Mukteshwar @ Bhim Bariha S/o Naveen Bariha Aged About 29 Years Resident Of Village v. State Of Chhattisgarh Through Police Station Basna, District Mahasamund Chhattisgarh
Case Details
1 MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.06.13 19:22:21 +0530 2025:CGHC:23768-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1475 of 2023 Mukteshwar @ Bhim Bariha S/o Naveen Bariha Aged About 29 Years Resident Of Village- Garhphuljhar Deepapara, P.S. Basna, District Mahasamund Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through Police Station Basna, District Mahasamund Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Sanjay Kumar Yadav, Advocate For Respondent(s) : Mr. Shashank Thakur, Dy. A.G. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Per Ramesh Sinha , Chief Justice Judgment on Board 13.06.2025 1. Heard Mr. Sanjay Kumar Yadav, learned counsel for the appellant. Also heard Mr. Shashank Thakur, learned Deputy Advocate Government, appearing for the respondent/State. 2. The criminal appeal arises out of the judgment of conviction and 2 order of sentence dated 28.04.2023 passed by the learned First Upper Sessions Judge, Saraipali, District- Mahasamund (C.G.) in Session Trial No. 23/2018 whereby, the appellant has been convicted and sentenced as under:- Conviction under Sentence Fine In default of Section (Rigorous payment of fine imprisonment) additional rigorous imprisonment Section 302(two times) of the IPC Life imprisonment Rs.100/- 02 months Section307 (two times) 10 years Rs.100/- 02 month of the IPC Both sentences have been directed to run concurrently. 3. Case of the prosecution, in brief, is that FIR No. 31 was lodged against the accused at Basna police station for physically assaulting Sadhani and Anuj with an axe and causing bodily injury to them and for killing Kaifulo and Abhishek. Then, a site map (Ex.P-02) was prepared by visiting the scene of incident. Memorandum (Ex.P-32) was prepared for obtaining the site map and register of information regarding untimely and accidental death (Ex.P-33 and Ex.P-21) were prepared. Then, a query was sent to C.H.C. Basna on the basis of Ex.P-34 for the seized tangia and a memorandum was sent for query regarding human blood as per Ex.P-35. Then, a memorandum Ex.P-36 was sent to C.H.C. Basna for the examination of the seized clothes. Then, a notice (Ex.P-03) was 3 given to the witnesses for the map panchayatnama on the basis of which map panchayatnama (Ex.P-04) was prepared. The deceased's Postmortem was done. Application for getting the test done was sent to CHC Basna as per Ex.P-37. Then the blood stains on the clothes worn by the deceased were sealed and sent for testing. Request was made from CHC Basna as per Ex.P. 37. In the investigation proceedings, memorandum statement of the accused was taken as per Ex.P-13 and on the basis of memorandum, when the accused presented it, the iron tangia was seized as per seizure sheet (Ex.P-14). Then, when the blood stained clothes of the deceased were brought from the hospital, they were seized as per seizure sheet (Ex.P-05). Then, according to property seizure sheet (Ex.P-10), the clothes worn by the accused were seized from the house of the deceased as per seizure sheet (Ex.P-12), then the information of Abhishek's death was registered in 0/18 from District Hospital Mahasamund and notice was given for map panchayatnama as per Ex.P-15. Map panchayatnama (Ex.P-16) was prepared and sent for postmortem as per Ex.P-43. Then when the sealed packet was brought for chemical test by the constable posted at the police station, seizure memo (Ex.P-26) was prepared in the presence of witnesses. Duty certificate was given to the constable for post mortem. Then the accused was arrested as per arrest memo (Ex.P-38) and information regarding arrest was given as per Ex.P-39. Further statements of witnesses were recorded as per their statements. Video of proceedings in Crime No. 46/18 registered at the police station was prepared and recorded in CD as 4 per Ex.P-40. 4. After investigation, the charge-sheet was prepared and presented before the trial Court, on which Criminal Case No. 23/18 was registered against the Sate vs. Mukteshwar alias Bheem Bariha, which was declared by passing the surrender order. The case was assigned to the learned Sessions Judge, Mahasamund where Sessions Case No. 23/2018 was registered. This case was received
Facts
on transfer to the Court of First Upper Sessions Judge, Saraipali, District- Mahasamund (C.G.) for trial by the Sessions Judge Mahasamund on 10.05.2018. 5. When the charges were framed against the accused under Sections 307 (twice) and 302 (twice) of the IPC and read out to him, he denied the crime and sought trial. The plea of the accused was recorded in his own words. After the conclusion of the prosecution evidence, the statement of the accused was recorded under Section 313 of the Cr.P.C. in which the accused stated that he was innocent and that he had been falsely implicated in the case. No statement was given by the accused. 6. In order to bring home the offence, the prosecution examined as many as 28 witnesses and exhibited 43 documents. 7. The learned trial Court, upon appreciation of oral and documentary evidence on record opining that it is the appellant who has committed the murder of the deceased persons, convicted and sentenced him under under Sections 307 (twice) and 302 (twice) of the IPC, against which the instant appeal under Section 374(2) of 5 the Cr.P.C. has been preferred. 8.
