Bandhuram Kanwar Vs State of Chhattisgarh

Nan Singh Korva S/o Dipan Singh Korva Aged About 48 Years R/o Village Gahaniya Baigapara, Police Station - Balconagar, District - Korba (Chhattisgarh)

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---- Appellants

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Versus

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State of Chhattisgarh Through Station House Officer, Police Station - Balconagar, District - Korba (Chhattisgarh)

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---- Respondent

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(Cause-title taken from the Case Information System)

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For Appellants : Mr. Dharmesh Shrivastava, Advocate For Respondent/State : Mr. Sangharsh Pandey, Govt. Advocate

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge

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C.A.V. Judgment

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Per Ramesh Sinha, Chief Justice

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This criminal appeal under Section 374(2) of the CrPC is directed against the judgment of conviction and order of sentence dated 20.12.2021 passed by the learned Special

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Judge under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, Korba in Sessions Trial No.27/2018, whereby the learned Sessions Judge has convicted and sentenced the appellants in the following manner with a direction to run all the sentences concurrently.

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CONVICTION	SENTENCE
U/s 460 of the IPC	RI for 5-5 years and fine of Rs.1000-1000/- and in default of payment of fine amount, additional RI for 1-1 month to each of the appellants.
U/s 323 of the IPC	RI for 6-6 months and fine of Rs.200-200/- and in default of payment of fine amount, additional RI for 7-7 days to each of the appellants.
U/s 325 of the IPC	RI for 2-2 years and fine of Rs.500-500/- and in default of payment of fine amount, additional RI for 15-15 days to each of the appellants.
U/s 302/34 of the IPC	Life Imprisonment and fine of Rs.2000-2000/- and in default of payment of fine amount, additional RI for 2-2 months to each of the appellants.

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Case of the prosecution, in brief, is that on 04.12.2017 one Kumari Pramila Rathiya lodged a report (Dehati Nalsi) Ex.P/1, as per which her cousin brother Bablu @ Bahattar Rathiya lived in village Gahniya with his wife in their in-laws house. It is stated that in the morning at about 4 am she was informed that her

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brother and sister-in-law along with one neighbor Aghni Bai were sleeping in the house then some unknown persons entered into house and assaulted them. It is further stated that all the injured were taken to hospital where the brother Bablu died due to grievous injuries on head and Bablu’s wife Ram Kumari and neighbor Aghni Bai were also assaulted over their head with stick or rod with intention to cause kill them, who are admitted in the District Hospital, Korba. Bablu’s death was also due to causing serious injury by hitting with a stick or rod with the intention of killing. On the basis of Dehati Nalsi (Ex.P-1), Dehati Merg Intimation was recorded vide Ex.P-2, on the basis of which, Merg Intimation was record vide Ex.P-38 and thereafter First Information Report bearing Crime No. 312/2017 was registered under Sections 458, 302, 307 of the IPC against unknown persons vide Ex.P-39.

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Medical examination of the victims Ram Kumari and Aghani Bai was done. After summoning the witnesses vide Ex.P-5, inquest over the dead body of the deceased was prepared and postmorterm of the body of the deceased was conducted by Dr.R.P.S. Paikra (PW-14) and postmortem report was given vide Ex.P-7, who found following injuries over the dead body of the deceased :

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(i) Body – supine position, rigormortis present on both upper and lower limbs, both eyes are closed and mouth are mild open

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(ii) Lacerated wound over the left fronto-temporal bone 16 x 1.5 cm.

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(iii) Black in colour over the left should 15 x 8 cm.

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He opined that the cause of death is cardio respiratory failure due to head injury and the nature of death is antemortem and homicidal in nature.

