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CASE NO.: Appeal (crl.)  482 of 2008

PETITIONER: Tukaram & Ors

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 13/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: JUDGMENT REPORTABLE

CRIMINAL APPEAL NO. 482 OF 2008 (Arising out of SLP (Crl.) No. 5581 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of a learned  Single Judge of the Karnataka High Court upholding the  conviction of the appellant for offence punishable under  Section 304(II) of the Indian Penal Code, 1860 (in short the  ’IPC’) and sentence of imprisonment for five years was  imposed. The appellants preferred an appeal before the  Karnataka High Court.

3.      As noted above, the learned Single Judge of the High  Court upheld the conviction, but reduced the sentence.    4.      In support of the appeal, learned counsel for the  appellants submitted that originally there were six accused  persons.  A3 was acquitted by the trial court whereas  appellant Tukaram was found guilty of offence punishable  under Section 304 (II).  However the sentence of seven years as  was imposed by the trial court was reduced to five years.

5.      It was further submitted that evidence of PWs 1,2 & 5  should not have been accepted as they were related to the  deceased.

6.      Learned counsel for the respondent-State on the other  hand submitted that there is no legal bar in accepting the  evidence of a relative.  A relative would normally not protect  person who is guilty and would shield the actual assailant.

7.      So far as the appellant is concerned, the trial court and  the High Court have analysed the evidence in great detail and  have concluded that the appellant was the author of the crime.   Stand that PWs. 1,2 & 5 were related to the deceased is really  of no consequence.

8.      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

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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.

9.      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."

10.     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.

11.     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 \026  ’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."

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12.     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."

13.     To the same effect is the decision 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).  

14.     The above position was 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).

15.     In any case PWs. 6 & 10 were independent witnesses and  it has not been shown as to why they would depose falsely  against the appellants. The evidence on record clearly  establishes that the appellants have been rightly held guilty.   

16.     The appeal is dismissed.