Resoondent v. Horilal

lodged First Information Report (Ex.P-1) in Police Station Salhewara. The deceased was taken to Primary Health Centre, Salhewara for treatment. Dr. G.S. Thakur (PW-9) examined him and gave his report (Ex.P-12), in which he found:- (i) (ii) (iii) (iv) (v) multiple burn injuries were present on left side of the left arm, lacerated wound was present on the middle of occipital scalp, occipital bone was depressed, size 4 cms., lacerated wound about 5 cms. was on right occipital temporal region, temporal bone communated in which bleeding came out, upper right ear pinna was torn about 2 cms., 5 cms. below the injury no.(iv) pinna of ear was cut about 1 cm. The deceased died during the treatment. Doctor G.S. Thakur (PW-9) sent information to the concerned Police Station. Merg intimation (Ex.-P/11) was recorded in the Police Station Salhewara. The Investigating Officer reached PHC, Salhewara, gave notice (Ex.- P/16) to Panchas and prepared inquest (Ex.-P/17) on the dead body of the deceased. The dead body of the deceased was sent to PHC, Salhewara for post mortem examination vide Ex.-P/S. Doctor ^•€^\ l"'^ i ^:y G.S.Thakur (PW-9) conducted post mortem on the dead body ofthe deceased and gave his report (Ex.-P/13), in which he found:- (i) (ii) lacerated wound was present on the middie of the occipital scalp, occipital bone was depressed about4 cms.; lacerated wound about 5 cm. was on right temporal occipital communated in which bleeding came out. temporal region, hle opined that the cause of death was cardio respiratory arrest caused by excessive internal haemorrhage and injuries on vital part and head. In further investigation, spot map (Ex.-P/2) was prepared by Sub-lnspector S.R.Thakur (PW-10) and another spot map (Ex.-P/S) was prepared by Patwari. Memorandum statement (Ex.-P/5) of the appellant was recorded under Section 27 of the Evidence Act and at his instance an Axe was seized vide Ex.-P/6. Shirt of the appellant was also seized vide Ex.-P/7. Blood stained soil and plain soil were seized from the place of occurrence vide Ex.-P/18. Shirt and baniyan the deceased were seized vide Ex.-P/19. The appellant was arrested vide Ex.-P/20. The seized articles were sent to Forensic Science Laboratory (FSL), Raipur for chemical examination vide Ex.- P/22 and a report (Ex.-P/25) was received therefrom. After completion of the investigation, charge sheet was filed in the Court ofAdditional Chief Judicial Magistrate, Khairagarh, who, in turn, committed the case to the Court of Session, Rajnandgaon, from where it was received on transfer by the Additional Sessions Judge, "^^s^ ^ ';'\. Khairagarh who conducted the trial and convicted and sentenced the appellant as mentioned above.

3. Shri C.R.Sahu, learned counsel for the appellantargued that there is no independent witness. Rambai (PW-1) is widow of the 1'?' deceased. She is a relative and highly interested witness. There are material contradictions in the First Information Report (Ex.-P/1) lodged by Rambai (PW-1) and her evidence before the Court. Solitary evidence of Rambai (PW-1) is not cogent and reliable and, therefore, cannot form the basis for conviction of the appellant.

4. On the contrary, Shri Adil Minhaj and Shri Neeraj Mehta, learned Panel Lawyers appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court.

5. We have heard learned counsel for the parties at length and have also perused the impugned judgment as also the record of Session Case. The conviction of the appellant under Section 302 IPC is based on the solitary evidence of Rambai (PW-1). It is not disputed that Rambai (PW-1) is wife of deceased Jankar.

6. In Brahm Swaroop and another vs. State of U.P., AIR 2011 SC 280, the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, testimonies cannot be discarded. Their relationship to one of the %5-^, parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence.

7. In Waman and others vs. State of Maharashtra, (2011) 7 SCC 295, the Hon'ble Supreme Court held as follows: "17. In Balraje v. Sfate of Maharashtra, (2010) 6 SCC 673, this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to It was further held that when the discard their evidence. eyewitnesses are stated to be interested and inimicatly disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise be weighed evidence pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused.

19. ....."29. .... The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of The plea relating to relatives' evidence remains without any substance in case the the offence. evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the ^.'^^>. evidence of related witnesses carefully to find out whether it is cogent and credible.