Shio Shankar Dubey vs The State Of Bihar

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1617 of 2014

SHIO SHANKAR DUBEY & ORS. ...APPELLANT(S)

VERSUS

STATE OF BIHAR ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

This appeal has been filed by the three

appellants challenging the judgment of High Court of

Patna dated 16.07.2013, by which Criminal Appeal (DB)

No. 410 of 1990 filed by them questioning their

conviction and sentence under Section 302 and some

other sections of I.P.C. has been dismissed.

2. The prosecution case is that on 16.05.1980, one

Raj Ballam Rai, informant alongwith his brother Raj

Keshwar Singh came to Sasaram Court. Signature Not Verified

After finishing Digitally signed by ARJUN BISHT

his Date: 2019.05.09 16:53:41 IST Reason:

work in court informant proceeded with his

brother to his residence near Dharamshala. Raj

1 Keshwar Singh was on rickshaw and the informant was

on the bicycle. Raj Keshwar Singh was armed with a

double barell gun. The further case is that at about

9:00 am when they reached 50 to 60 yards east of

Kargahar More, the informant saw that Doodnath

Dusadh, Jamadar Dusadh and Ram Nandan Dusadh stopped

the rickshaw. They were armed with Lohbanda. Shio

Shankar Dubey was armed with Rifle and his brother

Ram Pravesh Dubey was armed with lathi and they were

also alongwith them. They pulled down Raj Keshwar

Singh from rickshaw and started assaulting with

Lohbanda. The Mukhiya that is Shio Shankar Dubey

asked them to kill in a hurry. The informant fled

away. Shio Shankar Dubey opened fire but none

received any injury. The accused persons thereafter

fled away towards south.

3. At 9:30 am, the police official namely, S.N.

Singh of Sasaram Police Station arrived at the place

of occurrence to whom Raj Ballam Rai gave a

fardbeyan. On the basis of fardbeyan given at the

place of occurrence by informant, First Information

Report was registered against 05 accused. 2

4. The prosecution, to prove its case, produced 15

witnesses. PW11, informant, fully supported the

prosecution case. PW13, Ragho Ram Singh, who was

also an eyewitness, supported the prosecution case.

PW5 was another eyewitness, who saw 04 of the accused

running away from the spot. Formal witnesses were

also produced by the prosecution. On the spot

seizure was also made by one Siddhanath Singh,

Inspector of Police, which seizure also contained

copy of four applications, which were typed at

District Court, Sasaram and were being carried by the

deceased alongwith him in a diary, which applications

were marked as Ext.3/2 to 3/5.

5. Inquest Report was also prepared on the spot.

Body was sent for post mortem. Post mortem report

was prepared as Ext.4. One defence witness, DW1,

Dasrath Ram was also produced, who brought the

register of the employees for the period 1961 to 1963

containing the signatures of deceased Raj Keshwar

Singh.

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6. The trial court vide its judgment and order dated

14.09.1990 convicted 04 accused, (one of the accused

namely, Doodnath Dusadh having died during the

pendency of trial. The appellant No.1 – Shio Shankar

Dubey, accused No.3, was convicted for the offence

under Sections 302/149/148 I.P.C. and Section 27 of

the Arms Act. The appellant No.2 – Ram Pravesh

Dubey, accused No.4, was convicted for the offence

under Sections 302/149/147 I.P.C. The third

appellant, i.e., Jamadar Dusadh, accused No.1 was

convicted under Sections 302/147 and 379 I.P.C. Four

accused, who were convicted filed criminal appeal in

the High court, which has been dismissed. One

Ramnandan Dusadh also having died during pendency of

the appeal before the High Court, the three surviving

accused are in the appeal before this Court.

