TILORAM BHUNJIYA vs STATE OF C.G.

Conviction,Sentence

Under Section 302 of IPC,"Life Imprisonment and fine of Rs.1000/-, in

default of payment of fine amount 10 days

additional simple imprisonment.

contradictions and omissions in the testimony of other witnesses, in the absence of any material contradictions or omissions in the testimony of",

eyewitness Sumitra Bai, her evidence may not be discarded. There is no motive as to why she would falsely implicate the real culprit of the incident.",

He would further submit that even though some of the witnesses of the prosecution have said that electricity connection was not available in the,

hutment, in the cross-examination, Sumitra Bai (PW7) has clearly stated that there was a chimney and fire also at the spot and has stood firm on her",

statement that it is the appellant and the appellant alone who assaulted her husband. He would further submit that the presence of the appellant at the,

spot is proved from the testimony of Laksha Kumar (PW5) and Surendra Bhunjiya (PW12). The ocular testimony is fully corroborated not only from,

the medical evidence with regard to the nature of injury and the place of the body where such injury was inflicted but also from the evidence of,

Jagdev (PW8) before whom the appellant confessed having murdered Satiram. He submits that in the evidence of this witness, there is no suggestion",

that he is speaking lie or had any reason to falsely implicate the appellant. Therefore, even though in view of reliable testimony of Sumitra Bai (PW7),",

there was no requirement of any independent corroboration, there is sufficient corroboration to her statement and the conviction of the appellant,",

therefore, does not warrant any interference.",

We have heard the learned counsel for the parties and bestowed our anxious consideration to submissions and records of the case.,

The first information report in Ex.P/7 lodged by Laksha Kumar (PW5) and recorded by J.L. Dhruv (PW18) has been proved from the testimony,

of these two witnesses. Laksha Kumar (PW5) has deposed before the Court that when he was informed by sister-in-law Sumitra at about 9:00 p.m.,

in the night that the appellant is assaulting Satiram by an axe, he went to the spot and found that Satiram was lying in bloodbath. He had sustained",

injury on the temporal part as also on the shoulder and was dead. According to him, the appellant was present at the spot and holding an axe. He",

further deposed that thereafter he went to the police station and lodged report in Ex.P/7 and has proved his signature. With regard to lodging of FIR,",

nothing could be elicited in the crossexamination to doubt that it is this witness who had lodged the report. Mr. J.L. Dhruv (PW18), Investigating",

Officer has also stated in the evidence that upon information given by this witness Laksha Kumar (PW5), the FIR was recorded in Ex.P/7 and has",

also proved his signature. In the FIR (Ex.P/7), it has been recorded at the instance of Laksha Kumar (PW5) that he is resident of village Kodomali",

and agriculturist, his elder brother Satiram resides with his wife in the hutment near the fields adjacent to the village and on 17.12.2012 in the night, his",

sister-in-law Sumitra Bai came and informed that his brother is being assaulted by the appellant Tiloram then he along with his nephew Surendra went,

to the hutment and saw that Tiloram had already assaulted and was holding an axe in his hand and running away from the spot. His brother was lying,

in bloodbath in the hutment. There were injury on his left temporal part and shoulder part and by that time, he died and villagers were called. He stated",

that there was previous enmity between the Satiram and Tiloram and because of the previous enmity, assault has been given. He also stated that his",

sister-inlaw Sumitra Bai has seen the assault and report thereafter has been lodged at the instance happens in the night.,

The morgue intimation Ex.P/7A has also been proved by J.L. Dhruv (PW18) that at the instance of Laksha Kumar, morgue intimation was also",

recorded by him in which also it has been recorded that on 17.12.2011 at about 9:00 p.m. in the night, Satiram while sleeping in the hutment has been",

assaulted by Tiloram, in which, he died.",

The prosecution case rests mainly on the testimony of eyewitness Sumitra Bai (PW7) who undisputedly is the wife of the deceased. In her,

testimony, this witness has deposed that the appellant is her uncle-in-law. She deposes that when she and her husband were present in 'Lari' (hutment)",

at about 8 :00 p.m. in the night, she and her husband were sleeping and at that time, the appellant arrived at the spot along with an axe and gave blows",

on the neck of her husband and cut the neck. When she requested the appellant to leave her husband, he did not accept and threatened by the",

appellant, she went towards her house and at that time, the appellant was assaulting her husband. She went to the house and informed her son",

Surendra and brother-in-law Laksha Kumar (PW5) whereafter all of them had come running towards hutment. By that time, her husband died. She",

further states that she does not know why the appellant killed her husband. She also states that she does not know whether before the incident, her",

husband was threatened by the appellant. She has also stated that there was no dispute between the appellant and her husband.,

