Khedu Ram and Others vs State of C.G.

T.P. Sharma, J.—Challenge in this appeal is to the judgment of conviction and order of sentence dated 04-10-2003 passed by Sixth Additional Sessions Judge Raipur in ST. No. 402/2002 whereby and there under learned Additional Sessions Judge after holding the Appellant guilty for commission of murder of Lomas Satnami in sharing the common intention convicted the Appellants u/s 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/- each, in default of payment of fine to further undergo additional rigorous imprisonment for three months each.

The judgment is impugned on the ground that without any clinching and credible evidence, the learned Court below has convicted and sentenced the Appellants as aforementioned and thereby committed illegality.

Brief facts of prosecution case are that on the fateful day of 08-04-2002 at about 7.45 P.M., deceased Lomas was coming with his son Dilip Kumar (P.W. 1) by motorcycle from Village Kosarangi to Village Farhada. They were intercepted by the present Appellants who were holding stick and knife. The Appellant Rajesh damaged his motorcycle and tried to attack upon Dilip. Again the Appellants assaulted the deceased. The Appellant Kheduram assaulted the deceased by knife and other co-accused assaulted by stick. The deceased fell and become unconscious. His brother Rajnarayan (P.W. 8) who was also present at the spot has seen the incident. They took the injured Lomas along with other persons to the Police Station, where Dilip Kumar (P.W. 1) lodged F.I.R. vide Ex. P-1. Injured was examined by Dr. S.R. Banjare (P.W. 3) and on finding injuries videEx.P-11:

(1) Two lacerated wounds over head from left parietal region to right parietal region of 1 1/2 cm x 1/2 cm x 1/2 cm and 1 cm x 1/2 cm x 1/2 cm. Blood was coming out.

(2) One deep incised wound of 1/4" x 1/2 cm x 1 cm over the neck.

(3) One incised lacerated wound of 1/4" x 1 1/4 cm x 1/2 cm x 1/2 cm over left side of the head.

(4) One incised wound of 1 cm x 3/4 cm x 1/2 cm inside left cheek.

(5) Five teeth were found broken along with lacerated wound.

(6) Three parallel contusions over left hand of 4 1/2 x 1/4" x 3 1/2" x 2 3/4".

He was unconscious and was taken for further treatment. During treatment, the deceased died at M.M.I. Hospital, Raipur. Merg was intimated vide Ex. P-14.

After summoning the witnesses vide Ex. P-8, inquest over the dead body of the deceased was prepared vide Ex. P-9. Body was sent for autopsy vide Ex. P-15 to Medical College Hospital, Raipur. Autopsy was conducted by Dr. G.P. Dewangan (P.W. 16) vide Ex. P-25 and found the following injuries:

(1) Stitched surgical wound on right angle of mouth;

(2) Abrasion over left side of chest;

(3) Stitched surgical wound over right parietal region on scalp;

(4) Stitched surgical wound over left parietal region of the head;

(5) Depression of mid parietal area posteriorly;

(6) Fracture of 3rd to 8th ribs left laterally;

(7) Stitched surgical wound over the left side of mandibular on neck.

The cause of death was cardio respiratory failure as a result of head injury and its complication. Blood stained clothes of the deceased were seized vide Ex. P-6. Spot map was prepared vide Ex. P-7. Accused Kheduram was taken into custody. He made a disclosure statement of knife vide Ex. P-18. The same was recovered at the instance of accused Kheduram vide Ex. P-21. Accused Pappu made a disclosure statement of stick vide Ex. P-19 and the same was recovered at the instance of accused Pappu vide Ex. P-22. Accused Rajesh made statement of disclosure of stick vide Ex. P-20 and the same was recovered at the instance of accused Rajesh vide Ex. P-23. Seized articles were sent for chemical examination vide Ex. P-26.

Statement of witnesses were recorded u/s 161 of the Code of Criminal Procedure, 1973 (for short ''the Code''). After completion of investigation, charge-sheet was filed before the Judicial Magistrate, First Class, Raipur who in turn committed the case to the Court of Sessions, Raipur. Learned Additional Sessions Judge, Raipur received the case on transfer for trial.

In order to prove guilt of the Appellants, prosecution examined as many as 18 witnesses. The accused were examined u/s 313 of the Code where they denied the circumstances appearing against them and have taken the defence that they were in inimical terms with the complaint party on the ground of selling illicit liquor and have been falsely implicated on the ground of enmity.