Legal Reasoning
witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, wherein this Court observed: (AIR p. 366, para 26) 24 “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 relative would be the last to screen the real culprit and falsely implicate an innocent person.” 15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry): (SCC p. 213, para 23) “23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.” 37. Though the injured witness Anuj (PW-6) and Saadhani (PW-7) who have been examined in the present case were closely related to the deceased, their testimonies are consistent with respect to the accused being the assailant who inflicted wounds on them. As 25 is revealed from the statement of Saadhani (PW-7) that Mukteshwar alias Bhim had attacked her four-five times with a tangia, due to which she had serious injuries on her hands, face and head, she screamed and became unconscious. After some time, when she regained consciousness, she screamed and then her neighbors came. She saw that her mother-in-law Kaifulo's throat was slit, Abhishek's head was broken, her mother-in-law Kaifulo died at home, and Abhishek died on the way while being taken for treatment. The presence of the family members on the spot and thus being injured witness has been well established. 38. Further, in this case, PW-1, PW-2, PW-12 and PW-16 have stated that the accused came out of the scene of occurrence carrying the tangia, whereas PW1, after catching and bringing the accused, has stated that the accused told that he has killed everyone. The above confession made by the accused falls in the category of extra- judicial confession. Although extra-judicial confession is a weak type of evidence, but as in this case the chain of circumstantial evidence is being considered. In the said category this evidence will be shown as supporting evidence. In this way, from the above evidence, where the accused's presence at the scene of crime under the act, factor and result under circumstantial evidence, being seen together for the last time / at the scene of crime, the chain of evidence of the death of deceased Kaifulo and deceased Abhishek connects with each other and forms a chain which is supported by seizure evidence and subsequent conduct of the accused and all the above evidence points only and only towards the accused. Keeping in mind 26 the requirements of this section, intention, knowledge of causing bodily injury, bodily injury sufÏcient to cause death in the normal course of nature and the high probability of causing death and the risk of causing death, if we consider the acts of the accused in this case also, then as it is evident from the above evidence, the accused had made a wound measuring 9 x 5 cm in the middle of the neck and 4 cm in depth on the neck of the deceased Kaifulo. The flesh, blood vessels, nerves were cut along with a 5.5 cm. tear along with the neck C.6 and C.7 and the first rib on the right side. There was a sharp edged cut injury of 4 cm. deep on the neck and in the middle of the chest. The deceased Abhishek was found to have suffered a sharp edged weapon injury in the middle of the left side of his head, parietal cusps were broken, brain membranes were ruptured and brain was damaged, which clearly proves the possibility of murder of the deceased and the nature of the fatal injuries inflicted on them. 39. In the chain of circumstantial evidence, the evidence of last seeing is important evidence and as is evident from the above evidence, Sadhani (PW-7) has stated that the incident took place at 10-11 pm. She has stated that the accused Mukteshwar came back from his stroll at 10 pm and went to sleep in his room and after that the accused attacked her with a tangia the same night. It is clear that the accused has stated that he slept in his room at 10 pm and attacked her the same night. From the record, the time of occurrence of the incident is 11 pm which makes it clear that there is a very subtle difference between the witness seeing him and the 27 incident taking place. That is, she has stated that the accused slept in his room after watching TV and the accused attacked her. In the doctrine of last seen together, what is important is the gap between the last seen and the occurrence of the incident and when the time gap between these two is very less, then there can be a possibility of the crime being committed by someone other than the accused, but that too only when such a possibility is clearly supported by other evidence. 40. In this regard, in the judgment in Dharamdev Yadav v. State of U.P. 2014 (5) SCC 509, it has been said that if there is a time gap between the time when the accused and the deceased were last seen together and the deceased was found dead, then when the time gap is found, then the accused is not guilty of the crime. If the gap is small, then in such a situation the possibility that anybody other than the accused could have committed the crime would be less. However, in such cases it would be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together. 41. Similarly, while referring to the judgment in Bodhraj v. State of Jammu and Kashmir 2002 (8) SC/ST 45, the Hon'ble Supreme Court said that the last seen theory comes into play where time - gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. 28 42. Elaborating the principle of “last seen alive” in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, the Court held as under:- “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain.” 43. As stated in the above judgments, the principle of last seen must 29 be supported by other evidence. In this case also, where Sadhni (PW-07) has stated seeing the accused for the last time at the scene of crime, the same witness has stated that the accused attacked and killed her. In support of other evidence, other prosecution witnesses have stated that they saw the accused coming out of the crime scene with a blood stained tangia and that the accused had killed everyone. It is also worth mentioning here that the statement of Saadhani (PW-7) confirms the fact that the accused was with the deceased for the last time and that he was present at the crime scene as well, due to which the theory of last seen in this case has received full support from other evidence as well. In this way, a chain has been created from the beginning itself under circumstantial evidence as mentioned above, which has not broken till the result of the crime i.e. the injured and the death of the deceased. 