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2011 DIGILAW 67 (CHH)

Bodhan Yadav v. State of C. G.

2011-02-21

R.L.JHANWAR, T.P.SHARMA

body2011
JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28-4-2007 passed by the 7th Additional Sessions Judge, Raipur in Sessions Trial No. 397/2006, whereby and where under learned Additional Sessions Judge after holding the Appellants guilty for formation of unlawful assembly having its common object to commit murder of Nand kumar Yadav, convicted the Appellants under Sections 147 and 302 read with Section 149 of the Indian Penal Code and sentenced them to undergo RI for six months and to undergo imprisonment for life and pay fine of Rs. 500/- each, in default of payment of fine to further undergo RI for three months, respectively. 2. Conviction is impugned on.the ground that without any iota of evidence, the trial Court has convicted and sentenced the Appellants, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 7-7-2006 at about 7 a.m. Nand kumar Yadav (since deceased) was ploughing his field, on account of enmity relating to land, Appellants Bodhan, Satyanarayan and Ghasi Ram came to the field, Appellant Bodhan was holding cricket bat, Appellants Satyanarayan and Ghasi Ram were holding stick, they opposed the act of Nand kumar, thereafter, Appellant Bodhan assaulted Nand kumar upon his head by cricket bat as a result of which blood came out, thereafter, Appellant Satyanarayan caught hold of Nandkumar and Appellant Bodhan again assaulted him upon his right leg and right wrist by bat, some how Nandkumar rescued himself from the Appellants and ran away. The aforesaid three Appellants chased Nandkumar up to the field of Kartik Ram where Appellants Bodhan and Ghasiram again assaulted Nandkumar over his head on which Nandkumar fell down, thereafter Bodhan snatched axe from Vishnu Yadav (PW-10) who was also present on the spot. At the same time, remaining Appellants Bhuneshwar, Krishna, Harish and Chunuram came with stick and in furtherance of common object of unlawful assembly, they assaulted Nandkumar by stick, bat and axe and caused his death. Immediately, Vishnu Yadav (PW-10) went to Police Station Gevra Nawapara and lodged merg vide Ex.P-43 and FIR vide Ex.P-44. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-2, prepared inquest over the dead body of the deceased vide Ex.P-3. Dead body was sent for autopsy to Assistant Surgeon, Nawapara, Rajim. Dr. Immediately, Vishnu Yadav (PW-10) went to Police Station Gevra Nawapara and lodged merg vide Ex.P-43 and FIR vide Ex.P-44. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-2, prepared inquest over the dead body of the deceased vide Ex.P-3. Dead body was sent for autopsy to Assistant Surgeon, Nawapara, Rajim. Dr. S.K. Tiwari (PW-13) conducted autopsy vide Ex.P-48 and found following injuries: (1) Small lacerated wound 1 c.m. x 1/4 c.m. x 1/4 c.m. over right ear. (2) Lacerated wound 4 cm. x 1/4 cm. over right temporal region. (3) Lacerated wound 4 cm. x 1/2 cm. x 1/2 cm. over right temporal region. (4) Lacerated wound 2 cm. x 1/2 cm. x 1/2 cm. over left temporal region. Bones underlying the aforesaid injuries were found fractured. Cause of death was severe head injury. During the course of investigation, accused Bodhan was taken into custody, he made discloser statement of bat vide Ex.P-5 and same was recovered at his instance vide Ex.P-12 along with axe and bloodstained clothes. Accused Sattu made discloser statement of stick and blood stained clothes vide Ex.P-6 and same were recovered at his instance vide Ex.P-13. Accused Ghasi Ram made discloser statement of stick and bloodstained clothes vide Ex.P-7 and same were recovered at his instance vide Ex.P-14. Accused Krishna made discloser statement of stick and clothes vide Ex.P-8 and same were recovered at his instance vide Ex.P-15. Accused Harish made discloser statement of stick and bloodstained clothes vide Ex.P-9 and same were recovered at his instance vide Ex.P-16. Accused Bhuheshwar made discloser statement of stick and bloodstained clothes vide Ex.P-10 and same were recovered at his instance vide Ex.P-17. Accused Chunuram made discloser statement of stick and bloodstained clothes vide Ex.P-11 and same were recovered at his instance vide Ex.P-18. Accused were arrested vide Exs.P-19 to P-25. Pieces of bones of head of the deceased along with hairs and chappal were recovered vide Ex.P-28. One pair of chappal was seized from the spot vide Ex.P-29. Patwari prepared spot map vide Ex.P-33. Accused Ghasiram was medically examined vide Ex.P-34 and contusion of 3 cm. x 3 cm. was found on left forearm. Accused Bodhan was medically examined vide Ex.P-35, but No. injury was found on his person. Sealed clothes of the deceased were seized vide Ex.P-45. Seized articles were sent for chemical examination vide Ex.P-46. Patwari prepared spot map vide Ex.P-33. Accused Ghasiram was medically examined vide Ex.P-34 and contusion of 3 cm. x 3 cm. was found on left forearm. Accused Bodhan was medically examined vide Ex.P-35, but No. injury was found on his person. Sealed clothes of the deceased were seized vide Ex.P-45. Seized articles were sent for chemical examination vide Ex.P-46. Vishnu Yadav (PW-10) was also medically examined vide Ex.P-49 and contusion of 2 cm. x 2 cm. was found over his right calf. The Investigating Officer prepared spot map vide Ex.P-51. