Chhotelal and Another vs State of C.G.

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 26th of March, 2007 passed in Special Criminal Case No. 85/2006 by the Special Judge (Atrocities), Bilaspur. By the impugned judgment, the appellants have been convicted u/ss 302 /34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- with default sentences of R.I. for 6 months. The facts, briefly stated, are as under:--

On 9.5.2006 at about 5.00 p.m., deceased-Sukhsagar had gone to the house of Dayaram Lohar for bringing his tangia. After sometime Dayaram Lohar came to the house of deceased-Sukhsagar and informed his wife Bhagmati (PW-1) that her husband (deceased) was lying in injured condition in verandah of his house. Bhagmati (PW-1), her jethani-Leelawati (PW-2) and jeth-Amar Singh (PW-4) went to the house of Dayaram Lohar. They saw that deceased-Sukhsagar was lying in the verandah of the house of Dayaram Lohar having sustained multiple serious injuries. The deceased was alive at that time. The allegations are that when they were asking the deceased about the incident, appellant-Chhotelal came there with a hammer and assaulted the deceased by the hammer by giving 3 blows over his head. This was witnessed by all above witnesses. Appellant-Chhotelal was caught by the persons present there. Bhagmati (PW-1) lodged F.I.R. (Ex.-P/1) in concerned police station and an offence u/ss 307 /34 IPC was registered. The names of the appellants were mentioned in the F.I.R. (Ex.-P/1). Bhagmati (PW-1) made clear allegations against appellant-Chhotelal whom she had seen assaulting the deceased, however, she added that prior to their reaching at the place of occurrence, the deceased was assaulted by both the appellants. How she, could gather information about appellant-Mangal Singh was not mentioned in the F.I.R. (Ex.-P/1). The deceased was sent to Community Health Center (CHC), Pendra. He was examined by Dr.(Smt.) J.S. Lakra (PW-8). She found 1 incised wound on the left portion of the skull of the deceased. She also found 4 lacerated wounds on the skull of the deceased. The condition of the deceased was critical, therefore, he was referred to CIMS Hospital, Bilaspur. MLC report prepared by Dr.(Smt.) J.S. Lakra (PW-8) is Ex.-P/21. The deceased was admitted in CIMS Hospital, Bilaspur, where he died during the course of his treatment at about 5.00 p.m. on 14.5.2006. Information was sent to the concerned police. The Investigating Officer gave notice (Ex.-P/18) to the Panchas and prepared inquest (Ex.-P/19) on the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. Himesh Mandle (PW-6). He noticed following injuries on the dead body of the deceased:--

(i) Lacerated wound on the tongue having blood clot in the mouth; teeth were loosen;

(ii) 2 lacerated wounds on the left portion of skull;

(iii) Lacerated wound of 3 x 2 x 1 cm on the left temporal region;

(iv) Lacerated wound of 3 x 1 x 1 cm below the left ear-pinna;

(v) Abrasion of 2 x 4 cm above the left ear-pinna;

(vi) There were 2 fractures over the mandible bone; &

(vii) Lacerated wound of 4.3 x 2.1 x 1.5 cm over the fronto-parietal region having fracture of underlying bone; there were other injuries also.

The Autopsy Surgeon opined that all the injuries were ante-mortem caused by hard and rough object. The cause of death was coma as a result of head injuries and the death was homicidal in nature. The post-mortem report is Ex.-P/15.

In further investigation, the appellants were taken into custody and their memorandum statements (Ex.-P/8 & P/7) u/s 27 of the Evidence Act were recorded and a hammer was seized at the instance of appellant-Chhotelal and a tangia was seized at the instance of appellant-Mangal Singh. Other articles were also seized during the course of investigation. Caste-Certificate of the deceased (Ex.-24) was also seized. The deceased was belonging to Gond Tribe. The appellants were prosecuted u/s 302 /34 IPC. Appellant-Chhotelal was further prosecuted u/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 (hereinafter referred to as the ''Special Act''). The learned Special Judge relied on the testimonies of Bhagmati (PW-1), Leelawati (PW-2), Amar Singh (PW-4) and Bansanti Bai (PW-12) and convicted & sentenced the appellants as above. However appellant-Chhotelal was acquitted of the charges framed u/s 3(2)(v) of the Special Act.

Mr. Ashok Verma, learned counsel appearing on behalf of the appellants, has argued that there was absolutely no evidence against appellant-Mangal Singh; no overt act has been attributed to him by the eye-witnesses; there is no evidence to show as to who had assaulted the deceased prior to reaching of the eyewitnesses at the place of occurrence; therefore, appellant Mangal Singh deserves to be acquitted. So far as appellant-Chhotelal is concerned, he argued that only interested witnesses have been examined; therefore, their evidence would not have been relied on.

