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Madhya Pradesh High Court · body

2003 DIGILAW 643 (MP)

Chamra v. State of M. P.

2003-05-01

N.K.JAIN, S.L.KOCHAR

body2003
JUDGMENT Jain, J. 1. Both these appeals arise from the same judgment dated 7.1.1998, rendered by I Additional Session Judge, Alirajpur, in Sessions Trial No. 128/1996, convicting accused-appellant Chamra under section 302/34 of the Indian Penal Code and appellant Mohansingh u/s 302/34 of IPC and sentencing them each to imprisonment for life. 2. Two more co-accused namely Dhulibai and Sumal were tried along with the present appellants but they both have been acquitted by the trial Court. 3. Deceased Subersingh aged about 40 years was murdered on the afternoon of 12th September, 1995, at village Kalikhetar, near the hutments of the accused-appellants who are brothers Co-accused Sumal is also their brothel while Dhulibai is their mother. It is not disputed before us that deceased was beheaded on the relevant day. He was working as a Guard in Government Reserved Forest. According to the prosecution on 12.9.1995 around 4.00 O' clock he came to the house of the accused persons and complained that their cattle have trespassed in reserve for set. Annoyed with behavior of the deceased accused persons attacked him. Accused appellant Mohansingh, it is said, gave an arrow shot causing injury on his neck thereafter accused Mohansingh and Sumal caught hold the deceased when appellant Chamra assaulted him by means of axe chopping off his head completely. Ansing (PW 1) the nephew of the deceased, Kalu (PW 2) and Subhan (PW 3) both sons of the deceased, were present on the spot and were scared away by the accused persons. They rushed to the village and related the incident to village Sarpanch Nanu (PW 4). A report of the incident, vide Ex. p-l, was lodged the same evening at 5.45 p.m. at village Jobat, six kilometres away. The police registered a crime and the investigation followed. 4. On the following morning the police visited the spot, prepared spot map conducted inquest U/S 174 Cr. PC, made certain seizures, got the autopsy of the body of the deceased performed, arrested the accused persons on 14.9.1995 recovered an axe in the wake of information given by appellant Chamra got the axe examined chemically and after other necessary investigation charge sheeted the accused persons. 5. Accused-appellants abjured their guilt. Their defence was that of total denial of the prosecution case. 5. Accused-appellants abjured their guilt. Their defence was that of total denial of the prosecution case. The Court below on appreciation of evidence led by the prosecution convicted and sentenced the present two appellants as aforesaid, while acquitting remaining accused persons. 6. We have heard Mr. Raman Solanki and Mr. Vivek Singh, Advocates for appellants and Mr. Girish Desai, learned Dy. Advocate General for respondent State. 7. As already stated, it is not disputed before us that deceased Subersingh died a homicidal death. In fact he was beheaded and killed on 12.9.1995 around 4.00 O'clock in the evening. This besides being deposed by the witnesses to the incident is born out fully from the evidence of Dr Kulkarni (PW 5) who had performed autopsy of the body of the deceased and found that he had nine cutting wounds with his head having been severed from rest of his body, as detailed in the report Ex. P-7 The only question requiring determination is as to who did the deceased to death. 8. Ansingh (PW 2) and Subhan (PW 3) have been examined to depose of the incident. They have more or less similar statements that the deceased was firs attacked by appellant Mohansingh who gave an arrow shot causing injury on-his neck. He was then caught hold by Mohansingh and Sumal when appellant Chamra gave axe blows to him. 9. As already stated, Ansingh is the nephew of the deceased while Kalu and, Subhan are his sons. Learned counsel for appellants severely criticized their evidence and contended that their very presence on the spot was doubtful. It was pointed out that the Court below itself has disbelieved part of their testimony qua the acquitted accused persons. So unless their testimony was supported by some independent evidence, the same could not be pressed in service to convict the present appellants. 10. It is now well settled that evidence of a witness cannot be looked with suspicion merely on the ground that he or she is a close relative of the victim. In fact a close relative who is a very natural witness cannot be regarded as an interested witness. 10. It is now well settled that evidence of a witness cannot be looked with suspicion merely on the ground that he or she is a close relative of the victim. In fact a close relative who is a very natural witness cannot be regarded as an interested witness. The ''interested", as held by the Apex Court in Dilip Singh [ AIR 1953 SC 364 ], "postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or have some other reasons." In the instant case, the PWs above, though close relatives of the deceased, could no be shown having any grudge in implicating the accused falsely. All that was required to scrutinise their evidence with due caution. 11. It is also true that their evidence has been not accepted by the trial Court qua the two other acquitted accused persons but again this is no ground to brush aside their entire testimony. It is also well settled that merely because a portion of the testimony of a witness is not reliable, it is no ground to brush aside his entire evidence. See Somabhai [ AIR 1975 SC 1453 ]. 12. Applying the rule of caution, when we analyse the evidence of the PWs above it is seen that their testimony finds full corroboration from the medical evidence of Dr. Kulkarni in so far as it relates to appellant Chamra who they stated, had assaulted the deceased by means of axe chopping off his head completely However, their evidence against appellant Mohansingh is not found in tune with the facts disclosed in the medical evidence of Dr. Kulkarni in his postmortem report Ex P-7. All the injuries found on the person of the deceased were cutting wounds which according to Dr. Kulkarni, could not have been caused by an arrow shot. No penetrating or piercing wound was found on the person of the deceased. Appellant Mohansingh like the other two acquitted accused persons also, therefore deserved benefit of doubt and consequent acquittal. To this extent of course, the impugned judgment deserved to be modified. However, as against appellant Chamra, the testimony of the PWs above inspired full confidence They are supported fully by the FIR (Ex P-l) lodged without any undue delay as also the medical evidence already stated hereinabove. To this extent of course, the impugned judgment deserved to be modified. However, as against appellant Chamra, the testimony of the PWs above inspired full confidence They are supported fully by the FIR (Ex P-l) lodged without any undue delay as also the medical evidence already stated hereinabove. 13. These appeals thus, succeed in par in so far as .appellant Mohansingh is concerned. His conviction and sentence passed by the trial Court, is set aside and he is acquitted. However, conviction and sentence passed against appellant Chamra are affirmed and his appeal is dismissed. 14. This judgment be retained in Criminal Appeal No. 193/98 and a copy be placed in the record of Criminal Appeal No. 444/98.