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2011 DIGILAW 145 (CHH)

Dileshwar v. State of M. P (Now C. G. )

2011-04-13

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2011
ORDER Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 27th of August, 1993 passed in Sessions Trial No. 314/92 by the First Additional Sessions Judge, Durg. By the impugned judgment, Appellant- Dileshwar has been convicted Under Sections 450, 302, 324 & 323 Indian Penal Code and remaining Appellants have been convicted Under Sections 450/34, 302/34, 324/34 & 323/34 Indian Penal Code and all have been sentenced to undergo R.I. for 5 years, R.I. for life, R.I. for 3 years and R.I. 1 year respectively, with a further direction to run the sentences concurrently. 2. The facts, briefly stated, are as under: The alleged incident took place at about 7.00 p.m. on 23.5.92 in village Karali. The case of the prosecution is that the Appellants, armed with deadly weapons, entered into the house of deceased- Maniklal and assaulted him by tangia and lathi. Maniklal sustained multiple injuries and succumbed to those injuries. The incident was witnessed by 4 eyewitnesses namely Sarjuram (PW-4 - brother of the deceased), Budhwantin Bai (PW-5 - mother of the deceased), Mansingh (PW-3 - another brother of the deceased) and Mongra Bai (PW-6 - wife of Sarjuram-PW-4). Sarjuram (PW-4), Budhwantin Bai (PW-5) and Mansingh (PW-3) also sustained injuries. The incident was reported by Mongra Bai (PW-6), on which, the First Information Report (Ex.-P/31) was registered. The Investigation Officer gave notice (Ex.-P/16) to the Panchas and prepared inquest (Ex.-P/17) on the body of deceased- Maniklal. The dead body of the deceased was sent for post-mortem to District Hospital, Durg vide requisition Ex.-P/32. The post-mortem examination was conducted by Dr. R.N. Turre (PW-1) who found following injuries on the body of the deceased: (i) Abrasion 1 inch x1/2 inch on the middle of the scalp. There was a contusion on the frontal region; (ii) There was a fracture of 7 cm on the frontal bone; (iii) 2 small abrasions near injury No. (i). He opined that the above injuries were caused by hard and rough object and the cause of death was coma due to head injury and it was homicidal in nature. The post-mortem report is Ex.-P/1. Sarjuram (PW-4) was examined by Dr. Veerbhadra Singh Baghel (PW-2). He had sustained 3 incised wounds, and 1 lacerated wound. His injury report is Ex.-P/5. Budhwantin Bai (PW-5) was also examined. She was having swelling and tenderness on the right cervical. The post-mortem report is Ex.-P/1. Sarjuram (PW-4) was examined by Dr. Veerbhadra Singh Baghel (PW-2). He had sustained 3 incised wounds, and 1 lacerated wound. His injury report is Ex.-P/5. Budhwantin Bai (PW-5) was also examined. She was having swelling and tenderness on the right cervical. Her injury report is Ex.-P/l 4. Mansingh (PW-3) was also examined, who had sustained 1 abrasion and 3 contusions. His injury report is Ex.-P/12. The injured persons were advised for X-ray examination, but no report relating to any bony injury was filed. After completion of usual investigation, the charge-sheet was filed against the above 4 Appellants in the Court of Judicial Magistrate First Class, Durg, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the First Additional Sessions Judge, Durg, who conducted the trial and convicted & sentenced the Appellants as aforementioned. 3. The conviction of the Appellants is based on the eye-witness's account of Sarjuram (PW-4), Budhwantin Bai (PW-5), Mansingh (PW-3) and Mongra Bai (PW-6). The learned Sessions Judge recorded the finding that the Appellants in furtherance of their common intention to commit murder of the deceased, entered into his house, committed his murder and while doing so, they caused simple injuries to Sarjuram (PW-4), Budhwantin Bai (PW-5) and Mansingh (PW-3). 4. Mr. Pawan Kesharwani, learned Counsel appearing on behalf of the Appellants, argued that Sarjuram (PW-4) & Mansingh (PW-3) are the real brothers of the deceased; Budhwantin Bai (PW-5) is mother of the deceased; Mongra Bai (PW-6) is wife of Sarjuram (PW-4); hence they are close relatives of the deceased and are interested witnesses, therefore, the Sessions Judge erred in law in relying on their testimonies. 5. In Namdeo v. State of Maharashtra AIR 2007 SCW 1835, the Supreme Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Supreme Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Supreme Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. 