44. Now, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt? 45. In this regard, the seized evidence is to be taken on record. The prosecution has presented Narendra Kumar Pandey (PW-15) and Nirmal Bagh (PW-23) in relation to the memorandum and seizure. Both these witnesses have stated in their evidence that the memorandum statement (Ex.P-13) was given by the accused in their presence and on the basis of memorandum statement itself, 30 the accused has stated that the said axe was taken out from the bush near Jagdamba Vastralaya Bansula and given to the police by the accused in their presence. Both these witnesses were cross-examined in detail by the defence, but the evidence of the accused making the disclosure and getting the said axe seized by the police on the basis of the said disclosure, could not be refuted. 46. It is necessary to mention Section 27 of the Evidence Act at this stage. Although as per the provisions of Section 27 of the Indian Evidence Act, 1872, a memorandum statement recorded by a police ofÏcer of a person in police custody is not admissible in evidence, but that part of such memorandum statement is admissible in evidence which reveals some facts 47. Therefore, the said section clearly states that only that much statement received from the accused which leads to the recovery of any fact can be proved and it is admissible in evidence. Since section 27 talks about the confession made in police custody being inadmissible in evidence and only that part of the statement which leads to the discovery of any fact as a result of the information given is relevant and admissible in evidence, in this way, the prosecution has also proved the seizure of the weapon used in the incident, Tangiya, from the accused, which is relevant and admissible in evidence. 48. If we look at the medical evidence regarding the seized tangia, then Dr. Jaiprakash Pradhan (PW-18), B.R. Malik (PW-20) have 31 stated in their evidence that the constable had presented the tangia for query. While Dr. Jaiprakash Pradhan (PW-18) has stated the length of the tangia to be 12 cm similarly, B.R. Malik (PW-20) has also stated the length of the tangia to be 12 cm and the width of the blade to be 5 cm. In this regard, the investigating witness K.K. Bajpai (PW-26) has also stated in his evidence that the proceedings of Memorandum (Ex.P-13) and seizure sheet (Ex.P-14) were carried out by him. In this way, the prosecution has also proved the seizure against the accused in this case. 49. Now, coming to the presence of intention and knowledge, if we consider the facts and circumstances of the above act of the accused, then the accused's serious attack on the vital organs of both the deceased, i.e. on the neck of deceased Kaifulo and on the head of deceased Abhishek, shows the intention of the accused to kill the deceased and the accused's knowledge and information about the death of the deceased cannot be denied. At this stage, when the knowledge and intention of the accused is being discussed, it would also be necessary to mention that the medical evidence has stated that the injuries were caused by a sharp weapon on the vital organs of the deceased and the nature of death of the deceased was homicidal, which clearly shows the intention and knowledge of the accused to kill the deceased. Because the accused used sharp weapons to inflict injuries. The vital organs of the deceased, i.e. head and neck, were selected and he brutally attacked those vital organs and inflicted gruesome injuries on them. 32 50. In this way, the above act of the accused clearly shows the intention of the accused and his knowledge of the death of the deceased, due to which the entire act of the accused comes under section 300 of the Indian Penal Code as culpable homicide which falls in the category of murder. 51. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that, 1. Death of deceased persons was homicidal in nature; 2. On the date of offence, the appellant and the deceased persons were in the same house; and 3. It is the appellant who has murdered his cousin brother and grand-mother by inflicting many injuries on their person. 4. 52. Considering the aforesaid evidence of the witnesses as well as the circumstances and further the fact that the dead body of the deceased persons was found at their home and deceased and accused/appellant were living together amply shows the incident of murder and thus, the incriminating circumstances proves the involvement of accused/appellant and the accused/appellant has not offered any explanation under Section 313 of the Cr.P.C. and in his memorandum statement (Ex.P/13), the accused has taken out the axe from the bush near Jagdamba Vastralaya Bansula and given to the police. Also, from the statements of injured Saadhani (PW-7), it is clear that Mukteshwar alias Bhim had attacked her four-five times with a tangia, due to which she had serious injuries 33 on her hands, face and head and it also establishes the fact that accused was with the deceased for the last time and that he was present at the crime scene as well. Also from the statements of neighbours Diggambar (PW-2), Laibano (PW-14), Sirmoti (PW- 16), it has come to knowledge that they saw accused-Mukteshwar coming out of his house with an axe with blood in his hand. Also, Dr. Jaiprakash Pradhan (PW-18) and Dr. Arvind Gupta (PW-27), who have conducted the postmortem have opined that the nature of death is homicidal which amply reveal that such an incident of murder had taken place. Thus, there is unbreakable chain of circumstantial evidences against the accused appellant, which clearly indicate the guilt of accused/appellant and the circumstances clearly indicate that it was the appellant alone who had committed the murder of the deceased persons. Therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the accused/appellant for the offence punishable under Section 307 (two times) and 302 (two times) of the IPC. Thus, we do not find any illegality or irregularity in the findings recorded by the trial Court. 53.