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. After completion of investigation, charge sheet was filed against the Appellants before the Court of Judicial Magistrate First Class, Raipur who committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as fourteen witnesses. The accused were examined under Section 313 of the Code of Criminal Procedure in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. Appellant No. 7 Chunuram has taken defence that he is not related to the deceased or to Appellants No. 1 to 6, he has given evidence in Pawan murder case against deceased Nandkumar, Pardeshi Yadav and Vishnu Yadav (PW-10) and, therefore he has been falsely implicated in the crime in question. Pawan was his brother. Deceased Nandkumar and Vishnu Yadav (PW-10) are having inimical terms with the Appellants, they have committed murder of his brother Pawan and on account of enmity they have falsely implicated him in the crime in question. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the Appellants as aforementioned. 8. We have heard learned Counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Mr. Ashok Varma, learned Counsel for Appellants No. 1 to 6, vehemently argued that Appellants No. 1 to 6 have not committed the aforesaid offence and they have been falsely implicated on account of enmity. Conviction is based on evidence of Bisauha Ram (PW-6), Vishnu Yadav (PW-10) and Renu (PW-11) who are interested and relative witnesses, their evidence requires close scrutiny. Ashok Varma, learned Counsel for Appellants No. 1 to 6, vehemently argued that Appellants No. 1 to 6 have not committed the aforesaid offence and they have been falsely implicated on account of enmity. Conviction is based on evidence of Bisauha Ram (PW-6), Vishnu Yadav (PW-10) and Renu (PW-11) who are interested and relative witnesses, their evidence requires close scrutiny. They are also having enmity with the Appellants. As per their evidence, firstly three accused came and caused injuries, thereafter, remaining four accused came and caused injuries. But evidence of aforesaid witnesses is not corroborated by medical evidence and there is inconsistency in ocular and medical evidence. Therefore, evidence of interested witnesses are not safe to rely. 10. Mr. Bhishma Kinger, learned Counsel for Appellant No. 7, submits that Appellant No. 7 Chunuram is by caste Satnami and other Appellants are by caste Yadav, Appellant No. 7 Chunuram was not having any enmity with Nandkumar he was only witness in Pawan murder case against deceased Nandkumar, Vishnu Yadav (PW-10) and Pardeshi Yadav, and on account of his evidence in Pawan murder case, he has been falsely implicated in the crime in question. 11. On the other hand, learned State counsel opposed the appeal and submitted that evidence adduced on behalf of the prosecution is sufficient for drawing inference that the Appellants have formed unlawful assembly having its common object to commit culpable homicide amounting to murder of Nandkumar and in furtherance of common object of the unlawful assembly, they have caused homicidal death of Nandkumar. After appreciating the evidence available on record, the trial Court has rightly convicted and sentenced the Appellants as aforementioned. 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case, homicidal death of deceased Nandkumar as a result of fatal injuries found over his body has not been substantially disputed on behalf of the Appellants, otherwise also, same is established by the evidence of Dr. S.K. Tiwari (PW-13) and autopsy report Ex.P-48 which reveal that three fatal injuries were found over head and one corresponding injury was also found over ear of the deceased which further reveals that three assaults have been made upon the deceased at the time of causing such injuries and that death of Nandkumar was homicidal in nature. 14. S.K. Tiwari (PW-13) and autopsy report Ex.P-48 which reveal that three fatal injuries were found over head and one corresponding injury was also found over ear of the deceased which further reveals that three assaults have been made upon the deceased at the time of causing such injuries and that death of Nandkumar was homicidal in nature. 14. As regards complicity of the Appellants in the crime in question, conviction is substantially based on the evidence of Bisauha Ram (PW-6), Vishnu Yadav (PW-10) and Renu (PW-11). 15. Bisauha Ram (PW-6) has initially not supported case of the prosecution and the prosecution has declared him hostile. In para 3 of his cross-examination he has deposed that initially while deceased Nandkumar and Vishnu Yadav (PW-10) were ploughing the field, Appellants Bodhan, Ghasi Ram and Sattu came with bat and stick, they quarrelled with Nandkumar and he fled from the spot. This part of evidence is un-rebutted in his cross-examination. 