REEPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 753 OF 2001

Arjun Mahto …..Appellant

Versus

State of Bihar ….Respondent

With CRIMINAL APPEAL NO. 1179 OF 2001

With CRIMINAL APPEAL NO. 754 OF 2001

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. These  three  appeals  have  a  common  matrix  and

judgment of a Division Bench of the Patna High Court.  By the

impugned judgment, the State’s appeal was dismissed while in

the  case  of  present  appellants  their  conviction  was  altered

from Section 396 of the Indian Penal Code, 1860 (in short the

‘IPC’)  to  Section  395  IPC.  The  sentence  of  Rigorous

Imprisonment  for  life  was  altered  to  seven  years  rigorous

imprisonment.

2. Factual position in a nutshell is as follows:

The case of the prosecution, briefly stated, as contained

in the Fardbayan (Ext.2) of the informant Yusuf Ali Khan son

of Khalil Bux Khan (P.W.4) is as follows:  

The Fardbayan was recorded at the P.O. Village Khaira,

P.S.  Auras,  District  Gaya  at  8  p.m.  relating  to  the  alleged

occurrence  of  7  p.m.  on the  same day on 15.03.1983.  The

Fardbayan  was  recorded  by  Mohd.  Asfaque  Ali  (P.W.5),  the

officer incharge of Bankey Bazar outpost. It is alleged that the

informant  was  at  his  house  at  about  7  p.m.  Suddenly  10

armed persons entered into the house through the open door.

One of them fired twice from the gun making the informant

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injured.  He  fled  inside  the  room.  He  was  dragged  into  the

courtyard where his father Khalil Bux Khan (P.W. 3), and his

brother-Nausher  Ali  Khan  (hereinafter  referred  to  as  the

‘deceased)  were  sitting.  On the  deceased  Nausher  Ali  Khan

injuries  with Pharsa and gun shot  was caused  while  Khalil

Bux Khan (P.W.3) suffered injuries with lathi and Pharsa. It is

mentioned in the fardbeyan that the man who caused injuries

to the informant with gun shot was of fair complexion and a

tall man whose name he did not know. In the meantime 20-25

more persons entered through the door and inside the house

and  began  looting  away  the  household  properties.  Among

them the informant identified as many as 12 persons namely,

(1)  Bindeshwari  Sao (2)  Suraj Pasi (3)  Ram Lal Chamar, (4)

Baijnath  Mishra,  (5)  Bishaum  Singh,  (6)  Arjun  Mahato  (7)

Basudeo  Yadav,  (8)  a teacher  of Bankey Bazar  High School

resident of  village Barka Jamuara, (9) Ram Swarup Ram (10)

Lalu Khan and (11)  Vijoy Yadav and Sammid Ahmed Khan.

The source of identification was the light of lantern burning in

the house.  The value  and the  list  of  the articles  was to  be

furnished subsequently. Altogether 70-80 dacoits were alleged

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to have participated in the dacoity. While retreating  the

dacoits were rising slogans "M.C.C. Zindabad".  After  the

dacoits had left, the informant came to know that dacoits had

also entered into the house of his uncle and grandfather and

after  causing  injuries  to  them they  had also  looted  away a

Licensee gun from their house.

It  is  said  that  during  investigation  after  recording  the

Fardbayan and formal F.I.R. (Ext.3)  the I.O. sent the injured

persons to the hospital for their medical treatment. Some of

the accused persons were also placed in the T.I. Parade and

some of the accused were identified by the witnesses in the

T.I. Parade. One of the injured named Nausher Ali Khan was

removed  to  Calcutta  hospital,  where  he  died,  from Magadh

Hospital  Gaya for further treatment whose  P.M. Report  was

procured by the I.O. from Park Street Police Calcutta.

After investigation charge-sheet was  submitted  by

the officer against some of the accused persons named in the

F.I.R and also against some of the accused who were identified

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in the T.I.  Parade and also against some of these who were

named subsequently by the witnesses before the investigating

police  officer  whose  names neither figured in the F.I.R.  nor

were  said  to  have  been  identified  in  the  test  identification

parade.  Some of  the accused  named in the F.I.R.  were  not

sent up by the police for trial.  However,  some  of  them were

made accused  by the  orders of the trial court under Section

319  of  the  Code  of  Criminal  Procedure,  1973  (in  short

‘Cr.P.C.’).   Some  of  the  P.Ws were  already  examined  before

charge was ordered to be framed against four of the accused

under Section 319 Cr.P.C. which resulted in the de novo trial

of all the accused persons.