Arguments
Mr. Sanjay Kumar Yadav, learned counsel for the appellant submits that conviction of the appellant is substantially based on the circumstantial evidence, without there being any eye witness, though the chain of circumstances are missing and not completed to each other. He further submits that the learned trail Court vide passing the impugned judgment has failed to consider the material aspect that no incriminating article of the crime has been seized from the instance of the appellant/accused therefore he cannot held liable for the commission of the crime. The learned trial Court committed error by holding that the appellant committed offence defined under section 307 and 302 of Indian Penal Code as the prosecution is not able to prove the guilty of the offence beyond doubt. There is no direct evidence in this case against the appellant, therefore the appellant must be acquitted from the charge under section 307 & 302 of Indian Penal Code. The finding of learned trial Court is perverse and contrary to the material available on record. He also submits that PW-6 and PW-7 have stated in their examination that two years ago, appellant Mukteshwar alias Bheem had become insane and he was repeatedly taken to the doctor because of his insanity. Hence, the learned trial Court has failed to see that there was no intention or motive on the part of the appellant to commit the murder of the deceased persons. The learned trial Court committed error by ignoring the fact that the prosecution failed to prove that the present appellant was present and participated in the crime as the testimony of the prosecution witness suffer 6 contradiction omission and does not appeal to prudent man accept. The prosecution has not proved any legal fault against the present appellant and thus the sentence & punishment given to the present appellant must be set aside in the in interest of justice. The trial Court has not considered the statement of the witnesses & the statement recorded during cross-examination. Thus, this act of the court has committed legal error and the decision of the learned trial Court is against the principal of natural justice. The learned trial Court while passing the impugned order totally losses the vision to see that at the time of recording of the statement of extra judicial confession the appellant was already in custody of police therefore his confessional statement cannot be used against him and the same is not admissible in the eyes of evidence and also failed to see that in present case there is no eye witnesses is available and then the entire case is based upon the circumstantial evidence and the same prosecution could not prove against beyond all such reasonable drought. In the absence of any direct evidence, the appellant cannot be convicted on the sole ground of extra judicial confession & without any evidentiary proof, the learned trial Court has erred grave error in convicting the accused/appellant. Prosecution witnesses have not completely supported the case of prosecution. The learned Court also failed to appreciate that the memorandum as well as Search Panchanma of the witnesses has not supported to story of the prosecution and overlooked the material facts of the case. The learned trial Court also failed to see that to commit the crime motive is essential part but in present case 7 prosecution has totally failed to prove the motive of the appellant therefore it would be very unsafe to sustain to impose conviction to the accused. Only on the basis of suspicion and without the case been proved by the prosecution beyond reasonable doubt against the appellant, as there is no sufÏcient link to come to the irresistible conclusion pointing the guilt only to the appellant, the appellant could not be convicted merely on the basis of suspicion, however strong it may be. 9. On the other hand, learned Deputy Government Advocate, appearing for the respondent/State, supports the impugned judgment and submits that the statement of the prosecution witnesses clearly proved that, the deceased have been murdered by the accused/present appellant, as it has also been observed by the learned trial Court that, as per the postmortem report, (PW/41) Dr. Jaiprakash Pradhan (PW-18) /Medical OfÏcer has clearly opined that, that the death of the deceased was due to cardiac and respiratory failure which was caused due to bleeding from a deep injury in his neck caused due to a hard and basically sharp object (partially blunt). Regarding the nature of death this witness has said that the nature of death was homicidal. The learned trial Court has appreciated the entire evidence available on record including the deposition of witnesses and thereafter, arrived at the finding of guilt of the appellant, which is supported by the credible and cogent evidences, as the learned trial Court has specifically observed that, from the medical evidence and FSL report, it is clearly proved the death of the deceased is homicidal in nature. Thus, looking to the 8 gravity of the offence and the quality of the evidences, there is no reason for showing any leniency to the present appellant, thus, the trial Court has rightly convicted the appellant for the offence punishable under Section 307 and 302 of the IPC and therefore, the appeal deserves to be dismissed. 