HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble hri Rajeev Gupta, C.J. Hon’ble Shri Sunil Kumar Sinha, J lndrait & Others j V. s he ate of-Maya Pradesh Now State of Chhattisgarh For consi eraon ti Sd/- SUNIL KUMAR SINHA F HON’BLE SHRI JUSTICE RAJEEV GUPTA Postjor Judgment :3D/06/2o1 o I! SM— i Sunil Kumar Sinha Judge / / i / a v ,r/ S & . Crimina ppeal o. 30 of l A N 9 1991 T St dh ( ) JUDGMENT HIGH COURT OF CHHATTISGARH‘ BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri ~Sunil Kumar Sinha, J. Criminal Appeal No. 390 of 1991 APPELLANTS 1. Indrajit son of Devnarayan Yadav, aged 25 years, resident of village Semarwa Kariman son of Raghupat Yadav, aged 30 years, Rlo Semarwa Laxman Yadav, son of Ganesh Yadav, aged 30 years, R/o Kushkar, P.S. Ramchandrapur Devnarayan son of Bhairon Yadav, aged 50 years, R/o Semarwa, P.S. Ramch‘an‘drapur, District Surguja (Dead- Name deleted vide Cour rder dated 1616.2010) t o Versus The State of Madhya Pradesh (No’w State of Chhattisgarh) RESPONDENT (Criminal Appeal under Section 374 (2) of The Code of Criminal ’ PrOcedure, 1973) Appearance: Mrs. Kiran Jain, Advocate for the appellants. Mr. Kishore Bhaduri, Additional‘Advocate General, for the State. JUDGMENT (‘50 i06.201 0) f Following judgment o the Court was delivered by unil Kumar Sinha, J. (1 )1 The appellants have been convicted u/s 302/34 IPC by the First Additional Sessions Judge, Ambikapur, District Sarguja Vide judgment & order dated 20.3.91 passed in Sessions Trial No. 67/89. Each of them have been sentenced to undergo imprisonment for Iife and to pay tine of Rs.500/-. S 2 @ Criminal Appeal No. 390 of 1991 (2) Appellant No.4, Devnarayan died during the pendency of appeal. s name has been deleted vide Court order dated 16.6.2010 from the array of the appellants. The appeal filed on behalf of appellant No.4 has abated. (3) The facts, briefly stated, are as under:— Appellant—Laxman is‘son of deceased- Ganesh. He had a dispute with‘the deceased regarding partition of family property. He was claiming half share, whereas, the deceased was not inClined to give him such share. ln the intervening night of 16.9.88 & 17.9.88, appellant—Laxman, along with other appellants entered into' the house‘ of the deceased. The appellants were armed with deadly weapons. The appellants allegedly assaulted the deceased with deadly weapons, who received multiple injuries and succumbed to those injuries. The incident is said to have been witnessed by Rajiya Bai (PW-5 — wife of the deceased) and Chandrawati (PW-7 ‘ — daughter of the deceased).‘They were present in the house at the time of incident. The First lnfOrmation Report (Ex.-P/3)‘was lodged by Asarfi (PW-4). He was briefed by eye-witness Rajiya Bai (PW- 5). It contains the names of all the appellants. The learned Sessions Judge, after CIOSerscrutinyof the evidence of 2 eye-witnesses namely Rajiya Bai (PW-5) & Chandrawati (Pw-7)‘ believed their testimonies and convicted the : appellants as aforementioned. (4) Mrs. Kiran Jain, learned counsel appearing on behalf of the appellants, has not disputed the homicidal death ofthe deceased. She ' raised two folds arguments. She argued that the 2 eye-witnesses being wife & daughter of the deceased were interested witnesses, therefore, the learned Sessions Judge erred in law in believing their testimonies. Secondly, she argued that none of these witnesses said in their 161 i i , Hi 3 Criminal Appeal No. 390 of 1991 Cr..C. statements that they, in fact, saw the appellants assaulting-the deceased. They only stated that they saw the appellants running from their house having deadly weapons in their hands, but in their court evidence, they categorically stated the manner of assault which was an omission, therefore, their testimOnies were not reliable. (5) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. He argued that the 2 eye-witnesses were fully reliable and the omission pointed out was not material. Even if we leave the omission part, the outcome of the evidence of these 2 witnesses was sufficient to hold that the appellants had committed murder of the deceased in furtherance of their common intention and they were liable for punishment u/s 302/34 IPC. (6) We have heard the learned counsel for the parties at-length and have also perused the records of the sessions case. (7) So far as arguments relating to interested witness is concerned, in Harbans Kaur and anothereVs— State of Haryana, 2005 ‘AIR SCW 2074, it was heldthat there is no proposition invlaw that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown V when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. , . e (8) ln Namdeo —Vs- Sta'te’’ of Maharashtra, 2007 AIR SCW 1835, the ,Apex Court held that a witness who is a relative of deceaSed or victim of @ 4 Criminal Appeal N0. 390 of 1991 \ mww the crime 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. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently ‘ “4‘1 2‘ 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. V (9) Vln Sonelal —Vs- State of M.P., 2008 AIR SCW.7988, the Apex Court again said that merely 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 relation would not conceal'ac‘tual culprit and make allegations against an innocent person. Foundation has to be laid if‘plea of false implication is made. ln such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. (10) . Therefore, this argument cannot tind favour that the testimonies of relative witnesses cannot be relied on, only of 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 credible in appreciation, the conviction can well be based on their such testimonies. ? W x 5. é, * 5 l Criminal Appeal No. 390 of 1991 (11) Now we shall scrutinize the evidence of 2 eye-witnesses. (12) Rajiya Bai (PW-5) deposed that at about 11-12 in the night, her husband Ganesh was sleeping on a cot in the verandah of theghousé. She was also sleeping near her husband. Chandrawati (PW-7) was also sleeping near her. 'ln the night, she remembered that perhaps the doors of the house were not close, therefore, she along with Chandrawati woke up to close the doors. They were having a torch. When they were trying ' -' to close the doors, they heard some noise from the place where her husband was sleeping. In the torch light, they saw that 41persons were running from that place after assaulting her husband. She identified all of I ,them. They-were Laxman, Devnarayan, Kariman. and Indrajit. Laxman and Devnarayan were holding tabbals. Kariman was holding a danda and ’Indrajjt was not holding any weapon. After the assailants had run away, they saw the injuries on the person of the deceased. Freshvblood was coming out from his neck. The deceased was lying in pool of bloodand blood drops were coming on earth through the cot. Mrs. Kiran Jain argued that in the court evidenCe, she stated that the assailants were i running away from the place‘of occurrence after assaulting the deceased but in her161 statement (Ex.-D/2), she only stated that she' saw that the assailants were running away frOm the place of occurrence having ‘above , j weapons in their hands. On this account, the evidence ofthis witness appears to be unreliable. Eve’n if we take out the omission part from the court evidence of this witness, in our view, the remaining part of her evidence would be sufficient to hold that the appellants were assailants ‘ who committed murder Of the deceased. Even in her 161 statement, she ' has given the details, of'each appellants. She stated that Devnarayan was @ 6 Criminal Appeal No. 390 of 1991 wearing dhoti and was holding a tabbal, Laxman was wearing Ioongi and he was also holding a tabbal. If 4 persons, armed with deadiy weapons, were seen in' her house at the time of incident, near the deceased and immediately ran away with those weapons and the deceased was found i dead having multiple injuries which may be caused by such Weapons, then why it cannot be held that they were the assailants who caused‘the ' murder of. the deceased. On this omission alone, the entire testimony of 2w: 7],? the witness'cannot be disCarde'd._ Rajiya Bai (PW—5) is the wife of the deceased. Her presence in her own house in the night at about’11-12 ‘0' clock cannot be doubted. She, in fact, was natural witness who saw that the 4 assailants were present at the place of occurrence with deadly , weapons and they‘ra’n away immediately after the murder of the deceased. Just half an hour before murder, s‘he had talked with the deceased. ln these facts and circumstances, we do not hnd any indrmity in the judgment of the sessions court while believing the testimony of this witness. Why Rajiya Bai (PW-5) would falsely implicate the appellants and shield the actual culprits when admittedly one of the appellant was her own son. (13) Chandrawati (PW-7) also deposed in same fashion. She deposed I that in the torch light, they saw that all the 4 appellants were assaulting her father. She' has further deposed about the manner;of assault. Her _testimony is also questioned on the ground that in her 161 statement (Ex.-D/3), she did not depose about the manner of assault and role Q played by each appellants, however, she deposed that 4 persons were running from the place of cot of her father. She has named all the 4 accused persons. She hasalso stated about the weapons carried by 2"”,- 7 Criminal Appeal No. 390 of 1991 them. She was also a natural witness being one of the inmates of the house Therefdre her presence in the house cannot be doubted Even if we discard that portion of her evrdence In which she deposed about the manner of assault given by the appellants to the deceased and rely on that part of her evidence which is not omission in her 161 statement, that is sufficient to hold that the appellants were the assailants of the deceased. 4 persons, armed with deadly weapons, were seen running i‘ Six Qt away in the torch Iight from near the cot of the deceased who.was immediately murdered and fresh blood was coming out from the injuries sustained by him. In our opinion that itseif was sufficient to ccnnect the appellants from crime in questions. (14) On due appreciation of the entire evidence of these 2 eye- witnesses, we do not find any infirmity or illegality in the impugned judgment pasSed by the learned Sessions Judge relying on the testimonies of these witnesses. ‘ r (15) For the foregoing reasons, we do not find any substance in the appeal. The appeal tiled by the appellants, therefore, is liable to be dismissed and is hereby'dismissed. The conviction and sentence awarded to them are confirmed. ‘ s‘tw "J SuhilKumarSinha 'l-;/“ J"d9e " i : a \w \ Sdl- é Chief Jusu‘ce' ’ [Vs , , vatti .