Altogether  eight  witnesses  were  examined  on behalf  of

the prosecution.  Three of them i.e. Ganzaffar Ali Khan (PW 1),

Zahid Ali Khan (PW 2) and Yusuf Ali Khan (PW 4) were three

sons of Khalil (PW 2) in whose house the alleged dacoity took

place.   PW 4 the  informant  was  also  seriously  injured  and

according to the prosecution sustained eleven injuries.

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The trial court placed reliance on the evidence of all the

four  witnesses  who  claimed  to  be  eye  witnesses.  Placing

reliance  on  their  evidence,  the  trial  court  held  the  five

appellants in the three appeals before this Court to be guilty of

offence  punishable  under  Section  396  IPC.  However,  he

directed  acquittal  of  the  eleven  co-accused  persons.   The

convicted  accused persons preferred  two appeals  before  the

High Court  while  the State  preferred an appeal  questioning

acquittal  of  Dr.  Shamin Ahmad Khan alias  Samman Khan.

The High Court held that though the evidence of PWs 1 & 3

cannot be said to be cogent, the evidence of PWs 2 & 4 were

without  blemish.  Accordingly  it  upheld  the  judgment  of  the

trial court, so far as finding the appellant’s guilt is concerned.

It  found  that  occurrence  took  place  on  15.3.1983  and  the

deceased breathed his last  long after  about a month.  That

being so the appropriate conviction would be under Section

395 IPC. Accordingly the conviction was altered and sentence

imposed was also altered.

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3. In  support  of  the  appeal  learned  counsel  for  the

appellant  submitted  that  even  in  the  FIR  there  was  no

consistency.  Though certain  persons were  named and overt

acts  were  attributed  to  them the  evidence  in  Court  was  at

variance  with  the  statement.   So  far  as  the  appellant

Bindeshwari Rao is concerned, it is submitted that though he

was  named  in  the  FIR,  the  role  attributed  to  him was  not

specific.   It  was also submitted that most of  the appellants

have suffered sentence of nearly 4½ years and considering the

long passage of time, the sentence should be suitably reduced.

In  the  case  of  accused  appellant  Bindeshwari  Rao,  it  is

submitted that though he has suffered custody for about one

year,  considering  the  unclear  role  attributed  to  him by  the

prosecution  his  case  deserves  sympathetic  consideration.

Witnesses  were  related  to  the  deceased  and  their  evidence

should not be accepted particularly even two of them were dis-

believed and the role of Dr. Shamim Ahmad Khan which was

so eloquently stated by the witnesses has been discarded.

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4. Learned counsel for the State supported the judgment of

the High Court.   

5. 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

careful approach and analyse evidence to find out whether it

is cogent and credible.

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6. 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.”

7. 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.

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8. 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 unfortunately  still  persists,  if  not  in  the judgments of  the  Courts,  at  any rate  in the arguments of counsel.”

9. Again in Masalti and Ors.    v.  State of U.P.  (AIR 1965

SC 202) this Court observed: (p. 209-210 para 14):

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“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.”

10. 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).  

11. The  above  position  was  also  highlighted  in  Babulal

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

(10) SCC 404] and in  Salim Sahab  v.  State of M.P.  (2007(1)

SCC 699).

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12. In the instant case, the evidence of the injured witness

PW 4 is of vital importance.  Similar is the case of PW 2 even

though  PWs  1  &  3  have  not  been  fully  believed  yet  the

credibility of the evidence of PWs 2 & 4 cannot be doubted on

that  score.   So  far  as  the  acquittal  of  Dr.  Shamim Ahmad

Khan is concerned, the trial court and the High Court doubted

prosecution version so far as he is concerned because he was

not  named  in  the  FIR.  It  is  a  serious  case  of  dacoity,  any

leniency in sentence would not only be undesirable but also

would be improper.  The passage of  time cannot wash away

gravity  of  offence.  Therefore,  judged  from  any  angle  these

appeals have no substance and are dismissed.

13. The accused persons who are on bail, shall surrender to

custody forthwith to serve remainder of their sentence.

14. The appeals fail and are dismissed.

………………………………….J. (Dr. ARIJIT PASAYAT)

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……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 13, 2008  

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