Amarsingh and Others vs Stale of M.P.

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 9th of February, 1995 passed in Sessions Trial No. 383/91 by the Additional Sessions Judge, Mahasamund. By the impugned judgment, the appellants were convicted u/s 302, IPC and sentenced to undergo imprisonment for life. Appellant No. 1-Amarsingh s/o Kunjal Binjhwar died during the pendency of the appeal, therefore, his name has been deleted from the cause title of the appeal and the appellant filed on behalf of appellant No. 1 has abated.

The facts, briefly stated, are as under:-

Deceased-Gaur Singh, aged about 11/2 years, was son of deceased-Mehar Singh. Radha Bai (P.W. 5) is widow of deceased-Mehar Singh. On 14-6-91 at about 12 noon, Mehar Singh and Gaur Singh were returning to their house on a bicycle. Radha Bai (P.W. 5) heard cries of Gaur Singh. She came out of the house and saw that Amarsingh (A-1) and his 3 sons Jagat Singh (A-2), Kariya (A-3) and Suru Singh (juvenile offender) came there with danda and tangia, shouted upon them and assaulted her husband and minor son-Gaur Singh. They also assaulted Radha Bai (P.W. 5). The deceased persons had sustained multiple serious injuries. Radha Bai (P.W. 5) had also sustained injuries. Mehar Singh (deceased) died on the place of occurrence. FIR was lodged by Radha Bai (P.W. 5). Dr. G.L. Chandrakar (P.W. 3) conducted autopsy on the dead body of deceased-Mehar Singh. He noticed following injuries:-

(i) Abrasion of 11 x 8 cm on the right side of the face, brownish red in colour;

(ii) Lacerated wound of 3 x 1/2 cm on right ear;

(iii) Lacerated wound below right ear;

(iv) Lacerated wounds of 31/2 x 2 cm on the outer surface of both the cheeks;

(v) Lacerated wound of 2 1/2 x 1 x 1 cm on the front portion of right ear;

(vi) Lacerated wound of 3 1/2 x 1/2 cm on the occipital region;

(vii) Fracture was found on right and left parietal bone;

(viii) Contusion of 30 x 11/2 cm on right forearm, brownish red in colour;

(ix) Contusion of 5 x 11/2 cm on the axillary region, brownish red in colour;

(x) Contusion of 12 x 4 cm on the lateral aspect of the right forearm, brownish red in colour;

(xi) Contusion of 13 x 21/2 cm on the lateral aspect of the right forearm, brownish red in colour; and

(xii) Contusion of 12 x 31/2 cm on the lateral aspect of the right forearm, brownish red in colour.

All the injuries were ante-mortem. On internal examination, he noticed fractures over right and left parietal bones. He pointed that the death was on account of coma and syncope causing cardio respiratory failure and it was homicidal in nature. The post-mortem report is Exh. P-10.

Gaur Singh, was firstly examined by Dr. G.D. Baghel (P.W. 4), who noticed a lacerated wound of 4 x 1 x 1 cm on the scalp over frontal region, 10 cm above the root of nose. X-ray examination of the above injury was advised. MLC report of Gaur Singh is Exh. P-13.

Radha Bai (P.W. 5) was also examined by Dr. G.D. Baghel (P.W. 4). He noticed following injuries on her person:-

(i) Lacerated wound of 7 x 1 x 1 cm on left occipito-parietal region;

(ii) Lacerated wound of 4 x 1/2 x 1 cm, 2 cm below injury No. (i);

(iii) Lacerated wound of 7 x 1 x 1 cm, 2 cm below injury No. (ii);

(iv) Lacerated wound of 7 x 1 x 1 cm, 2 cm below injury No. (iii);

(v) Lacerated wound of 4 x 1 x 1 cm, 2 cm below injury No. (iv);

(vi) Abrasion of 3 x 2.5 cm on the supra-scapular region;

(vii) Abrasion 1 x 1 cm below injury No. (vi);

(viii) Abrasion of 2.5 x 1.5 cm over pattelar region of left knee; and

(ix) Abrasion of 3 x 2 cm over pattelar region of left knee.

All the abrasions were simple in nature. About the other injuries, opinion was to be given after X-ray examination. Her MLC report is Exh. P-12.

Gaur Singh died during the course of his treatment on the same day, i.e., on 14-6-91. The autopsy on the dead body of deceased-Gaur Singh was conducted by Dr. D.C. Jain (P.W. 17). He noticed multiple fractures on his frontal bone and opined that the cause of death was coma due to above injury and it was homicidal in nature. The post-mortem report of deceased-Gaur Singh is Exh. P-16.

In further investigation, the accused persons were taken into custody and their memorandum statements (Exhs. P-2, P-3, P-4 and P-5) were recorded u/s 27 of the Evidence Act and danda and tangia were seized at the instances of the appellants and the juvenile offender. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Sagar, from where, a report was received. According to the FSL Report, blood stains were found on all the weapons as also on the clothes seized from the possession of the appellants. The above articles were then sent for further investigation to Calcutta Laboratory, but origin and group of the blood stains found over weapons could not be determined. The above 3 appellants/accused persons were tried by the Sessions Court. The Sessions Court relied on the testimony of Radha Bai (P.W. 5) and convicted and sentenced the appellants as aforementioned.

Mr. J.A. Lohani, learned Counsel appearing on behalf of the appellants, has argued that Radha Bai (P.W. 5) is wife and mother of the deceased persons; she is an interested witness; her evidence is shaky; therefore, conviction based on the solitary evidence of Radha Bai (P.W. 5) cannot be sustained.

On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard learned Counsel for the parties at length and have also perused the records of the sessions case.

