Chattisgarh High Court
Melaram vs State Of Chhattisgarh on 23 February, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Cr.A.No.951/2019
Page 1 of 27
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.951 of 2019
{Arising out of judgment dated 4-5-2019 in Sessions Trial No.55/2017 of
the Sessions Judge, Janjgir-Champa}
Judgment reserved on: 16-2-2023
Judgment delivered on: 23-2-2023
Melaram, S/o Tiharu Ram Sahu, aged about 35 years, R/o Loharsi, Police
Station Shivrinarayan, District Janjgir-Champa (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through the Police Station Navagarh, District
Janjgir-Champa (C.G.)
---- Respondent
--------------------------------------------------------------------------------------------------
For Appellant: Mr. Parag Kotecha, Advocate.
For Respondent/State: Mr. Sudeep Verma and Mr. Ravi Kumar Bhagat,
Deputy Government Advocates.
--------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Radhakishan Agrawal, JJ.
C.A.V. Judgment Sanjay K. Agrawal, J.
1. Three accused persons namely Melaram (A-1), Sitaram (A-2) and Yadram (A-3) were tried by the Sessions Judge, Janjgir-Champa in Sessions Trial No.55/2017 and after full-dressed trial, Melaram (A-
1) was convicted for offences punishable under Sections 302, 307 (twice) & 450 of the IPC and acquitted of the charges under Sections 460, 323 & 506 Part-II of the IPC, however, Sitaram (A-2) & Yadram (A-3) were fully exonerated from charges under Sections 302, 307, 460, 323 & 506 Part-II of the IPC.Cr.A.No.951/2019 Page 2 of 27
2. The present criminal appeal under Section 374(2) of the CrPC is only preferred by Melaram (A-1) questioning his conviction for offences under Sections 302, 307 (twice) & 450 of the IPC and sentences awarded to him by the impugned judgment dated 4-5- 2019 passed by the Sessions Judge, Janjgir-Champa in Sessions Trial No.55/2017, by which he has been convicted and sentenced as under: -
Conviction Sentence Section 302 of the IPC Imprisonment for life and fine of ₹ 20,000/-, in default, additional rigorous imprisonment for two years Section 307 of the IPC Rigorous imprisonment for ten years (twice) (twice) and fine of ₹ 20,000/- (twice), in default, additional rigorous imprisonment for two years (twice) Section 450 of the IPC Rigorous imprisonment for ten years and fine of ₹ 20,000/-, in default, additional rigorous imprisonment for two years Prosecution case: -
3. Before narrating the prosecution version, it would be appropriate to notice the relationship between the deceased, injured eyewitnesses and the accused / appellant herein - Melaram (A-1) and two other accused persons - Sitaram (A-2) & Yadram (A-3), who have been acquitted from the charges by the learned Sessions Judge.
4. Rathram Sahu had two sons Niranjan Sahu & Chandrika Sahu. Acquitted accused Sitaram (A-2) & Yadram (A-3) are sons of Niranjan Sahu and Melaram (A-1) - the appellant herein, is son-in- law of Niranjan Sahu having married with his daughter Ganga Bai. Absconded co-accused Daniram Sahu is also son of Niranjan Cr.A.No.951/2019 Page 3 of 27 Sahu. Chandrika Sahu - second son of Rathram Sahu, is the deceased in the present case and his wife Savita Sahu (PW-14) is injured eyewitness. Complainant Laxminarayan (PW-7) is son of deceased Chandrika Sahu and another injured eyewitness Saraswati Sahu (PW-8) is daughter of deceased Chandrika Sahu. Tanya is the niece of Laxminarayan Sahu (PW-7) being his elder sister's daughter.
