Ramadhar Nishad and Others vs State of Chhattisgarh

T.P. Sharma, J.—Challenge in this appeal is to the judgment of conviction & order of sentence dated 30.04.2007 passed by the Third Additional Sessions Judge, Raipur, in Sessions Trial No. 408/2006, whereby & whereunder learned Third Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Dashrath and attempt to commit murder of Gautam Bai and Mahesh in sharing common intention convicted them under Sections 302/34 and 307/34 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 1000/-, in default of payment of fine to further undergo R.I. for three moths and R.I. for five years and fine of Rs. 500/-, in default of payment of fine to further undergo R.I. for two months for each attempt to commit murder. Conviction is impugned on the ground that without there being any lota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality.

As per case of the prosecution, on 06.08.2006 at about 9 p.m. Dashrath (since deceased) was going to his house for taking meal, appellants Daddu @ Omprakash and Girwar came to him and told that they will burn his house. While Dashrath was entering in his house appellant Girwar and Daddu @ Omprakash poured petrol over him, Mahesh and Gautam Bai and set them ablaze, anyhow they extinguished the fire. Appellant Ramadhar was also standing near the place of incident, he was having motorcycle, thereafter three accused fled from the spot. Injured Mahesh (PW-8) went to the Police Station Telibandha and lodged F.I.R. vide Ex P/10. Injured were sent for medical examination to Dr. Ambedkar Hospital, Raipur vide ExP/14A, P/15 and P/16. They were examined by Dr. Neeta Kamawat (PW-17) vide Exs. No. P/28, P/29 and P/30 and round superficial to burn deep by flame over the body of Dashrath, Mahesh and Gautam Bai. They were admitted in Hospital in burn unit for further treatment. During the course of treatment on 07.08.2006 i.e. second day of the incident Dashrath (since deceased) made dying declaration before Naib-Tahsildar Pranav Singh (PW-19) vide Ex P/32 and stated that appellant Daddu and Girwar had poured petrol over him, his son and wife and set them ablaze. During the course of treatment on 12.08.2006 at about 6.20 p.m. Dashrath Died. Merg was recorded vide Ex. P/31. After summoning the witnesses vide Ex. P/3 prepared inquest over the body of deceased Dashrath vide Ex. P/5. Dead body of the deceased was sent for autopsy to Dr. Ambedkar Hospital vide Ex. P/22 where Dr. Vikas Kumar Dhruv (PW-21) conducted autopsy over the body of the deceased vide Ex. P/34 and found multiple burn injuries. Cause of death was cardio respiratory failure as a result of burn and its complications. During the course of investigation burn piece of clothes with smell of petrol were seized from Mansingh, son of deceased Dashrath vide Ex. P/2. One bottle containing some petrol was seized from drainage adjoining to the house of the deceased vide Ex. P/3. Spot map was prepared by investigating officer vide Ex. P/11. Patwari also prepared spot map vide Ex. P7. Two motor-cycles were seized from appellant Girwar and Ramadhar vide Ex. P/12 and P/12. Documents of motorcycles were also seized from Sahnakarlal vide Ex. P./14. Regarding dying declaration, request was made to the Doctor vide Ex. P/17 where the doctor has certified that Dashrath was in a fit state of mind to give statement on 07.08.2006, thereafter his statement was recorded. Sealed articles were sent for chemical examination vide Ex. P/23.

Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure, 1973 (for short ''Code'') and after completion of investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Raipur, who in turn committed the case to the Court of Sessions, Raipur, from where the learned Third Additional Sessions Judge, Raipur, received the case on transfer for trial.

In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 21 witnesses. Statements of the accused/appellants were recorded u/s 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. They have also examined defence witnesses Omprakash Yadav (DW-1) and Bhikamchand Kurre (DW-2) who have deposed that at the time of incident some unknown persons were quarrelled with the deceased Dashragh and injured Mahesh and Gautam Bai and all of sudden they saw flame of fire from body of Dashrath. Mahesh and Gautam Bai, then they fled towards their house and entered into the house, they had consumed liquor and they were in habit to quarrel with resident of vicinity after consuming liquor. After the incident, Mansingh, son of deceased Dashrath came to Bhikamchan Kurre (DW-2), auto driver, then he brought the injured to Police Station Telibandha and hospital. Being asked Dashrath informed the police that he does not know who has set them ablaze. Mahesh (PW-8) told to the Police that he does not know who has caused burn to them but they were having enmity with the appellants and they would have been burnt, thereafter they were sent for treatment.

After providing opportunity of hearing to the parties, learned Third Additional Sessions Judge, Raipur convicted & sentenced the appellant as aforementioned.

