section 374 (_2) of The Code of Criminal Procedure. 1973) Appearance: a Mr. Surendra Singh, Sr‘fAdvocate with Mr. Neeraj Mehta, Advocate for the appellant. Mr. J.A. Lohani, Panel Lawyer for the State. \ ‘\ 2 Criminal Appeal No. 803 of 1990 JUDGMENT (12.08.2010) Following judgment of the Court was delivered by ‘Sunil Kumar Sinha, J. (1) The three appellants were convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life by the Second Additional Sessions Judge, Rajnandgaon in Sessions Trial No. 27/90 vide judgment dated 12th of Jury, 1990. t x e (2) Appellant No.2— Ghanshyam and appellant No.3- Kala Bai died during the pendency of the appeal, therefore, their appeal was dismissed as abated vide order dated 9.4.2010. (3) The fact, briefly stated, are as under:- The appellants were brothers & sister. Their relations with Dayaram, since deceased‘ were inimical. In the intervening night of 18th — 19th of August, V1989, deceased- Dayaram was sleeping on a cot in the verandah of his house. His son Nandlal @ Nathu (PW-1) and daughter-in-law — Shila Bai (PW-3) were also sleeping in a room which was at a distance of 6 feet. The allegations are that in~ the mid-night, the appellants entered into their house and committed murder of deceased-Dayaram. The incident was witnessed by Nandlal @ Nathu (PW-1) and Shila Bai (PW—3). The case of the prosecution is that after committing murder of the deceased, the appellants took the dead body of the deceased and threw it in a public well. in the morning the dead body was seen in the well. Yashwantrao (PW-2 — son—in-Iaw of the deceased) went to the police station and lodged the merg intimation (Ex.-P/11). The Investigating Officer reached to the place ‘of occurrence, gave notice (Ex.-P/1) to the Panchas and prepared inquest (Ex.-P/2) on the body of the deceased. The dead body was sent for its post- mortem examination to Government Hospital, Dongargarh, where l riminal Appeal‘No; 803‘- of 19§ _ the post-mortem examination Was conducted by Dr. N. Sachdev (PW—12). The post-mortem report is Ex.—P/12—A. According to the post-mortem report, the mode of death was asphyxia but ho definite opinion was given regarding cause of death. Based on ali this, the First Information Report was registered under EX.-P/13. During the course of further investigation, statements of the above 2 eye—witnesses were recorded on 21.8.89 and 22.8,89, in which, they stated about the incident that in the intervening night of 18m - 19th August, 1989, the appellants committed I murder of the deceased. ; ix' (4) ‘tfhe conviction of the appeiiants was based on the eye-witness account of Nandlai (PW-1) and Shiia Bai (PW-3). { .- (5) Mr. Surend‘ra Singh, learned Sr. Counsel appearing on behalf of the appellant, argued that it was the case of the prosecution itself that the 2 eye—witnesses were inimical to the accused family; they were interested witnesses being the son and daughter—in—law of the deceased; though they claimed to see the incident in the intervening night of 18th 49"“ August, 1989 but they disclosed it to the police on 21.8.89 & 22.8.89 i.e. after 2-3 days, whereas they were throughout in touch of the police; the explanation given by the prosecution for recording their evidence at belated stage is false and not acceptable; therefore”, the conviction based on the testimonies of these witnesses cannot be sustained. (6) On the other hand, ‘Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgme’ntpassed by the Sessions Court. (7) We have heard the learned co’unsel for the parties at length and- have also perused the records of the sessions case. F: C o 4 Criminal Appeal No. 803 of 1990 (8) So far as argument relating to interested witnesses is concerned, in Harbans Kaur and another —Vs- State of Haryana, 2005 AIR SCW 2074, the Supreme Court heid that there is no proposition in Iaw that relatives are to be treated as untruthfui witnesses. On the contrary, reason has to be shown when a plea of partiaiity is raised to show that the}witnesses had reason to shield the actual culprit and falsely implicate the accused. (9) § ‘In Namdeo —Vs- State of Maharashtra, 2007 AIR SCW 1835, the Supreme Court held that a witness who is a relative of deceased or victim of the Ctime cannot be characterized as ‘interested’. The term ‘interested’ postulates that the witness has some direct or indirect ‘interest’ in having the accused somehow or other convicted due to animus 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. His evidence, however, must be scrutinized carefully. lf 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 deceasedror 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 imlicate an innocent one. p (10) in Sonelal -Vs- State of M.P., 2008 AIR SCW 7988, the Supreme :Court again said that mé'Fely because the eye witnesses are family members their evidence cannot be per-se discarded. Relationship is not a factor to affect credibility of a witness. It is more often than not$that a w 5 Criminal Appeal No. 803 of 1990 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 cases, the Court has to adopt a careful approach and E analyse evidence to find out whether it is cogent and credible. (11) Therefore, this argument cannot be accepted that the testimonies of relative witnesses cannot be relied on, only on the ground that they were the relatives of the deceased. However their evidence is to be scrUtinized with due care ’and caution and if such evidence is found “a credible in appreciation, the conviction can well be based on their such testimonies. (12) Now we shall scrutinize the evidence of 2 eye—witnesses. (13) Nandlal (PW-1) is son of the deceased. He has deposed about the inimical relations between the appellants and his family. He deposed that