5. Case of the prosecution, in short, is that in the intervening night of 19-6-2017 & 20-6-2017 at 02:30 a.m., at Village Amoda, the appellant herein and the two acquitted accused persons along with absconded accused Daniram Sahu, armed with wooden plank, trespassed into the house of complainant Laxminarayan Sahu (PW-
7) situated at Village Amoda, Tahsil Nawagarh and assaulted deceased Chandrika Sahu, his wife Savita Sahu (PW-14) and his daughter Saraswati Sahu (PW-8) which was witnessed by Laxminarayan Sahu (PW-7) pursuant to which Chandrika Sahu, Savita Sahu & Saraswati Sahu, all were admitted to the hospital where Chandrika Sahu died during treatment on 24-6-2017. Saraswati Sahu (PW-8) was discharged from hospital on 29-6-2017 vide Ex.P-39 and Savita Sahu (PW-14) was discharged from hospital on 23-7-2017 vide Ex.P-62. It is the further case of the prosecution that on the fateful night, Chandrika Sahu was sleeping in his house along with his wife Savita Sahu (PW-14) and in the mid night, the accused persons unauthorizedly trespassed his house and assaulted him and his wife, and on hearing the noise, his daughter Saraswati Sahu (PW-8), who was sleeping in the next Cr.A.No.951/2019 Page 4 of 27 room with her elder sister's daughter Tanya, came out and intervened on which the accused persons assaulted her also. Laxminarayan Sahu (PW-7), who was also sleeping next to his father's room, on hearing the noise of his father & mother, reached to the spot and witnessed that the appellant herein - Melaram (A-1) was assaulting his father Chandrika Sahu (deceased), mother Savita Sahu (PW-14) & sister Saraswati Sahu (PW-8) and thereafter, when all the accused persons came and attempted to assault him {Laxminarayan Sahu (PW-7)}, he ran away from the house taking the custody of minor niece Tanya - his elder sister's daughter, and informed the incident to Ramesh Yadav (PW-2). Later on, all the accused persons including the appellant herein (A-
1) ran away from the spot. When Saraswati Sahu (PW-8) & Savita Sahu (PW-14) were taken to District Hospital, Janjgir, they have been examined by Dr. D.P. Dewangan (PW-4) and they have been referred to higher medical centre and they were admitted in Bellevue Hospital at Bilaspur and were medically attended by Dr. Brajesh Patel (PW-11) who referred them to Radiologist Dr. Navneet Singh (PW-17). Thereafter, the statement of Laxminarayan Sahu (PW-7) was recorded under Section 161 of the CrPC and on that basis, Police Station Nawagarh registered FIR under Crime No.106/2017 for commission of offences punishable under Sections 506, 323, 460 & 307 read with Section 34 of the IPC vide Ex.P-128 against four persons and accordingly, the appellant herein (A-1) and acquitted accused Sitaram (A-2) & Yadram (A-3) were arrested. Memorandum statement of the appellant was Cr.A.No.951/2019 Page 5 of 27 recorded vide Ex.P-3 and consequently, the weapon of offence i.e. wooden plank was seized vide Ex.P-7 and it was sent for query report by doctor vide Ex.P-17 and according to the query report (Ex.P-18), injuries suffered by the deceased could have been caused by the wooden plank seized from the possession of the appellant herein. Upon death of the deceased - Chandrika Sahu during treatment on 24-6-2017, it was informed by the hopsital staff to the police station vide Ex.P-127 and morgue was registered vide Ex.P-24 and dehati nalishi was also registered vide Ex.P-25. After inquest vide Ex.P-20, on the recommendation of panchas, dead body of the deceased was sent for postmortem which was conducted by Medical Officer Dr. A.K. Kaushik (PW-9) vide Ex.P-21 according to which, cause of death was due to coma as a result of head injury (subdural haematoma in frontal area on both sides). Since one co-accused Daniram Sahu was absconding, absconding memo was prepared vide Ex.P-139. Statements of the witnesses were recorded under Section 161 of the CrPC.. Offence punishable under Section 302 read with Section 34 of the IPC was also inserted and ultimately, the appellant herein including the acquitted accused were charge-sheeted for offences under Sections 460, 307 (twice) read with Section 34, 302 read with Section 34, 323 read with Section 34 & 506 Part-II of the IPC and the case was committed to the Court of Sessions. Thereafter, on 4-10-2017, FSL report of seized articles was received by the police and it was produced before the Court which was exhibited vide Ex.P-145 in which in the seized article seized vide Ex.P-7 i.e. the wooden plank, Cr.A.No.951/2019 Page 6 of 27 human blood was found, but blood group could not be ascertained on account of disintegration of blood.
6. Upon due investigation, charge-sheet was filed against the appellant herein and the two acquitted accused before the jurisdictional criminal court which was committed to the Court of Sessions, Janjgir-Champa for hearing and disposal in accordance with law.
7. The trial Court has framed charges against the appellant herein and the two acquitted accused and proceeded on trial. The accused / appellant herein and the two acquitted accused abjured guilt and entered into trial by stating that they have not committed the offence and they have been falsely implicated.
