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CASE NO.: Appeal (crl.)  798 of 2008

PETITIONER: ASHOK KUMAR CHAUDHARY & ORS.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 05/05/2008

BENCH: C.K. THAKKER & D.K. JAIN

JUDGMENT: J U D G M E N T Arising out of S.L.P. (Criminal) No.4979 of 2007

REPORTABLE

D.K. JAIN, J.:

Leave granted. 2.      The three appellants in this appeal, namely, Ashok  Kumar Chaudhary, Kailash Chaudhary and Baiju  Chaudhary (hereinafter referred to as appellants A-1 to  A-3 respectively) arrayed as accused Nos.1, 3 and 2  respectively in the charge-sheet, faced trial in Sessions  Trial Case No. 187 of 1989, for having committed  offences punishable under Sections 324 and 307 read  with Section 34 of the Indian Penal Code, 1860 (for short  the I.P.C.).  The trial court found appellants A-1 and A-3  guilty of offence under Section 324 I.P.C. and sentenced  them to undergo rigorous imprisonment for two months  each.  However, appellant, A-2 was found guilty of offence  under Section 307 I.P.C. and was sentenced to undergo  rigorous imprisonment for three years.  All the three  convicts preferred common appeal to the High Court of  Judicature at Patna.  The High Court upheld the decision  of the trial court, which has resulted in the present  appeal.   3.      The case of the prosecution in brief was that on 17th  July, 1988 at about 6 p.m. the informant (PW-5) along  with Bijoy Kumar Sanyal, Hardeo Chaudhary and Kishan  Singh had gone to Dharampur Haat (Market) to make  some purchases.  They saw the appellants dragging a  person out of the Haat towards the road.  They along  with some other bystanders raised halla (shouting),  whereupon the informant and others reached the spot  and tried to rescue the victim, who turned out to be the  son of the said Hardeo Chaudhary.  Meanwhile,  appellant, A-3 who was carrying a Hasua and appellants,  A-1 and A-2 who were carrying daggers assaulted the  informant and other persons.  They were badly injured.   Hardeo Chaudhary sustained injuries in his abdomen  whereas Bijoy Kumar Sanyal sustained dagger injuries in  his chest and thigh and Kishan Singh sustained injuries  on his head.  The motive of occurrence was given as  previous enmity. 4.      Fardbeyan of the informant was recorded by the A.S.I.  of Pirbahore police station and was forwarded on the next

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day to the officer incharge of Bidupur police station  within whose jurisdiction the occurrence had taken  place.  On the basis of the fardbeyan, a formal F.I.R. was  registered.  After completion of investigation, charge- sheet was submitted against the appellants under  Sections 324, 307 read with Section 34 I.P.C. 5.      Out of the total nine witnesses examined by the  prosecution to establish its case, five were the persons  who had been injured in the assault.  Relying on the  testimony of the injured witnesses, the trial court  convicted the appellants for the offences aforenoted.  As  noted above, conviction and sentences awarded to the  appellants have been affirmed by the High Court. 6.      Mr. P.N. Lekhi, learned senior counsel appearing for  the appellants has assailed the convictions on a number  of grounds.  Firstly, it is submitted that the incident  having taken place at a public place in the evening, the  prosecution ought to have examined some independent  witnesses.  Having failed to do so, the evidence of PW-4  and PW-5 should be discarded as being closely related to  the victim \026 Ajay Kumar, they were "highly interested"  and prone to falsely implicate the appellants, particularly  when PW-4 was also involved in civil and criminal  litigation with one of the appellants’ herein. 7.      We are not impressed with the argument.  Though it is  true that the incident having taken place near the market  around 6 p.m. on 17th July, 1988, the prosecution should  have attempted to secure public witnesses who had  witnessed the incident, but at the same time one cannot  lose sight of the ground realities that the members of the  public are generally insensitive and reluctant to come  forward to report and depose about the crime even  though it is committed in their presence.  In our opinion,  even otherwise it will be erroneous to lay down as a rule  of universal application that non examination of a public  witness by itself gives rise to an adverse inference against  the prosecution or that the testimony of a relative of the  victim, which is otherwise credit-worthy, cannot be relied  upon unless corroborated by public witnesses. Insofar as  the question of credit-worthiness of the evidence of  relatives of the victim is concerned, it is well settled that  though the Court has to scrutinize such evidence with  greater care and caution but such evidence cannot be  discarded on the sole ground of their interest in the  prosecution.  The relationship per se does not affect the  credibility of a witness.  Merely because a witness  happens to be a relative of the victim of the crime, he/she  cannot be characterized as an "interested" witness.  It is  trite that the term "interested" postulates that the person  concerned has some direct or indirect interest in seeing  that the accused is somehow or the other convicted  either because he had some animus with the accused or  for some other oblique motive. 8.      In Dalip Singh Vs. State of Punjab , this Court had  the occasion to deal with the question as to whether a  relative is per se an "interested" witness.  Dispelling the  general impression that relatives were not independent  witnesses, speaking for the Court, Vivian Bose, J.,  observed thus: "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

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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 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."