On the other hand, Mrs. Madhu Nisha Singh, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Special Judge.

Having heard learned counsel for the parties at length, we have perused the records of the special criminal case.

In Harbans Kaur and Another Vs. State of Haryana, , the Supreme Court held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused.

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.

In Sonelal Vs. State of M.P., , it was held that relationship is not a factor to affect credibility of a witness. It is more often than not that a 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 analyse evidence to find out whether it is cogent and credible.

In Dharnidhar Vs. State of U.P. and Others, the Supreme Court further 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.

Therefore, this argument cannot find favour 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 credible in appreciation, the conviction can well be based on their such testimonies.

Now we shall proceed to examine the evidence of eye witnesses on the above principles.

Bhagmati (PW-1) is wife of the deceased. She deposed that on the fateful day her husband had gone to the house of Dayaram Lohar to bring his tangia. When he did not return, she went to his house and saw that her husband was lying in pool of blood having sustained multiple injuries. Appellant-Chhotelal was present there. Appellant-Mangal Singh was also present there. Appellant-Mangal Singh assaulted her husband (deceased) by tangia and appellant-Chhotelal assaulted her husband by hammer. Her husband (deceased) sustained multiple serious injuries. He became unconscious. Thereafter he was taken to the hospital at Pendra and a report (Ex.-P/1) was lodged by her. After 5-6 days, her husband died during the course of treatment. In cross-examination, she was confronted with the F.I.R. (Ex.-P/1) and her case diary statement (Ex.-D/1). In both these documents, she had not mentioned that she had seen appellant-Mangal Singh assaulting the deceased. There are other omissions also in her case diary statement. When she was asked about the above omissions, she could not explain them. In F.I.R. (Ex.-P/1), though she mentioned that her husband was assaulted by both the appellants prior to their reaching at the place of occurrence, but, she did not disclose about the source of this information. In appreciation of her evidence, we find that it was proved by her evidence that she had seen that her husband was assaulted by appellant-Chhotelal by using a hammer, but, she did not witness the assault allegedly given by appellant-Mangal Singh by tangia as she claimed in her Court evidence.

Leelawati (PW-2) is an other witness. She is jethani of Bhagmati (PW-1). She also deposed that when they reached to the house of Dayaram Lohar, they saw that deceased-Sukhsagar was lying in injured condition in the verandah of his house. She also deposed that both the appellants had assaulted the deceased before them. She was also confronted with her case diary statement (Ex.-D/2), in which, it was not mentioned that she had seen appellant-Mangal Singh assaulting the deceased by tangia. She also could not explain the above omission.

Amar Singh (PW-4) is brother of the deceased. He is husband of Leelawati (PW-2). He deposed that when he reached to the house of Dayaram Lohar, he saw that the deceased was lying in pool of blood. A tangia was also lying there. He saw that appellant-Chhotelal had assaulted the deceased by hammer. He did not depose about appellant-Mangal Singh.

Bansanti Bai (PW-12) also deposed that she had seen that appellant-Chhotelal was assaulting the deceased by a hammer in the verandah of the house of Dayaram Lohar.

We have scrutinized the evidence of above eye-witness with due care and caution. In appreciation of evidence of above witnesses, we find that their evidence is intact, so far as appellant-Chhotelal is concerned, whom they had seen assaulting the deceased by a hammer. About appellant-Mangal Singh, their evidence is doubtful as the role attributed to Mangal Singh in their Court evidence is omission in their diary statements and in the F.I.R. It is not mentioned in the F.I.R. as to how Bhagmati (PW-1) came to know that prior to reaching of these witnesses to the place of occurrence Mangal Singh had also assaulted the deceased. Therefore, it was not proved by their evidence that Mangal Singh had also assaulted the deceased.

So far as appellant-Chhotelal is concerned, the evidence of these witnesses clearly indicate that they had seen him assaulting the deceased by hammer. Their evidence to this effect was corroborated by medical evidence and there is no reason to discard their evidence about appellant-Chhotelal.

On due appreciation of the entire material available on record, we are of the view that appellant-Mangal Singh, in the above facts and circumstances of the case, was entitled to benefit of doubt and the learned Special Judge fell into error by convicting him as above. So far as appellant-Chhotelal is concerned, his conviction was fully justified.

For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to appellant-Mangal Singh u/ss 302 /34 IPC are set-aside. He is acquitted of the charges framed against him. The conviction and sentences awarded to appellant-Chhotelal are maintained. His appeal is dismissed.