Accused examined Jogsingh (D.W. 1). He deposed that deceased Lomas and his son Dilip Kumar (P.W. 1) used to sell illicit liquor in the Village and the deceased died as a result of motor accident.

After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the Appellants as aforementioned.

We have heard learned Counsel for the parties, perused the judgment impugned and record of Court below.

Shri Yashwant Tiwari, learned Counsel appearing for the Appellants, vehemently argued that the evidence of alleged eye witness of Dilip Kumar (P.W. 1) son of deceased and Rajnarayan (P.W. 8) brother of the deceased are contradictory. Both the witnesses have not seen the incident and have falsely implicated the Appellants in crime in question on the ground of previous enmity I relating to selling of illicit liquor. Even according to the prosecution, the only grievous injury found over the body was breaking of tooth which is neither dangerous nor fatal for the life. Deceased died after three days of incident. At the time of commissi on of offence, the Appellants were in a position to finish the deceased but they have not caused instantaneous death. They have not caused the injury with intent to causing his death but they have caused injury with a view to teach him lesson in which at the worst the offence would be punishable u/s 326/34 of the I.P.C. Learned Counsel further argued that the present Appellants are in custody since 19-04-2002 and have completed more than seven years in custody for the aforesaid offence.

On the other hand, Shri Bhatia, learned Counsel appearing for the State/ Respondent, vehemently opposed the appeal and submits that the case of prosecution is based on the evidence of eye witness who have seen the incident and has categorically supported the case of prosecution. Dilip Kumar (P.W. 1) is son and Rajnarayan (P.W. 8) is brother of deceased. They are close relatives of the deceased. Their presence on the spot is natural. Their evidence cannot be discarded on the ground that they are close relatives of the deceased. The relatives are the persons reluctant to spare the real culprit and to implicate an innocent person falsely. Learned Counsel appearing for the State/Respondent further argued that evidence of Dilip Kumar (P.W. 1) and Rajnarayan (P.W. 8) inspire the confidence and trustworthy. The Appellants have caused more than six fatal injuries by dangerous weapon (knife and stick), so their intention of causing homicidal death amounting to murder.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. In the present case, homicidal death of the deceased as a result of injury is not substantially disputed by the Appellants, otherwise established by the evidence of Dr. S.R. Banjare (P.W. 3), medical report Ex. P-11, Dr. G.P. Dewangan (P.W. 16) and autopsy report Ex. P-25 which reveal that more than six injuries were caused over the body of:he deceased including head, neck and mouth. The surgery of head was conducted during treatment and death was as a result of head injury. The injuries were ante-mortem and the death was homicidal in nature.

As regards the complicity of the accused in crime in question is concerned, conviction of the accused persons are substantially based on the evidence of eye witness Dilip Kumar (P.W. 1) and Rajnarayan (P.W. 8). Dilip Kumar (P.W. 1) has deposed in his evidence that at the time of incident, he was coming with his father deceased Lomas by motorcycle. They were intercepted by the Appellants. While they were coming to their village, Appellant Rajesh damaged his motorcycle and also tried to attack upon him, then he ran away from the spot ;and went to the house of Jeevrakhan for help but Jeevrakhan did not come to the place of incidence to intervene, then again he came back to the spot. His uncle Rajnarayan (P.W. 8) was also coming to the village from Kosarangi to Farhada. He has further deposed that Appellant Kheduram assaulted his father by knife over his neck. Another co-accused assaulted his father by stick. They have also chased him. When his uncle Rajnarayan came to the place of incident then he again came with Jeevrakhan near the place of incident, then the Appellants fled away from the spot. They took his father to Police Station and hospital. Rajnarayan (P.W. 8) brother of deceased has substantially corroborated the evidence of Dilip Kumar (P.W. 1) who has deposed in his evidence that Appellant Khedu assaulted his brother by knife and rest of Appellants assaulted his brother by stick. He shouted for help and called Jeevrakhan, then Jeevrakhan and Dilip came then the Appellants fled away from the spot. Jeevrakhan (P.W. 12) has not supported the case of prosecution. The prosecution has declared him as hostile.