10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection. 11. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 12. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased persons to be homicidal in nature ? 13. If we look at the medical evidence regarding the injuries sustained by the injured Sadhani and Anuj, then in this regard the prosecution has presented Dr. B.R. Malik (PW-20) who has stated in his evidence that on 25.01.2018 at 01.05 pm (night), Constable Khirod Sidar K. 519 of Police Station Basna, District Mahasamund brought Anuj, S/o- Nuradhan, aged about 19 years, resident of Garhfuljhar, before him. On examination, the following injuries were found:- 1). A cut wound measuring 2.5 x 1 cm, up to the surface of the bone, above the eyebrow of the left eye, was caused by a sharp weapon. The nature of the injury was simple. 9 2). A cut wound measuring 0.5 x 0.5 cm, up to the inner part of the skin on the left cheek was caused by a sharp weapon, the nature of the injury was simple. 3). A cut wound measuring 3 x 1 cm, up to the inner part of the muscle on the left cheek (obliquely) was caused by a sharp weapon, for the said injury, he advised the injured to get an X-ray done. 4). A cut wound measuring 4 x 1 cm. up to the bone surface was caused by a sharp weapon on the left cheek and jaw, for which he had advised to get an X-ray done. 5). A cut wound measuring 1.5 x 0.5 cm. up to the inner part of the muscle was found on the front part of the neck caused by a sharp weapon, the nature of the injury was simple. 6). The swelling on the left face along with the upper and lower eyelids of the left eye appeared to have been caused by a hard and blunt object. The nature of the said injury was simple. The duration of the said injuries must have been within 2 to 4 hours. After first aid, Dr. B.R. Malik (PW-20) had referred him to the District Hospital Mahasamund. His report is Ex.P-22. 14. Dr. B.R. Malik (PW-20) has said with regard to the injured Sadhnibai that on the same date, at the same time, the injured Smt. Sadhni Bai, W/o- Nandkumar, Aged about- 40 years was brought before him for examination by the same constable. On examination the following injuries were found :- 1). Cut wound of 7 x 3 cm. up to the base of the bone was caused 10 by a sharp weapon on the left cheek (face). For the said injury he had advised the injured to get an X-ray done. 2). Cut wound of 6 x 3 cm. up to the base of the bone was caused by a sharp weapon on the middle part of the right arm on the outside. For the said injury he had advised the injured to get an X- ray done. 3). Cut wound of 11 x 3 cm. up to the base of the bone was caused by a sharp weapon on the outside of the left elbow of the hand. For the said injury he had advised the injured to get an X-ray done. 4). Cut wound of 5 x 3 cm. The injury was caused by a sharp weapon on the elbow of the left hand up to the base of the bone. The duration of the above injuries must have been between 2 to 4 hours. The injured was sent to District Hospital Mahasamund after giving first aid. The report is Ex.P-24. In cross-examination, this witness has stated that injury numbers 1, 2 and 5 were of ordinary nature. 15. In this way, Dr. B.R. Malik (PW-20) has stated that when Anuj and the injured Sadhni Bai were brought before him for examination, he stated that they sustained injuries by sharp weapons and hard and blunt objects. This witness stated that the nature of injury number 1, 2 and 5 for the injured Anuj was normal and advised to get an X-ray done for the remaining injuries and also for Sadhni's injuries. Thus, the evidence of this witness confirms that both the injured had suffered physical injuries on the said date. 16. In relation to the death of deceased Kaifulo, the prosecution has 11 presented Dr. Jaiprakash Pradhan (PW-18), who has stated in his evidence that on 25.01.2018, Kaifulo Bai, w/o- Kartiko Bariha, Aged about- 70 years, R/o- Garhfuljhar, was brought before him for post- mortem by constable K. 470 Shikari Bhoi of Police Station Basna. On postmortem (Ex.P-18), the injuries found on the body were as follows:- 1). Two pressure wounds, one mark of soft tissue injury on left wrist, measuring 10 cm x 3 mm, (each) 2). Multiple sharp cuts, some portion of which were simple lacerations, were found on right side of neck (5.5 cm below right ear in the middle of neck in the same line and region), measuring 9 cm x 5 cm and depth 4 x 5.5 cm, with flesh, blood vessels, nerves, lacerations along with lacerations to C6, C7 and first rib on right side of neck. 3). Reddish brown scar on upper chest and neck, measuring 28 cm x 14 cm, including lacerated wounds, 7 cm from chin towards right thigh in which blood clots were present, 2 cm from the middle line of chest on neck and 6 cm from left side. Sharp cuts were seen on the body which had a depth of 4 cm. This witness has opined that the cause of death of the deceased was due to cardiac and respiratory failure which was caused due to bleeding from a deep injury in his neck. The death of the deceased occurred within 24 hours before the postmortem. The death of the deceased was caused due to a hard and basically 12 sharp object (partially blunt). Regarding the nature of death, this witness has said that the nature of death was homicidal. In this way where this witness has stated the death of the deceased to be due to bleeding from a deep injury in his neck and cardiac and respiratory failure The cause of death is stated to be due to a sharp object and the nature of death is said to be homicidal. 