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

Learned counsel for the appellants vehemently argued that conviction is based on the evidence of interested, inimical and relatives witnesses Mahesh (PW-8) and Gautam Bai (PW-9), although they are Injured witnesses and their presence on the spot cannot be doubted, but same is not sufficient for conviction of the appellants without further corroboration. As per evidence of Mahesh (PW-8) and Gautam Bai (PW-9), they have not seen the incident, their evidence are completely contradictory to each other. As per their evidence, deceased Dashrath was not in a position to give statement on 07.08.2006. His alleged dying declaration Ex. P/32 appears to be suspicious. It appears from the evidence of the witnesses that there was no propriety for causing such brutal injury by the appellants, there was no previous enmity in these circumstances, only suspicion is not sufficient for conviction of the appellants.

On the other hand, learned Panel Lawyer for the State/respondent opposed the appeal and argued that conviction is based on dying declaration made by deceased Dashrath to Executive Magistrate Pranav Singh (PW-19) vide Ex. P/32 and evidence of injured witnesses Mahesh (PW-8) and Gautam Bai (PW-9) whose presence cannot be doubted. Definitely these witnesses are relative witnesses. There may be enmity between the parties but only on the ground of relationship or enmity their presence cannot be discarded and only minute scrutiny of their evidence is required before accepting it.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties.

In the present case. Homicidal death as a result of burn injuries of Dashrath and burn injures to Mahesh and Gautam Bai have not been substantially disputed on behalf of the appellants, inter alia, by examining defence witnesses Omprakash Yadav (DW-1) and Bhikamchand Kurre (DW-2) they themselves have admitted the burn injuries caused to the injured and the deceased at the time of incident. Even otherwise, same is established by the evidence of Dr Neeta Karnawat (PW-17), medical report Exs. P/28, P/29 and P/30, evidence of Dr. Sharad Grewal P/W-20, medical report Ex. P/33, evidence of Dr. Vikas Kumar Dhruv (PW-21) and autopsy report Ex. P/34 that burn injuries were found over the body of Mahesh and Gautam Bain and death of deceased Dashrath was as a result of burn injuries and its complications.

As regards the complicity of the appellants in the crime in question, conviction is substantially based on the evidence of dying declaration of Dashrath before the Executive Magistrate Pranav Singh (PW-19) vide Ex. P/32 and evidence of injured Mahesh (PW-8) and Gautam Bai (PW-9). Mahesh (PW-8) has deposed in his evidence that at the time of incident all the three appellants came near his house, they called his father Dashrath out of the house, they also came out from the house, then appellant Ramadhar told his younger brother i.e. appellant Omprakash to pour petrol over them, then they poured petrol over them, then appellant Girwar set them ablaze, he become unconscious, thereafter he regain conscious then they went to the Police Station and lodged the F.I.R. vide Ex. P/10. They were treated by the doctor. Other injured witness Gautam Bai (PW-9) ha substantially corroborated the evidence of Mahesh (PW-8).

Defence has cross-examined these witnesses at length relating to presence of accused persons, pouring of petrol by whom and how has set them ablaze, where the incident took place and where they received burn injuries. There are some contradictions in their statements relating to the aforesaid facts but the aforesaid controversy has been set at rest by the evidence of Omprakash Yadav (DW-1) whose evidence reveals that these all three injured were present in front of their house and all of sudden they saw the flame coming from their bodies, then they rushed towards their house. This shows that all the three persons have been set them ablaze in front of their house.

As per dying declaration Ex. P/32, while deceased Dashrath was entering into his house at the same time petrol was poured over him, his son and wife and they were set ablaze. These evidence clearly reveal that incident took place on the gate of house of injured and the deceased. Three persons have received burn injuries and out of three one died as a result of burn injuries and its complications. It was not a normal incident. Pouring petrol and setting them ablaze cannot be treated as a normal incident and if such incident, happens then definitely they will first try to save themselves, they will rush and they will try to extinguish the fire. In these circumstances, some discrepancies, omissions and contradictions relating to place and mode of incident would be just and natural, but on the aforesaid ground their evidence cannot be discarded or rejected in toto.

Naib-Tahsildar Pranav Singh (PW-19) has recorded dying declaration of Dashrath on 07.08.2006 second day of the incident at 1.20 p.m. vide Ex. P/32. As per his evidence, at the instance of investigating officer he visited Dr. Bhimrao Ambedkar Medical Hospital, Raipur, Dashrath was admitted in Ward No. 17, Bed No. 16 (burn unit), he obtained certificate of fitness from Dr. Sharad Grewal and thereafter recorded dying declaration of Dashrath vide Ex. P/32. As per his evidence, two persons namely Daddu and Girwar threatened him and while he was entering in his house they poured petrol over him, his son & wife and set them ablaze. Defence has cross-examined this witness at length. In his cross-examination he has categorically deposed that Dashrath was a fit state of mind to give statement and he has recorded the statement given by Dashrath vide Ex. P/32.