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During investigation, spot map was prepared vide Ex.P-28 Bloodstained saree and blouse of the injured Ram Kumari was seized vide Ex.P-3. Statements of injured Ram Kumari and Aghani Bai were recorded by Exs.D-1 and D-2 and on the basis of statement of injured Ram Kumari (Ex.D-1), the appellants were taken into custody and memorandum statements of accused/appellants Bandhuram Kanwar, Hol Say Kanwar and Nan Singh Korwa were recorded vide Exs.P-13, P-14 and P-15 respectively and on the basis of their memorandum statements, one axe was recovered at the instance of accused Bandhuram Kanwar vide Ex.P-16; one iron rod with bloodstains was recovered at the instance of accused Hol Say Kanwar vide Ex.P17 and one another iron rod with bloodstains was recovered at the instance of accused Nan Singh Korwa vide Ex.P-18, thereafter, the accused were arrested vide Ex.P-19 to 21 and information of arrest were given to their family vide Ex.P-29 to 31 respectively. Seized articles were sent for chemical examination to Regional Forensic Science Laboratory, Bilaspur vide Ex.P/34

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and receipt was obtained vide Ex.P-35, whereform FSL report was received vide Ex.P-36. Since, the accused/appellants were found to have committed the crime, the charge-sheet under Section 458, 302, 307, 459, 460, 34 of the IPC was presented before the Court of Judicial Magistrate First Class, Korba. As the case is triable by the learned Sessions Judge, therefore, it was committed on 09.03.2018 and after being transferred the Sessions Trial No. 27/2018 was sent for trial before the learned Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Korba.

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The charges under Section 460, 307, 302/34 of the IPC were framed against the present appellants. The present appellants denied the charges and claim to trial of the case.

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In order to bring home the above-stated offence, the prosecution examined as many as 16 witnesses and exhibited 39 documents Exs. P-1 to P-39. Accused/appellants have neither examined any witness nor exhibited any document in their defence.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 20.12.2021, convicted the appellants for offence under Sections 460, 323, 325 and 302/34 of the IPC and sentenced them as aforementioned, against which, this criminal appeal has been preferred by the accused / appellants.

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Mr. Dharmesh Shrivastava, learned counsel for the appellants

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would submit that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 460, 323, 325 and 302/34 of the IPC as there is no direct allegation against the present appellants and as per the prosecution story itself the incident was occurred by some unknown persons and during course of investigation nothing can be established against the present appellants. He further submitted that the evidence recorded before the trial Court are not in clinching nature against the appellants that they have committed any offence, moreover, there were no motive to cause death of the deceased and no such material have been collected against the appellants to implicate them in crime in question. He also submitted that the present appellants have been implicated only on the basis of memorandum and seizure but no corroborative evidence has been collected by the prosecution against the present appellants and further that and the eyewitnesses are interested witnesses, therefore, their evidence cannot be relied upon. He further submitted that though the blood stained iron rod was seized from the possession of the present appellants and the same have been sent to FSL, but no report has been received by the Police. As such, conviction without any evidence is unsustainable and liable to be set aside. He placed reliance on the judgments passed by the Hon’ble Supreme Court in the matters of Guman Singh Vs. State of Rajasthan , reported in (2019) 6 SCC 804 ; Shatrughan Vs. State of Chhattisgarh , reported on 2023 SCC

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Online SC 858 and Taijuddin Vs. State of Assam & Others , reported in (2022) 1 SCC 395 .

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On the other hand, Mr. Sangharsh Pandey, learned Government Advocate, appearing for the respondent / State, would submit that a perusal of the statements of the witnesses clearly show that they have made clear and unambiguous statements regarding commission of offence by the appellants / accused. The learned trial Court after appreciating the entire evidence available on record including the deposition of witnesses and thereafter, arrived at the finding of guilt of the appellants, which is supported by the credible and cogent evidences. Accordingly, the appeal deserves to be dismissed.

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We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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In the present case, homicidal death of deceased– Bablu @ Bahattar Rathiya as a result of injuries found over his body has not been substantially disputed on behalf of the appellants. On the other hand also, it is established by the evidence of Charan Singh (PW-1), Ramila Rathiya (PW-2), Puniram (PW-4), Ramkumari (PW-6), Aghani Bai (PW-11), Dr. R.P.S. Paikra (PW-14) and autopsy report Ex.P-07 that death of deceased– Bablu @ Bahattar Rathiya was homicidal in nature.

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As regards complicity of the appellants in the crime in question,

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conviction of the appellants is substantially based on the evidence of injured eye-witnesses Ramkumari (PW-6) and Aghani Bai (PW-11).

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While dealing with the question of evidentiary value of interested and relative witnesses, the Supreme Court in the matter of Dalip Singh and others v. The State of Punjab, reported in 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:-

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“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

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be governed by its own facts.”