A close relative cannot be characterised as an interested witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. 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. A close relative of deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes and deposes before Court only with that intention and not to further cause of justice. However, version of interested witnesses cannot be thrown overboard, but has to be examined carefully before accepting the same. When their statements find corroboration by other witnesses, expert evidence and circumstances of case clearly depict completion of chain of evidence pointing out guilt of accused, then statements of so-called "interested witnesses" can be relied upon by Court. Thus, relationship is not a factor to affect credibility of a witness. Foundation has to be laid if plea of false implication is made and in such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. If the testimony of the relative witness is found to be trustworthy, the conviction can well be based on his/her testimony. (See: Harbans Kaur and Another Vs. State of Haryana, Namdeo Vs. State of Maharashtra, ; Sonelal Vs. State of M.P., and Dharnidhar Vs. State of U.P. and Others,

In light of the above principles laid down by the Supreme Court in various decisions, we cannot accept the argument of Mr. Lohani that the testimony of Radha Bai (P.W. 5) cannot be accepted as she is wife and mother of the deceased persons. However, we accept that her evidence has to be scrutinised with due care and caution and if her evidence is found credible, the conviction can well be based on her solitary testimony.

Now we shall proceed to examine the evidence of Radha Bai (P.W. 5).

Radha Bai (P.W. 5) deposed that accused-Amarsingh (A-1) was her jeth and the other accused persons (A-2, A-3 and juvenile offender) are sons of Amarsingh (A-1). There was a land dispute between her husband-Mehar Singh (deceased) and Amarsingh (A-1). On the fateful day at about 12 Noon, her husband (deceased-Mehar Singh) was returning to the house along with her son-Gaur Singh (another deceased). They were on a bicycle. She heard the cries of her son (deceased-Gaur Singh). She came out from the house and took her son in her lap. The 4 accused persons namely-- Amarsingh (A-1) and his sons Sum Singh (juvenile), Jagat Singh (A-2) and Kariya (A-3) came there and attacked over her husband by lathi and tangia. Thereafter, they assaulted over the head of her son-Gaur Singh. Kariya (A-3) also assaulted her by lathi. She had sustained injuries over her skull. Her husband (deceased-Mehar Singh) fell down and died at the place of occurrence. She, thereafter, went to the verandah of Gasiram. Sunder Singh came there and gave some water to drink. She had narrated the incident to the police. She along with her son was sent to the hospital. His son (deceased-Gaur Singh) was referred to Raipur Hospital. Later on, he died. Radha Bai (P.W. 5) was put to lengthy cross-examination by the defence, but nothing material could be elicited in her cross-examination on which her version may be discarded or it can be said that she has falsely implicated the appellants.

Mr. Lohani has argued that at one place in her evidence Radha Bai (P.W. 5) deposed that Amarsingh (A-1) was holding a bow, whereas, this fact is omission in her case diary statement (Exh. D-1). Only on account of above omission in the case diary statement, the entire evidence of Radha Bai (P.W. 5) cannot be thrown overboard. It is not a material omission, which goes to the root of the matter. Radha Bai (P.W. 5) is an injured witness. The incident took place in front of her house. Therefore, her presence at the place of occurrence cannot be doubted. The accused persons were well known to this witness. It was a day time incident of 12 Noon. Therefore, there is hardly any question of mistaken identity. Why a lady would leave the persons who committed murder of her husband and son and would falsely implicate someone else. The version of Radha Bai (P.W. 5) is corroborated by the post-mortem report of deceased-Mehar Singh (Exh. P-10) as also the MLC Report (Exh. P-13) and the post-mortem report (Exh. P-16) of deceased-Gaur Singh. Her evidence is further corroborated by her own medical examination report (Exh. P-12) conducted by Dr. G.D. Baghel (P.W. 4). Therefore, merely on account of above omission in her case diary statement, her entire testimony cannot be discarded.

Mr. Lohani has also argued that the FIR was not proved in this case and the I.O. was not examined. We gather from the records that on 14-6-91 at about 15.30 hours, Radha Bai (P.W. 5) gave dehati nalishi, in which she mentioned entire details. On this dehati nalishi, the FIR was recorded by the Investigation Officer.

In Damodarprasad Chandrikaprasad and Others Vs. State of Maharashtra, , the Supreme Court observed that "The First Information Report is not substantive evidence. It can be used for one of the limited purposes of corroborating or contradicting the makers thereof. Another purpose for which the First Information Report can be used is to show the implication of the accused to be not an afterthought or that the information is a piece of evidence res gestae. In certain cases, the First Information Report can be used u/s 32(1) of the Evidence Act or u/s 8 of the Evidence Act as to the cause of the informant''s death or as part of the informer''s conduct".

In the instant case, the I.O. was not examined and dehati nalishi, which is shown to bear thumb impression of Radha Bai (P.W. 5), and the FIR could not be proved. We find from the records that the learned Sessions Judge has not based his judgment on the contents of the nalishi or the FIR. He has mainly based the judgment on the evidence of Radha Bai (P.W. 5), the 3 Doctors who conducted autopsies and medical examinations and the evidence of other formal witnesses. Mr. Lohani could not show that non-examination of I.O. and not proving the nalishi or FIR have caused any prejudice to the appellants. On the principles laid down in Damodar (supra), we have gone through the contents of the judgment to find out as to whether the conviction was proper on the evidence and grounds mentioned in the judgment ? We have also appreciated the evidence of Radha Bai (P.W. 5) in light of proved facts and other evidence available on record. On appreciation of her entire evidence, we do not find her evidence to be unreliable. We are of the view that the learned Sessions Judge was fully justified in resting the conviction of the appellants on the solitary testimony of Radha Bai (P.W.5), which was supported by medical evidence showing no discrepancy. For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the appellants, therefore, is liable to be dismissed and is hereby dismissed.