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2010 DIGILAW 34 (CHH)

MAHADEV v. STATE OF M. P. (NOW CG. )

2010-02-03

R.L.JHANWAR, T.P.SHARMA

body2010
JUDGMENT As per Hon'ble Shri T.P. Sharma, J.- 1. Criminal Appeal No. 137/1991 filed by appellant-Mahadev & Criminal Appeal No.264/1991 filed by appellant-Junu @ Gota are arising out of the judgment of conviction & order of sentence dated 25.1.1991 passed by the First Additional Sessions Judge, Bastar at Jagdalpur, in Sessions Trial No.274/89, therefore, they are being disposed of by this common judgment. 2. The aforesaid criminal appeals are directed against the judgment of conviction & order of sentence dated 25.1.1991 passed by the First Additional Sessions Judge, Bastar at Jagdalpur, in Sessions Trial No.274/89, whereby & where under learned First Additional Sessions Judge after holding appellant Mahadev in Criminal Appeal No. 13 7/1991 & appellant-Junu @ Gota in Criminal Appeal No.264/1991 guilty for commission of culpable homicidal death amounting to murder of deceased Somari in sharing common intention, convicted under Section 302/34 of the Indian Penal Code, each of them have sentenced to undergo imprisonment for life. 3. Judgment is impugned on the ground that learned First Additional Sessions Judge has convicted and sentenced the appellants on the basis of conjecture and sunnises and the evidence of solitary relative witness Ku. Shyambati PW-2) whose evidence is full of omissions, contradictions and does not inspire confidence and thereby committed illegality. 4. Case of the prosecution, in brief, is that on the fateful day of28.4.89 at about 8.10 a.m., Smt. Somari, wife of Mahadev (PW-1) and mother of Ku. Shyambati (PW -2) were going to Katekalyan market for selling dry fish. Both the appellants were waiting the deceased, they were in hidden position. When the deceased and Ku. Shyambati (PW -2) reached near the appellants, appellant Junu shot arrow upon Somari and caused injury over her shoulder, he again shot arrow and caused injury over her private part. Appellant Mahadev shot arrow over her right pelvis and abdomen. Ku-Shyambati (PW -2) tried to ran away from the spot, appellants also chased her and shot arrow upon her, but anyhow she saved herself. The deceased fell down in the land, then appellants came near the deceased and also assaulted to Somari by axe over her head. Ku. Appellant Mahadev shot arrow over her right pelvis and abdomen. Ku-Shyambati (PW -2) tried to ran away from the spot, appellants also chased her and shot arrow upon her, but anyhow she saved herself. The deceased fell down in the land, then appellants came near the deceased and also assaulted to Somari by axe over her head. Ku. Shyambati (PW -2) came to her father and narrated the incident, then Mahadev (PW -I) narrated the incident to Kotwar, Patel and other persons and went to police station which is 33 kilometers away from the place of incident and lodged the F.I.R. vide Ex.P/1 on the second day. The investigating officer proceeded for the scene of occurrence. After summoning the witnesses vide Ex-P/3, inquest over the deed body of deceased Somari was prepared vide Ex.P/2. One arrow was seized from Ku. Shyambati (PW-2) vide Ex.P/4. Bloodstained soil and plain soil were seized from the spot vide EX.P/5. Dead body of the deceased was sent for autopsy to Primary Health Centre, Kotekalyan vide EX.P/22. Autopsy was conducted by Dr. In drajit Gupta (PW -5) Vide EX.P/6 and found following injuries over the body of the deceased, (1) One wound over frontal bone, size 3 cms. x 5 cms. x 3 cms. (2) One wound over right frontal bone, size 4 cms. x 3 cms. (3) Four arrows were found in the body of the deceased (4) One arrow was found over left arm and chest up to 3rd and 4th ribs and lungs were found punctured. (5) Second arrow was found in the umbilicus area penetrating injury on the abdomen. (6) Third arrow was found over the right labia majora.' (7) Forth arrow was found over the right elbow joint and right shoulder. Death was due to shock as a result of fatal injuries over the chest and death was homicidal in nature. 5. Appellant Mahadev was taken into custody on 3.5.89. He mild, disclosure statement of axe vide Ex P/13 and bloodstained axe was recovered at the instance of appellant Mahadev vide ExP/14. Appellant Junu was taken into custody on 3.5.89. He made disclosure statement of bow and arrow vide Ex-P/15. One bow and three arrows were recovered at the instance of appellant Junu vide EX.P/16. One axe was recovered from appellant Junu vide Ex-P/17. One bow was recovered from appellant Mahadev vide Ex P/18. Appellant Junu was taken into custody on 3.5.89. He made disclosure statement of bow and arrow vide Ex-P/15. One bow and three arrows were recovered at the instance of appellant Junu vide EX.P/16. One axe was recovered from appellant Junu vide Ex-P/17. One bow was recovered from appellant Mahadev vide Ex P/18. After autopsy, four arrows and clothes of the deceased were seized vide EX.P/19. Ornaments of the deceased were seized vide Ex.P/20. Spot map was prepared by investigating officer vide Ex.P/21. Seized articles were sent for chemical examination vide Ex.P/23 and presence of blood over arrows and axe were confirmed vide chemical examination report Ex.P/24. 6. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Jagdalpur, who in turn committed the case to the Court of Sessions, Jagdalpur, from where learned First Additional Sessions Judge, Bastar at Jagdalpur, received the case on transfer for trial. 