Daulatram S/O Sadram Teli vs State Of Chhattisgarh

Bholaram. The Investigating Officer left the scene of

occurrence, after giving notice Ex.P/10 to the Panchas,

prepared inquest Ex.P/11 on the body of the deceased. Site

plan Ex.P/9 was prepared. Based on the memorandum

Ex.P/4 given by Daulat Ram, axe was recovered from him

under Ex.P/1. Based on the memorandum Ex.P/5 given by

Nepal, axe was recovered under Ex.P/2. Based on the

memorandum Ex.P/6 given by accused Damodar, sickle was

seized under Ex.P/3. The dead body of the deceased was sent

for post mortem examination under Ex.P/14 to the Primary

Health Centre, Basna, where Dr. H.L. Jangde (PW-7)

3 conducted postmortem report Ex.P/12. He opined that cause

of death was haemorrhagic shock due to head injury and it

was homicidal in nature.

After completion of the investigation, charge sheet was

filed against accused in the court of Judicial Magistrate, 1st

Class, Mahasamund, who in turn committed the case to the

Sessions Judge, Raipur, from where learned Special Judge

received the case on transfer for trial.

The prosecution in order to establish the charge against

the accused persons examined 13 witnesses. Statements of

accused persons were recorded under Section 313 Cr.P.C. in

which they denied material appearing against them in the

prosecution evidence and stated that they are innocent and

have been falsely implicated in the crime. They examined one

defence witness, namely, Vikram.

Learned Special Jude after considering materials placed

by respective parties, convicted and sentenced the

4 accused/appellants as aforesaid. However, accused Damodar

was convicted under Section 352, IPC.

4. The conviction and sentence were challenged before the

High Court by both the present appellant and the accused,

Nepal. The High Court found the evidence to be credible and

cogent and dismissed the appeal of appellant, so far as it

relates to Section 302 IPC. However, co-accused Nepal was

directed to be acquitted.

5. Primary stand in support of the appeal was that the

informant (PW.3) and the PW.5 are the interested witnesses

and, therefore, their evidence should have been discarded.

6. Learned counsel for the respondent-State, on the other

hand, supported the judgment of the High Court.

7. Merely because the eye-witnesses are family members

their evidence cannot per se be discarded. When there is

5 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.

8. 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

6 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."

9. 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.

10. 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

7 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."

11. 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

8 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."

12. 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).

13. The above position was also highlighted in Babulal

Bhagwan Khandare and Anr. v. State of Maharashtra [2005

(10) SCC 404], Salim Saheb v. State of M.P. (2007(1) SCC

699) and Vinay Kumar Rai and Anr. v. State of Bihar (2008

AIR SCW 5541).

14. The over insistence on witnesses having no relation with

the victims often results in criminal justice going away. When

9 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)].

15. The evidence of PWs. 3 and 5 is cogent, credible and

reliable. It was submitted that Nepal was acquitted and,

10 therefore, the appellant should not have been convicted. The

High Court has found that there was inconsistency in the

evidence of PWs. 3 and 5 so far as Nepal's presence is

concerned. In any event, the evidence of PWs. 3 and 5 is

cogent, credible and reliable. The fact that co-accused has

been acquitted, cannot be a ground for holding that

appellants' conviction is infirm.

16. The impugned judgment does not warrant any

interference. The appeal is dismissed.

..........................................J. (DR. ARIJIT PASAYAT)

...........................................J. (DR. MUKUNDAKAM SHARMA) New Delhi:

September 19, 2008

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