Hari vs State Of Maharashtra

1. This appeal has been filed by Hari s/o

Mansingh Rathod impugning the judgment and order of

conviction passed by the Aurangabad Bench of Bombay

High Court in Criminal Appeal No. 523 of 2004.

2. The appeal to the High Court was taken

from a judgment dated 20.7.2004 rendered by the

First Ad-hoc Additional Sessions Judge, Aurangabad

in Sessions Case No. 248 of 2003.

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3. Before the Trial Court there were several

accused persons. The Trial Court in its judgment

only convicted the appellant herein and accused

No.2 - Baliram s/o Janu Rathod.

4. Appellant - Hari was convicted for an

offence punishable under Section 302 of Indian

Penal Code and was sentenced to suffer rigorous

imprisonment for life and to pay a fine of Rs.100/-

in default, simple imprisonment for ten days.

5. Accused No.2 - Baliram was convicted for

an offence punishable under Section 324 of the Code

and was sentenced to suffer rigorous imprisonment

for three years and to pay a fine of Rs.500/- and

in default to suffer simple imprisonment for one

month.

6. Both the accused were granted benefit

under Section 428 of the Code and they were

acquitted of the rest of the charges.

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7. Other accused persons were acquitted of

all the charges.

8. The case arises basically out of land

dispute and the prosecution allegations are as

follows:

On 9.6.2003 in the morning hours, the

complainant Santosh - P.W.1 was sitting in front of

his house at Parundi-Tada, Tq. Paithan. His father

Khemsingh and brother Gulabsingh were sitting at a

cot in front of their house. At that time, Baliram

Rathod and the appellant came to the place.

Appellant - Hari assaulted the complainant's father

with a knife and Baliram Rathod - accused No.2

assaulted the complainant's brother Gulabsingh with

a knife. Being so assaulted, the complainant's

father and brother started running but at that time

several accused persons came in front of the

complainant's house and started pelting stones

aiming at the complainant's father and brother.

Some of the stones hit complainant's father's head

and back. As a result of the knife blow on the

3 chest of Gulabsingh, there was profuse bleeding and

the injured felt giddy and sat on the ground.

9. Hearing the noises, complainant's mother

with some other persons came to the spot and tried

to stop the quarrel.

10. Due to knife blow, complainant's father

died on the spot. Gulabsingh was taken to the

Government Hospital, at Pachod and was referred to

the Ghati Hospital, Aurangabad for further

treatment.

11. P.W.12 - Shivaji, PSI attached to Rathod

Police Station recorded the complaint of P.W.1 -

Santosh on 9.6.2003 and an offence came to be

registered vide Crime No. 67/03. Thereafter,

investigation was carried on and the accused were

charged for committing offences punishable under

Sections 302 and 307 r/w 34 I.P.C. and accused were

also alternatively charged for offences under

4 Sections 147, 148, 302, 307 and 504 r/w 149 of the

Code.

12. The statement of injured witness P.W.2-

Gulabsingh was recorded. The dead body of Khemsingh

was sent for post mortem examination which was

carried out by P.W.5 - Dr. Narayan Dhumal, who

noticed the following injuries on the body of

Khemsingh:

i. CLW on (Lt) parietal region of scalp

middle region 3 cms x 2 cms x 1 cm.

Bleeding present.

ii. Incised wound on (Lt) side chest infra

auxiliary region in the midline

oblique. Blood oozing through the

wound 2 cms x 1 cms width of the chest

wall.

13. PW5 opined that the injuries are ante

mortem and on internal examination he found that

pleura and both the lungs were pale. Stab injury

was there on the left side of pericardium and

5 clotted blood was found. There was also a stab

injury to the heart and to the base of left

ventricle on lateral part 2 x = cms. and the left

ventricle of the heart had been pierced causing

death. The opinion of PW5 was that the death was

due to cardio respiratory arrest brought about by

hemorrhagic shock as a result of stab injury to the

left ventricle of the heart. It is clear

therefore, that the injuries which were inflicted

on he deceased are on vital parts namely on the

scalp and on the chest which pierced the left

ventricle of the heart. These injuries are

sufficient to bring the case within Section 302

IPC.