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While dealing with same question, the Supreme Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar , reported in 2008 AIR SCW 3739 has held thus,

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“......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 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 per se 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.”

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While dealing with same question, the Supreme Court in the matter of Hari v. State of Maharashtra , reported in 2009 AIR SCW 2250 has held that relationship by itself cannot be ground to discredit the evidence of eyewitnesses relatives of deceased, more so, when deceased was murdered by his cousin (relative).

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Paras 21, 22 & 23 of the said judgment read thus,

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“21. It may be true that all the vital witnesses, namely, PW 1, 2 and 8 are relations of the deceased but that by itself cannot discredit their evidence. It is a fight between the relations it has come on record that the appellant is the cousin of the deceased. In such a case, the relations are likely to be the most appropriate witnesses.

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22. Certain decisions have been cited at the Bar which need to be considered and explained. About appreciation of evidence of witnesses who are related to the deceased, learned counsel for the appellant relied on a decision of this Court in Avtar Singh vs. State of Punjab, (2006) 12 SCC 524. In that case the facts were totally different and it was opined by the learned Judges, in the peculiar facts of that case, that enmity and bad blood between the rival groups was established beyond doubt. In that case no report was lodged with the police regarding the occurrence and this Court looked into the evidence and opined that the story about making an effort to lodge a report earlier was not true. In that case the nambardar and the chowkidar who were alleged to have accompanied PW-1 to the police station were not examined and there was a categoric denial by PW6-Station House Officer about anyone reporting the incident to him before 4.12.1989. This Court found that the High Court has not at all noticed the facts. In the background of those facts, this Court held that proper caution was not exercised by the High Court in appreciating the highly partisan evidence adduced by the prosecution.

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23. But in the instant case, the factual scenario is

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totally different. Here the occurrence took place within the house at the instance of the close relatives and in such a situation only relatives would be the witnesses. Of course, in the present case also there was some enmity in view of the land dispute but that by itself is not a ground to discard the evidence of the witnesses, who are relatives when their evidence is cogent and credible. Factually, the decision of this Court in Avtar Singh (supra) stands on a completely different footing.”

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In the matter of Mohabbat and Ors. v. State of M.P. , reported in 2009 AIR SCW 1486 the Supreme Court 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,

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“7. Merely because the eye-witnesses are family members their evidence cannot per se 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

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is cogent and credible.”

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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 others, reported in AIR 2004 SC 1053 has observed in para 15 that

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“15. 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. If the materials show that there is partisan approach, as indicated above the Court has to analyze the evidence with care and caution.”

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While dealing with same question in the light of relationship, the Supreme Court in the matter of Mst. Dalbir Kaur and others v. State of Punjab reported in AIR 1977 SC 472 has held in para 13 that

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“13. 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.”

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Therefore, the evidence of eyewitnesses namely Ram Kumari

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(PW-6) and Aghani Bai (PW-11) cannot be thrown away, simply on account of they being the relative of the deceased. However, their evidence is to be scrutinized with great care and caution to find out whether it is intrinsically reliable, inherently probable and wholly trustworthy and if found so, conviction can be based even on the sole testimony of any one of them.

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Injured eye-witness, Ram Kumari (PW-6), who is the wife of the deceased, has stated in paragraph 1 of the main examination of her Court sworn statement that she has identified the accused. In paragraph 2, she has stated that she is not educated and hence she does not know the date of incident. About a year ago, she, her husband, her children and Aghani Bai were sleeping in their house in village Gahnia. Guests had come to Aghani Bai’s house and due to lack of space in her house, she had come to sleep in her house. On the night of the incident, the accused Bandhuram, Holsai Kanwar and Nan Sai, all three together had killed her husband by beating him with a rod and a stick. She further stated in paragraph 3 that on the night of the incident, when they were coming from the relative’s house after having festival meal, then on the way near the Narva (drain) before Gahania, the accused had stopped her, her husband and her children with intention to kill them, but could not kill them there and on the same night when they were sleeping, the accused entered their house and killed her husband. On the date of incident, she was also hit on the head with a rod by the

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accused and her husband was slashed/cut with an axe, his face and body were not worth seeing. Aghani Bai, who was sleeping in her house on the date of incident, also got injured due to assault by the accused.

