Criminal Appeal against conviction for murder. Court held that relative witnesses are natural not interested witnesses if credible. Found common intention of all appellants to attack deceased with lathis. Dismissed appeal.
Appeal filed by appellants 2 and 3 dismissed; conviction and sentence upheld.
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HIGH COURT OF CHHATTISGARH. BILASPUR
CORAM: Hon'ble Shri Raieev Gupta, C.J^_& Hon'ble Shri Sun il Kumar Sin ha. J.
Criminal Appeal No.1033 of 1 995
Gobaru (dead) & Others
Vs.
Stateof Madhya Pradesh (Now State of Chhattisgarh)
JUDGMENT
For consideration
Sd/-
Sunil Kumar Sinha Judge
HON'BLESHRI JUSTICE RAJEEV GUPTA
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/06/2012
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HIGH COURT OF CHHATTISGARH. BILASPUR
CORAhfl: Hon'ble Shri Raieev Gupta. C.J. & Hon^le Shri Synil Kumar Sinha, J.
Criminal ADDeal No. 1033 of 1995
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APPELLANTS 1 Gobaru, alias Goberdhan, son of Khor Bahara Pali, aged about 45 years (Dead-Appealstandsabatedref.
C.O. dated 4.1.2008) 2 Guddu, alias Sukhchen, S/o Gobeardhan Pali, aged 21 years
3 Bali, alias Suresh, S/o Goberdhan Pali, aged 19years
All resident of Pali Para, Kawardha, District Rajnandgaon, M.P. (Now Chhattisgarh)
Versus
RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh), Through The District Magistrate, Rajnandgaon
(Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure)
Appearance:
Mr. Rajeev Shrivastava and Mr. K.N. Nande, Advocates for the appellants
Mr. Kishore Bhaduri, Additional Advocate General forthe State.
JUDGWIENT
(20.06.2012)
Following judgment of the Couri: was delivered by Sunil Kumar Sinha, J.
(1) This appeal is directed against the judgment dated 12 of July, 1995 passed in Session Trial No. 21/95 by the Additional Session Judgs, Khairagarh, Camp Court Kawardha. By the impugned judgment, the appellants were convicted u/ss 302/34 IPC and sentenced to undergo
CrANo. 1033 of 1995
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imprisonment for life and to pay fine of Rs.500/- with default sentence of R.l. for6 months.
(2) Appellant No.1- Gobaru @ Goberdhan died during the pendency of the appeal on 23.9.2004, therefore, the appeal filed on behalf of appellant No.1 stands abated.
(3) The facts, briefly stated, are as under:-
On 2.9.1994 at about 7.30 a.m. deceased- Kaliram was going on the rickshaw of Amol Singh (PW-6). As soon as they reached near Surjeet Hotel, appellant No.1 came on the way with lathi, stopped the rickshaw and started quarreling with the deceased. Two sons of appellant No.1 (appellants 2 & 3) also came there with lathi(s) and all attacked over the deceased by lathi(s). The deceased sustained multiple serious injuries and succumbed to those injuries. The incident was witnessed by Deepak Kumar (PW-1 - son-in-law of the deceased), Santosh Kumar (PW-2) and Amol Singh (PW-6). Some part of the incident was also witnessed by Benbati Bai (PW-3), Bela Bai (PW-4) and Darraj (PW-5). Deepak Kumar (PW-1 ) lodged merg intimation (Ex.P/1) and First Information Report (F.I.R. - Ex.-P/2). The merg intimation (Ex.-P/1) and the F.I.R. (Ex.-P/2) contain the names of the appellants. The Investigation Officer reached to the place of occurrence, gave notice (Ex.-P/15) to the Panchas and prepared inquest (Ex.-P/S) on the dead body of the deceased. The dead body of the deceased was sent for post-mortem to Primary Health Center (PHC), Kawardha. The post-mortem examination was conducted by Dr. N.K. Yadu (PW-7). He noticed following injuries on the dead body ofthe deceased:-
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On internal examination, he found radiating fracture over left temporal bone. There was intracranial haemorrhage over the left temporal lobe of brain. The Autopsy Surgeon opined that all the injuries were ante-mortem and were caused by hard and blunt object. The cause of death was coma as a result of intracranial haemorrhage and fracture of skull bone and it was homicidal in nature. The post-mortem report is Ex.-P/9.