14. The learned counsel for the defence urged

that the court should not have believed the three

PWs, who claimed to be eye witnesses, namely, PW1,

PW2 and PW8 for the reasons that they are all close

relations of the deceased. It has also been stated

that there is admitted enmity between the parties.

The other ground which was urged is that, there was

6 delay in lodging the FIR. According to prosecution

version, the incident took place early in the

morning hours and the FIR was lodged at 1:30 p.m.

It was also stated that there are certain injuries

on the accused persons, which have not been

explained and, therefore, the genesis of the

prosecution has been suppressed and no reliance

shall be placed on the same.

15. This Court finds that the High Court has

relied on the evidence of PWs.1, 2 and 8 and has

noted that no reliance could be placed on the

testimony of PWs.9, 10 and 11. In paragraphs 4, 5,

6 and 7 of the High Court judgment, the evidence of

PWs1, 2 and 8 have been discussed in detail. PW1

is the first informant who sated that at about 8:30

a.m. on the day of occurrence, he was in his house

and deceased-Khemsingh and PW2-Gulab were also in

their house and both of them were sitting on a cot.

Accused No.4, who owns the adjoining house was also

sitting in front of his house on a cot. The

deceased asked accused No.4 to transfer certain

7 land in the name of the deceased. According to

PW1-informant, in the consolidation proceedings the

land of the family of the deceased was entered in

the name of the accused No.4 and the land of the

accused No.4 was entered in the name of the

deceased. As a result of the same, a dispute had

cropped up. It also has come in evidence that the

land of the deceased was acquired for construction

of dam and compensation for the same was not yet

received. Therefore, there was some land dispute

between the parties.

16. On the date of the incident, when the

deceased and the accused No.4 were conversing on

those lines, the appellant, who is the cousin of

the deceased, came to the spot and inflicted fatal

knife injury on the deceased and PW2 was also

inflicted with an injury by knife by accused No.2

on his chest. As a result of the fatal knife

injury, the deceased died on the spot and PW1 took

PW2-Gulab to Ghati Hospital at Aurangabad for

treatment. In respect of the incident he has

8 lodged a complaint to the police. In cross

examination the evidence of PW1 could not be

discredited. PW2, the brother of PW1 and an

injured witness gave the same version of the

incident. He has also stated about injuries which

he received and also the fact that he was taken to

hospital by PW1. He was initially taken to

Government Hospital at Pachod and then referred to

Ghati Hospital, Aurangabad.

17. PW8 is the wife of PW1 and also claims to

be an eye witness. According to PW8, her father-

in-law, Khemsingh and brother-in-law, who is PW2

and the injured witness, were sitting in a cot in

front of their house. She also repeated the same

version which is given by PW1.

18. This Court finds that the evidence of PW1-

the informant, PW2-the injured witness and PW8 are

virtually consistent in unfolding the prosecution

case. Both the Trial Court and the High Court

found that the presence of PW1, 2 and 8 at the

9 place of occurrence was natural and nothing was

elicited from them in cross examination to show

that these witnesses were elsewhere and not in the

place where the occurrence took place.

19. In so far as the delay in lodging the FIR

is concerned, the High Court has dealt with the

question in paragraph 12 of the judgment and has

come to the conclusion that immediately after the

incident PW1 went to the police station with PW2

and the Court finds that there is nothing wrong on

the part of the police in not lodging the FIR

immediately and in giving greater attention to

ensure prompt treatment to the injured person.

This has come from the evidence of PW12, P.S.I

Shirsath, who revealed that initially when PW1 went

to the police station he recorded his complainant

but the FIR came to be registered on the basis of

complaint of PW1 at 1:30 p.m. There was thus a

delay of few hours but this does not vitiate the

prosecution case, rather this is consistent with

normal human conduct. It would be the effort of

10 everyone to try to first save the life of a

severely injured person rather than spend time in

anything else.

20. So far as injuries on the accused persons

are concerned, it has been recorded by the High

Court that accused persons never brought on record

the nature of injuries sustained by them. The

injury certificates were not produced. PW1 has not

disputed that there is counter case which has been

registered against them and the same is pending in

the Sessions Court. PW12 has also admitted that

two of the accused persons who were acquitted had

sustained injuries but the nature of injuries has

not been brought on record. In the absence of the

injury report and especially in view of the facts

stated hereinabove, it cannot be urged that the

prosecution tried to suppress the genesis of the

case.