17. Thus, the evidence of this witness confirms that the nature of death of deceased Kaifulo was homicidal. 18. With regard to the deceased Abhishek, the prosecution has produced Dr. Arvind Gupta (PW-27) who in his evidence has stated that when Abhishek was brought for post-mortem, he was a male child. On postmortem (Ex.P-41), the injuries found on the body were as follows:- 1). There was a 5 cm cut injury on the left side of the ear of the deceased, the length of which was 4.5 cm. The said injury was pointed at the place near the ear and was spreading upwards on the head. The maximum width of the injury was 1.2 cm. The depth of the injury near the ear was 1 cm. and at the other end its depth was 3 cm. The edge of the injury was sharp. 2). The second injury found on the head of the deceased started from the head end of the said first injury and extended 5 cm forward. The witness has stated that the injury is long and growing and the end near the first injury is pointed and the other end is spread out. The width of the injury is 8 cm and the depth is 4 cm and a part of the brain is coming out of the injury. 13 3). The witness has stated that the head of the deceased was missing in the internal examination of the dead body. 4). The bone above the left ear, i.e., the left parietal bone, was fractured at the place of injury. The membranes of the brain were torn and the brain of the deceased was damaged due to the injury. The witness has opined that the death of the deceased was due to the failure of the heart and lungs due to neurogenic shock caused by the injury on the head. The witness has stated the nature of death of the deceased to be homicidal. 19. In relation to deceased Abhishek, the prosecution has also produced medical evidence of Dr. B.R. Malik (PW-20) who had examined deceased Abhishek before his death. This witness has given evidence that after the examination, he produced the report (Ex.P-23), wherein he found following injuries:- 1). A cut wound measuring 3 x 2 cm was on the middle part of the left side of the head up to the base of the bone, caused by a sharp weapon. 2). A cut wound measuring 6 x 2 cm was on the middle part of the left side of the head up to the base of the bone. The said injury was caused by a sharp weapon. 3). The injured was unconscious, the duration of the above injuries must have been within 2 to 4 hours. The injured was given first aid and sent to District Hospital Mahasamund. 20. In this way, Dr. B.R. Malik (PW-20), Dr. Arvind Gupta (PW-27) and 14 Dr. Jaiprakash Pradhan (PW-18) has given supporting evidence from the medical evidence that the injured had sustained injuries and that the death of the deceased Kaifulo and Abhishek was of homicidal nature. In such a situation, it now remains to be seen whether the injuries sustained by the injured and the death of deceased Kaifulo and deceased Abhishek were caused by the accused. 21. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P/11) of Dr. Amulya Kaushil (PW-6), who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the Cr.P.C. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. 22. In the present case, the death of the deceased Kaifulo was due to cardiac and respiratory failure which was caused due to bleeding from a deep injury in his neck and the death of the deceased Abhishek was due to the failure of the heart and lungs due to neurogenic shock caused by the injury on the head and the nature of 15 death was homicidal has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. Jaiprakash Pradhan (PW-18) and Dr. Arvind Gupta (PW-27) and the postmortem report (Ex.P/18 and Ex.P/41) that the death of deceased persons was homicidal in nature. 23. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of Narendra Bariham (PW-1), Digambar (PW-2), Suvardhan (PW-3), Labano (PW-12), Sirmoti (PW-16), Sadhani (PW-7). 24. Narendra Bariham (PW-1) has stated that the accused, the injured and the deceased are his relatives and on the date of the incident at about 12 o'clock in the night, when Suvardhan and Janak of the village went to Akhrabhatha to pick him up, he came to know that his mother was murdered and three people were injured. On going to village Gadhfuljhar, the witness has told that his mother was lying dead in the shade of the house, mother's throat was slit and blood was oozing out and when Sadhni, Anuj and Abhishek were taken to the village for treatment, Abhishek died on the way and that his nephew Mukteshwar was not at home. This witness has certified the rural death intimation (Ex.P-01), the spot map (Ex.P-02), his mother's body Panchnama notice (Ex.P-03) and map Panchayatnama (Ex.P-04) and when Mukteshwar was caught and brought by the police, he told that he had killed everyone. 25. Digambar (PW-2) in his evidence has stated the names of the accused, the injured and the deceased claiming to be a resident of 16 the same village and stated that on hearing sound of shouting and crying on the date of the incident, when they went out and looked, he saw that Mukteshwar was coming out of his house with an axe with blood in his hand and on seeing him, Mukteshwar asked him to leave and threatened him to death if he left the house. In the morning, he heard that Kaifulo died and Anuj, Abhishek and Sadhani are injured. 