Baijnath vs State of M.P. (Now C.G.)

Sunil Kumar Sinha, J.—These appeals have been directed against the judgment dated 21st of December, 1995 passed in Sessions Trial No. 55/1993 by the Additional Sessions Judge, Surajpur, District Sarguja (C.G.) By the impugned judgment, appellant-Jodha @ Dilbaran has been convicted u/s 302 IPC and appellant-Baijnath has been convicted u/s 302/34 IPC and both have been sentenced to undergo imprisonment for life. The facts, briefly stated, are as under-

Deceased-Mohan was husband of Subesh Bai (P.W. 3). They were residing together in village-Karauti. The case of the prosecution is that on 12.04.1992 at about 8 p.m., appellant-Jodha @ Dilbaran tried to outrage the modesty of Subesh Bai (P.W. 3). When she resisted, Jodha @ Dilbaran along with his father-Baijnath came to her house, Jodha @ Dilbaran was holding a Gutpti having wooden cover. The allegations are that Baijnath caught hold of the deceased and Jodha @ Dilbaran assaulted the deceased by Gupti on his chest. In fact, Gupti pierced pericardial cavity and it also pierced into right ventricle. Mohan succumbed to, the above injuries. The incident was witnessed by Subesh Bai (P.W. 3). On hue and cry, many villagers gathered there. Subesh Bai (P.W. 3) narrated the story to Jagarsai (P.W. 2), who lodged the F.I.R. (Ex-P-2)

The learned Session Judge mainly relied on the testimonies of Subesh Bai (P.W. 3), Heera Chand (P.W. 5) and Jagarsai (P.W. 2) and held that it was established that appellant-Baijnath caught hold of the deceased and then appellant-Jodha @ Dilbaran assaulted the deceased by Gupti, therefore, they were liable for punishment as above.

Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellants, argued that Subesh Bai (P.W. 3) is wife of the deceased, therefore, she is interested witness and her testimony cannot be relied. She also argued that the evidence relating to role played by appellant-Baijnath that he caught the hands of the deceased to facilitate appellant-Jodha @ Dilbaran for assaulting the deceased by Gupti, is shaky. Therefore, Baijnath cannot be convicted with the aid of Section 34 IPC.

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.

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

In Dharnidhar Vs. State of U.P. and Others, the Supreme Court reiterated that there is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before court. The Supreme Court held that 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 witness 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.

In Namdeo Vs. State of Maharashtra, , the Supreme Court 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 has some direct or indirect ''interest'' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Supreme 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 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.

Therefore, the above argument of Mrs. Tiwari that the evidence of Subesh Bai (P.W. 3) should not be relied as she is wife of deceased, cannot be accepted. However, her evidence is to be scrutinized with due care and caution and if her evidence is found incredible in appreciation, the conviction can well be based on her such testimony.

Subesh Bai (P.W. 3) deposed that on the fateful day in the evening, she was present in her house. Appellant-Jodha @ Dilbaran came there and tried to hold her arm. At that time she was standing at the door of her house. Her husband came out from the house. Her husband started abusing appellant-Jodha @ Dilbaran. At that time, Jodha @ Dilbaran was at the door of their house. Appellant-Baijnath was also present outside the house. Appellant-Baijnath also came there and caught hold of her husband and appellant-Jodha @ Dilbaran assaulted him by an iron weapon taking it out from wooden cover. Her husband received injury on chest. When she cried, Jagarsai (P.W. 2) and Heera Chand (P.W. 5) came there. Thereafter, the appellants ran away from the place of occurrence. Jagarsai (P.W. 2) and Heera Chand (P.W. 5) tried to chase the appellants, but they could not catch the appellants.

Subesh Bai (P.W. 3) was put to lengthy cross examination by the defence. In her cross examination, nothing adverse could be brought by the defence on which her testimony may be out rightly rejected. The deceased was husband of Subesh Bai (P.W. 3). They were residing together in a common house. Therefore, presence of Subesh Bai (P.W. 3) at the time of the incident cannot be doubted. Subesh Bai (P.W. 3) has deposed in clear words that it was appellant-Jodha @ Dilbaran, who took out Gutpii and assaulted her husband on chest. Dr. A. Saxena (P.W. 1) conducted autopsy on the dead body of deceased-Mohan and found that there was a pierced wounds on his chest and one of he ventricles of heart was badly cut. Therefore, the evidence of Subesh Bai (P.W. 3) was fully corroborated by the medical evidence and there can be hardly any doubt to held that deceased-Mohan died on account of above injury caused by appellant-Jodha @ Dilbaran by a Gupti, which he was carrying at the time of the incident.

Now, we shall consider the conviction of appellant-Baijnath with the aid of Section 34 IPC. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises u/s 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. If two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same.

Jagarsai (P.W. 2) deposed that at about 8:00 p.m., when he heard the cries of Subesh Bai (P.W. 3), he along with Heera Chand (P.W. 5) went to her house. When they reached there, they saw that appellant-Jodha @ Dilbaran and Baijnath were running away. Jodha was carrying a Gupti in his hand. They saw deceased-Mohan in injured condition, who has received injury on his chest. They had a talk with Subesh Bai (P.W. 3), who narrated that Jodha @ Dilbaran and Baijnath have assaulted her husband. Heera Chand (P.W. 5) also deposed in similar fashion. He also deposed that he had seen the appellants running away from the place of occurrence. We noted that Jagarsai (P.W. 2) and Heera Chand (P.W. 5). who firstly met Subesh Bai (P.W. 3), never stated that Subesh Bai (P.W. 3) told them that Baijnath had caught the deceased to facilitate Jodha @ Dilbaran to assault the deceased by a Gupti. F.I.R. (Ex-P-2) was lodged by Jagarsai (P.W. 2). Jagarsai also did not mention in the F.I.R. that deceased-Mohan was caught by appellant-Baijnath to facilitate appellant-Jodha @ Dilbaran to assault him and then Mohan was assaulted by Jodha @ Dilbaran. F.I.R. is the first hand information of the incident. The above omission in the F.I.R. is material. In appreciation, we find that the evidence relating to holding of the deceased by appellant-Baijnath to facilitate appellant-Jodha to cause the above injury is shaky.

On appreciation of the entire evidence, we do not find that there was plan or meeting of minds of the appellants to commit murder of the deceased either from the past or on the spur moment. We are of the view that on the evidence of above prosecution witnesses, though the presence of appellant-Baijnath was established, but it was not established that he participated in commission of crime by holding the deceased in the above manner. Therefore, conviction of appellant-Baijnath with the aid of Section 34 IPC was not possible as the evidence of his participation, in the above manner, is shaky, and the same has to be set aside.

Accordingly, Criminal Appeal No. 140/1996 filed by appellant-Baijnath is allowed. The conviction and sentence awarded to him u/s 302/34 IPC are set aside. He is acquitted of the charges framed against him. Criminal Appeal No. 143/1996 filed by appellant-Jodha @ Dilbaran is dismissed.