llh ^ [6H COURT OF CHHA'mS&ARH AT 8ILASPU& Cri?^in^l .43^^'ni N^.l^T Cor'cm; HON'BLEMRT.P.SHA! J'BLE »R.S-L.JHANWAR,JJ. r''silh^r?rt^ V.idffiv ^/>n -T^'ti V^ri.'iv r'.n^n (In Jaii) aaout 35 years resident of Lakhasar P.5. r-iirri District Biiaspuf (C.S-.) RESPONDENT S-ote of Chhattisnor-h fCRMINAL APPEAL UNDER SECTION 374 <V-, OF THE C05E 0= CRIMINAL PftOCEDURE, 1973) PM^C^^A.^ AArl.S::.I^..T''ii?i cr'-i^*^'! fn?t fhffi inn^^i^^T.. y 'f Mr.Ashis'h Shukfa, Sovernmsnt Aavocate for the StaTe. JU&GMPMT (Fassed on Z" f-ebruory, ZUIO) Th^ inHrt^ffnt nr th? ^'rtiir'i' wsne ri^.li\/p,r'p_fl hv i P ^^ntftS^y^fi ,T '- ' ' "w <j 3">'''^"; °"' ''" * '•''"*' —•"">"=.'•.-•^.-^- w-y J .. - ^).i-B-»--.3. y ,; ^.as-* ;s=< ..^s'-n;^ ^ 1 f9lr,i~si{yy,ft^ i^ ~hi^ r-nnjsy"' i<? tn -ri^ ^.id''im«:»in'i' rt'F ^onvic'tio^ ^ o?*<d^f> OT .. .^.... .,, .>...» ^.^,^,.~.^,. .„ .- . . .^ ^^^.^.,..»..... ^,, -.—...,.—..„.. », -,^—. s^r.tsnc^ dctsd 30.1i.2000 QQSS^.d bv th^ Sixth Addit'onal Sessions -JudQe' ^.^^.^...^. „ ^, .>..- ^, .,^ ... ,..—-...^. .^.. ^..^.-—^...^^-.-.^.-^ 8i!a^cu"!. \n S^ssion^ Tri'al No.65/2000. wh£>r^bv '& v^hereundsr Iscif'ns.d -^^. ^ ,. , ^..^^.^ iU< .i^. -.,>.... , .- ,^.-^.,. —.-„ - •• ^ .-. .^. „.»^ ^- <^|yH^ Ad^iti/'i^C!1 l!^%<5^ior>1!s; f^dr'sp. rtf'^%?t h^ldiinQ thss ?]!^?5^11?t?3t3 rtu^tv f<";r' .^^. .^.; - —..„.—,. .^ ....... '..^^ ^...^. - . —^.».... . ^. , co?^r^issio?i c'£ culQgsble ho^icidQl dsssth a^ouriti^Q to r^urde" of £'hc!hufci wh.il'g ocauittlpQ ths othci" co^sccused L^tsl Rsnit Q^.fi Koiiu © Duir<iiTi hss ^ . . „ ..-J ,..^.-r ~ ...-„.- ^..^ —^.». ^..^--. ^,.—.,»^.,s.. -^-- .- ^^-...-..^ -^. ... ^..^- -„„. ^r^vir "".?>" ths?. n,r'ff"a'^rit r^nri^ lls.nf s.snd^r' .S^^t.io^ 302 of th^- Tridic^ Pg.nal Cods ^nd c?£'.pt€t^c"'.@.d"'fo u^dsrQO i^D^isoniT'snt for ^ifs <3^d to ?50V •s fine of ^y- .....^,. ..»...^..,.,-„... ;--, . ..,—-....:.-^ .^ ^—^— ,.....- .-. D<?'POHO/* a;n A's'.^fH'ial't r<"f ^nvm^>.ri" "ff 'fw^. 'i'r^ •furthr'r' ijnrls?.u'nri r'lfsn^ou^ r"""/ ' " "" ' ;•-•-" •••-•• s —-•".-... ^.. .„.„.. ^.- . i^ ^nri^-Tinmi'^t 'fcr1 1 vs??r. ^-;.^-. .-„.-.. ..;.^. ,„ ; - . .„ ^ i-'i 2. Judgirient is impugned on the ground that wrt-iout ony iota of eyidence, the Court below has convicted and sentenced the cypeliant as aforernentioned arid thereby committsd iHs^allty. 3. Csise of 'Hie Dros®cut)o?i.in brief. is that on th@ fatefu! doEV of 24.9-99 dt nbout 10-10.30 p m. at yil'age Lakhasa", the ctppeliant a!ong "'ith co-accused persons with in+ent to comtrit the offence pun'shabte witii imprispnment for iif^, comlTILittecl houss t?t^ss-pGSS in the houss of Ch^urc1 (^incs decscssd) Qnd in sharin^ coT?ilT'nri iritention witi^ other co-accused, ths <ype!!cnt ossaulted Chahura and intentionolly caused his death. Appellant Dilhcran uvas hotding betel axe (tabba!) ot the Time of Incident. Merg intimation was recorded vide Ex-P/'l fflid on the basis of mer9 intimatibn, F-I.R. was registered vide Ex.P/2. Investigating officerl proceeded for the scena of occurrence ond after sun'moning 1+ie w'tnesses yide Exs-P/3, inquest over the dead body of decsased Chahura was prepar'ed yide Ex.P/4. &e<sd body' of deceased Chahura was sent fbr autopsy to Assistant Surgeon, •Sovernment Hospital, Bila^)ur vide Ex-P/22-A. Autopsy was conduc+ed by Dr'.A.P Rai PW-IT) "ide Ex.P/22 ond found foliowing i"jur|ies oyer the dssd body o;f descsci^d Oichura, 1 i) Zncissd wound