Full Judgment Text
REEPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 753 OF 2001
Arjun Mahto …..Appellant
Versus
State of Bihar ….Respondent
With
CRIMINAL APPEAL NO. 1179 OF 2001
With
CRIMINAL APPEAL NO. 754 OF 2001
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. These three appeals have a common matrix and
judgment of a Division Bench of the Patna High Court. By the
impugned judgment, the State’s appeal was dismissed while in
the case of present appellants their conviction was altered
from Section 396 of the Indian Penal Code, 1860 (in short the
‘IPC’) to Section 395 IPC. The sentence of Rigorous
Imprisonment for life was altered to seven years rigorous
imprisonment.
2. Factual position in a nutshell is as follows:
The case of the prosecution, briefly stated, as contained
in the Fardbayan (Ext.2) of the informant Yusuf Ali Khan son
of Khalil Bux Khan (P.W.4) is as follows:
The Fardbayan was recorded at the P.O. Village Khaira,
P.S. Auras, District Gaya at 8 p.m. relating to the alleged
occurrence of 7 p.m. on the same day on 15.03.1983. The
Fardbayan was recorded by Mohd. Asfaque Ali (P.W.5), the
officer incharge of Bankey Bazar outpost. It is alleged that the
informant was at his house at about 7 p.m. Suddenly 10
armed persons entered into the house through the open door.
One of them fired twice from the gun making the informant
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injured. He fled inside the room. He was dragged into the
courtyard where his father Khalil Bux Khan (P.W. 3), and his
brother-Nausher Ali Khan (hereinafter referred to as the
‘deceased) were sitting. On the deceased Nausher Ali Khan
injuries with Pharsa and gun shot was caused while Khalil
Bux Khan (P.W.3) suffered injuries with lathi and Pharsa. It is
mentioned in the fardbeyan that the man who caused injuries
to the informant with gun shot was of fair complexion and a
tall man whose name he did not know. In the meantime 20-25
more persons entered through the door and inside the house
and began looting away the household properties. Among
them the informant identified as many as 12 persons namely,
(1) Bindeshwari Sao (2) Suraj Pasi (3) Ram Lal Chamar, (4)
Baijnath Mishra, (5) Bishaum Singh, (6) Arjun Mahato (7)
Basudeo Yadav, (8) a teacher of Bankey Bazar High School
resident of village Barka Jamuara, (9) Ram Swarup Ram (10)
Lalu Khan and (11) Vijoy Yadav and Sammid Ahmed Khan.
The source of identification was the light of lantern burning in
the house. The value and the list of the articles was to be
furnished subsequently. Altogether 70-80 dacoits were alleged
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to have participated in the dacoity. While retreating the
dacoits were rising slogans "M.C.C. Zindabad". After the
dacoits had left, the informant came to know that dacoits had
also entered into the house of his uncle and grandfather and
after causing injuries to them they had also looted away a
Licensee gun from their house.
It is said that during investigation after recording the
Fardbayan and formal F.I.R. (Ext.3) the I.O. sent the injured
persons to the hospital for their medical treatment. Some of
the accused persons were also placed in the T.I. Parade and
some of the accused were identified by the witnesses in the
T.I. Parade. One of the injured named Nausher Ali Khan was
removed to Calcutta hospital, where he died, from Magadh
Hospital Gaya for further treatment whose P.M. Report was
procured by the I.O. from Park Street Police Calcutta.
After investigation charge-sheet was submitted by
the officer against some of the accused persons named in the
F.I.R and also against some of the accused who were identified
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in the T.I. Parade and also against some of these who were
named subsequently by the witnesses before the investigating
police officer whose names neither figured in the F.I.R. nor
were said to have been identified in the test identification
parade. Some of the accused named in the F.I.R. were not
sent up by the police for trial. However, some of them were
made accused by the orders of the trial court under Section
319 of the Code of Criminal Procedure, 1973 (in short
‘Cr.P.C.’). Some of the P.Ws were already examined before
charge was ordered to be framed against four of the accused
under Section 319 Cr.P.C. which resulted in the de novo trial
of all the accused persons.
Altogether eight witnesses were examined on behalf of
the prosecution. Three of them i.e. Ganzaffar Ali Khan (PW 1),
Zahid Ali Khan (PW 2) and Yusuf Ali Khan (PW 4) were three
sons of Khalil (PW 2) in whose house the alleged dacoity took
place. PW 4 the informant was also seriously injured and
according to the prosecution sustained eleven injuries.
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The trial court placed reliance on the evidence of all the
four witnesses who claimed to be eye witnesses. Placing
reliance on their evidence, the trial court held the five
appellants in the three appeals before this Court to be guilty of
offence punishable under Section 396 IPC. However, he
directed acquittal of the eleven co-accused persons. The
convicted accused persons preferred two appeals before the
High Court while the State preferred an appeal questioning
acquittal of Dr. Shamin Ahmad Khan alias Samman Khan.
The High Court held that though the evidence of PWs 1 & 3
cannot be said to be cogent, the evidence of PWs 2 & 4 were
without blemish. Accordingly it upheld the judgment of the
trial court, so far as finding the appellant’s guilt is concerned.