8. The prosecution in order to bring home the offence examined as many as 17 witnesses and exhibited 145 documents Exhibits P-1 to P-145 and Articles 1 to 12 have been produced. Defence has examined two witnesses Umashankar (DW-1) & Sunil Kewat (DW-
2) in support of its case. Three documents Exhibits D-1 to D-3 i.e. the statements of Laxminarayan Sahu and Saraswati Sahu recorded under Section 161 of the CrPC, and the sale deed of vehicle have been exhibited on behalf of the defence. Statements of the accused persons were recorded under Section 313 of the CrPC in which they abjured guilt and pleaded innocence.
9. The trial Court after completion of trial and after appreciating oral and documentary evidence on record, proceeded to convict the appellant herein under Sections 302, 307 (twice) & 450 of the IPC and sentenced him to undergo imprisonment for life and other Cr.A.No.951/2019 Page 7 of 27 sentences as noticed in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred by him, whereas, acquitted remaining two accused persons of all the charges alleged against them and also acquitted the appellant herein under Sections 460, 323 read with Section 34 & 506 Part-II of the IPC.
10. Mr. Parag Kotecha, learned counsel appearing for the appellant, would submit as under: -
1. There is complete absence of motive on the part of the appellant to commit the offence and the finding recorded by the trial Court in paragraph 36 of the judgment that the prosecution has proved the motive on the part of the appellant to commit the offence, is absolutely perverse and contrary to record.
2. The statements of Laxminarayan Sahu (PW-7) & Saraswati Sahu (PW-8), being relative witnesses, are not reliable and trustworthy and suffer from serious contradictions and omissions. Reference has been placed upon the statement of Laxminarayan Sahu (PW-7) (paragraphs 8 & 11) and also upon the statement of Saraswati Sahu (PW-8) (paragraphs 16 & 21).
3. As per the statement of Vijay Chaudhary (PW-12) -
investigating officer, he has clearly stated that he has not examined other independent witnesses except Ramesh Yadav (PW-2) and similarly, A.R. Uikey (PW-15) - another investigating officer has also stated that he has not examined Cr.A.No.951/2019 Page 8 of 27 other independent witnesses Gopal and Tanya, aged about 6 years, as such, non-examination of independent witnesses is fatal to the prosecution.
4. Seizure and memorandum witnesses namely Ramesh Yadav (PW-2) & Harisingh Yadav (PW-3) both have turned hostile which has also been recorded by the trial Court in paragraph 58 of the judgment and though in FSL report Ex.P-145, human blood has been found, but blood group could not be ascertained, therefore, it could not be held that the wooden plank is the weapon of offence and as such, it cannot be held to be the weapon of offence. Reliance has been placed upon the decision of the Supreme Court in the matter of Ashish Batham v. State of Madhya Pradesh1 in support of the submission.
5. Multiple injuries have been sustained by the deceased, Saraswati Sahu (PW-8) & Savita Sahu (PW-14) which could not be possible to be caused by one person i.e. the appellant herein, therefore, the trial Court has committed illegality in convicting the appellant herein for the aforesaid offences while acquitting other two accused persons Sitaram (A-2) & Yadram (A-3). As such, the appeal deserves to be allowed and the appellant be acquitted.
6. Conviction of the appellant for offence under Section 302 of the IPC is liable to be set aside for having no legal evidence.
7. Alternatively, it is submitted that the trial Court has also 1 AIR 2002 SC 3206 Cr.A.No.951/2019 Page 9 of 27 committed legal error in not awarding the sentences / punishment concurrently, but by consecutively which is against the well settled principle of law in this regard.