7. Learned counsel for the appellant in support of

the appeal submits that PW11 – informant being

brother of the appellant and PW13 being husband of

the niece of the deceased were all close relatives

and interested witnesses, the Courts below committed

an error in relying on the testimony of interested 4 witnesses. There being no independent witnesses

corroborating the charge against the appellants the

appellants ought not to have been convicted and

sentenced. It is further submitted that PW5, who

claimed to be an eyewitness and deposed before the

courts below that he saw four accused running away

from the spot, he has not taken the name of Ram

Pravesh Dubey, the appellant No.2. PW5 having not

taken the name of Ram Pravesh Dubey, the presence of

Ram Pravesh Dubey on the spot is not proved and the

Courts below have ignored this evidence. Ram Pravesh

Dubey having not been proved to be on the spot, could

not have been convicted. It is further submitted

that inquest report mentioned a bullet injury whereas

in the post mortem report, no bullet injury was

found. There being no bullet injury found in the

post mortem report, the entire prosecution theory is

inconsistent. Learned counsel for the appellant

further submits that there was no motive for

appellants to kill Raj Keshwar Singh.

8. Learned counsel appearing for the State refuting

the submissions of the learned counsel for the 5 appellant submits that informant PW11 was

accompanying the deceased and his evidence was found

trustworthy. The Courts below did not commit an

error in relying on his evidence. It is submitted

that the mere fact that PW11 and PW13 are related to

the deceased does not in any manner impeach their

truthfulness. It is submitted that the mention of

the bullet injury in the inquest report was due to

error of judgment by the person writing inquest

report. The skull being crushed in a manner and

bones being fractured, impression was drawn that

bullet entered from behind the skull and came out of

the mouth, which in no manner can be said to be fatal

to the prosecution case. It is submitted that PW5 is

a trustworthy witness, who is not related to the

deceased and saw the accused running away from the

spot.

9. We have considered the submissions of the learned

counsel for the parties and have perused the records.

10. PW11, who is a brother of the deceased, has fully

corroborated the prosecution case in his evidence.

6 In spite of thorough cross-examination, the witnesses

could not be shaken. The submission of the appellant

that witnesses PW11 and PW13 being related to the

deceased are interested witnesses and should not be

relied does not commend us. The mere fact that

deceased was brother of the informant and PW13 is the

husband of the niece of the deceased and does not

impeach their evidence in any manner. The mere fact

that witness is related does not lead to inference

that such witness is an interested witness. This

Court has occasion to consider such submission in

number of cases. In Kartik Malhar Vs. State of

Bihar, (1996) 1 SCC 614, this Court held that a close

relative who is a very natural witness cannot be

regarded as an interested witness. In paragraph Nos.

15 and 16, following was laid down:-

“15. As to the contention raised on behalf of the appellant that the witness was the widow of the deceased and was, therefore, highly interested and her statement be discarded, we may observe that a close relative who is a natural witness cannot be regarded as an interested witness. The term ‘interested’ postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason. In Dalbir Kaur (Mst) v. State of Punjab,

7 (1976) 4 SCC 158, it has been observed as under: (SCC pp. 167-68, para 11)

“Moreover, a close relative who is a very natural witness cannot be regarded as an interested witness.

The term ‘interested’ postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. Such is not the case here.”

16. In Dalip Singh v. State of Punjab, AIR 1953 SC 364 it has 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 relative 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 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 8 prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

11. Further in Namdeo Vs. State of Maharashtra,

(2007) 14 SCC 150, same propositions were reiterated

by this court elaborately referring to the earlier

judgments, this Court rejected the same submission in

paragraph Nos. 29, 30 and 38, which are to the

following effect:-

“29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, “highly interested” witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as “interested”. The term “interested” postulates that the witness has some direct or indirect “interest” in having the accused somehow or the other convicted due to animus or for some other oblique motive.

30. Before more than half a century, in Dalip Singh v. State of Punjab, AIR 1953 SC 364, a similar question came up for consideration before this Court. In that case, the High Court observed that testimony of two eyewitnesses required corroboration since they were closely related to the deceased. Commenting on the approach of the High Court, this Court held that it was “unable to concur” with the 9 said view. Referring to an earlier decision in Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54, Their Lordships observed that it was a fallacy common to many criminal cases and in spite of endeavours to dispel, “it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel” (Dalip Singh case, AIR p. 366, para 25).

38. From the above case law, it is clear that a close relative cannot be characterised as an “interested” witness.

He is a “natural” witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the “sole” testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.”

12. We, thus, reject the submission of the appellant

that PW11 and PW13 being related to deceased, their

evidence cannot be relied.