oyer* ri^ht sid& of ths sisck up to JQW^ s'ze 6P x 1 i " x yertebra bone deep ] i') Vertebra was found cut along wi'th other part of the body iii) Incised wound oyer !eft canthus, size 0-5 cm- x. 0.5 c"i. x i cm. iv) Br'ushes oyer right side ofthe back, sizs 8" x 3 | y) Swe!!'ng over- left teinporal region, size 2" x t . Hemotoma 'has present Sub-dura! hean"o''rhiqe was found i"side the braini and froicture of tsmporc*! bone. Death was homicidal i" nature. Bloodstcined and piain soil ("ere recoyered from the spot vide Ex.P/11. Qne part of door wag seized fnom the wife of the deceased vide Ex.P/12. One 60 watfs bu!b and one chii^' uier'e recoyered from the wife of the deGeased vide Ex.P/13. Co-accy * Latel was take" into custc.dy. He ir'ade disclosurestatement of s+icl' riom feed 38: @ __ 3 Ex.P/lT ei^d thc s<z??le was recov%rsd <xt hts instcincs yide ExP/18- Clothes of the co-accused Lctel was seized vide Ex.P/10. Bloodstained cbthes of the present cypella^t •'.va.s seized from his wife vide Ex.P/14. One bloodstained betel a.xe i^tabba?) was seized from 1+ie appe!!a"t v'de Ex.P/15. Nails df the ci3De!!ant were cut and seized vide Ex.P/16- After autopsy articies were seized vids Ex-P/20. Betel axe (tabbes!) wss sent for exetminatiori to Dr.AP.Roi (PW-17) 'A'ho opined yide Ex.P/23 that injury found oye?* the body of the deceased n'ay be caused by betei axe. Spot map was prepared by patwari vide Ex.P/19. The accussd were arrssted. 4. Stoitements of the witnesses were recofded under Section 161 of the Code of Crimincl Procedure, 1973 ^iewlnaftsr referred to as t'rti®Code'). After completion of investigation, charge sheet was filed m the Court of the Judicin! Magistrate F"'st Class, Bitaspur', who in turn comn'itted the ccise to the Cour't of 1+ie Sessions. B'laspur- from where Sixth Additiona! Ssssions Judl^s^ BH^spur* rsc^ivsd the sexme on tr*onsfer for tr'Ql. 5. Z" ordsr' to provc ths guilt of the <xccused/Qppellant, the pro^cution hQS examined as many cs 19 witnesses. Statem&nts of the accused/appsliants were also recorded under Section 313 of the Code where they denied the circumstances appeciring against them and pteeised "nnocence <!L"d fglse jniplication ir> the crime in questio". 6. Dur'ng the course of tr'ial, accused Bhurwo was absconding. A'fjter affording on oppor'tunity of hearing to the parties, the S!?cth Add'tiorw! Sess'ons Judas while acauif'inQ the co-accused Latel Ram cnd Kallu © .3~ .....— ^-......3 ...- -.-——— —.-. .—...-...- ..-„- „^ Dujram, has convicted o"d sentenced the prssent appellant| as orforementioned. ! 1 7. Vi/e hcve heard Shri R.K-Jain, counsel for the appellant a"d Shri As(iish Shukla, &over'nn"ent .Advocate for ths Stcte, per'used the judg!'"ent Impugnatl ond I'ecor'd of the Court below. Bl »»... 4 8. Lear'ned counsel for the appaliant yehewen+ly argues that the prosecution has not odduced any evidence to prms its case. Tha convictio" is based o" conjsctur'e and surmises nnd is r?ot sufficient for conyiction of th.e appe!!ant. 9- O" the otiisr hand, tecrned State counsel siipportsd the H impugned and argues that the conviction 'ie based on the evidenca of eyewltnesses Dropati Bai (PW-13), wifs of the deceosed and Chatlal (PW- 16). son of the deceased whose sr'ssence st the time of incident were "flttur'al. They hcvs categorically deposed that the appellant is the per-son who hrts c^sussd fatal injuT'i^s to d^ce<1ssd C'hQhuro;. 