11. Mr. Sudeep Verma and Mr. Ravi Kumar Bhagat, learned State counsel, would support the impugned judgment and submit that the trial Court has rightly held that motive is clearly proved as per the finding in paragraph 36 of the judgment which is neither perverse nor contrary to the record. Saraswati Sahu (PW-8) is the injured eyewitness and Laxminarayan Sahu (PW-7) is eyewitness, they have clearly deposed having seen the incident and the assault has been made by the appellant herein by wooden plank which does not suffer from any contradiction or omission and therefore it cannot be held that they have not witnessed the incident and their evidence suffers from any kind of infirmity warranting disbelieving of their version to base conviction of the appellant under Section 302 of the IPC. They would further submit that the prosecution case cannot be thrown out on the basis of minor contradictions and omissions, if any. Relying upon the decision of the Supreme Court in the matter of Guru Dutt Pathak v. State of Uttar Pradesh 2, inviting our attention to paragraph 24 of the judgment, it has been submitted that reliable evidence of injured eyewitness Saraswati Sahu (PW-8) and eyewitness Laxminarayan Sahu (PW-7) cannot be discarded merely for the reason that other independent witnesses have not been examined. Learned State counsel would also submit that pursuant to the memorandum statement of the appellant, blood-smeared wooden plank has been seized, though it 2 (2021) 6 SCC 116 Cr.A.No.951/2019 Page 10 of 27 has not been proved by Ramesh Yadav (PW-2) & Harisingh Yadav (PW-3), but investigating officer Vijay Chaudhary (PW-12) has clearly proved the recovery beyond reasonable doubt and furthermore, in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another 3, once recovery is proved beyond reasonable doubt and blood has been found, even though blood group is not proved because of disintegration of blood, recovery can be acted upon to prove that it is the weapon of the offence used in the present case, particularly when in the statement of the appellant recorded under Section 313 of the CrPC, explanation has not been offered by him in respect of FSL report Ex.P-145. As such, the impugned judgment of conviction recorded and sentences awarded is well merited and the appeal deserves to be dismissed.
12. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
13. After hearing learned counsel for the parties and after going through the record, the following two questions arise for consideration: -
1. Whether the death of deceased Chandrika Sahu was homicidal in nature as held by the trial court?
2. Whether the appellant is the author / perpetrator of the crime?
Question No.1 - Homicidal nature of death: -
3 (2019) 7 SCC 781 Cr.A.No.951/2019 Page 11 of 27
14. The trial Court upon appreciation of medical evidence available on record relying upon the statement of Medical Officer Dr. A.K. Kaushik (PW-9), who has conducted postmortem on the dead body of the deceased and has proved the postmortem report Ex.P-21, in which he found six injuries on the body of the deceased and further stated that all the injuries were antemortem in nature and opined that cause of death is due to coma as a result of head injury (subdural haematoma in frontal area on both sides), has come to the conclusion that the death of the deceased was homicidal in nature. Such a finding recorded by the trial Court is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record. Even otherwise, this finding of the trial Court holding the death of the deceased to be homicidal in nature has not been seriously questioned on behalf of the appellant. Accordingly, we affirm that finding and hold that death of the deceased was homicidal in nature.
Question No.2 - Author / Perpetrator of the crime: -
15. In order to hold the appellant to be the author of the crime, the trial Court has relied upon the direct evidence as well as the circumstantial evidence and thereafter came to the conclusion that the appellant is the author of the crime. We will deal with both the kinds of evidence relied upon by the trial Court to test the correctness of finding recorded by the trial Court so as to find out whether the appellant herein is the author of the crime or not. Motive: -
Cr.A.No.951/2019Page 12 of 27
16. The prosecution has alleged that the appellant had motive to commit the murder of the deceased and to cause injury to his wife and daughter, as the deceased and the appellant are closely related to each other as mentioned in the opening paragraph of the judgment and consequently, acting upon motive, the appellant is said to have caused murder of deceased Chandrika Sahu. Admittedly, parties are closely related to each other and land dispute was existing between them on the date of offence.
17. The trial Court has also referred to a document dated 16-4-2018, which was a report made by Laxminarayan Sahu (PW-7) to Police Station Janjgir by which he has made report against acquitted co- accused Yadram (A-3) that in the pending litigation, he has come to attend a court case, then he was threatened to kill on which the police did not take cognizance to be a non-cognizable offence under Section 155 of the CrPC. Similar document has also been brought on record that in a pending criminal case between the parties, they have compromised the dispute by which the dispute has been settled between deceased Chandrika Sahu and father-in- law of Melaram on 25-7-1990. In that view of the matter, the trial Court has found the motive to be established.