7. In order to prove the guilt of the accused/appellants, the prosecution examined as many as 6 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication. The appellants have also examined defence witnesses Suklu (DW -1) and Kosru (DW -2), who have deposed that at the time of incident, the appellants were not present in the village and they were present in their in-laws house. 8. After affording an opportunity of hearing to the parties, learned First Additional Sessions Judge, Bastar at Jagdalpur has convicted and sentenced the accused/appellants as aforementioned. 9. We have heard Mr. R.N. Jha and Mr. Anurag Shrivastava, counsel for the appellants and Mr. Rakesh Jha, Dy. Govt. Advocate for the State/respondent and perused the judgment impugned as also record of the trial Court. 10. Learned counsel for the appellants vehemently argued that the conviction of the appellants is based on sole testimony of interested witness Ku. Shyambati (PW - 2) whose evidence is full of omissions, contradictions and does not inspire confidence. Rakesh Jha, Dy. Govt. Advocate for the State/respondent and perused the judgment impugned as also record of the trial Court. 10. Learned counsel for the appellants vehemently argued that the conviction of the appellants is based on sole testimony of interested witness Ku. Shyambati (PW - 2) whose evidence is full of omissions, contradictions and does not inspire confidence. She has specifically deposed that she has narrated the incident to her father and told him that somebody has assaulted her mother shows that at the time of lodging the report, the persons who have caused fatal injuries to the deceased were unknown and the present appellants have been falsely implicated in the crime in question. Learned counsel further argued that suspicion however grave amount take to place of evidence and the prosecution is required to stand on its own legs. 11. Learned counsel placed reliance in the matter of State of Rajasthan Vs. Bhanwar Singh 1 in which the Apex Court has held that delay of one day in lodging of the F.I.R. is fatal to the prosecution. Learned counsel further placed reliance in the matter of Sadhu Ram and another Vs. State of Rajasthan2 in which the Apex Court has held that conviction can be based on the testimony of solitary witness in such a case the Court must be satisfied that implicit reliance can be placed on the testimony of such a witness and that his testimony is of free of blemish that it can be acted upon without insisting upon corroboration. 1. 2005 SCC (Cri) 73 2. 2004 SCC(Cri) 100 12. On the other hand, learned State/respondent counsel supported the judgment impugned and argued that the conviction of the appellants is based on direct evidence of Ku. Shyambati (PW-2) corroborated by recovery of weapons at the instance of the appellants, though Ku. Shyambati (PW -2) is a relative witness but her presence at the time of incident was natural and her evidence cannot be discarded only on the ground that she is relative. She has categorically stated the case of the prosecution and her statement is sufficient for conviction of the appellants. 13. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. She has categorically stated the case of the prosecution and her statement is sufficient for conviction of the appellants. 13. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. In the present case, homicidal death as a result of fatal injuries found over the body of the deceased Somari has not been substantially disputed, on the other hand also established by the evidence of Dr. Indrajit Gupta (PW -5) and autopsy report Ex .P/6 which reveals that four fatal arrow shot injuries were found over the chest effecting the lungs, abdomen, private port (labia majora) and right scapular region which are sufficient for causing death and death was homicidal in nature. 14. As regards the complicity of the accused/appellants in the crime in question, the conviction is based on the evidence of Ku. Shyambati (PW-2), daughter of the deceased, who has deposed in her evidence that at the time of incident, she along with her mother deceased Somari were going to Katekalyan market for selling dry fish. The accused were preset in hidden position in the field of Labdi. Both the appellants have shot arrows upon her mother over her hand, abdomen and chest. Appellant Junu has assaulted her mother by axe over her head and cheek and her mother died on the spot. Thereafter, the appellants chased her till her house. She went inside the house and narrated the incident to her father and one Rati. Defence has cross-examined this witness at length. In para 3 of her cross-examination, she has deposed that the appellants had shot four an was upon he mother. She has also deposed that she has stated to the police, but she does not know why the police has not written the same in EX.D/1. She has deposed in para 4 of her cross-examination that they were going through road and people used to go by that road. She has also admitted that after first arrow shot injury, he mother tried to run away, then she also nm along with her mother, but subsequently her mother fell down. She has deposed in para 4 of her cross-examination that they were going through road and people used to go by that road. She has also admitted that after first arrow shot injury, he mother tried to run away, then she also nm along with her mother, but subsequently her mother fell down. She, went to her house and told her father that some person has killed her mother She has admitted that she again went with her sister Samal where her mother was lying, at that time she saw the dead body of her mother and no other persons were present there. She has admitted in para 5 of her cross-examination that previously there was no enmity between her father and the accused persons and she has not stated the police in her statement recorded under Section 161 of the Code (Ex.D/1) and she cannot say how the police has recorded such statement relating to enmity. She was re-examined by the prosecution and in para 6 she has specifically deposed that the appellants have assaulted by arrow shot to her mother. On being asked by the defence counsel, she has again stated that after receiving arrow shot, her mother and herself tried to flee away from the spot, she run away from the spot and went to her house and told to her father that somebody has assaulted her mother. 