26. Suvardhan (PW-3) also stated that the accused, the injured and the deceased were residents of his locality and that on the night of the incident, a child came to his house along with Anuj and called out saying 'Bhaiya Bhaiya'. When he got up and looked, blood was visible all over Anuj's body. When he asked him, he said that someone was beating him. On Anuj asking for water, Anuj fainted while drinking water and during the same time, Abhishek, Anuj and Sadhni were sent in the ambulance for treatment. 27. Virendra Sahu (PW-04) constable, has stated that the sealed packet was seized as per seizure memo Ex.P-05. Udesh Deewan (PW-5) has stated that in Crime No. 46/18, the seized material was given to the Chemical Forensic Science Laboratory as per seizure memo Ex.P-06. Rasik BC (PW-8) has stated that the accused, the injured and the deceased are residents of his village and that the accused killed Abhishek and Kaifulo and Kaifulo was found lying inside the door with her throat slit and that the Panchnama notice of the dead body (Ex.P-03), map Panchayatnama (Ex.P-04) and the soil of the incident spot (Ex.P-10) have been processed. Degree Lal (PW-9) has stated that the accused, the injured and the deceased 17 are residents of his village and that seizure memo (Ex.P-10) was seized in his presence. He has stated that the body of Kaifulo was lying at the door and Abhishek, Sadhani and Anuj were lying injured and bleeding and Mukteshwar had fled. 28. Labano (PW-12) in his evidence has stated that the accused is a resident of village Gadhfuljhar and on hearing a woman's voice on the night of 24 January, he went out and saw Mukteshwar coming out of his house with an axe and the accused shouting in a loud voice that go inside the house or else I will kill you. Khirod Kumar Sidar (PW-13) has been a witness to the injured Anuj, Abhishek and Sadhni being taken for medical examination. Narendra Kumar Pandey (PW-15) in his evidence has stated that the accused and the injured and the deceased are residents of his village and on receiving information from Suvardhan on phone on 25.01.18 about a murder in his locality, he went to the spot and Kaifulo died after getting a head injury, Anuj, Sadhni and Abhishek shouted for help and accused Mukteshwar fled from the spot. This witness has submitted notice (Ex.P-15) for the Panchayatnama of the dead body and proceedings of map Panchayatnama (Ex.P-16) in his report. Further, according to memorandum statement (Ex.P-13) and seizure sheet (Ex.P-14), when the accused was questioned in his presence at the police station, the accused told that he hit with an axe and that the axe was taken out from the bush near village Bansula Jagdamba cloth shop in his presence and given to the police, which was supported by PW-23 and he supported the proceedings of memorandum (Ex.P-13) and seizure sheet (Ex.P-14). 29. Sirmoti (PW-16) has also stated that the accused and all of them 18 are his neighbours and that on the date of the incident, when his son told him about someone crying, he went out and saw that accused was carrying a tangia and was telling those people to go inside the house and not come out. Jaishankar Sao Patwari (PW-17) has stated that he made a map of the place of incident as per Ex.P-17. Premchand (PW-19) has stated that he gave the case of death of deceased Abhishek to the in-charge of Basna police station for numbering and on that basis, Case No. 08/18 (Ex.P-21) was registered. Gopal Yadav (PW-21) has stated that he seized the sealed packet as per seizure memo Ex.P-26. Sunil Chandravanshi (PW-22) has stated that he took the PM form for post-mortem of deceased Abhishek and obtained the PM report. Shrikant Bhoi (PW- 24) took the body of the deceased Kaifulo for post-mortem and the post-mortem report was Ex.P-18 and It has been stated that the sealed packet given by the doctor was prepared as per seizure memo Ex.P-05. In his evidence, Janak Ram Oraon (PW-25) has stated that on 24.01.18, when a woman and a boy were murdered and the injured were admitted to Mekara Raipur, on the orders of the TI of Basna police station, he went to Mekara Hospital, Raipur and interrogated the injured Anuj who was admitted for treatment and prepared the rural report (Ex.P-08). 30. K.K. Bajpai (PW-26) has been the inspector in the case who has stated in his evidence that after the registration of the First Information Report (Ex.P-31), he had initiated the investigation and submitted the charge-sheet. Champu Kumar Sahu (PW-28) has 19 given information about the death of the deceased Abhishek to the police station and has supported the proceedings of Map Panchayatnama Notice (Ex.P-15), Map Panchayatnama (Ex.P-16) and the examination report of the dead body (Ex.P-43). 