It found that occurrence took place on 15.3.1983 and the
deceased breathed his last long after about a month. That
being so the appropriate conviction would be under Section
395 IPC. Accordingly the conviction was altered and sentence
imposed was also altered.
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3. In support of the appeal learned counsel for the
appellant submitted that even in the FIR there was no
consistency. Though certain persons were named and overt
acts were attributed to them the evidence in Court was at
variance with the statement. So far as the appellant
Bindeshwari Rao is concerned, it is submitted that though he
was named in the FIR, the role attributed to him was not
specific. It was also submitted that most of the appellants
have suffered sentence of nearly 4½ years and considering the
long passage of time, the sentence should be suitably reduced.
In the case of accused appellant Bindeshwari Rao, it is
submitted that though he has suffered custody for about one
year, considering the unclear role attributed to him by the
prosecution his case deserves sympathetic consideration.
Witnesses were related to the deceased and their evidence
should not be accepted particularly even two of them were dis-
believed and the role of Dr. Shamim Ahmad Khan which was
so eloquently stated by the witnesses has been discarded.
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4. Learned counsel for the State supported the judgment of
the High Court.
5. Merely because the eye-witnesses are family members
their evidence cannot per se be discarded. When there is
allegation of interestedness, the same has to be established.
Mere statement that being relatives of the deceased they are
likely to falsely implicate the accused cannot be a ground to
discard the evidence which is otherwise cogent and credible.
We shall also deal with the contention regarding
interestedness of the witnesses for furthering prosecution
version. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not
conceal actual culprit and make allegations against an
innocent person. Foundation has to be laid if plea of false
implication is made. In such cases, the court has to adopt a
careful approach and analyse evidence to find out whether it
is cogent and credible.
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6. In Dalip Singh and Ors. v. The State of Punjab (AIR
1953 SC 364) it has been laid down as under:-
“A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish
to implicate him falsely. Ordinarily a close
relation would be the last to screen the real
culprit and falsely implicate an innocent
person. It is true, when feelings run high and
there is personal cause for enmity, that there
is a tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid
for such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth. However, we
are not attempting any sweeping
generalization. Each case must be judged on
its own facts. Our observations are only made
to combat what is so often put forward in
cases before us as a general rule of prudence.
There is no such general rule. Each case must
be limited to and be governed by its own
facts.”
7. The above decision has since been followed in Guli
Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in
which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)
was also relied upon.
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8. We may also observe that the ground that the witness
being a close relative and consequently being a partisan
witness, should not be relied upon, has no substance. This
theory was repelled by this Court as early as in Dalip Singh’s
case (supra) in which surprise was expressed over the
impression which prevailed in the minds of the Members of
the Bar that relatives were not independent witnesses.
Speaking through Vivian Bose, J. it was observed:
“We are unable to agree with the learned
Judges of the High Court that the testimony of
the two eyewitnesses requires corroboration.
If the foundation for such an observation is
based on the fact that the witnesses are
women and that the fate of seven men hangs
on their testimony, we know of no such rule.
If it is grounded on the reason that they are
closely related to the deceased we are unable
to concur. This is a fallacy common to many
criminal cases and one which another Bench
of this Court endeavoured to dispel in –
‘Rameshwar v. State of Rajasthan’ (AIR 1952
SC 54 at p.59). We find, however, that it
unfortunately still persists, if not in the
judgments of the Courts, at any rate in the
arguments of counsel.”
9. Again in Masalti and Ors. v. State of U.P. (AIR 1965
SC 202) this Court observed: (p. 209-210 para 14):
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“But it would, we think, be unreasonable to
contend that evidence given by witnesses
should be discarded only on the ground that it
is evidence of partisan or interested
witnesses.......The mechanical rejection of
such evidence on the sole ground that it is
partisan would invariably lead to failure of
justice. No hard and fast rule can be laid
down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but
the plea that such evidence should be rejected
because it is partisan cannot be accepted as
correct.”
10. To the same effect is the decisions in State of Punjab v.
Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana
(2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State of
Orissa (2002 (8) SCC 381).
11. The above position was also highlighted in Babulal
Bhagwan Khandare and Anr. v. State of Maharashtra [2005
(10) SCC 404] and in Salim Sahab v. State of M.P. (2007(1)
SCC 699).
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12. In the instant case, the evidence of the injured witness
PW 4 is of vital importance. Similar is the case of PW 2 even
though PWs 1 & 3 have not been fully believed yet the
credibility of the evidence of PWs 2 & 4 cannot be doubted on
that score. So far as the acquittal of Dr. Shamim Ahmad
Khan is concerned, the trial court and the High Court doubted
prosecution version so far as he is concerned because he was
not named in the FIR. It is a serious case of dacoity, any
leniency in sentence would not only be undesirable but also
would be improper. The passage of time cannot wash away
gravity of offence. Therefore, judged from any angle these
appeals have no substance and are dismissed.
13. The accused persons who are on bail, shall surrender to
custody forthwith to serve remainder of their sentence.
14. The appeals fail and are dismissed.
………………………………….J.
(Dr. ARIJIT PASAYAT)
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……………………………………J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
August 13, 2008
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