15. In the present case, the prosecution has also adduced evidence relating to disclosure statements and seizure of arrows and axe from the appellants. Sub Inspector Najariyus Kujur (PW -6) has deposed the factum of disclosure statements and recovery of bow, arrows and axe from the accused persons, but same has not been corroborated by any independent witnesses. 16. Admittedly, the F.I.R. (Ex.P/1) was lodged on the second day i.e. on 29.4.89 at about 10.30 a.m., after lapse of 24 hours. The F.I.R. itself reveals that distance of police station from the place of incident is 33 kilometers. The place of incident is dense forest area. The defence has not asked anything to Mahadev (PW-1) or Najariyus Kujur (PW-6) who has recorded the F.I.R. relating to delay in lodging the F.I.R. 17. White dealing with the question of delay in lodging the F.I.R., the Apex Court in the matter of Amar Singh Vs. The place of incident is dense forest area. The defence has not asked anything to Mahadev (PW-1) or Najariyus Kujur (PW-6) who has recorded the F.I.R. relating to delay in lodging the F.I.R. 17. White dealing with the question of delay in lodging the F.I.R., the Apex Court in the matter of Amar Singh Vs. Balvinder Singh and others3 has held that there is no hard-and-fast rule that any delay in lodging the F.I.R would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made t6 provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drown either way merely on account of delay in lodging of the F.I.R. 18. As held by the Apex Court in the matter of Sadhu2 (supra), the conviction can be based on the evidence of solitary witness If his evidence is satisfied that implicit reliance con be placed on the testimony of such a witness and that his testimony is so free of blemish that it can be-acted upon without insisting upon corroboration. Para 16 of the said Judgment reads as under: 3. (2003) 2 SCC 518 "16. It is no doubt true that the conviction of an accused can be based solely on the testimony of a solitary witness. However, in such a case the court must be satisfied that implicit reliance can be placed on the testimony of such a witness and that his testimony is so free of blemish that it can be acted upon without insisting upon corroboration. The testimony of the witness must be one, which inspires confidence and leaves no doubt in the mind of the court about the truthfulness of the witness. In the facts of this case the credibility of Mala Ram, PW 3 has been sufficiently impeached. We cannot say that Mala Ram is a witness on whom implicit reliance can be placed. The testimony of the witness must be one, which inspires confidence and leaves no doubt in the mind of the court about the truthfulness of the witness. In the facts of this case the credibility of Mala Ram, PW 3 has been sufficiently impeached. We cannot say that Mala Ram is a witness on whom implicit reliance can be placed. We certainly does not come in the category of a witness on whom implicit reliance can be placed. In fact we are inclined to take the view that he is a wholly unreliable witness and no conviction can be based on the evidence of such an unreliable witness. Even if we place Mala Ram in the category of a partially reliable witness, we find no evidence to corroborate his testimony and, therefore, it is not safe to base a conviction on the testimony of such a witness. Moreover we find that the medical evidence does not support his testimony. According to Mala Ram the wife of Sadhu Ram had committed suicide. He is categoric in his assertion that the bodies were hanging when he saw them and their bodies were burnt thereafter. The medical evidence, which we find no reason to disregard, is clearly to the contrary. Dr. Sharma who was one of the doctors who conducted the post-mortem examinations is clear and categoric in asserting that the injuries were ante-mortem and he has given good reasons to support his opinion. The medical evidence is consistent with the defence case that the deceased died of bumming in an accidental fire, but the same is not consistent with the version given by Mala Ram, PW 3 that their deed bodies were set ablaze later. If it were so, the injuries found could not have been ante-mortem injuries, and the presence of sooty carbon particles would not have been found in larynx, trachea, pharynx and esophagus." 