13. Now, the next submission of the learned counsel

for the appellant that PW5, who is held to be an

eyewitness has in his statement only taken names of

the four accused, who, according to him, were seen

running away from the spot. It is submitted that PW5

10 did not take the name of Ram Pravesh Dubey, the

appellant No.2. The statement of PW5 has been

brought on the record. PW5 in his statement stated

that at 9 O’clock in the morning, he had gone to

Sasaram and when he went about fifty steps south to

Rouza Road from G.T. Road, he saw the accused persons

namely Ram Nandan Dusadh, Dudnath Dusadh, Jamadar

Dusadh and Shankar Dubey fleeing on Rouza Road going

from the west to the east. It is true that in his

statement, he mentioned names of only four persons,

who were seen fleeing on Rouza Road. The mere fact

that he did not mention name of Ram Pravesh Dubey

cannot lead to the inference that Ram Pravesh Dubey

was not involved in the incident. There may be

several reasons due to which, he could not see Ram

Pravesh Dubey. When PW11 and PW13, whose evidence

has been relied by the trial court as well as High

Court, have categorically proved the presence of Ram

Pravesh Dubey and his participation in the

occurrence. The mere fact that PW5 did not see Ram

Pravesh Dubey fleeing is not conclusive nor on that

basis, we can come to any inference that Ram Pravesh

Dubey was not involved in the occurrence. 11

14. Now, we come to the another submission of the

appellants that in the inquest report, it was

mentioned that pellet from back in the head has come

out of the mouth, but there was no bullet injury

found in the post mortem report. In column No.5 of

the inquest report brought as Annexure-P42, following

was stated:-

“It appears that the pellet from back in the head has come out of the mouth. (illegible) part has been cut. The brow on the eyes are (illegible). Left elbow has bruise injury. Left had has also bruise injury. Lacerated.”

15. We may further notice other details given in the

inquest report in column No.4, following was

noticed:-

“Head in north-east direction, leg in south direction, felt facing upward, the back portion of the head heavily damaged, both the eye closed. Eye has blackened. Injury in mouth also. Blood is oozing from the mouth also.”

16. Now, we come to the post mortem report. Post

mortem report has been extracted by the High Court in

12 paragraph No.12 of the judgment. The injuries

noticed in paragraph No.12 are as follows:-

“12. XXXXXXXXXXXXXXXXXXXXXX

(i) Lacerated wound 2" X 1" with commuted fracture of occipital bone in two multiple pieces at back of head. Some fragments of bone had pierced into brain covering. There was collection of blood clot outside and inside durameter. Corresponding part of the brain was found softened and with lacerated injury. There was no blackening of margin of surrounding area or no tatooing.

(ii) Bruise 4" X 2" in front of face involving right eye brow, right malar bone and bridge of nose with multiple fracture of right mallar bone, nosal bone and right maxilla.

(iii) Bruise 2" x 1" left and below the nose with fracture of left maxilla and lacerated cut of cheek from inside 1" X 1/2".

(iv) Abrasion 1" x ½" of upper lip right to mid-line.

(v) Lacerated cut ½" x ½" left margin of tongue with blood clot in the mouth.

(vi) Abrasion ½" x ½" at left knee.

(vii) Abrasion 1" x ½" at left forearm.

Injury Nos. (i), (ii) and (iii) are grievous in nature caused by hard blunt substance, may be lathi and Lohbanda.

Injury Nos. (iv), (v), (vi), (vii) are simple in nature, caused by hard blunt 13 substance, may be lathi and Lohbanda. Time elapsed since death within 12 hours.