18. Saraswati Sahu (PW-8) - daughter of the deceased in her cross- examination, paragraph 6, has clearly stated that the appellant herein and other accused persons used to brand her mother as witch doctor (tonhi) pursuant to which, on the basis of compromise, they have been acquitted from the Court at Nawagarh. Cr.A.No.951/2019 Page 13 of 27
19. As such, we do not find any good ground to discard the finding recorded by the trial Court holding that motive is proved on the basis of evidence of Laxminarayan Sahu (PW-7) & Saraswati Sahu (PW-8) as branding Savita Sahu (PW-14) to be tonhi and on account of previous land dispute. We hereby affirm that finding. Even otherwise, this is a case based on direct evidence as well as circumstantial evidence. In that view of the matter, the trial Court is justified in holding that the appellant has motive to cause the murder of the deceased and as such, motive is duly established. Direct evidence: -
20. The prosecution has projected and it has also been relied upon by the trial Court that Laxminarayan Sahu (PW-7) - son of the deceased, aged about 18 years, and Saraswati Sahu (PW-8) - daughter of the deceased, aged about 21 years, both are injured / eyewitnesses and they were in the house of the deceased on the fateful night and firstly, Savita Sahu (PW-14) - wife of the deceased came out from her room and seen the incident, she was also injured and she remained hospitalized for month. However, Laxminarayan Sahu (PW-7) seeing the assault and when the appellant tried to assault him, ran away with his neice Kum. Tanya, aged about 6 years, but the testimony of Laxminarayan Sahu (PW-
7) & Saraswati Sahu (PW-8) has been questioned and sought to be discarded by and on behalf of the defence on the ground that they are son and daughter of the deceased and therefore they are relatives and interested witnesses and their testimony has to be rejected out-rightly. It is well settled principle of law that mere Cr.A.No.951/2019 Page 14 of 27 relation with the victim is not sufficient to discard the credibility of a witness, whose testimony otherwise inspires confidence to the conscious of the Court and statement has to be scrutinized consciously. (See paras 16 and 17 of Gulab v. State of Uttar Pradesh4).
21. Bentham stated that "Witnesses are eyes and ears of justice." Undoubtedly, witnesses are important players in the judicial system and help the Judges in arriving at correct factual findings. In the matter of Dalip Singh and others v. The State of Punjab5, their Lordships of the Supreme Court have held that "A witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused, 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. But it is also true when feelings run high and there is a personal cause for enmity."
22. Furthermore, in the matter of State of Karnataka v. Amajappa and others6, their Lordships of the Supreme Court have held that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty. These witnesses who have some kind of animosity with the accused are called inimical witnesses.
4 2021 SCC OnLine SC 1211 5 AIR 1953 SC 364 6 (2003) 9 SCC 468 Cr.A.No.951/2019 Page 15 of 27
23. In the matter of Lakshmi Singh v. The State of Bihar 7, the Supreme Court has held that when the witness was involved in some other murder case and the accused had testified against him in that case or when the accused had deposed against the witness in a title deed case. Further, in the matter of State of Jammu and Kashmir v. Hazara Singh and others8, the Supreme Court has held that the testimony of inimical witness has to be examined with due caution and diligence and the testimony of witnesses cannot be rejected merely on the point of inimical background.
24. In the matter of Shivaji Sahabrao Bobade and another v. State of Maharashtra9, it has been held by the Supreme Court that in case of inimical witness, since the reliability of inimical witness is tainted by bias and interestedness, their testimony is warily evaluated. Further, in the matter of Dharam Singh and others v. State of Punjab10, their Lordships of the Supreme Court have held that the testimony of inimical witness has to be corroborated with evidence, judged with great caution and diligence. In the matter of Ramashish Rai v. Jagdish Singh11, the Supreme Court has held that the requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. A duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In the matter of State of 7 (1976) SCC (Cri) 671 8 (1981) SCC (Cri) 537 9 (1973) 2 SCC 793 10 1993 Supp (3) SCC 532 11 (2005) 10 SCC 498 Cr.A.No.951/2019 Page 16 of 27 Maharashtra v. Tulshiram Bhanudas Kamble and others 12, their Lordships of the Surpeme Court have held that enmity is a double- edged weapon, it can be a ground for false implication, but it can also be a ground for correct implication and therefore the testimony of the inimical witnesses cannot be discarded merely because of the enmity. Further, in the matter of Balraje alias Trimbak v. State of Maharashtra13, it has been held that the evidence has to be weighed pragmatically with myopic scrutiny, caution and circumspection.
25. In the matter of Mohd. Rojali Ali and others v. State of Assam, Ministry of Home Affairs Through Secretary14, defining the meaning of interested witness, relying on its earlier judgments, their Lordships have held that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused.
26. Similarly, in the matter of Ganapathi and another v. State of Tamil Nadu15 where eyewitnesses were deceased father and brother, their Lordships relying upon the earlier decisions have clearly held that merely because the eyewitnesses are family members their evidence cannot per se be discarded and allegation 12 (2007) 14 SCC 627 13 (2010) 6 SCC 673 14 (2019) 19 SCC 567 15 (2018) 5 SCC 549 Cr.A.No.951/2019 Page 17 of 27 of interestedness has to be established, and observed in paragraphs 14 & 15 as under: -
"14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested" [See: State of Rajasthan v. Kalki16].