19. In case of conviction based on the testimony of solitary evidence, the Apex Court in the matter of Jhapsa Kabari and others Vs. State of Bihar4 has held in para 9 as under: 4. AIR 2002 SC 312 "9........There is, however, no bar in basing conviction on the testimony of solitary witness so long as the said witness is reliable and trustworthy. The Sessions Court and the High Court examined the testimony of PW-1 and found no reason to disbelieve it. State of Bihar4 has held in para 9 as under: 4. AIR 2002 SC 312 "9........There is, however, no bar in basing conviction on the testimony of solitary witness so long as the said witness is reliable and trustworthy. The Sessions Court and the High Court examined the testimony of PW-1 and found no reason to disbelieve it. We have also gone through the testimony of PW -1. We are also of the view that her deposition is most natural, reliable and trustworthy. She could not be shaken in the cross-examination. Simply because 14 years' old boy did not name her in the fardbayan, in the facts of the case, it is of no consequence and does not require her evidence to be rejected. He must have been under a mental tension on account of the murder of his father and uncle. In our view, there is no infirmity in the conviction and sentence of Bhikar Raut and Israil Kabari for offence under Section 302/34 IPC." 20. While dealing with the same question, the Apex court in the matter of Chittar Lal Vs. State of Rajasthan5 has held in para 7 as under:- " "7.......... Therefore, the plea thatP.W.3's testimony is doubtful lacks substance. The other plea was that conviction should not have been made on the basis of a single witness (P.W. 3's) testimony. This plea is equally without essence. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in S. 134 of the Indian Evidence Act, 1872 (in short 'Evidence Act). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent cases where the testimony of a single witness only could be available, in number of crimes offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. . . . . . . . ." 21. In the present case, Ku. Shyambati (PVV -2) is also a relative witness and daughter of the deceased, though according to her statement the appellants are aja (grandfathers), but the evidence of relative witnesses cannot be discarded only on the ground of their relations. While dealing with the question of interested witnesses, the Apex Court in the matter of Dalip Singh Vs. State of Punjab6 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:- 5. AIR 2003 SC 3590 6. (1954)1 SCR 145 "26. 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." 22. As held by the Apex Court in the matter of Mohabbat and Ors. Vs: State of MP. 7, 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, 7. 2009 AIR SCW 1486 "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interested ness, the same has to be established. Para 7 of the said judgment reads as under, 7. 2009 AIR SCW 1486 "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interested ness, 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." 23. The defence has also submitted that evidence of Ku. Shyambati (PW- 2) is full of omissions and contradictions. Admittedly, para 4 of her evidence reveals that she came to her house and in formed her father that somebody has killed her mother, but in paras 1, 3 and 6 of her evidence, she has specifically deposed that the appellants are the persons who have assaulted her mother by arrow shot and axe while she was going with her mother to the market. She is a witness aged about 19 years, resident of dense forest and rustic villager. Her evidence reveals that she has clearly deposed that the appellants have caused injuries to her mother. 24. In the light of the aforesaid legal propositions relating to relative witnesses and solitary witnesses, if we examined the evidence of Ku. Shyambati (PW -2), it is clear that she was going with her mother to market for selling dry fish. Both the appellants were present in hidden position in the field and they assaulted her mother by arrow shot and axe. She rushed to her house and narrated the incident to her father. Thereafter, her father went to police station and lodged the F.I.R. (Ex. P /1). Her evidence is corroborated by contents of the F.I.R. (Ex-P/1). Presence of arrow was well corroborated by the inquest report Ex.P/2. Four arrows were found over the body of deceased Somali. Presence of Ku. She rushed to her house and narrated the incident to her father. Thereafter, her father went to police station and lodged the F.I.R. (Ex. P /1). Her evidence is corroborated by contents of the F.I.R. (Ex-P/1). Presence of arrow was well corroborated by the inquest report Ex.P/2. Four arrows were found over the body of deceased Somali. Presence of Ku. Shyambati (PW -2) at the time of incident was natural, she has not exaggerated the story and her evidence satisfies the aforesaid test inspires confidence and trustworthy. 25. Defence witnesses Suklu (DW-l) and Kosru (DW-2) who have deposed that both the appellants were present in their in-laws house on the date of incident, but in their cross-examination they have admitted that the police has interrogated the appellants. Their evidence are not sufficient for drawing inference that on the date of incident, the appellants were not present on the spot. 26. As regards the motive is concerned, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. 27. After appreciating the evidence available on record, learned First Additional Sessions Judge has convicted the appellants under Section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life. The evidence of Ku. Shyambati (PW -2) is sufficient for drawing inference that both the appellants have jointly assaulted the deceased Somari and caused fatal injuries to her. 28. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned. The appeals being devoid of merit are liable to be dismissed and are dismissed accordingly. The appellants are on bail. They are directed to surrender themselves immediately before the Chief Judicial Magi state, Jagdalpur for serving the remaining sentence imposed upon them. Appeal Dismissed.