XXXXXXXXXXXXXXXXXX”

17. A perusal of the injuries, which have been

noticed in the post mortem report indicates that

there was fracture of occipital bone in two multiple

pieces at back of the head. Some fragments of bone

had pierced into brain covering. Multiple fracture

of right mallar bone, nosal bone and right maxilla

has also been noticed. The nature of the injuries,

which were found in the post mortem report indicates

that on seeing the injuries, the officers recording

the inquest report thought that since occipital bone

in two multiple pieces at back of head have been

fractured and some fragments of bone had pierced into

brain covering, the bullet entered from the back side

of the head and came out of the mouth, which is

noticed in the inquest report and the officer writing

the inquest report made his opinion by seeing the

injury by bare eyes. The nature of injuries

especially injury in the back of head led him to

believe that bullet entered from back of the head and

came out of the mouth. The above impression recorded 14 in the inquest report was only opinion of person

preparing inquest report and due to the above

impression recorded in the inquest report and no

bullet having been found in the post mortem report,

it cannot be concluded that incident did not happen

in a manner as claimed by the prosecution. The

mention of bullet injury was only an opinion of the

officer writing the inquest report and in no manner

belies the prosecution case as proved by eyewitnesses

PW11 and PW13.

18. Learned counsel for the appellant has further

contended that there was no motive proved. PW11 in

his statement clearly mentioned that as his nephew

had contested election against the accused Shio

Shankar Dubey for the post of Mukhiya, due to which

Shio Shankar Dubey was angry with his deceased

brother. In paragraph No.5 of the statement,

following has been stated:-

“5. Accused Shiv Shankar Dubey was the Mukhiya of my Gram Panchayat Gotpar Khatadihri at the time of occurrence. My nephew Ram Bachan Singh had contested election against the accused Shio Shankar Dubey for the post of Mukhiya. This is why 15 Shio Shankar Dubey was angry with my deceased brother and all the accused jointly murdered him. Bikram Dusadh had been jailed three to four days earlier to this occurrence. He was full brother of the accused namely Dudnath Dusadh and Jamadaar Dusadh and son of the accused Ram Nandan Dusadh. The accused were suspicious of the fact that my deceased brother had got him jailed.”

19. In paragraph No.58, the trial court has

discussed about the motive and it held that motive

for the occurrence has been proved from the oral

evidence of PW11 and Ext. 5 and Ext.5/1.

20. There is one more fact, which needs to be noted

in the present case. The occurrence is of 9.00 AM on

16.05.1980 and within half an hour of the occurrence,

police officials from Police Station, Sasaram arrived

on the spot, a fardbeyan of the informant, PW11 was

recorded on the spot itself by the police officials.

At 9.30 AM, the fardbeyan has been proved. The

inquest report and the seizure report were provided

at 10.00 AM and 10.15 AM respectively on the spot.

FIR was sent to the court on 17.05.1980. Trial court

has noticed the entire sequence of the events and has

16 rightly come to the conclusion that there was no

opportunity for the informant to implicate other

leaving the real culprits. In paragraph Nos. 72, 73

and 74, the trial court records following:-

“72. The salient feature of the present case is that the occurrence took place at 9 a.m. on 16-5-80. The Fardbeyan was recorded at 9-30 a.m. at the place of occurrence. The inquest report and the seizure list was prepared at 10 a.m. and 10.15 a.m. respectively at the spot. The postmortem was done on the same day at 12.10 p.m. These facts are proved from ext.6 (Fardbeyan) Ext. 7 (inquest report), Ext.8 (seizure list) and Ext. 4 (postmortem report).

73. The F.I.R. was sent to the court on 17-

5-80. Admittedly, it was morning court and the court closes at 12 noon. So the F.I.R. was sent on 17-5-80 in the earliest possible time. One accused was also arrested and sent to custody on 17-5-80. This fact is proved from the order sheet of the lower court dated 17-5-80 which is the first order sheet in this case before lower court.

74. From the facts mentioned in the above para there was no opportunity for the informant to implicate other leaving the real culprit. Sot this cannot be a case of false implication.”

21. The prosecution case in the present case being

fully proved against the accused, the eyewitness

17 account of PW11, who was accompanying the deceased

has given the eyewitness account of the entire

incident. The names of all the five accused and role

attributed to them have been promptly recorded by the

police officials within half an hour of the incident

on the spot. The medical evidence corroborates the

ocular evidence. Both the Courts below have not

committed any error in convicting the appellants and

sentencing them. We do not find any error in the

judgment of courts below. There is no merit in the

appeal. The appeal is dismissed.

......................J. ( ASHOK BHUSHAN )

......................J. ( K.M. JOSEPH ) New Delhi, May 09, 2019.

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