In further investigation, the appellants were taken into custody and their memorandum statements (Ex.-P/4, P/10 & P/12) were recorded u/s 27 of the Evidence Act and lathi(s) were seized at their instances vide seizure memos Ex.-P/S, P/11 & P/13.
The learned Session Judge mainly relied on the testimonies of Deepak Kumar (PW-1), Santosh Kumar (PW-2) and Amol Singh (PW-6) and taking support from the evidence of Benbati Bai (PW3), Bela Bai (PW-4) and Dasraj (PW-5) held that it was proved beyond all reasonable doubts that the appellants assaulted the deceased sharing common intention to commit his murder, therefore, they were liable for punishment u/ss 302/34 IPC.
(4) Mr. Rajeev Shrivastava, learned counsel appearing on behalf of the appellants, argued that Deepak Kumar (PW-1) is son-in-law of the deceased and Benbati Bai (PW-3) is Samdhan of the deceased, therefore, they were interested witnesses and the learned Session Judge erred in relying on their testimonies.
In Namdeo -Vs- State of Maharashtra, 2007 AIR SCW 1835, the (5) Supreme Court held that a witness who is a relative of deceased or victim
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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. 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.
In Dhamidhar -Vs- State of Uttar Pradesh and Others & other (6) connected appea/s. f2010) 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, become an interested witness. An per-se, 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
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Cr.A.No. 1033 of 1995
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. However their evidence is to be scrutinized with due care and caution and if their evidence is found credible in appreciation, the conviction can well be based on their such testimonies. The instant case is not based only on the testimonies of Deepak Kumar (PW-1) and Benbati Bai (PW-3). There are 4 other eye-witnesses who have also supported the prosecution case. Thus, their credibility has to be examined in light ofthe above principles.
(9) Deepak Kumar (PW-1) deposed that on the fateful day, in the morning, the deceased asked him to drop at Bilaspur-naka. Deepak Kumar said that he is coming after changing the clothes. By that time the deceased had taken a rickshaw. He had gone on the rickshaw. Deepak Kumar also followed the deceased. When he reached near Surjeet Hotel, he saw that the appellants were brutally assaulting the deceased. They were assaulting him by lathi(s). When he went near the appellants and
Cr.A.No. 1033 of 1995
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asked that as to why they are doing so, the appellants said that they will assault him also. Thereafter he ran to the house of Sarpanch.
(10) Santosh Kumar (PW-2) deposed that on the fateful day, in the morning, he was going to take bath in river. He saw the appellants sitting near the betel-shop of Gokul. At that time the deceased was coming by a rickshaw from bazaar side on the main-road. The appellants intervened. The deceased got down from the rickshaw and said that if they went to assault him they can do so. He went towards the river. When he was returning, he saw that appellant- Gobaru assaulted the deceased on right portion of his forehead. Thereafter appellant- Guddu assaulted him on the left portion of forehead. He started shouting. Thereafter appellantBaliram also assaulted the deceased on back, due to which the deceased fell down. Son-in-law ofthe deceased namely Deepak Kumar (PW-1) had reached there. Deepak Kumar (PW-1) took the deceased in his lap, however, the deceased succumbed to the injuries sustained by him.
(11) Amol Singh (PW-6) was the rickshaw-puller, According to him, he was taking the deceased on his rickshaw. On the way appellant No.1 hit his rickshaw by his lathi . The deceased got down from the rickshaw. Thereafter a quarrel begun between appellant No.1 and the deceased. He immediately left that place along with his rickshaw.
(12) Mr. Shrivastava has pointed out towards the contradictions relating to time and manner of assault etc. in the evidence of above eyewitnesses. We have carefully examined the evidence of these witnesses. Contradictions pointed out by Mr. Shrivastava are minor contradictions. They are not material contradictions. They do not go to the root of the
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Cr.A. No. -1033 of 1995
matter. On appreciation of evidence of above eye-witnesses, it cannot be said that the above eye-witnesses were making a false version or were falsely implicating the appellants in crime in question. In fact, nothing material could be elicited in their cross-examinations, on which their testimonies may be discarded though they were put to lengthy crossexaminations by the defence.
(13) The evidence of above eye-witnesses is corroborated by the medical evidence of Dr. N.K. Yadu (PW-7) who performed autopsy on the dead body of the deceased and found above injuries and opined that the injuries found on the dead body of the deceased could be caused by hard and blunt object like lathi.