On this statement, this witness was declared hostile and the prosecution confronted with her previous statement Ex.P/10, wherein she has stated",

regarding previous enmity but this witness states that she had not given such statement. In her cross-examination, this witness has stated that though",

there was no arrangement of electricity and light in the hutment, she, herself, stated that there was a lantern (chimney) and a fireplace also at the spot.",

She further states that before the incident she and her husband were sleeping. She has denied suggestion that as she was sleeping, she could not see",

as to who assaulted her husband and she reaffirmed that the appellant had thrown her husband outside the hutment. She also denied the suggestion,

that her husband was killed by naxalite. In the cross-examination, she has admitted that the appellant used to come to the house of the deceased. A",

suggestion that she has not seen the appellant assaulting her husband, has been clearly denied. She, herself, says that she resisted the accused from",

assaulting her husband and she was also assaulted.,

At this stage, submission of learned counsel for the appellant has to be noted that no injury have been found on any part of the body of this",

witness. Further, she admits that when she came back along with her son and brotherin-law, the appellant was not there and had already ran away.",

She has admitted that on the next day, the appellant had also come to see the dead body. She admits that the appellant has left his wife 15 years",

before. She has denied the suggestion that in order to grab 12 acres of agriculture land and pond belonging to the appellant, a false report has been",

lodged under a conspiracy.,

The aforesaid witness happens to be the wife of the deceased. The contradiction is brought about in her testimony when confronted with her diary,

statement with regard to the motive. Except this, no other contradiction has been elicited in her cross-examination. Though, this witness has admitted",

that there was no electricity, she has emphatically stated that there was a lantern lighting at the spot and there was also a fireplace nearby the place",

where she and her husband were sleeping. Present is not a case where the eyewitness had seen the incident from a considerable distance so as to say,

that in the absence of there being a provision for electricity, it was not possible for the witness to see and recognize the face of the person giving",

assault. From her evidence, it is clear that she and her husband (deceased) were sleeping together that means she was very close next to her husband",

in the hutment where there was a lantern lighting and a fireplace was also nearby. If the wife was sleeping so close to her husband, this Court cannot",

doubt her testimony only on the ground that there was no electricity at the spot.,

True, it is that number of witnesses of the prosecution have admitted in their cross-examination that there was no electricity connection but except",

this, no other evidence has come forth to doubt the testimony of Sumitra Bai (PW7) only on the ground that in the hutment, there was no electricity",

connection.,

Learned counsel for the appellant has strongly put forth that there was strong motive to falsely implicate the appellant. After giving our anxious,

consideration to the submission, we are unable to accept the submission. The suggestion in this regard has been emphatically denied. In fact, there is",

no evidence on record to show that there was any pre-existing animosity between the appellant and the deceased in connection with rival claim over,

any property. It has been the case of the appellant, himself and has come in the evidence that there was no pre-existing animosity between the",

appellant and the deceased. In the absence of any material and clinching evidence, a mere suggestion that the appellant would be falsely implicated",

only to grab the property, cannot be accepted. It is true that the prosecution has failed to establish any motive. But then, the legal position in this regard",

is well settled that if testimony of the eyewitness is reliable, absence of motive would not be a ground to disbelieve the eyewitness account of a",

reliable witness. It would be another thing that because of any material contradiction, omission and other attending circumstances of the case, the",

Court may require corroborative evidence to lay evidence to the testimony of the eyewitness. But on principles, it cannot be accepted that in the",

absence of motive, without anything more, the conviction cannot be rested on the testimony of eyewitness.",

Learned counsel for the appellant has also stressed on the aspect that there was a meeting organized in the village at the instance of Laksha,

Kumar (PW5), the brother of the deceased, wherein, the villagers resolved to ensure that the appellant is not released. In our consideration opinion,",

that by itself, does not mean that there was any motive to falsely implicate.",

The wife and other members of the family and the villagers, who had arrived at the spot all of them were disclosed that it is the appellant who has",

assaulted the deceased.,

It would be noteworthy that the name of the appellant, as the assailant, has been involved in the evidence right from the beginning, in the morgue",

and FIR recorded and the statement of the prosecution witnesses and the statement of Sumitra Bai (PW7), it has been stated that it is the appellant",

who assaulted the deceased. Moreover, the ocular testimony of Sumitra Bai (PW7) is fully corroborated from the medical evidence on record.",

Sumitra Bai (PW7) has stated that the appellant arrived at the spot along with an axe and assaulted her husband on his neck and shoulder, due to",

which, the neck was cut. The prosecution has proved the postmortem report Ex.P/3 from the evidence of Dr. M.S. Thakur (PW3). The evidence of",

Dr. M.S. Thakur, who examined the dead body and gave an opinion is as below :",

^^2- ckg~; ijh{k.k %&,

1- 'kjhj e`r ,oa vdM+k gqvk FkkA iSjkblkbt oq.M ck;a s lkbM ds psgjs esaAcka;s lkbM ds tcM+s esa 2x1x1 bap dk pksV Fkk vkSj cka;k tcM+k",

