Biselal vs State of M.P.

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 17th of February, 1995 passed in Sessions Trial No. 429/93 by the First Additional Sessions Judge, Durg. By the impugned judgment, the appellant has been convicted u/ss. 449 & 302 IPC and sentenced to undergo R.I. for 5 years and imprisonment for life with direction to run the sentences concurrently. The facts, briefly stated, are as under-

Deceased- Shanti Bai was next door neighbour of appellant- Biselal. On 12.5.93 at about 4.00 p.m. Shanti Bai (deceased), her husband- Ganesh Singh (PW-1), daughter-Ku. Geeta (PW-2) and son-Guddu were present in their house. On account of some previous dispute, appellant-Biselal came there with a sword and threw the deceased on the floor, mounted himself on her chest and assaulted her by sword. The deceased received following injuries:-

(i) Penetrating wound 3 x 11/2 x 8 cm deep on the chest near the position of 3rd left rib. It has punctured the left lung. Aorta was also cut;

(ii) Penetrating wound of 21/2 x 1:1/4 x 1:1/4 cm on the sternum. The sternum was cut.

The autopsy was conducted by Dr. S.K. Fating (PW-10) who opined that the cause of death was shock and haemorrhage due to injury to vital organ and it was homicidal in nature. The post-mortem report is Ex. -P/11.

The incident was witnessed by Ganesh Singh (PW-1) and Ku. Geeta (PW-2). Lekhram (PW-4) lodged F: KR. (Ex. -P/3) who was briefed by Guddu (son of the deceased). The F.I.R. (Ex. -P/3) was named and it was lodged at about 17.05 hours on the same day. During the course of investigation, the appellant was taken into custody and his memorandum statement (Ex. -P/5) u/s. 27 of the Evidence Act was recorded and sword was seized at his instance vide seizure memo Ex. -P/6. The sword was of the length of 67.5 cm having breadth of 2.9 cm. Its examination report is Ex. -P/12. The Doctor opined that the above injuries could have been caused by the said sword.

The learned Sessions Judge relied on the testimonies of Ganesh Singh (PW-1) & Ku. Geeta (PW-2) and convicted & sentenced the appellant as aforementioned.

Mrs. Usha Chandrakar, learned counsel appearing on behalf of the appellant, argued that the 2 eye-witnesses were husband and daughter of the deceased; they were interested witnesses; their testimonies are highly doubtful; therefore, conviction based on their testimonies cannot be sustained.

On the other hand, Mr. J. A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard learned counsel for the parties at length and have also perused the records of the sessions case.

Relationship is not a factor to affect credibility to a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as ''interested''. The term ''interested'' postulates that the witness has some direct or indirect ''interest'' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an ''interested'' witness. He is a ''natural'' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the ''sole'' testimony of such witness (See- Harbans Kaur and Another Vs. State of Haryana, : Namdeo Vs. State of Maharashtra, Sonelal Vs. State of M.P., : and Dharnidhar Vs. State of U.P. and Others,

Therefore, argument on account of relationship, raised by the counsel for appellant, cannot be accepted. However evidence of the relatives i.e. Ganesh Singh (PW-1) and Ku. Geeta (PW-2) has to be scrutinized with due care and caution and if their evidence is found reliable in scrutiny, conviction can be held to be justified.

Ganesh Singh (PW-1) deposed the on the fateful day at about 4:00 p.m. he was present in his house. The appellant entered into their house by breaking their back door. He started abusing them. Seeing this, his wife, Shanti Bai (deceased), went to him for talking as to why he was abusing and shouting. The appellant, all of a sudden, threw her on the ground. Her wife then tried to ran away, but the appellant caught her from the back, got her fell down and assaulted by a sword on her chest and abdomen. In fact, the appellant had mounted himself on her chest and had assaulted her.

Ku. Geeta (PW-2) is a child witness, aged about 12 years. She is daughter of the deceased. She was also present in the house at the time of the incident. Supporting the version given by her father, Ganesh Singh (PW-1), she also deposed that the appellant threw her mother (deceased) in the verandah, when she wanted to run away, he caught her by hairs and made her to lay down and thereafter he mounted himself on her chest and assaulted her by giving 2 sword blows.

Ganesh Singh (PW-1) and Ku. Geeta (PW-2) have been put to lengthy cross-examinations by the defence, but the defence has not been able to elicit any such circumstances on which either their testimonies may be discarded or it may be said that they are falsely implicating the appellant in crime in question.

The evidence of these two witnesses is duly corroborated by the contents of the F.I.R. (Ex. -P/3) which was lodged by Lekhram (PW-4). Lekhram (PW-4) was duly briefed by Guddu, son of the deceased. He has named the appellant in the F.I.R. (Ex.-P/3). The incident took place at 4.00 p.m. and the F.I.R. (Ex-P/3) was lodged at 5.05 p.m. in the police station which is at the distance of 4 km. The evidence of the above witnesses is further corroborated by the evidence of Dr. S.K. Fating (PW-10) who found two external injuries on the person of the deceased and on internal examination, it was* detected that one of the lungs was punctured and aorta was completely cut.

The incident took place at about 4.00 p.m. It took place in the verandah of the house of the deceased, therefore, presence of the eye-witnesses at the time of the incident, who were inmates of the house, cannot be doubted. Their presence was natural. The appellant was neighbour of the deceased, he was well known to the family members of the deceased, therefore, there is no question of mistaken identity. We have carefully examined the evidence of the two eye-witnesses and we do not find any infirmity in their evidence on which it can be said that their testimonies are unreliable. The learned Sessions Judge has analyzed their evidence in proper prospect and has rightly held that it was proved beyond all reasonable doubts that it was the appellant who assaulted the deceased by sword due to which the deceased sustained above injuries and succumbed to those injuries. We do not find any substance in the appeal. The appeal, therefore, is liable to be dismissed and is hereby dismissed.