15. Merely because the eyewitnesses 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. 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 [See: Maranadu v. State17].
27. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments qua the testimony of eyewitnesses who are related to the deceased, it is quite vivid that Saraswati Sahu (PW-8) is daughter of deceased Chandrika Sahu and on the fateful night, she was staying along with the deceased being unmarried daughter of the deceased and at 2-2:30 a.m. in the late night / early morning, when her mother Savita Sahu (PW-14) cried for help, she reached to the room and noticed / witnessed that light was on and the appellant was assaulting her father by lathi on head, then when she tried to intervene, the appellant also assaulted her on her head and
16 (1981) 2 SCC 752 17 (2008) 16 SCC 529 Cr.A.No.951/2019 Page 18 of 27 then her brother Laxminarayan Sahu (PW-7) came on the spot and thereafter, he ran away along with his niece Kum. Tanya, aged about 6 years, apprehending any sort of injury to her. Firstly, Saraswati Sahu (PW-8) was admitted to District Hospital, Janjgir, where she was medically examined and thereafter, she was shifted to Bellevue Hospital, Bilaspur, where she was medically attended and examined by Dr. Brajesh Patel (PW-11) and she remained in hospital for a month and thereafter, she was discharged from the hospital on 29-6-2017 vide Ex.P-39 and she has sustained grievous injuries vide MLC reports Exs.P-10, P-57 & P-58. Learned counsel for the appellant referred to her statement before the Court at paragraphs 16 & 21 unconvincingly, but nothing has been brought on record that she has not seen the incident or she is falsely implicating the appellant herein and furthermore, Laxminarayan Sahu (PW-7) immediately after noticing the incident, ran away from the spot and informed to Ramesh Yadav (PW-2) who immediately reached to the house of the deceased and noticed that deceased Chandrika Sahu, his wife Savita Sahu (PW-14) & his daughter Saraswati Sahu (PW-8) all were lying injured and blood was oozing from their body and they suffered grievous injuries. As such, there is nothing on record so far as the statement of Saraswati Sahu (PW-8) is concerned that either she has not witnessed the incident by which the appellant assaulted the deceased, her mother or herself or that she is telling lie to falsely implicate the appellant herein. Therefore, the testimony of Saraswati Sahu (PW-8) inspires confidence and the defence has failed to establish any kind Cr.A.No.951/2019 Page 19 of 27 of interestedness warranting discarding of her statement being the daughter of the deceased, as she herself is injured witness and remained hospitalized for one month and underwent treatment. Thus, she is the eyewitness and she has witnessed the incident by which the appellant has assaulted the deceased - her father, as well as her mother Savita Sahu (PW-14) and she has rightly been held to be eyewitness by the trial Court. It is held so accordingly.
28. Similarly, Laxminarayan Sahu (PW-7), who is son of the deceased and who was sleeping next to his father's room, after hearing the cries of his father (deceased) and mother Savita Sahu (PW-14), came to the spot and witnessed that the appellant was assaulting his mother Savita Sahu (PW-14) and his father (deceased) by lathi by which they suffered grievous injuries and thereafter, he called Ramesh Yadav (PW-2) to the spot. Laxminarayan Sahu (PW-7) has also been subjected to lengthy cross-examination on behalf of the defence and learned counsel for the appellant also drawn our attention to paragraphs 8 & 11 of his statement before the Court to hold that he is not reliable witness and he has not seen the incident, but it has not been established that he has not witnessed the incident and his statement does not inspire confidence. On the other hand, as per his version, he immediately ran away from the spot with her minor niece Tanya and called Ramesh Yadav (PW-2), who has also supported the case and whom the prosecution has examined as PW-2, though he has not fully supported the case of the prosecution, but partly supporting the case he has stated that Laxminarayan Sahu (PW-7) came to him being frightened and Cr.A.No.951/2019 Page 20 of 27 informed him that his father (deceased) & mother (PW-14) are being killed. As such, the statement of Laxminarayan Sahu (PW-7) has also rightly been relied upon by the trial Court to be the eyewitness who has witnessed the incident assaulting the deceased - his father and Savita Sahu (PW-14) - his mother. As such, reliance placed by the trial Court upon the evidence of Laxminarayan Sahu (PW-7) as eyewitness to the incident is absolutely correct and we hereby endorse that finding. Memorandum Statement and Seizure: -
29. It is the case of the prosecution and the trial Court has also found established that pursuant to the memorandum statement of the appellant Ex.P-3, wooden lathi has been seized from the possession of the appellant vide Ex.P-7 in presence of Ramesh Yadav (PW-2) & Harisingh Yadav (PW-3), but both the panch witnesses PW-2 & PW-3 have not supported the case of the prosecution, however, the trial Court has still relied upon the discovery and seizure relying upon the statement of Vijay Chaudhary (PW-12) - investigating officer to hold that pursuant to the memorandum statement of the appellant, blood-smeared lathi was seized from the possession of the appellant.