9.      In Masalti Vs. State of U.P. ., a four-Judge Bench of  this Court had observed that though the evidence of an  interested or partisan witness has to be weighed by the  Court very carefully but it would be unreasonable to  contend that evidence given by a witness should be  discarded only on the ground that it is evidence of a  partisan or interested witness.  The mechanical rejection  of such evidence on the sole ground that it is partisan  would invariably lead to failure of justice. (Also see: Guli  Chand & Ors. Vs.  State of Rajasthan  and State of  Punjab Vs. Jagir Singh, Baljit Singh & Karam  Singh ). 10.     To the same effect is the decision in Rizan & Anr. Vs.  State of Chhatisgarh, through The Chief Secretary,  Govt. of Chhattisgarh, Raipur, Chhattisgarh ,  wherein this Court has observed that relationship is not  a factor to affect credibility of a witness.  It is more often  than not a relation would not conceal the actual culprit  and make allegations against the 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. 11.     Very recently in Namdeo Vs. State of Maharashtra ,  one of us (C.K. Thakker, J.) has said that a close relative  cannot be characterized 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.     In the instant case, as noted above, out of the nine  witnesses examined by the prosecution, five are injured  witnesses, which include PW-2\027Ajay Kumar, the main  victim, who was dragged and assaulted in the first  instance and his father, PW-4\027Hardeo Chaudhary, who  was also stabbed.  Neither their testimony nor the  evidence of other three injured witnesses gives an  indication that any of the witnesses, whose testimony  has been relied upon by the trial court and the High  Court, bore any animus against the appellants.  It is true  that in the cross-examination, an attempt was made to  cast a doubt that on account of an old case filed by the  appellant No.1\027Ashok against PW-4, the said witness  was deposing against the appellants but in the light of  the graphic details of the incident given by the said  witness, who had also sustained serious injuries in the  stomach, there was no reason for the Courts below to

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disbelieve the evidence of PW-4.  Similarly, PW-5, who, in  his cross-examination had divulged that appellant  Kailash Chaudhary was his brother by gotra, was also  injured, had been cross-examined at length, but nothing  could be elicited to show that he had any animosity  towards the appellants or to discredit his deposition in  support of the prosecution.  The Trial Court as well as  the High Court have found the evidence of all these  witnesses to be trustworthy and reliable, and it has been  recorded that their evidence inspires confidence and  stands corroborated by the medical evidence.  The Trial  Court has also taken note of some minor variation in the  timing of the occurrence, which has also been highlighted  before us by learned counsel for the appellants, and has  held that negligible variation of half an hour between the  testimony of PW-1 to PW-5, wherein all of them have  given the time of occurrence either at about 5.30 P.M. or  between 5-6 P.M. (PW-5) and the evidence of PW-8,  wherein the time of occurrence has been given as 5.00  P.M. hardly affects the prosecution case.  In view of  consistent evidence that has come on record, it cannot be  said that non-examination of pubic witness makes the  case of the prosecution untrustworthy or that the courts  below have committed any legal infirmity in relying upon  the testimony of the injured witnesses.   It is the quality  and not the quantity of evidence which matters. 13.     It was then contended by learned counsel for the  appellants that there was inordinate delay of five days in  lodging the F.I.R., which is fatal to the prosecution case. 14.     It is trite that mere delay in lodging the first  information report is not by itself fatal to the case of the  prosecution.  Nevertheless, it is a relevant factor of which  the Court is obliged to take notice and examine whether  any explanation for the delay has been offered and if  offered, whether it is satisfactory or not.  If no  satisfactory explanation is forthcoming, an adverse  inference may be drawn against the prosecution.   However, in the event, the delay is properly and  satisfactorily explained; the prosecution case cannot be  thrown out merely on the ground of delay in lodging the  F.I.R.  Obviously, the explanation has to be considered in  the light of the totality of the facts and circumstances of  the case. 15.     On this aspect, in State of H.P. Vs. Gian Chand , a  three-Judge Bench of this Court had observed thus: "Delay in lodging the FIR cannot be used  as a ritualistic formula for doubting the  prosecution case and discarding the  same solely on the ground of delay in  lodging the first information report. Delay  has the effect of putting the court on its  guard to search if any explanation has  been offered for the delay, and if offered,  whether it is satisfactory or not. If the  prosecution fails to satisfactorily explain  the delay and there is a possibility of  embellishment in the prosecution version  on account of such delay, the delay would  be fatal to the prosecution. However, if  the delay is explained to the satisfaction  of the court, the delay cannot by itself be  a ground for disbelieving and discarding  the entire prosecution case."