Mahesh (PW-8) and Gautam Bai (PW-9) are injured witnesses. As per evidence of Bhikamchand Kurre (DW-2), they were having enmity with the present appellants. It appears that Mahesh (PW-8) and Gautam Bai (PW-9), who were injured, are also relative witnesses and there may be enmity between them and the appellants, but only on the ground of relationship or enmity their evidence cannot be discarded. It requires minute scrutiny before accepting it.

While dealing with the question of evidentiary value of relatives, interested and inimical witnesses, the Supreme 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 relative 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 far from being a foundation is often a sure guarantee of truth

As held by the Apex Court in the matter of Mohabbat and Others Vs. State of M.P., ), 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 as under.

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.

While dealing with the same question, the Supreme Court in the matter of Guli Chand and Others Vs. State of Rajasthan, has held that mere fact that relative witness or his relations is not sufficient to discard his testimony.

While dealing with the same question, the Supreme Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra, , held that in view of the close relationship and affection any person related to the deceased would have, such a witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murdered and. therefore, the Court has to examine such evidence with very great care and caution. Para 48 of the said judgment reads as under:-

Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.

Definitely Mahesh (PW-8) and Gautam Bai (PW-9) were injured witnesses and they have received burn injuries by using petrol which finds corroboration from the evidence of Omprakash Yadav (DW-1) and Bhikamchand Kurre (DW-2). This is not the case that they themselves had set them ablaze. Mahesh (PW-8) has specifically deposed that Ramadhar was directing other accused to pour petrol and set them ablaze, then they poured petrol and set them ablaze. Gautam Bai (PW-9) has also deposed the same thing. Evidence of Mahesh (PW-8) and Gautam Bai (PW-9) reveal that accused Omprakash and Girwar had poured petrol and set them ablaze on the direction of appellant Ramadhar and appellant Ramadhar has personally not poured petrol over them and has not set them ablaze.

As per evidence of Naib-Tahsildar Panav Singh (PW-19) and dying declaration Ex. P/32, Daddu and Girwar came to Dashrarh, they threatened him and they poured petrol and they set them ablaze and in dying declaration Ex. P/32 Dashrath has named only two persons i.e. Daddu and Girwar. As per F.I.R. Ex. P/10 Daddu @ Omprakash was keeping plastic bottle containing petrol and Ramadhar was standing near the place of incident, Ramadhar was holding motor-cycle. On minute scrutiny of evidence of Mahesh (PW-8) and Gautam Bai (PW-9), dying declaration Ex. P/32 and F.I.R. Ex. P/10 is clearly reveals that although appellant Ramadhar was standing near the place of incident but he has not committed overt act. As per Ex. P/10 F.I.R. and Ex. P/32 dying declaration, appellant Daddu @ Omprakash and Girwar have caused the incident. Burn injuring found over the body of Mahesh (PW-8) and Gautam Bai (PW-9) were simple in nature, but the act of pouring petrol over any person and setting him ablaze itself is the act of attempt to commit murder of the person.

Evidence of Mahesh (PW-8) and Gautam Bai (PW-9) substantially corroborated by Omprakash Yadav (DW-1) and Bhikamchan Kurre (DW-2) and also corroborated by the evidence of Naib-Tahsildar Pranav Singh (PW-19), dying declaration EX. P/32 and F.I.R. Ex. P/10 are sufficient to establish the fact that appellant Daddu @ Omprakash and Girwar in sharing common intention have committed homicidal death of Dashrath with intent to cause his death and have also attempted to commit murder of Mahesh (PW-8) and Gautam Bai (PW-9).

After appreciating the evidence available on record, learned trial Court has rightly convicted and sentenced appellants Omprakash and Girwar, but while convicting and sentencing appellant Ramadhar the trial Court has not considered insufficiency of evidence against appellant Ramadhar and absence of any overt act of appellant Ramadhar. The trial Court has also not considered the fact that mere presence of any person near the place of incident is not sufficient to connect him for commission of offence and thereby committed illegality relating to conviction and sentence of appellant Ramadhar. For the foregoing reasons, the appeal is partly allowed. Conviction & sentences of appellant Ramadhar u/s 302/ 34 and 307/ 34 of the I.P.C. are hereby set aside. He be set at liberty and be released forthwith if not required in any other case. However, conviction and sentences of appellants Omprakash and Girwar u/s 302/ 34 and 307/ 34 of the I.P.C. are hereby maintained.