16. As per evidence of Vishnu Yadav (PW-10) - son of Pardeshi Yadav and brother of Nandkumar, initially Appellants Bodhan, Sattu and Ghasi Ram came to the field, Bodhan was having cricket hat and remaining accused were having sticks, they assaulted Nandkumar over his head, thereafter, Sattu caught hold of Nandkumar and Bodhan assaulted Nandkumar on his leg and wrist, at the same time, Nandkumar fled away then all the accused chased him and assaulted him. Bodhan assaulted over head of Nandkumar by bat on which Nandkumar fell down, thereafter Bodhan snatched axe from this witness and at the same time remaining four accused came and all the Appellants assaulted Nandkumar by stick, bat and axe. Evidence of this witness is substantially corroborated by evidence of his sister namely Renu (PW-11) - 14 years' aged witness. As per her evidence, all the Appellants have caused injuries to Nandkumar by stick and after hearing the sound of quarrel when she came near the place of incident she had seen the incident. As per para 3 of her evidence,, when she reached to the spot, body of Nandkumar was lying and Vishnu Yadav was standing near the place of incident. In para 5 she has admitted that she has deposed as told by her brother and sister. 17. As per para 3 of her evidence,, when she reached to the spot, body of Nandkumar was lying and Vishnu Yadav was standing near the place of incident. In para 5 she has admitted that she has deposed as told by her brother and sister. 17. Vishnu Yadav (PW-10) and Renu (PW-11) are relatives of the deceased having enmity with the Appellants, but their evidence cannot be discarded only on the basis of their relation or inimical terms. Their evidence requires scrutiny with deep care and caution. 18. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the question of evidentiary value of the relative witnesses, the Supreme Court in the matter of Dalip Singh and Ors. v. The State of Punjab AIR 1953 SC 364, 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: 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 relation 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. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is No. such general rule. Each case must be limited to and be governed by its own facts. 19. While dealing with same question the Supreme Court in the matter of Mohabbat and Ors. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is No. such general rule. Each case must be limited to and be governed by its own facts. 19. While dealing with same question the Supreme Court in the matter of Mohabbat and Ors. v. State of M.P. AIR 2009 SCW 1486, has held that 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 thus, 7. Merely because the eye-witnesses are family members their evidence cannot perse 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. 20. Statements of the relative witnesses cannot be discarded only on the ground of their relationship. The Courts are required to scrutinize their evidence with great care and caution. 21. While dealing with the question of evidentiary value of interested witnesses and need of deep scrutiny, the Supreme Court in the matter of Ramanand Yadav v. Prabhu Nath Jha and Ors. AIR 2004 SC 1053, has observed in para 15 that "But at the same time if the relatives or interested witnesses are examined, the Court has a duty to analyze the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused foundation for the same has to be laid. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused foundation for the same has to be laid. If materials show that there is partisan approach, as indicated above the Court has to analyze the evidence with care and caution.". 22. While dealing with same question in the light of relationship, the Supreme Court in the matter of Mst. Dalbir Kaur and Ors. v. State of Punjab AIR 1977 SC 472, has held in para 13 that "A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness'. The term "interested" postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because had some animus with the accused or for some other reason." 23. While dealing with same question the Supreme Court in the matter of Ashok Kumar Chaudhary and Ors. v. State of Bihar AIR 2008 SC 2436, has held that relationship per se does not affect credibility of witness; merely because witness happens to be a relative of victim of crime, he/she cannot be characterized as "interested" witness. The Supreme Court has observed in para 7 as follows: ....even otherwise it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled that though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship perse does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive. 24. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive. 24. In the matter of Sandeep v. State of Haryana AIR 2001 SC 1103, the Supreme Court has held that in case where victim and accused are known to witness, his evidence would be material and cannot be criticized on ground that as witness was knowing the father of the accused, he is interested witness. 25. In case of interested or inimical witnesses the Court is required to scrutinize their evidence with great care and caution. 