Sonelal vs State Of M.P

State of M.P. ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division

Bench of the Madhya Pradesh High Court, Jabalpur Bench,

dismissing of the appeal filed by the appellant questioning his

conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the `IPC') as was recorded

by learned Additional Sessions Judge, Murwara, Katni.

3. Prosecution version as unfolded during trial in a nutshell

is as follows:

On 24.12.1997 at about 3.30 P.M. Ram Khilawan

(hereinafter referred to as the `deceased') resident of Khirhani

Gate, Katni went to the Hotel of Vijay after coming out of his

house for having tea. There some dispute arose between

accused Sone Lal and Ram Khilawan the deceased. Accused

Sone Lal told him taking out a knife from his pocket, "I will

finish you today". Sone Lal gave knife blow to deceased Ram

Khilawan thrice in his stomach with an intention to kill him,

whereby intestine came out of his stomach. The above said

incident was witnessed by Sukh Ram Choudhary, Vijay

Choudhary, Lala Choudhary and many others. Yashoda Bai

W/o Ram Khilawan arrived there hearing the news of

altercation. Accused-Sone Lal fled away from there towards

Railway Lines after stabbing Ram Khilawan. Yashoda Bai had

brought her husband Ram Khilawan to Police Thana carrying

2 him on Rickshaw and had lodged FIR, Exhibit P-17 regarding

the incident. P.S. Katni had sent Ram Khilawan to

Government Hospital, Katni vide Exh.-P-21 for medical

treatment. Dr. Arvind Chauhadda, Assistant Surgeon, had

examined him vide his Report, Exh.-P-20. He had found

injuries on his person. Injuries had been inflicted on Ram

Khilawan's stomach and chest by sharp edged weapon. After

an hour, Ram Khilawan succumbed to his injuries in the

Government Hospital, Katni itself. Kamal Ram, Ward boy of

Government Hospital had given death information of Ram

Khilawan, vide Exh.-P15 to P.S.-Katni. P.S.-Katni entered this

information as Merg Information, Exh.-P-16. ASI B.K. Mishra

had prepared Panchnama of dead body of Ram Khilawan,

Exh.-P.-13 before the witnesses.

Assistant Civil Surgeon, Dr. S.K. Sharma (PW-15)

according to Post mortem Report, Exh-P-25 found several

injuries on the person of deceased Ram Khilawan i.e. towards

left side of Chest, towards right side of chest, towards left side

of Epigastric Region and. towards left side of stomach. These

3 injuries had been inflicted by sharp edged weapon. Membrane

of stomach, extruding outside, were visible. Right and left

Pleural Cavity were ruptured. Peritoneum Cavity of the

stomach and duodenum were ruptured. Small intestine was

also ruptured. Death of Ram Khilawan was caused due to

haemorrhage.

In course of investigation of the case, Sri R. K. Gupta, Sl

seized blood stained as well as plain earth from the place of

occurrence vide Seizure Memo. Exh.-P-19 and prepared Site

Plan, Exh.-P-18. Smt. Yashoda Bai had deposited blood

stained shirt of her husband, deceased Ram Khilawan with

Sri R.K. Gupta, SI and the same was seized vide Exh.P-22.

Bharat La1 Constable deposited the sealed packet of Ram

Khilawan's underwear at P.S. Katni receiving it back from

Katni Hospital, which was seized by Exh. P-4. On 25th

December, 1997 accused Sone Lal gave his statement in

Police Custody vide Information memo Exh. P-8 that he has

kept knife hidden in the bush adjacent to Tamarind Tree

opposite to pond located opposite the Excise Ware House and

4 he can give the recovery of the same. Thus, accused Sone Lal

handed over the knife taking out of the bushes and the same

was seized vide Exh.-P-9. One blue coloured shirt worn from

the person of accused Sone Lal was seized vide Seizure

Memo. Exh.-P-16. Seized articles were sent to FSL, Sagar for

chemical Examination. Report of FSL, Sagar, Exh.-P-23 was

received. As per FSL Report, blood was found on the knife,

shirt and underwear seized from accused Sone Lal. Blood was

also found on the shirt and underwear of deceased Ram

Khilawan. Even blood was found in the earth being collected

from the site.

After completion of investigation, Charge Sheet was

produced by the Police, Katni in the Court for hearing the

charges against the accused.

Since accused abjured guilt trial was held.

The trial Court primarily relied on the evidence of

Krishna Kumar (PW-6) the son of the deceased and Yashoda

5 Bai (PW-9) the wife of the deceased. With reference to the

evidence of PW-9 it was held that the same was trustworthy

and inspired confidence. Accordingly, the appellant was found

guilty and sentenced to imprisonment for life.

In appeal, the conviction was questioned primarily on the

ground that the evidence of PWs 6 and 9 should not have been

relied upon. The High Court found that the report of the

incident was lodged immediately by PW-9 which was recorded

as Ext.P-17. It was pointed out that four others who were

named as alleged eye-witnesses did not support the

prosecution version. The High Court found that the doctor

indicated about the location of the injuries and the medical

evidence affirmed the fact that the deceased had been stabbed

several times and the blood was found on the clothes of the

deceased as well as on the knife seized from the accused. The

knife was recovered on the basis of disclosure statement made

by the accused. Accordingly, it dismissed the appeal.

4. In support of the appeal, learned counsel for the

appellant submitted that when persons who can be treated as

6 independent witnesses have not supported the prosecution

version the evidence of PWs 6 and 9 should not have been

relied upon.

5. Learned counsel for the State on the other hand

supported the judgment and order of the courts below.

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

7 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."

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8. 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.

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

9 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).

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12. The above position was also highlighted in Babulal

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

(10) SCC 404] and in Salim Saheb 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

11 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. In the instant case, the evidence of PWs 6 and 9 has

been analysed in great detail by the trial Court and the High

Court. The trial Court with reference to the evidence of PWs 6

and 9 noted that their version fits in within the medical

evidence.

15. It appears from the report of the Forensic Science

Laboratory that blood found on the knife seized from the

accused matched with the blood found on the underwear of

the deceased. PW-6 in his evidence stated that he had

sustained injuries at the hands of the accused. The inevitable

conclusion is that there is no merit in this appeal which is

accordingly dismissed.

.........................................J. (Dr. ARIJIT PASAYAT)

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

New Delhi, July 22, 2008

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