10. Ir; Ofder to appr'eciate the ar9Uinents ndyonced on behalf of the parties, we hays £>?<iiT^ln%ci ths svidsrice adduced on bje.hcllf of the piro^cut'or'. Tn the present case, homicidat death as a r'esult of fatal injuries of deceased Chahurrt has ^ot bcen substanticillv disout'sd. on ttie other hc^ld dlso- estab'ished by the eyidence of Gr-A.P.Kai (PW-17) and autopsy repor't Ex-P/22 which r'eveals that fata! ir'iuries wsre found over' theneck and head of the deceased md are sufficient for causing death and death was homicidol in nature. ll.As regar'ds the complicit" of The accused/appel!ont in the crime i" questio", the conyiction is based on oculcr' evidence of Oropati Bai PW- 13) and Chatla! (PW-16). &ropa+l Sai (PW-13) hos deposed in her eyidence that ot the time of incident ot about 10 p.fn.. she was <teepi"9 in her house along w'tli her husband, appellsnt DHharan oind Lcrtei'ctCTe in front of her| house, they ca'led her husbdOTd, they also oibused and finally they brokeni the door of her house ond dr'agged hey husband frpm the house-Thel appeilants sissaultsd her husband by bete! axe csnd spear. Appeitant tSiShara?! hns asscajlted her husband by betel axe. After causmg injury tfi the -deceased, the appellants ccme towards her, her husbcind fel! down '." the floor- The apps'lcsnts kme assaultsd over' the neck cnd head of hen hysbwd, the" she fisd away towards the vjllage alonQ wi'tt' her" son and norrated the incident to .4wadhbihari and Sai'poych o"d agai" cQi'e back a!ong w!+h Sarpcnch.at thoit time dead body pf her" husband was !ying and solice came to the soot. The Doi'ce has seized broken Disc< of door". Chotla! (PW-16), chlld witnsss siged Qbout 12 yeors^ hQS deposed thct+ the appellcints aftsr' breekin9 tiie door' come inside the house at night, the present appe'lcnt assaulted his fathep along with other co-accused persons after dragging f"o'n the house. The appellant washaving betel oxe. Chatlol (PW-16) is a chlld witness aged about 12 yea.rs. Before examining his witness^ 1^e Coua*t hds tnks" proper preccut'o" and aft^r so'tlsfying its^lf that ths witness knows how to ^)e<xk truth <md is sb!e to cnswer the qusstion hos exnmined this witness- Defence has cr-oss-exarnined th]is witness nt length, but has not been abls to el'cit a"ything in his cross- eyn.n"r'atio" to d'scr'edit his testiffiony. Defence has also cross-examined &ropct' Bo' yVV-lS) in dstai!- There are some owissions and contradictions In hsr strttsnle!^t. but "Hi^s^ or'e trifle in nciturs. Tn her exctl?tinoitio?i clnc! cross-excminn+ion, she has specif!ca!!y deposed that the prssent appellant Dilharan has caused fota! in lur'iss over •rtie neck ond head of her husband by bstet c>(e (to.bbQ!). FQIQI i^juriss wsrs found oyer th^ body of the deceased Ch&hura Autopsy report Ex-P/22 revea'.s that injuries fourad over* the n^ck cnd tha head wers inciSBd wounds Qnd woy bc ccussd by shar'p edyd weopon. 