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In paragraph 4 of her evidence, she further stated that on the night of the incident when the accused were assaulting her husband, he shouted ‘Ai Maa’, then she also got up in panic, then she was also beaten by the accused and she saw all the accused beating. The accused fled from her house after committing the incident. On the night of the incident itself, Niranjan had taken them to 100 Bed Hospital, Korba in his vehicle. She and Aghani Bai were treated by doctors in the hospital.

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In paragraph 5 of the main examination, she further stated that prior to the date of incident, there was a fight between the accused Bandhuram and one Chatrapal, in connection with which a meeting was called in the village. In that meeting, her husband explained to the accused why he is fighting. Regarding this, the accused Bandhuram told her husband that you have come to live here from another village and you are explaining to me by saying that he had told that he will see to her husband. Keeping a grudge of that matter, her husband was murdered by the accused Bandhuram. In paragraph 6, she has stated that she also had an injury on her head when the accused hit her, which also left with three-four bruises. Aghani Bai and she were

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admitted in the hospital for a week. The police interrogated her about the incident and took her statement. In paragraph 7, she has stated that on presenting by her, police had seized one green saree and a blouse, which had bloodstains on them.

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In paragraph 8 of her cross-examination, PW-6, Ramkumari has admitted that when they reached 100 Bed Hospital on the date of incident, none of them had filed any report against the accused in the police station. She further admitted that when they reached 100 Beds, the police had also reached there and she had not even lodged a report with the police naming the accused. In paragraph 9, she further admitted that by the time they reached 100 Bed, her sister-in-law Kumari Ramila Rathiya had also reached there with whom they had a conversation. She also admitted that a report was lodged by Kumari Ramila Rathiya in the name of unknown person regarding the incident that happened to them. In paragraph 10, she has stated that police had interrogated her on the morning of the incident night. She has admitted that when the police interrogated her in the morning, she had told the police that some unknown person had entered their house and beaten her, her husband and Aghani Bai. The witness herself said that she was not conscious at that time. She also admitted that when the policemen were interrogating her in the morning, she was talking. The witness herself said that she was not fully conscious. In paragraph 11 of her cross-examination, she has denied the suggestion that she

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was completely conscious when the police recorded her statement. In paragraph 14 of her cross-examination, she had denied the suggestion that she did not see the incident happening. She has admitted that nowhere in her police statement is there any mention of the incident being committed by the accused. She denied that today for the first time she was artificially telling about seeing the incident out of irritation with the accused.

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Another injured eye-witness, Aghani Bai (PW-11) has stated in her main examination that she does not recognize the accused. She has stated that at about 12 o’clock in the night of the date of incident, when she was sleeping on the floor and next to her, Bahattar @ Bablu and his wife were sleeping on the bed, at the same time in the night, she became unconscious for sometime, due to an injury on her head. After regaining consciousness, she got up, she was injured on the right side of her forehead, next to her ear and on her forehead. A lot of blood was coming out from them. When she got up and felt thirst, she asked water from Puniram’s house next door and drank it and came back and sat in the court yard of the deceased. She face was covered with the blood due to the injury on her forehead and excessive bleeding, she shouted from there that take her to the hospital quickly. The learned Special Public Prosecutor has declared the said witness as hostile and has cross-examined her. When indicative questions were asked during cross-examination, in

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paragraph 4 of her cross-examination, when she was asked that it was the accused in the Court who had assaulted her, that is why the police had caught the accused and brought them, the witness said yes, it was they who assaulted her. In the same paragraph, the fact has also been accepted that Bablu @ Bahattar Singh was also beaten by the accused due to which he died. In paragraph 5 of her cross-examination, she has admitted that she did not tell the police that the accused present in the Court had assaulted her. She also admitted that she had told the police that ‘she do not know who assaulted her’ in her statement given to police in Ex.-D/2.

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We have carefully perused the statements of both the injured eye-witnesses and from perusal of the sworn statements of injured eye-witnesses Ram Kumari (PW-6) and Aghani Bai (PW-11) examined by the prosecution, this fact is clearly shown that on the night of the incident, the accused had entered in the house of the deceased. Ram Kumari (PW-6) has clearly stated in paragraph 4 of her main examination that on the night of the incident, when the accused were beating her husband, he shouted ‘Ai Maa’, then she too got up in panic and was beaten by the accused and she saw all the accused being beating. The accused had fled from her house after committing the incident. Aghani Bai (PW-11) in paragraph 4 of her sworn evidence admitted that the accused had beaten her and Bablu @ Bahattar Singh was also beaten by the accused, due to which he died.