6. In Dharnidhar v. State of Uttar Pradesh and Ors. & other connected appeals (2010) 7 SCC 759, the Supreme Court further reiterated that there is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before court. The Supreme Court held that a close relative of deceased does not, per-se, become an interested witness. An interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes and deposes before court only with that intention and not to further cause of justice. However, version of interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same. When their statements find corroboration by other witnesses, expert evidence and circumstances of case clearly depict completion of chain of evidence pointing out guilt of accused, then statements of so-called "interested witnesses" can be relied upon by court. 7. In many other cases, the Supreme Court has held that 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 analyse evidence to find out whether it is cogent and credible. 8. Therefore, this argument cannot find favour that the testimonies of relative witnesses cannot be relied on, only on the ground that they were the relatives of the deceased. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. 8. Therefore, this argument cannot find favour that the testimonies of relative witnesses cannot be relied on, only on the ground that they were the relatives of the deceased. However their evidence is to be scrutinized with due care and caution and if such evidence is found credible in appreciation, the conviction can well be based on their such testimonies. 9. Now we shall examine the credibility of the above eye witnesses vis-a-vis the role attributed to the Appellants on account of their evidence. 10. The learned Sessions Judge, vide Para-7 of the judgment, recorded a finding that Sarjuram (PW-4) was not an eye-witness to the incident of assault given to deceased- Maniklal. There is no infirmity in the said finding recorded by the Sessions Judge as Sarjuram (PW-4) has admitted in the cross-examination that when he reached to his house, he saw that deceased- Maniklal was lying dead, as the assault was over by that time. The Sessions Judge has held that when Sarjuram (PW-4) reached to his house after the incident, he was also assaulted by tangia and he sustained the above injuries. 11. Mongra Bai (PW-6) has firstly lodged dehatinalishi (Ex.-P/10). Though, she has mentioned the names of Dileshwar (A-1), Indra Kunvar (A-3) and Premlal (A-4) in the said report, she has not mentioned the name of Shivkumar (A-2). The F.I.R. (Ex.-P/31) is based on dehatinalishi (Ex.-P/10). Therefore, the name of Shivkumar (A-2) is also not mentioned in the F.I.R. (Ex.-P/31). This omission was put to her in the cross-examination, but she deposed that she had told the name of Shivkumar in her report, and if the same is missing, she cannot tell the reason for it. Similar explanation she gave about the omission of the name of Shivkumar (A-2) in her case diary statement (Ex.-D/4). Dehatinalishi and F.I.R. were the first hand information given to the police by one of the eyewitnesses i.e. Mongra Bai (PW-6) who was one of the inmates of the house. If there is omission of name of Shivkumar (A-2) in her report to the police and in the case diary statement of Mongra Bai, in our opinion, it was fatal to the prosecution and her evidence, so far as it relates to Shivkumar (A-2), becomes doubtful. 12. If there is omission of name of Shivkumar (A-2) in her report to the police and in the case diary statement of Mongra Bai, in our opinion, it was fatal to the prosecution and her evidence, so far as it relates to Shivkumar (A-2), becomes doubtful. 12. Budhwantin Bai (PW-5) is mother of the deceased. She deposed that on the fateful day, all the Appellants came to her house. Premlal (A-4), Shivkumar (A-2) and Dileshwar (A-1) were holding tangia and Indra Kunvar (A-3) was holding lathi. She very specifically deposed that her son- Maniklal was assaulted by Premlal (A-4), Dileshwar (A-1) and Shivkumar (A-2) by tangia, but she did not attribute any act to Appellant- Indra Kunvar (A-3). She also admitted in Para-4 of her cross-examination that Sarjuram (PW-4) was not present in the house at the time of assault to deceased- Maniklal as he came later on. Therefore, two things are clear from the evidence of Budhwantin Bai (PW-5). First, Sarjuram (PW-4) was not an eye-witness of the assault given to the deceased; and second, Indra Kunvar (A-3) did not take part in the assault either to the deceased or to the injured witnesses. 