REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO.     1493       OF 2008 (Arising out of S.L.P. (Crl.) No.7074 of 2007)

Daulatram S/o Sadram Teli …Appellant

Versus

State of Chhattisgarh …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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

Division Bench of the Chattisgarh High Court, dismissing the

appeal filed by the appellant. Challenge in the appeal was to

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the  judgment  of  the  learned  Special  Judge,  Raipur,  in  S.T.

No.53/2000  who  found  the  appellant  guilty  for  the  offence

punishable under Section 302 of the Indian Penal Code, 1860

(in short ‘IPC’) and Section 3(2)(v) of the Schedule Castes and

Schedule Tribes (Atrocities) Act, 1989 (in short the ‘Atrocities

Act’)  Life sentence was imposed in respect of the offence 302

IPC,  however,  no  separate  sentence  was  imposed  for  the

offence relatable to Section 3(2)(v) of the Atrocities Act.   

3. Prosecution version, in a nutshell, is as follows:

On 20.8.2000 at about 6 p.m. Bholaram (PW-3) lodged a

report in the Police Station Basna before Station House Officer

D.K. Sharma (PW-9) to the effect that today at about 3 p.m.

when he along with his father was digging groundnuts in their

agricultural field, the accused Daulatram and Nepal entered

their agricultural field carrying axe in their hands. Damodar

was also there. Accused Daulatram and Nepal started abusing

in the name of the mother. They attacked his father with axe

whereas accused Damodar was after him carrying sickle in his

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hand. He ran towards the village. On the way, Sahdev Teli met

him. After reaching the village, he informed his sister Rohnibai

and Parshuram.  Thereafter, he along with Parshuram went to

the village Devri and informed his uncle Dhoop Singh.

Receiving  this  report,  Station  House  Officer,  Dinesh

Sharma  (PW-9)  registered  FIR  Ex.P/7  for  commission  of

offence under Section 302, 307/34 of the IPC and Section 3(2)

(v)  of  the SC/ST Act.   Intimation Ex.P/8 was also  given by

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)

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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

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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

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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

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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

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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

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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

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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,

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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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