(14) The evidence of the above main eye-witnesses is further corroborated by the evidence of Benbati Bai (PW-3), Bela Bai (PW-4) and Dasraj (PW-5), who also saw the main incident of assault. They also clearly deposed that they had seen the appellants assaulting the deceased by lathi(s). These witnesses have also been put to lengthy cross-examinations by the defence, but the defence has not been able to elicit any such circumstance on which either their testimonies may be discarded or it may be said that they were making false statements against the appellants.
(15) The evidence of the eye-witnesses, particularly Deepak Kumar (PW-1) is further corroborated by the merg intimation (Ex.-P/1) and the F.1.R. (Ex.-P/2) lodged by him. In these documents, he has mentioned the details about the incident along with the names of the assailants.
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CrANo. 1033 of 1995
The inddent took place at about 7.30 a.m. in the dense locality of the village near a hotel. It was morning time when usually the villagers use to go to the river side. Most of the eye-witnesses have claimed that they were going towards river at that time and noticed the incident. The appellants and the deceased were previously known to the eyewitnesses, which fact remained unrebutted, therefore, there is no question of mistaken identity. On appreciation of the entire evidence of above 6 eye-witnesses, we find that they were natural witnesses who saw the incident from a very close distance. We are of the view that in the above facts and circumstances of the case, the learned Session Judge was right in relying the testimonies of above witnesses and holding that it was proved by their evidence that the appellants assaulted the deceased by lathi(s) who received the above injuries and succumbed to those injuries.
(17) Mr. Srivastava has next contended that according to Amol Singh (PW-6), only appellant No.1 stopped the rickshaw and started quarreling with the deceased. Therefore, in absence of any evidence of sharing common intention, appellants 2 & 3 cannot be convicted with the aid cf Section 34 IPC.
(18) Let us firstly look into the principles.
(19) Section 34 is based on the principle ofjoint liability in the doing of a criminal act. It does not constitute a substantive offence. The liability qf one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of a common intention of the person
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CrANo. 1033 of 1995
who join in committing the crime. There may not be the direct proof of common intention but such intention can be inferred from the circumstances appearing from the proved facts and circumstances of each case. To constitute common intention, it is necessary that the intention of each one of the accused be known to the rest and shared by them. The common intention has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused persons had a common intention to commit offence for which they can be convicted. It has to be proved 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, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime.
(20) Amol Singh (PW-6) is the witness on whose rickshaw the deceased was traveling. According to him his rickshaw was stopped by appellant No.1, who firstly hit on his rickshaw by lathi, and thereafter when the deceased got down from rickshaw, he started quarrelling with the deceased. Amol Singh (PW-6) has deposed in clear words that just after the said part of the incident he went away from the place of occurrence along with his rickshaw. In light of the evidence of other eye-witnesses, therefore, it is clear that Amol Singh (PW-6) had not witnessed the entire incident. Santosh Kumar (PW-2) deposed in clear words that the 3 appellants were sitting together near the betel-shop of Gokul. It appears that firstly, appellant No.1 stopped the rickshaw, hit on the rickshaw, quarreledwiththedeceasedandthenappellants2&3alsocamethere
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Cr.A.No. 1033 of 1995
and then all attacked over the deceased by lathi(s). This is not a case in which appellants 2 & 3 were attributed no active role at all. This is a case in which it has been deposed by as many as 5 eye-witnesses that they physically pari:icipated in assaulting the deceased by giving repeated lathi(s) blows to the deceased along with appellant No.1.
(21) Considering the act, conduct and totality of the circumstances, we are of the view that it was proved that appellants 2 & 3 shared common intention with appellant No.1 to commit murder of the deceased as all of them gave repeated lathi(s) blows to the deceased on a public waywhile the deceased was going on a rickshaw. In view of the above evidence, thearguments advanced by Mr. Shrivastava in this regard, therefore, cannot be accepted.
(22) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed the appellants (appellants 2 & 3), therefore, is liable to be dismissed and is hereby dismissed.
Sd/- Sd/-
ChiefJustice Sunil Kumar Sinha
Judge
vafti
3 issues framed by the court
Whether the testimony of witnesses who are relatives of the deceased can be relied upon for conviction.
Whether the appellants 2 and 3 shared common intention with appellant 1 to commit murder under Section 34 IPC.
Whether the appeal warrants interference with the conviction and sentence of the trial court.
Colour shows how this judgement treated each authority
2 provisions across 2 enactments
Gobaru & Others
State of Madhya Pradesh (Now State of Chhattisgarh)
Raieev Gupta
Sunil Kumar Sinha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