26. As per evidence of aforesaid witnesses, firstly three persons came, thereafter, four persons came and they have assaulted the deceased causing his death. This shows that all Appellants have formed unlawful assembly. In case of formation of unlawful assembly, once it is proved that unlawful assembly is formed, every member of the assembly is liable for the act of each member or the act of all members of unlawful assembly and No. separate act or overt act of any member is required to be proved. 27. In the present case, Vishnu Yadav (PW-10) and Renu (PW-11) are relative witnesses. As per evidence of Bisauha Ram (PW-6), three accused were present on the spot, even as per evidence of Vishnu Yadav (PW-10), three Appellants namely Bodhan, Sattu and Ghasi Ram were present on the spot, they were holding bat and stick and they have assaulted the deceased. As per autopsy report Ex.P-48 and evidence of Dr. S.K. Tiwari (PW-13), three fatal injuries were found over head of the deceased with corresponding injury over ear which reveals that three assaults have been made upon the deceased. Vishnu Yadav (PW-10) has lodged merg and FIR within 45 minutes of the incident vide Exs.P-43 and P-44, respectively. As per merg Ex.P-43 and FIR Ex.P-44, aforesaid three Appellants firstly reached to the spot, Bodhan was holding cricket bat and remaining two accused were holding sticks, and on account of some dispute firstly Bodhan assaulted Nandkumar by bat over his head from backside, thereafter, Sattu caught hold of Vishnu Yadav and assaulted upon his right leg and right wrist at that time Nandkumar rushed towards the village. Aforesaid three Appellants chased Nandkumar and took him to the field of Kartik Ram. Appellant Bodhan again assaulted Nandkumar by bat over his head and Appellant Ghasiram assaulted Nandkumar by stick over his head. When the deceased fell down, remaining four accused came and assaulted him. As per Exs.P-43 and P-44, immediately lodged merg and FIR, three major head injuries were caused by Bodhan and Ghasiram in sharing common intention with Sattu. Injury found over ear of deceased Nandkumar was corresponding injury to the aforesaid injuries. As per medical evidence, No. injury was found over back or other parts of the body of the deceased which excludes the possibility of causing injury by seven persons or after causing aforesaid three injuries, by any of the accused persons. Vishnu Yadav (PW-10) and Renu (PW-11) are relative witnesses and their evidence requires minute and deep scrutiny. Their part of evidence corroborated by the promptly lodged merg Ex.P-43 and FIR Ex.P-44 reveal that Appellants Bodhan, Sattu and Ghasi Ram were initially present on the spot, they were holding bat and stick, Bodhan and Ghasi Ram have caused injuries to Nandkumar and Sattu was assisting them. Evidence relating to causing injury by four accused namely Krishna, Bhuneshwar, Harish and Chunuram after falling down of Nandkumar does not find support from medical evidence. 28. In these circumstances, evidence of aforesaid witnesses is not reliable to the extent of causing injury by seven persons after falling down of Nandkumar, but their entire evidence cannot be discarded. Evidence of aforesaid witnesses corroborated by the promptly lodged FIR Ex.P-44 and.merg Ex.P-43, medical evidence and evidence of Bisauha Ram (PW-6) are sufficient for drawing inference that Appellants Bodhan and Ghasi Ram have caused homicidal death of Nandkumar in sharing common intention with Appellant Sattu. 29. After appreciating the evidence available on record, learned Additional Sessions Judge convicted and sentenced the Appellants in the aforesaid manner, but has not considered the evidence of aforesaid interested and inimical witnesses, especially their first version to the police vide Exs.P-43 and P-44 which are well corroborated by medical evidence, and thereby committed illegality. 30. For the foregoing reasons, the appeal is partly allowed. 30. For the foregoing reasons, the appeal is partly allowed. (1) Conviction and sentences imposed upon Appellants Krishna Yadav, Bhuneshwar Yadav, Harish @ Harish chandra and Chunuram under Sections 147 and 302 read with Section 149 of the Indian Penal Code are hereby set aside and they are acquitted of the said charges. They be set at liberty forthwith, if not required in any other case. (2) Conviction and sentence imposed upon Appellants Bodhan Yadav, Ghasi Ram Yadav and Sattu @ Satyanarayan under Section 147 of the Indian Penal Code are hereby set aside and they are acquitted of the said charge. (3) Conviction of Appellants Bodhan Yadav, Ghasi Ram Yadav and Sattu @ Satyanarayan under Section 302 read with Section 149 of the Indian Penal Code is set aside, instead thereof they are convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and pay fine of Rs. 500/- each, in default of payment of fine to further undergo RI for three months. (4) Appellant Ghasi Ram Yadav has been granted bail vide order dated 7-12-2009, he shall surrender himself immediately before the Court of 7th Additional Sessions Judge, Raipur in Sessions Trial No. 397/2006 for serving remaining sentence.