VwVk gqvk ik;k x;kA,

2- balkbt oq.M [kksiM+h ds fiNys Hkkx esa 2x2x1/2 bap pksV ik;k x;k vkSj vDlhihfVy cksu QzSDpj FkkA,

3- balkbt oq.M cka;s dku ds uhps 2x2x1 bap pksV ik;k x;kA,

4- balkbt oq.M xnZu ds fupys nka;s Hkkx esa 3x2 bap pksV FkkA,

5- balkbt oq.M xnZu ds fupys nka;s Hkkx esa 3x2 bap pksV FkkA,

6- balkbt oq.M xnZu ds fupys nka;s Hkkx esa 4x3 bap pksV FkkA xnZu dk iwjk vax dVk gqvk Fkk] ek= peM+h ls yVdk gqvk FkkA,

7- balkbt oq.M ihB ds Ã…ijh Hkkx esa 4x3x2 bap pksV FkkA,

8- balkbt oq.M nka;s da/ks ds ihNs Hkkx esa 2x1 bap pksV FkkA,

3- vkarfjd ijh{k.k%&,

1- eqag] xzkluyh dats'ku FkkA isV esa v/kipk Hkkstu FkkA yhoj isykj] LIyhu] xqnkZ isykj] eq= Fksyh [kkyh FkkA ckgjh tusUnzh;ka ls oh;Z fudyk,

gqvk Fkk vkSj diM+s esa yxk gqvk FkkA,

4- vfHker %& dBksj ,oa /kkjnkj gfFk;kj ds }kjk xnZu esa pksV yxus ds dkj.k vR;kf/kd ek=k esa [kwu cg pqdk Fkk] ftlds dkj.k mldh e`R;q gqbZ FkhA",

e`R;q gksfelkbMy izd`fr dk gSA e`R;q 'ko ijh{k.k ds yxHkx 16 ls 18 ?kaVs ds Hkhrj dh gks ldrh gSA esjh fjiksVZ iz0ih03 gS] ftlds v ls v Hkkx ij esjs,

gLrk{kj gSA**,

In the cross-examination, nothing could be elicited to doubt the fact that the doctor has actually conducted the postmortem report and observed",

injury and noted by him in his report as also the opinion. The evidence in this regard would clearly show that the deceased suffered incised wound on,

various part of his body which included the left temporal, neck, head as also shoulder and back. The postmortem and the evidence of doctor reveals as",

many as three injuries on the neck caused by sharp weapon resulting in incised wound. There is an injury on the shoulder. In addition, there are injuries",

on the back as also head and face. The evidence of eyewitness Sumitra Bai (PW7) is regarding assault by an axe on the neck and shoulder. Thus,",

ocular testimony of this witness is fully corroborated from the medical evidence on record.,

Learned Trial Court also noticed that in the present case, Jagdev (PW8) has deposed in his evidence that the appellant confessed before him that",

he has killed the Satiram. Learned counsel for the appellant submits that the evidence of this witness is not reliable because in his cross-examination,",

he has admitted that the police had not recorded his case diary statement in Ex.D/1 and he is for the first time deposing in the Court that the appellant,

had confessed commission of offence before him.,

At the first place, it cannot be said as a matter of law that the testimony of witness are necessarily be discarded only because 161 Cr.P.C.",

statement has not been recorded. Nevertheless, the testimony of such witness is required to be carefully examined with utmost circumspection. In the",

examination-in-chief, Jagdev (PW8) has stated that the appellant came to his house and confessed that he had assaulted Satiram with an axe and had",

ran away. In his crossexamination, though he admits that his statement was not taken by the police as shown in Ex.D/1, there is no suggestion given to",

the witness that he is telling lie or is a concocted witness to support the case of the prosecution. There is, in fact, no suggestion in the cross-",

examination that he had any reason to falsely implicate the appellant.,

Therefore, this Court, after having gone through the complete statement of this witness in the Court, does not find any reason to disbelieve his",

testimony only on the ground that his diary statement was not recorded by police as stated by him.,

True it is that the witnesses of memorandum and seizure have not supported the independent witness Adruram (PW10) and Rameshwar Nishad,

(PW11) of the memorandum have not supported the case of the prosecution, in view of finding which were recorded herein above that firstly the",

testimony of Sumitra Bai (PW7) does not suffer from such contradiction and omission that it should seek any independent corroboration, in any case,",

there are corroboration to her testimony as discussed herein above.,

The decision relied upon by learned counsel for the appellant are distinguishable on facts in the present case.,

In the result, we do not find any merit in the appeal and the same is accordingly dismissed.",