31. Anuj (PW-6), injured witness has stated in his evidence that accused Mukteshwar alias Bhim Bariha is his brother by relation. Sadhni is his Badi Ma. Kaifulo is his maternal grandmother, Abhishek was like his brother. Kaifulo and Abhishek have died; he does not know how they died. This incident took place eight months back in his Badi Ma's house. He was at his Badi Ma's house. At around 11 o'clock at night, he was attacked on his head, face and neck. He does not know who hit him. Later, he got the information that Mukteshwar had beaten him, his Badi Ma Sadhni Bai, his maternal grandmother Kaifulo, and his brother Abhishek. Due to the above mentioned assault incident, his maternal grandmother Kaifulo and his brother Abhishek died and he and his elder mother Sadhani were seriously injured. He was admitted to Mekara Hospital in Raipur for treatment. The police had questioned him about the incident in the hospital. HIs signature is on parts A to C of the rural complaint (Ex.P-08). The police had taken his statement. 32. Sadhani (PW-7), injured witness has stated in her evidence that accused Mukteshwar alias Bhim Bariha is the son of her elder brother-in-law. Kaifulo was her mother-in-law, Abhishek was her son. She is the elder mother of Anuj. Kaifulo and Abhishek died due to beating by accused Mukteshwar alias Bhim. The incident took place about four-five months ago at 10-11 pm. She, Abhishek and 20 daughter Siri were sleeping on a cot inside the room and Anuj was sleeping on the floor, her mother-in-law Kaifulo was sleeping outside in the shade. Mukteshwar alias Bhim had gone for a walk, he came back at about 10 pm and had food, watched TV and went to his room and slept. Mukteshwar alias Bhim had attacked her four-five times with a tangia, due to which she had serious injuries on her hands, face and head, she screamed and became unconscious. After some time, when she regained consciousness, she screamed and then her neighbors came. She saw that her mother-in-law Kaifulo's throat was slit, Abhishek's head was broken, her mother-in- law Kaifulo died at home, and Abhishek died on the way while being taken for treatment. Anuj had injuries on his throat, near the eye, on the lips she had come to Raipur for treatment. Five people had taken her statement. She was admitted for six days. 33. The Supreme Court in Balu Sudam Khalde and Anr. v. State of Maharashtra reported in 2023 SCC OnLine SC 355 held as under: “26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind: (a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured 21 witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded. (emphasis supplied)” 34. In criminal cases, the credibility of witnesses, particularly those who are close relatives of the deceased, is often scrutinized. However, being a relative does not automatically render a witness "interested" or biased. The term "interested" refers to witnesses who have a personal stake in the outcome, such as a desire for revenge or to falsely implicate the accused due to enmity or personal gain. A "related" witness, on the other hand, is someone who may be naturally present at the scene of the crime, and their testimony should not be dismissed simply because of their 22 relationship to the deceased. Courts must assess the reliability, consistency, and coherence of their statements rather than labelling them as untrustworthy. 35. The distinction between "interested" and "related" witnesses has been clarified in Dalip Singh v. State of Punjab, 1954 SCR 1453, where the Supreme Court emphasized that a close relative is usually the last person to falsely implicate an innocent person. Therefore, in evaluating the evidence of a related witness, the court should focus on the consistency and credibility of their testimony. This approach ensures that the evidence is not discarded merely due to familial ties, but is instead assessed based on its inherent reliability and consistency with other evidence in the case. 36. Thus, it is clear that the evidence of a “related witness” cannot be discarded only on the ground of relationship. On the contrary, why a “related witness” would spare the real culprit in order to falsely implicate some innocent person? There is a difference between “related witness” and “interested witness”. “Interested witness” is a witness who is vitally interested in conviction of a person due to previous enmity. The “Interested witness” has been defined by the Supreme Court in the matter of Mohd. Rojali Ali v. State of Assam, reported in (2019) 19 SCC 567 as under : “13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well- settled that a related witness cannot be said to be an 23 “interested” witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between “interested” and “related” witnesses in a plethora of cases, stating 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 (for instance, see State of Rajasthan v. Kalki; Amit v. State of U.P.; and Gangabhavani v. Rayapati Venkat Reddy). Recently, this difference was reiterated in Ganapathi v. State of T.N., in the following terms, by referring to the three-Judge Bench decision in State of Rajasthan v. Kalki: (Ganapathi case, SCC p. 555, para 14) “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”.” 14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested
Decision
For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed. 54. It is stated in the appeal that the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 55. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing 34 the jail term, to serve the same on the Appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Manpreet