13. Mansingh (PW-3) is another brother of the deceased. He also deposed that Sarjuram (PW-4) reached to the house when assault to the deceased was over. He very clearly deposed that Premlal (A-4), Dileshwar (A-1) and Shivkumar (A-2) had entered into their house and they assault the deceased. Though he says about the presence of Indra Kunvar (A-3), but no overt act has been attributed to Indra Kunvar (A-3) so far as assault given to deceased-Maniklal is concerned. This also he confirms in Para-12 of his cross-examination. 14. It is admitted case of the prosecution that there was previous enmity in between the two families who were residing in the same locality of village-Karali. Mansingh (PW-3) has admitted in the cross-examination that earlier a proceeding Under Section 107/116 Code of Criminal Procedure was drawn against them on the instance of the Appellants. He also admitted that on the report of the Appellants, a criminal case was prosecuted against them i.e. against Mansingh (PW-3), his mother-Budhwantin Bai (PW-5), brother- Sarjuram (PW-4) and sister- Maan Bai, in the Court of Judicial Magistrate First Class, Durg and in the said case, they were convicted and sentenced to pay fine of Rs. 1,000/- each. 15. He also admitted that on the report of the Appellants, a criminal case was prosecuted against them i.e. against Mansingh (PW-3), his mother-Budhwantin Bai (PW-5), brother- Sarjuram (PW-4) and sister- Maan Bai, in the Court of Judicial Magistrate First Class, Durg and in the said case, they were convicted and sentenced to pay fine of Rs. 1,000/- each. 15. In appreciation of the entire evidence available on record, particularly the evidence of the above 4 eye-witnesses, we are of the view that the presence of Shivkumar (A-2) at the place of occurrence was highly doubtful as his name does not find place either in dehatinalishi or in the F.I.R. which was lodged by one of the eye-witnesses i.e. Mongra Bai (PW-6), who was also an inmate of the house and was wife of brother of the deceased. 16. As far as case of Indra Kunvar (A-3) is concerned, though her presence appears to be there at the place of occurrence, but no overt act has been attributed to her by the eye-witnesses so far as assault given to the deceased is concerned. Indra Kunvar was aged about 50-51 years on the date of the incident. It cannot be said to be unnatural that in such situation when her 3 sons were allegedly quarrelling in the house of the deceased she may not go there. Merely on account of her presence at the place of occurrence, it cannot be held that she was also sharing common intention with the other accused persons to commit the above offences. The common intention can be inferred from the circumstances appearing from the proved facts of the case. In order to bring home the charge of common intention, the prosecution has to establish by their evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34. It may be prearranged or on the spur of the moment, but it must necessarily be before the commission of the offence. If two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it in his/her individual capacity. It may be prearranged or on the spur of the moment, but it must necessarily be before the commission of the offence. If two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it in his/her individual capacity. The Supreme Court has said time and again that totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which he/ she can be convicted. We have examined the case of Indra Kunvar (A-3) on the above principles, and we do not find clinching materials to hold that she was sharing common intention with the other accused persons. Therefore, Indra Kunvar (A-3) cannot be convicted with the aid of Section 34 Indian Penal Code. 17. For the foregoing reasons, we are of the view that out of above 4 Appellants, Shivkumar (A-2) and Indra Kunvar (A-3) deserve to be acquitted. Presence of Shivkumar (A-2) at the place of occurrence was highly suspicious and it was not established by the cogent evidence that Indra Kunvar (A-3) was liable for conviction with the aid of Section 34 Indian Penal Code. 18. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to Appellants-Shivkumar (A-2) and Indra Kunvar (A-3) are set-aside. They are acquitted of the charges framed against them. They are on bail. Their bail bonds are cancelled and sureties stand discharged. 19. As we do not find any merit in the appeal filed on behalf of Appellant-Dileshwar (A-1) and Premlal (A-4), the appeal filed on their behalf, therefore, is liable to be dismissed and is hereby dismissed. Appeal Partly Allowed.