16.     More recently in Ramdas & Ors. Vs. State of

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Maharashtra  it has been observed that the question  whether the delay in lodging the report adversely affects  the case of the prosecution has to be considered in the  light of the totality of the evidence.  This is a matter of  appreciation of evidence.  There may be cases where  there is direct evidence to explain the delay.  Even in the  absence of direct explanation, there may be host of  circumstances appearing on record which may provide  reasonable explanation for the delay. 17.     In the present case, PW-5\027Laxmi Chaudhary  promptly gave his fardbeyan to the police on the very  next day, i.e. 18th July, 1988 in the hospital at Patna.   The fardbeyan was forwarded by the police to the  concerned police station the same day and on the basis  thereof, the formal F.I.R. was registered on 22nd July,  1988.  Though there is no denying the fact that there was  delay in registration of F.I.R. but it is nobody’s case that  the F.I.R. was not in consonance with the fardbeyan and  it was embellished in any manner.  The courts below  have found that in the light of the surrounding  circumstances and the fact that the concerned police  station was about 12 kms. away from the place of  occurrence, the delay has been satisfactorily explained  and, therefore, it cannot be said that the courts below  have committed an error in accepting the explanation for  the delay.  The contention raised by the learned counsel  for the appellants is, thus, rejected. 18.     It was then contended by learned counsel for the  appellants that the evidence of two doctors, namely,  Krishna Nand Singh (PW-6) and Dr. R.K. Agrawal (PW-7)  who had examined Hardeo Chaudhary cast a doubt on  the kind of the weapon used for assault.  It is pointed out  that in their respective depositions both the doctors have  opined that the injuries were caused by a sharp cutting  weapon like "chhura", whereas in his fardbeyan PW-5  had stated that appellant Kailash Chaudhary had taken  out "Hasua" and started inflicting injuries.  It was urged  that this discrepancy falsifies the case of the prosecution.   19.     We do not find much substance in the contention.   In  our view, insofar as the nature of injuries caused to  Hardeo Chaudhary is concerned, the evidence of both the  doctors is consistent.  Both of them have deposed that  injuries had been caused by "sharp cutting weapon such  as chhura".  In our view, when the injuries, the time and  place of occurrence stand proved, the said variation in  fardbeyan fades into insignificance and cannot be held to  be fatal to the case of the prosecution. 20.     Thus, on the basis of the evidence of the witnesses, the  High Court has concurred with the findings of the Trial  Court that the prosecution has succeeded in bringing  home the offences, the appellants were charged with.  Nothing substantial has been shown to persuade us to  interfere with the conviction of the appellants. 21.     Lastly, it was pleaded by Mr. Lekhi that the sentence  awarded to the appellants, particularly appellant No.2 \026  Kailash Chaudhary who is an old person of about 81  years of age and has already undergone five months  rigorous imprisonment, may be reduced.  Having regard  to the facts and circumstances of the case and bearing in  mind the fact that the subject incident had taken place  almost two decades ago, we are of the view that it is a fit  case where sentences awarded to the appellants deserve  to be reduced. 22.     Accordingly, the appeal is partly allowed to the extent  indicated above.  The order of conviction passed against

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all the appellants is maintained.  However, the sentence  of two months rigorous imprisonment awarded to  appellants No.1 and 3 is set aside and instead they are  sentenced to pay a fine of Rs.20,000/- each within six  weeks from today, failing which they will undergo  rigorous imprisonment for a period of one month.  Similarly, the sentence of three years rigorous  imprisonment awarded by the Trial Court to appellant \026  Kailash Chaudhary is reduced to one year rigorous  imprisonment.  He shall also be liable to pay a fine of  Rs.20,000/- within six weeks from today and in default  will undergo further rigorous imprisonment for a period  of one month.  The amount (s) of fine so recovered shall  be paid in equal proportion, to Bijoy Kumar Sanyal,  Kishan Singh, Hardeo Chaudhary and Laxmi Chaudhary,  who all were injured in the incident.