Defence has cross-examined Dilip Kumar (P.W. 1) at length. In his detailed cross-examination, he has specifically deposed that the Appellants are the persons who have assaulted his father. He has admitted in para 15 of his evidence that firstly his father was admitted in Medical College Hospital, Raipur then they could admit in M.M.I. Hospital, Raipur where he died on 11 -04-2002. He has denied that the Appellants have not assaulted his father and his father received injuries on account of motor accident. Defence has also cross-examined Rajnarayan (P.W. 8) in detail. In his cross-examination, he has admitted that after purchasing medicine, he was coming from village Kosarangi. He has also admitted in his cross-examination that his brother was treated in two hospitals. In the cross-examination of these witnesses, defence has not been able to bring anything to discredit the testimony to the effect that Appellants have not caused injuries to the deceased. Defence has examined Jogsingh (D.W. 1) who has deposed that the deceased Lomas and his son Dilip Kumar (P.W. 1) used to sell the illicit liquor and had heard that Lomas died as a result of motor accident but his examination or detailed cross-examination, he has not stated that how he came to know that Lomas died as a result of motor accident and who have informed such fact to him. Dispute relating to illicit liquor is not substantially denied. Jogsingh (D.W. 1) is not a witness of any incident. Dilip Kumar (P.W. 1) and Rajnarayan (P.W. 8) are the son and brother of deceased and are closed relatives but their statement cannot be discarded on the ground of their relationship. There are some omissions and contradictions in the statement of Dilip Kumar (P.W. 1) and Rajnarayan (P.W. 8) occurred into their evidence. The Appellants were three in number, they have caused more than six injuries. In case of one assertion and more than one weapon omission and contradiction even exaggeration are natural but only on the ground of omission, contradiction, exaggeration or the fact that the part of the statement is false, their statement/evidence cannot be thrown.

It is duty of the Court to separate truth of grain from the chaff of falsehood if possible. While dealing with the question of reliability of the evidence of the person who has exaggerated and patiently given false statement up to some extent the Apex Court in the matter of Laxman and Others Vs. The State of Maharashtra, has held that witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrable incorrect or doubtful. Relevant portion reads as under:

Before we discuss the evidence further, we may observe that Professor Munsterberg in a book called "On the Witness Stand" (p.51), "Law and the Modern Mind" (see: 1949 ed. P. 106) gives instances of experiments conducted by enacting sudden unexpected preplanned episodes before persons who were then asked to write down, soon afterwards, what they had seen and heard. The astounding result was:

Words were put into the mouths of men who had been silent spectators during the whole short episode; actions were attributed to the chief participants of which not the slightest trace existed; and essential parts of the tragic-comedy were completely eliminated from the memory of a number of witnesses.

Hence, the Professor concluded: "We never know, or imagine". Witnesses can not, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted or acted upon. It is sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "falsus in uno falsus in omnibus."

While dealing with the question of reliability of relative witness the Apex Court in the matter of Dalip Singh and Others Vs. State of Punjab, has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship for from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

Further, in the matter of Mohabbat and Ors. v. State of M.P. 2009 AIR SCW 1486 the Apex Court has held that relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads thus,

Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. 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 analyze evidence to find out whether it is cogent and credible.

In the present case, the presence of Dilip Kumar (P.W. 1) and Rajnarayan (P.W. 8) were natural. Dilip Kumar (P.W. 1) was accompanying the deceased by a motorcycle and P.W. 8 Rajnarayan who was coming after purchasing medicine from Kosarangi to his Village Farhada, they are relatives but their evidence inspire confidence and trustworthy and safe to rely and sufficient for drawing inference that the Appellants are the persons who are caused fatal injuries resulting into death of the deceased.

As regards motive is concerned, the injuries caused by Khedu over the neck of the deceased was not found fatal after assaulting the deceased, the Appellants fled away from the spot but they have not left the place of occurrence suo-moto when three persons came to the place of incident then they fled away from the spot. During course of incident, even they have tried to attack upon Dilip Kumar (P.W. 1) who had tried to intervene the incident, they have assailed the deceased by knife and stick and caused more than six injuries. The injuries found over the head were fatal and sufficient to cause of death shows the grave intention of causing homicidal death of the deceased amounting to murder.

All the Appellants have caused injuries to the deceased. Firstly they intercepted the deceased and his son, then they caused injuries, shows their sharing of common intention in commission of the offence.

After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the Appellant u/s 302/34 of the I.P.C. and sentenced to undergo rigorous imprisonment for life and fine of Rs. 5000/-each in default of payment of fine of Rs. 5000/- each, to further undergo rigorous imprisonment for three months. Conviction of the Appellants is based on clinching and credible evidence sustainable under the law.

On close scrutiny of the evidence adduced on behalf of the parties, we do not find any illegality or infirmity in the judgment impugned warranting any interference. The appeal being devoid of merit is liable to be and is hereby dismissed.