21. It may be true that all the vital

witnesses, namely, PW1, 2 and 8 are relations of

11 the deceased but that by itself cannot discredit

their evidence. It is a fight between the

relations it has come on record that the appellant

is the cousin of the deceased. In such a case, the

relations are likely to be the most appropriate

witnesses.

22. Certain decisions have been cited at the

Bar which need to be considered and explained.

About appreciation of evidence of witnesses who are

related to the deceased, learned counsel for the

appellant relied on a decision of this Court in

Avtar Singh Vs. State of Punjab - (2006) 12 SCC

524. In that case the facts were totally different

and it was opined by the learned Judges, in the

peculiar facts of that case, that enmity and bad

blood between the rival groups was established

beyond doubt. In that case no report was lodged

with the police regarding the occurrence and this

Court looked into the evidence and opined that the

story about making an effort to lodge a report

earlier was not true. In that case the nambardar

12 and the chowkidar who were alleged to have

accompanied PW 1 to the police station were not

examined and there was a categoric denial by PW 6 -

Station House Officer about anyone reporting the

incident to him before 4.12.1989. This Court found

that the High Court has not at all noticed the

facts. In the background of those facts, this

Court held that proper caution was not exercised by

the High Court in appreciating the highly partisan

evidence adduced by the prosecution.

23. But in the instant case, the factual

scenario is totally different. Here the occurrence

took place within the house at the instance of the

close relatives and in such a situation only

relatives would be the witnesses. Of course, in the

present case also there was some enmity in view of

the land dispute but that by itself is not a ground

to discard the evidence of the witnesses, who are

relatives when their evidence is cogent and

credible. Factually, the decision of this Court in

13 Avtar Singh (supra) stands on a completely

different footing.

24. On the question of appreciating the

evidence of witnesses, who are related, this Court

in Dalip Singh and Ors. Vs. The State of Punjab -

AIR 1953 SC 364, spoke very eloquently through

Justice Vivian Bose. In that case the learned Judge

clearly laid down the law relating to appreciation

of evidence by relations with such lucidity that it

deserves to be quoted:

"26. ...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 here 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 generalisation. 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

14 rule. Each case must be limited to and be governed by its own facts."

25. The principle laid down in the aforesaid

passage has been subsequently reiterated by this

Court in Guli Chand and Others Vs. State of

Rajasthan - (1974) 3 SCC 698. Justice Beg, as His

Lordship then was, quoted the said passage in para

No. 11 of the said report.

26. The said principle was also followed by a

Constitution Bench of this Court in Masalti and

Ors. Vs. State of Uttar Pradesh - AIR 1965 SC 202 . The Constitution Bench speaking through Chief

Justice Gajendratgadkar approved the decision in

the case of Dalip Singh (supra) and held as under:

"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. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The 15 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."

27. Justice Thomas, speaking for this Court,

in the case of State of Rajasthan Vs. Teja Ram and

others - (1999) 3 SCC 507, held that over

insistence on witnesses having no relation with the

victim will result in the criminal justice system

going awry. In para 20, the learned Judge held

that when any incident happens in a dwelling house,

the most natural witnesses would be the inmates of

the house and in such a situation "it is

unpragmatic to ignore such natural witnesses and

insist on outsiders who would not have even seen

anything". The learned Judge further clarified;

`The 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

16 replete with other residents also'. The aforesaid

observation fits in with the fact situation in this

case in as much as the incident took place within

the precincts of the house of the deceased and the

relations are the only natural witnesses.

28. Again in Salim Sahab Vs. State of M.P. -

(2007) 1 SCC 699, this Court extracted the above

passage in Dalip Singh (supra) in paragraph No.12

of the report. The ratio in Dalip Singh (supra)

has been reiterated by this Court very recently in

Bur Singh and another Vs. State of Punjab - AIR

2009 SC 157, in para 7 of the report.

29. We find that in the instant case, the

evidence of the eye witnesses, namely, P.W.s 1, 2,

and 8 has been considered by the High Court with

due caution and care before accepting the same.