on the fateful night his father was sleeping on a cot in the verandah of their house. He was sleeping in a nearby room along with his wife Shila Bai (PW-3). At about 12 in the mid—night, he heard cries of his father, on which, he woke up and burnt chimney. His wife also woke up. They saw that appellant-Preetamlal was throttling his father bypne hand and by the other hand he has gagged his mouth. Appellant-Ghanshyam was pressing the chest of his father and appellant-Kala Bai was holding his legs. When he said that why they are killing his father, appellant- Preetamlal said him to golinside the house and keep quite, otherwise he would also be killed. Thereafter the three appellants took his father towards the badi. He along with his wife went inside his house. Almost similar evidence has been given by Shila Bai (PW-3)- U 6 2 h (14) We note the conduct of these witnesses. Even after seeing suc a serious incident in the night, they did not raise any alarm at that time. P—3 W dposed e in examination-in—chief that in the morning when they were informed by Kotwarthat the dead body of her father-in—iaw is in the well, te matter aiso came in the notice of her husband and thereafter h Yahwantrao (son—in—Iaw of the deceased) and her usand went to s hb lode the report. This shows that Yashwantrao had met with these 2 g witnesses prior to lodging the report i.e. merg intimation (Ex.—P/11), which he io‘dged on 19m Augt 1989, but in the merg intimation there i no whisper about commission of murder of the deceased by the accused perons. If 2 eye-witnesses, in fact, ad seen the incident in the night, s h they should have explained it to Yashwantrao (PW—2) who had gone to lodge the repor on ther instanc. They may be frightened to disclose it t i e publicly, but Yashwantrao was the member of their family, therefore, in normal circumstances, it was expected of them that they shoul disclose d thi fact to him. The abve conduct of these itnesses also creates doubt s o w on heir testimonies. t (15 Besides the above we further note that Nandlal (PW-1) was a ) witness of inquest (Ex.-P/2) prepared by the Investigating Officr on e 1.8.89. He has deposed in Para-16 in his examition—in-chief that a 9 na notice (Ex.-P/1) w given to him by the police and he had participated in as v the inquest proceedings and he also put his signature on it. At this point of time also, he‘did not disclose to the police that, in fact, the deceased was murdered by the accused persons in the above manner. This again creates a doubt on the testimony of Nandlal (PW—1). In Para-25 of his cross—examination, he deposed that on 19.8.89, he had shown the cot to AMAW Criminal Appeal No‘ 803 0f 1990 us s 7 43v Criminal Appeal No. 803 of 1990 the police and had stated that the deceased was sleeping on the said cot. Though he deposed that he stated to the police as to how the accused person committed murder of his father, but we find that no such statement was recorded on the said date. He denied the suggestion that he did not disciose to the police as to how the incident took place on 19.8‘t89. Vide Para-27 of the cross—examination, he deposed that the police interrogated him for 2 days and he had stated al! this to the police but no such document has been filed by the prosecution in the matter. On the co‘htrary, it comes in the evidence of Investigating Officer, ASI Brijram Gupta (PW-11) that on 19.8.89, when he visited the house of deceased- Dayaram, Nandlaiiand Shila Bai met him but they did not disclose as to how the incident took place. He deposed that on 21.8.89 he closed the investigation of merg and started further investigation of murder, then only, on 21.8.89 Nandlal disclosed about the incident in the above manner. From the records of the case, we gather that 161 statement of Nandlal (PW-1) was recorded on 21.8.89 and 161 statement of Shila Bai (PW-3) was recorded on 22.8.89. In appreciation, we find that present is not a case in which the eye-witnesses could not disclose the incident on account of fear etc. and they have explained the delay in such manner. On the contrary, in this case, the eye-witnesses ar'é claiming that they disclosed all this to the police at the earliest opportunity on 19.8.89 but in the scrutiny their such claim is found as false. Therefore, their testimonies appear to be unreliable on this account. ., i N ,. (16) In Balakrushna Swain —Vs- The State of 0ri$sa, AIR 1971 SC 804, the Supreme Court held that unjustified and unexplained long delay n part of Investigating Officer in recording statement of material eye «\r \\ i l witness during investigation of murder case will render evidence of such witness unreliabie. In the present case also, we find that there is unjustified and unexpiained long delay on the part of the investigating Officer to record statements of 2 eye-witnesses u/s 161 Cr.P.C. These 2 witnesses were throughout in touch with the poiice, they did not’disciose the‘incident to the po’iice at any earlier occasion before recording their 161‘ statements. According to the prosecution, the relations between two families were inimical and previous reports were also lodged. We are of t the opi‘nion that in the above facts and circumstances of the case, the learned Sessions Judge was not justified in relying on the testimonies of these eye—witnesses for resting the conviction of the appellants u/s 302/34 IPC. The testimonies of these 2 eye-witnesses were not reliable and the conviction based on their testimonies cannot be sustained. (17) In the result, the appeal is allowed. The conviction and sentence awarded to appellant No.1 , u/s 302/34 IPC, are set-aside. He is acquitted of the charges framed against him. Sdl- Sd/- ‘ Chief Justice ' Sunil Kumar Sinha a. v Judge vatti