12. Dropati Bai (PW-13) a"d Chatlal (PW-16) are wife and so" of Itie dec«ased and re'ative witnesses. but their statemen+s cannot be discredi+ed "nlY bn the ground that they "r'e relatives- Even otherwise, relatiye would be last to screen the real cuSpr'it and fa'sely implicate an innocent psMtin. i Whi'e dealing with the^uestion of interested wHnesses, 1+)e Apex Cour't' i" the matter of DaSip Ssngh v. Stats of Pur.jab has held that a witness|]S nor-ma!!y to bs cc'nsidered independent unless hs or she ^irings from &>urces wh'ch are !ikely to be tainted. Para 26 of the said judgment rKlds "S under:- Sf -. '(1954) 1 SCR 14&- ^- ^sS^ rf^ 26. .A witness is "ormally to be considered independent unfess he or she springs from sources which are likely to be Tainted cmd that usuaiiy means uniess the wi-mess has cause, such as enmity against the accused, to wish to implica+e him falsely. Ordinarilv. a close retative would be the iast to screen -the reai culprit and fdiseiy implicate on innocen'r person. It is true, when feelings run high and there is per'sona! cause for enmity, •ttiat there is a tendency to drag in an innocent person aaainst whom a witness has a grudge aiong with theguilty, but foundation must be laid for such a criticism cmd the mere fact of reiationshiD far from beina a foundation is often a sure guanntee of truth" l3.As he!d by the Apex Court in 1+ie matter of Mohabbat an.d Ors.v. State of M.P. , rebtionship 'is not ground to affect crsdibi'it/1 of witness, foundation has to be laidif p!ea of false implica+ion is raised- Pani 7 of the said ludament reads as under. ^—^^...—.. . ^^-^—-.^ -„..——. ^ : "7. Mer'ely because •the eye-wjtnesses are fomi'y >nembers their evidence cannot oer se be discarded. When there is aliegation of interestedness, the same has to be establishedi Mere statement that being relatiyes of the dec«asedthey are. likely to falsety implicate the accused cannot be a ground to discard the evidence which is otherwise c09ent andcredibie. We shall also deal with the contention regardi"9 interestedness of the witnesses for furltierinq the prosecution version. Relationship is not a faetor to affect credlbility of a witness. It is nnore ofte" thon not that ffl refation wouid" not conceal actual culprit and make allegationS against an innocent perSon. Foundation has to be laid if plea of false implicatio" is made. In such cases. the court has t<:i adopt a careful cyproach and analyze evidence to find out whether it is cogent and credibie." 14.The eyidence of &ropot> Bai (PW-13) and. Chatla! (PW-16) inspires confidence cind t!'us+wor'riiy and is sufficient for dwwing infere"ce| thot the oppellcuit is the per'son who has caused fata' injuries to deceased Chahurc- ~ '2009 AK SCW 1486 1 4 I . 1' 1SI [f- 15. As reQQfds th^ nriotiy^ is concernsd, in case of dirsct ey>denc<£ Enotive losses its importance, eyen otherwise, motiye on'y sids in criminality and can be inferred on the basis of nslure of injury, kind of weapon used, part of the body effected a"d other similnr circumstances. 16-After appreciating the eyidence ai/ai'able on record, ieorned Sixth j Additiona! Sessions Judge has conyicted the appellant under Section 302 '• of the Indian Penal Code and sentenced him to undergo impnsonment for life- The conyiction of the appellaiit is bcsed on credible and legal eyidenc® sustaincEbls under the !aw»As r^eaards ths ssntence 's conc€'rtnd d_-th®Court be!ow has awarded minimum sentenc^ prescribed ynder the law- 17.0n close scrutiny of the eyidence, we do not find any illegality and infirmity in the Judgment impugned. The cypeal being deyoid of merit is lieible to be dismissed cmd is ciccordingly dismissed. The appelldnt is on bail. He is directed to sur'render himseif immediately before the Chief -Judicial Ma9's+rQte, Bilaspur' for serying the remaining sentence imposed upon|Mim- S&l- T.P.Siiarma Judge Sd/- i.L. Jhanwai Judge