30. It has been submitted on behalf of the appellant that since panch witnesses Ramesh Yadav (PW-2) & Harisingh Yadav (PW-3) have not supported the case of the prosecution, therefore, merely on the basis of police witness - Vijay Chaudhary (PW-12) - investigating officer, discovery and seizure ought not to have been relied upon in absence of the evidence of independent witness. Cr.A.No.951/2019 Page 21 of 27
31. The term witness, means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in the court, or otherwise. In the matter of Pradeep Narayan Madgaonkar v. State of Maharashtra18, their Lordships of the Supreme Court have examined the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. Their Lordships after examining the issue held that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars, should be sought.
32. The aforesaid decision of the Supreme Court in Pradeep Narayan Madgaonkar (supra) has been followed with approval in the matter of Rohtash Kumar v. State of Haryana19 relying upon its earlier decisions and it has been held in paragraph 36 as under: -
"36. Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon."
33. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court qua examining the 18 (1995) 4 SCC 255 19 (2013) 14 SCC 434 Cr.A.No.951/2019 Page 22 of 27 police official as a witness as it has been held that there is no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon, if the evidence of Vijay Chaudhary (PW-12) - investigating officer is seen, though he has been subjected to lengthy cross-examination, nothing has been brought on record that his testimony is tainted or he has falsely implicated the present appellant in the offence in question. Learned counsel for the appellant has only questioned his testimony drawing our attention to paragraphs 12 & 20 of the deposition on the ground that he has not examined all independent witnesses except Ramesh Yadav (PW-2), which we will deal with in the later part of the judgment. As such, we are in complete agreement with the learned trial Court by which it has been held that pursuant to the memorandum statement of the appellant Ex.P-3, blood-smeared wooden lathi was seized from the possession of the appellant, which is duly proved by Vijay Chaudhary (PW-12), though panch witnesses namely Ramesh Yadav (PW-2) & Harisingh Yadav (PW-
3) have turned hostile. The blood-smeared lathi was sent to the medical officer for query vide Ex.P-17 and the medical officer vide Ex.P-18 has clearly opined that from the said wooden lathi, the injuries suffered by the deceased were possible. The blood- smeared article seized vide Ex.P-7 was sent to the FSL for chemical examination and the FSL vide Ex.P-145 found human blood on it.
34. At this stage, learned counsel for the appellant would submit that only human blood has been found on the blood-smeared wooden Cr.A.No.951/2019 Page 23 of 27 lathi seized vide Ex.P-7, but blood-group could not be ascertained in the FSL report, therefore, the weapon of offence wooden lathi cannot be relied upon that it is used as the weapon of offence to assault the deceased.
35. We are not impressed. In Balwan Singh (supra), it has been held by their Lordships of the Supreme Court that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. In the instant case, we have already held that recovery of blood-smeared article is proved by the prosecution beyond reasonable doubt and human blood has been found on the same, therefore, in light of the principle of law laid down in Balwan Singh (supra), though the blood group is not proved because of disintegration of blood, but it is sufficient to hold that wooden lathi was used in the commission of offence for assaulting deceased Chandrika Sahu. We hold so accordingly and more particularly, when the accused was confronted with the FSL report Ex.P-145 in his statement recorded under Section 313 of the CrPC vide question No.220 to which he has replied, 'not known'. As such, the appellant has not explained the human blood, which was found on the lathi (weapon of offence), which was recovered from his possession pursuant to his memorandum statement. Therefore, we hold that the seized Cr.A.No.951/2019 Page 24 of 27 wooden lathi was used as the weapon of offence in the commission of offence.