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Though, Dehati Nalsi (Ex.P/1) lodged by Kumari Pramila Rathiya was against unknown person on the basis of which FIR was also lodged against the unknown person, but the fact that while giving her statement to the police, injured eye-witness Ram Kumari (PW-6), who has also received head injury, was not fully conscious, therefore, she had not named about the accused to Kumari Pramila Rathiya, who had lodged Dehati Nalsi cannot be ignored.

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So far as motive is concerned, from the statement of injured eyewitness Ram Kumari (PW-6), who has stated in paragraph 5 of her main examination that prior to the date of incident, there was a fight between the accused Bandhuram and one Chatrapal, in connection with which a meeting was called in the village. In that meeting, her husband explained to the accused why he is fighting. Regarding this, the accused Bandhuram told her husband that you have come to live here from another village and you are explaining to me by saying that he had told that he will see to her husband. Keeping a grudge of that matter, her husband was murdered by the accused Bandhuram. Thus, motive is also duly established.

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The said evidence of both the eye-witnesses was very well corroborated by the evidence of Puniram (PW-4), who has stated that while he was sleeping near the fireplace in the courtyard of his house around 11-12 pm on the date of incident, Aghani Bai came to courtyard of his house and shouted, ‘help,

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me, help me’. Hearing her voice, he got up from his bed and went to the Aghani Bai. Her face was completely covered with blood and was unrecognizable. Then he got scared and as per the instructions of Aghani Bai, he ran towards the house of his niece and son-in-law, Bablu @ Bahattar Singh. When he reached there, he saw that deceased was lying on the bed in a serious condition, bleeding and his niece Ram Kumari was also hurt. But, she was walking. She was also bleeding at many places in her body.

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The judgments relied upon by the learned counsel for the appellants i.e. Guman Singh (supra) Shatrughan (supra) Taijuddin (supra) are not helpful to him and are distinguishable to the facts of the present case as in the present case, the prosecution has proved the incriminating circumstances against the appellants and have been rightly convicted & sentenced as aforementioned.

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Thus, jointly considering the sworn statements of the witnesses Ram Kumari (PW-6) and Aghani Bai (PW-11), corroborative witness of the incident Puniram (PW-4) examined by the prosecution, it is proved that all the three accused had entered into the house of the deceased, where deceased along with his wife and neighbor Aghani Bai were sleeping, with intention to kill the deceased as there was previous animosity on account of intervention made by the deceased in the meeting convened in the village in relation to a fight between the accused Bandhuram

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and one Chatrapal and they chopped the deceased with axe and also assaulted both the injured eye-witnesses with iron rod over their head, which were recovered from their instances. There has been no denial in the cross-examination of the defence side, due to which their statements appear to be unreliable or doubtful, rather the statements of the said witnesses appear to be of reliable nature and are consistent with each other.

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Considering the aforesaid facts & circumstances of the case, material available on record, we are of the considered opinion that the trial Court has rightly convicted and sentenced the appellants for offences punishable under Sections 406, 323, 325 and 302/34 of the IPC.

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For the foregoing reasons, the criminal appeal filed on behalf of appellants - Bandhuram Kanwar, Hol Say Kanwar and Nan Singh Korva is dismissed . They are in jail, they shall serve out the sentence as ordered by the concerned trial Court.

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The trial Court record along with a certified copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

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Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Judgment Date : 03/04/2024

Chandra

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Head-Note

Relationship is not a factor to affect credibility of a witness. It is for the Court to analyze whether the witness is cogent and credible.

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कि�सी गवाह �ी किवश्वसनीयता �ो प्रभाकिवत �रने �े लि�ए रिरश्ता �ोई �ार� नहीं है। यह किवश्लेषण �रना न्याया�य �ा �ाम है कि� गवाह ठोस और किवश्वसनीय है या नहीं।

Bandhuram Kanwar v. State of Chhattisgarh

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Bandhuram Kanwar v. State of Chhattisgarh

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