Arjun Mahto vs State Of Bihar

Arjun Mahto .....Appellant

Versus

State of Bihar ....Respondent

With CRIMINAL APPEAL NO. 1179 OF 2001

With CRIMINAL APPEAL NO. 754 OF 2001

JUDGMENT

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

2 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

3 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

4 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.

5 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 4= 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): 10

"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)

12 ..........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 13, 2008

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