Non-examination of independent witnesses: -
36. It has been strongly contended on behalf of the defence that Vijay Chaudhary (PW-12) - investigating officer in paragraphs 12 & 20 of his evidence has stated that except Ramesh Yadav (PW-2), no other independent witness has been examined and furthermore, A.R. Uikey (PW-15) - another investigating officer has also stated that Gopal & Tani Sahu, aged about 6 years, have not been examined, therefore, it is fatal to the prosecution.
37. Now, the question would be, whether non-examination of other independent witnesses is fatal to the prosecution case, particularly when the prosecution has been able to prove its case on the basis of testimony of Laxminarayan Sahu (PW-7) & Saraswati Sahu (PW-
8) and furthermore, pursuant to the memorandum statement of the appellant, weapon of offence has been recovered from the possession of the appellant on which human blood has been found, which has been duly established in the FSL report?
38. In the matter of Sardul Singh v. State of Bombay 20, the Supreme Court has held that a court cannot normally compel the prosecution to examine a witness which the prosecution does not choose to examine, and that the duty of a fair prosecutor extends only to the extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of the prosecution with all its essentials.
20 AIR 1957 SC 747 Cr.A.No.951/2019 Page 25 of 27
39. Recently, in Guru Dutt Pathak (supra), it has been held that where there is clinching evidence of eyewitnesses, mere non-examination of some of the witnesses/independent witnesses and/or in absence of examination of any independent witnesses would not be fatal to the case of the prosecution, and relied upon three earlier judgments in paragraphs 24, 24.2 and 24.3 of the report, which are as under: -
"24. One another ground given by the learned trial Court while acquitting the accused was that no independent witness has been examined. The High Court has rightly observed that where there is clinching evidence of eyewitnesses, mere non-examination of some of the witnesses/independent witnesses and/or in absence of examination of any independent witnesses would not be fatal to the case of the prosecution.
24.2. In the recent decision in Surinder Kumar v. State of Punjab21, it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated.
24.3 In Rizwan Khan v. State of Chhattisgarh22, after referring to the decision of this Court in State of H.P. v. Pardeep Kumar23, it is observed and held by this Court that the examination of the independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case."
40. Coming to the facts of the case finally in light of the above decisions of the Supreme Court, it is quite vivid that in view of the testimony of eyewitnesses Laxminarayan Sahu (PW-7) & Saraswati Sahu (PW-8) - injured eyewitness and duly supported by Ramesh Yadav (PW-2) and further, in view of the circumstantial evidence in the shape of memorandum and seizure of the weapon of offence on 21 (2020) 2 SCC 563 22 (2020) 9 SCC 627 23 (2018) 13 SCC 808 Cr.A.No.951/2019 Page 26 of 27 which human blood has been found and motive is also duly established, absence of examination of other independent witnesses would not be fatal to the case of the prosecution. It is held accordingly. However, the decision cited by learned counsel for the appellant in the matter of Ashish Batham (supra) to support the plea that suspicion however strong is not substitute for legal proof is well settled, but it would not be applicable in the present case in view of the findings recorded herein-above.
41. Finally, in view of the foregoing legal analysis, it is held that the prosecution has been able to prove the offences of Sections 302, 307 (twice) & 450 of the IPC against the appellant beyond reasonable doubt, as the death of deceased Chandrika Sahu has been proved to be homicidal in nature and furthermore, the prosecution witnesses - Laxminarayan Sahu (PW-7) & Saraswati Sahu (PW-8) have clearly witnessed the incident by which the appellant assaulted the deceased by wooden lathi which was seized from him vide Ex.P-7 pursuant to his memorandum statement Ex.P-3 and according to the query report of the medical officer, injuries could have been caused by the said lathi. Moreover, as per FSL report Ex.P-145, human blood has been found on the said lathi and when the appellant was put a question in respect of the said FSL report in his examination under Section 313 of the CrPC vide question No.220, he has not explained as to how the said wooden lathi was smeared with human blood and furthermore, motive of the offence is also established.
42. In that view of the matter, the trial Court is absolutely justified in Cr.A.No.951/2019 Page 27 of 27 holding that it is none else than the appellant who has caused the murder of the deceased and he is the only author of the crime in question. The finding so recorded by the trial Court is well merited and well reasoned and we do not find any ground to interfere with the impugned judgment of conviction recorded and sentences awarded to the appellant. We accordingly uphold the judgment of the trial Court convicting the appellant under Sections 302, 307 (twice) & 450 of the IPC and sentencing him to undergo imprisonment for life and other sentences. Consequently, the appeal is dismissed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Soma