Full Judgment Text
VINAY KUMAR RAI AND ANR.
v.
THE STATE OF BIHAR
(Criminal Appeal No. 371 of 2006)
AUGUST 18, 2008
[Dr. Arijit Pasayat and P. Sathasivam, JJ.]
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Challenge in these appeals is to the
judgment of a Division Bench of the Patna High Court upholding the
conviction of the appellants for offence punishable under Section 302
read with Section 34 of the Indian Penal Code, 1860 (in short ‘IPC’)
so far as accused Ajeet Kumar Rai @ Ajeet Narayan Rai and Vinay
Kumar Rai, appellant No.1 in Criminal appeal 371 of 2006 and
Ashutosh Kumar Rai @ Sanjay Kumar Rai, appellant in other
Criminal Appeal. Ashutosh Kumar Rai was further charged for
committing the murder of Nanda Kumar Singh punishable under
Section 302 IPC and Section 27 of the Arms Act, 1959 (in short
‘Arms Act’). The High Court dismissed the appeals. The present
appeals had been filed by Vinay Kumar Rai (A-3) and Ajeet Kumar
Rai @ Ajeet Narayan Rai (A-1) and Ashutosh Kumar Rai (A-2). The
Presiding Officer, Additional Court No.1, Fast Track Court in
Sessions Trial Nos. 578/96 and 1/2001 held Ajeet Kumar Rai and
Vinay Kumar Rai guilty under Section 302 read with Section 34 IPC
and accused Ashutosh Kumar Rai under Section 302 IPC and
sentenced to undergo RI for life. He was also found guilty of offence
under Section 27 of the Arms Act and sentenced to undergo RI for
three years. Two appeals were filed before the High Court which by
the impugned judgment dismissed the same. All accused were put
on trial for committing the murder of Nanda Kumar Singh (hereinafter
referred to as the ‘deceased’) in furtherance of their common
intention for offence punishable under Section 302 read with Section
34 IPC.
2. Prosecution version in a nutshell is as follows:
According to the first information report given by Vishwanath
Singh (PW-7) before the police on 26.7.1996 at 1.10 p.m., at about
12 noon, while he was sitting on the verandah of the house and his
son Nand Kumar Singh, the deceased had gone to the field to inquire
as to whether the land has been ploughed or not, he did not find
tractor there and while he was returning he saw the appellants and
started shouting. Hearing the alarm, the informant along with Sachida
Nand Singh (PW-4) rushed there and found that appellants Vinay
Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai had caught
hold of his son and appellant Ashutosh Kumar Rai @ Sanjay Kumar
Rai had put pistol on his right temple. The moment they saw him and
Sachida Nand Singh, appellant Vinay Kumar and Ajeet Kumar Rai @
Ajeet Narayan Rai exhorted to fire at which appellant Ashutosh
Kumar Rai alias Sanjay Kumar Rai fired at his son on the temple.
Sustaining the injuries his son fell down and all the appellants fled
away brandishing the pistol. When the informant and his nephew
Sachidanand Singh reached there, they found injury above the
temple and immediately put him on a rickshaw and brought to the
Government Hospital, Sasaram where the doctor declared him
brought dead. On the basis of the aforesaid information, Sasaram
(M) P.S. Case No.386 of 1996 was registered under Section 302/34
of IPC and 27 of the Arms Act.
According to the first information report, the motive for the
occurrence is the pendency of litigation before the Director of
Consolidation.
The police, after investigation, submitted charge sheet against
the appellants and they were ultimately committed to the court of
Sessions where all the appellants were charged for offence under
section 302/34 of IPC whereas, appellant Ashutosh Kumar Rai alias
Sanjay Kumar Rai was further charged for offence under section 302
of IPC and section 27 of the Arms Act.
The appellants denied to have committed any offence and
pleaded false implication on account of previous enmity and their
further defence was that the deceased was killed on the same day at
about 12 noon by fire arm by some unknown persons near the house
of Ram Nagina Singh.
Prosecution in order to substantiate the accusations examined
nine witnesses out of which Sachidanand (PW-4), Sunil Kumar Singh
(PW-5), Srikant Singh (PW-6) and Vishwa Nath Singh (PW-7)
claimed to be eye-witnesses. The last named person was the
informant. In order to prove their innocence, the accused persons
examined four witnesses. The trial Court believed the evidence of the
eye-witnesses and found the accused guilty.
3. In appeal, it was submitted that there was discrepancy
between the medical evidence and the oral evidence and, therefore,
the prosecution version should not have been accepted. The primary
stands were regarding the alleged discrepancy between the medical
evidence and the ocular evidence and the eye-witnesses being
related to the deceased. The High Court did not find any substance
in any of these stands and dismissed the appeals.
4. The stands taken before the High Court were reiterated in
these appeals. It was highlighted by learned counsel for the
appellants that it is unusual that eye witnesses who are closely
related to the deceased did not try to intervene to save the deceased
from the assailants.
5. Learned counsel for the State on the other hand with
reference to the conclusions of the High Court pointed out that the
witnesses have said that they saw the incidence from a distance of
about 15 to 20 yards. They stated that the deceased was shot dead
even before they reached the place of occurrence. Therefore, there
was no question of intervening to save the life of the deceased.
6. 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.
7. 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.”
8. The above decision has 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.
9. 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.”
10. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202)
this Court observed: (p. 209-210 para 14):
“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.”
11. 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).
12. 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).
13. The over insistence on witnesses having no relation with the
victims often results in criminal justice going away. When any
incident happens in a dwelling house the most natural witnesses
would be the inmates of that house. It is unpragmatic to ignore such
natural witnesses and insist on outsiders who would not have even
seen any thing. If the Court has discerned from the evidence or even
from the investigation records that some other independent person
has witnessed any event connecting the incident in question then
there is justification for making adverse comments against non-
examination of such person as prosecution witness. Otherwise,
merely on surmises the Court should not castigate a prosecution for
not examining other persons of the locality as prosecution witnesses.
Prosecution can be expected to examine only those who have
witnessed the events and not those who have not seen it though the
neighborhood may be replete with other residents also. [See: State
of Rajasthan v. Teja Ram and Ors. (AIR 1999 SC 1776)].
14. It is to be noted that PWs 4 and 7 have stated in their
evidence about the presence of PWs 5 and 6. Interestingly, Raj
Kumar Singh (PW-1) in his statement also stated about their
presence at the place of occurrence. Though it was pleaded by
learned counsel for the appellants that PW-1’s evidence cast a doubt
about the prosecution version it is to be noted that PW-1 never
claimed to be an eye witness. The evidence of PWs and eye
witnesses clearly established that accused Ajeet Kumar Rai and
Vinay Kumar Rai caught hold of deceased and on their exhortation
appellant Ashutosh shot at the deceased. Therefore, Section 34 has
application.
15. Coming to the alleged discrepancy between the ocular
evidence and the medical evidence as rightly noted by the High Court
there was no discrepancy. The medical evidence was clearly in line
with what has been stated by eye-witnesses. The High Court has
noted that the expression used by the witnesses cannot be analysed
in hypothetical manner. According to the eye witnesses gunshot
injury was caused on the right temple but the injury was found on the
upper eyelid and everted wound on the right oricle margin. Therefore,
it can never be said that medical evidence is contrary to the ocular
evidence.
16. Looked at from any angle, the appeals are without merit and
deserve dismissal which we direct.