Therefore, we cannot accept the contention of the

learned counsel for the appellant that the evidence

of the aforesaid eye witnesses should be rejected

just because they are related to the deceased. 17

30. On the other question, namely, non-

explanation of injury on the accused persons,

learned counsel for the appellant has cited a

decision in Lakshmi Singh and Ors. Vs. State of

Bihar - (1976) 4 SCC 394. In the said case, this

Court while laying down the principle that the

prosecution has a duty to explain the injuries on

the person of an accused held that non-explanation

assumes considerable importance where the evidence

consists of interested witnesses and the defence

gives a version which competes in probability with

that of the prosecution case.

31. But while laying down the aforesaid

principle, learned Judges in paragraph 12 held that

there are cases where the non-explanation of the

injuries by the prosecution may not affect the

prosecution case. This would "apply to cases where

the injuries sustained by the accused are minor and

superficial or where the evidence is so clear and

cogent, so independent and disinterested, so

18 probable, consistent and creditworthy, that it far

outweighs the effect of the omission on the part of

the prosecution to explain the injuries."

Therefore, no general principles have been laid

down that non-explanation of injury on accused

person shall in all cases vitiate the prosecution

case. It depends on the facts and the case in hand

falls within the exception mentioned in paragraph

12 in Lakshmi Singh (supra).

32. In the instant case no defence plea has

been put up. Apart from that the High Court found

that the defence did not bring on record the injury

report and the nature of injuries was not made

known to the Court.

33. Therefore, the ratio in Lakshmi Singh

(supra) is not attracted in the instant case. In

this context, this Court may refer to the decision

of this Court in State of Gujarat Vs. Bai Fatima

and Anr. - (1975) 2 SCC 7, which has been followed

in Lakshmi (supra). In Bai Fatima (supra), learned

19 Judges have laid down the following principle in

paragraph 17, which is quoted below:

"17. In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self- defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all."

34. In the opening words of the aforesaid

paragraph 17, learned Judges were thinking of a

case where private defence was pleaded. In the

instant case, no plea of private defence was taken.

So here and especially when the injury report is

not on record, the third "result" pointed in Bai

Fatima (supra) would apply.

35. On the aforesaid point, learned counsel

for the appellant relied on a decision of this 20 Court in State of Rajasthan Vs. Rajendra Singh -

AIR 1998 SC 2554. In that case, this Court was

considering the State's appeal against an order of

acquittal. It is well known that the considerations

which weigh with this Court in deciding a State's

appeal against an order of acquittal by the High

Court are totally different from a case where there

are a concurrent findings both by the Trial Court

and the High Court about the guilt of the

appellant.

36. In a case leading to an appeal against

acquittal, the Court is to consider whether the

view taken by the High Court is a possible view.

But that is not the position in a case like the

present one where there are concurrent findings of

guilt against the appellant. Therefore, the

decision in Rajendra Singh (supra) has to be

considered in the facts of that case.

37. On this point, reliance was also placed by

the learned counsel for the appellant on a decision

21 of this Court in Subramani and Ors. Vs. State of

T.N. - (2002) 7 SCC 210. In that case plea of right

of defence was taken and the Court while

considering the said plea laid importance on the

failure of the prosecution to explain the injuries.

In that case the Court held as under:

"26. ....though the appellants had suffered injuries on vital parts of the body, even though simple, the prosecution failed to give any explanation for such injuries. We are not persuaded to accept the submission of learned counsel for the State that the injuries being simple, the prosecution was not obliged to give any explanation for the same. Having regard to the facts of the case the omission on the part of the prosecution to explain the injuries on the person of the accused may give rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and had thus not presented the true version...."

38. In the instant case, those considerations

are not present. Private defence is not pleaded and

virtually could not be pleaded in the facts of this

case and the injury report was not brought on

record.

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39. For the reasons aforesaid, this Court does

not find that any error was committed by the High

Court in affirming the judgment of conviction

passed by the Trial Court. There is no merit in

the appeal, which is dismissed accordingly.

.......................J. (S.B. SINHA)

.......................J. New Delhi (ASOK KUMAR GANGULY) March 23, 2009

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