REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 669 OF 2007  

Hari ...Appellant(s)

- Versus -

State of Maharashtra   ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. This  appeal  has  been  filed  by  Hari  s/o

Mansingh Rathod impugning the judgment and order of

conviction passed by the Aurangabad Bench of Bombay

High Court in Criminal Appeal No. 523 of 2004. 2. The  appeal  to  the  High  Court  was  taken

from  a  judgment  dated  20.7.2004  rendered  by  the

First Ad-hoc Additional Sessions Judge, Aurangabad

in Sessions Case No. 248 of 2003.

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3. Before the Trial Court there were several

accused persons. The Trial Court in its judgment

only  convicted  the  appellant  herein  and  accused

No.2 - Baliram s/o Janu Rathod.

4. Appellant  –  Hari  was  convicted  for  an

offence  punishable  under  Section  302  of  Indian

Penal  Code  and  was  sentenced  to  suffer  rigorous

imprisonment for life and to pay a fine of Rs.100/-

in default, simple imprisonment for ten days.

5. Accused No.2 – Baliram was convicted for

an offence punishable under Section 324 of the Code

and was sentenced to suffer rigorous imprisonment

for three years and to pay a fine of Rs.500/- and

in default to suffer simple imprisonment for one

month.

6. Both  the  accused  were  granted  benefit

under  Section  428  of  the  Code  and  they  were

acquitted of the rest of the charges.

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7. Other  accused  persons  were  acquitted  of

all the charges.

8. The  case  arises  basically  out  of  land

dispute  and  the  prosecution  allegations  are  as

follows:

On  9.6.2003  in  the  morning  hours,  the

complainant Santosh – P.W.1 was sitting in front of

his house at Parundi-Tada, Tq. Paithan. His father

Khemsingh and brother Gulabsingh were sitting at a

cot in front of their house. At that time, Baliram

Rathod  and  the  appellant  came  to  the  place.

Appellant – Hari assaulted the complainant’s father

with  a  knife  and  Baliram  Rathod  –  accused  No.2

assaulted the complainant’s brother Gulabsingh with

a  knife.  Being  so  assaulted,  the  complainant’s

father and brother started running but at that time

several  accused  persons  came  in  front  of  the

complainant’s  house  and  started  pelting  stones

aiming  at  the  complainant’s  father  and  brother.

Some of the stones hit complainant’s father’s head

and back. As a result of the knife blow on the

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chest of Gulabsingh, there was profuse bleeding and

the injured felt giddy and sat on the ground.

9. Hearing  the  noises,  complainant’s  mother

with some other persons came to the spot and tried

to stop the quarrel.

10. Due  to  knife  blow,  complainant’s  father

died  on  the  spot.  Gulabsingh  was  taken  to  the

Government Hospital, at Pachod and was referred to

the  Ghati  Hospital,  Aurangabad  for  further

treatment.

11. P.W.12 – Shivaji, PSI attached to Rathod

Police Station recorded the complaint of P.W.1 –

Santosh  on  9.6.2003  and  an  offence  came  to  be

registered  vide  Crime  No.  67/03.  Thereafter,

investigation was carried on and the accused were

charged  for  committing  offences  punishable  under

Sections 302 and 307 r/w 34 I.P.C. and accused were

also  alternatively  charged  for  offences  under

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Sections 147, 148, 302, 307 and 504 r/w 149 of the

Code.

12. The  statement  of  injured  witness  P.W.2-

Gulabsingh was recorded. The dead body of Khemsingh

was  sent  for  post  mortem  examination  which  was

carried  out  by  P.W.5  –  Dr.  Narayan  Dhumal,  who

noticed  the  following  injuries  on  the  body  of

Khemsingh: i. CLW on (Lt) parietal region of scalp

middle region 3 cms x 2 cms x 1 cm.

Bleeding present. ii. Incised wound on (Lt) side chest infra

auxiliary  region  in  the  midline

oblique.  Blood  oozing  through  the

wound 2 cms x 1 cms width of the chest

wall.

13. PW5  opined  that  the  injuries  are  ante

mortem and on internal examination he found that

pleura and both the lungs were pale.  Stab injury

was  there  on  the  left  side  of  pericardium  and

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clotted blood was found.  There was also a stab

injury  to  the  heart  and  to  the  base  of  left

ventricle on lateral part 2 x ½ cms. and the left

ventricle  of  the  heart  had  been  pierced  causing

death.  The opinion of PW5 was that the death was

due to cardio respiratory arrest brought about by

hemorrhagic shock as a result of stab injury to the

left  ventricle  of  the  heart.    It  is  clear

therefore, that the injuries which were inflicted

on he deceased are on vital parts namely on the

scalp  and  on  the  chest  which  pierced  the  left

ventricle  of  the  heart.   These  injuries  are

sufficient  to  bring  the  case  within  Section  302

IPC.  

14. The learned counsel for the defence urged

that the court should not have believed the three

PWs, who claimed to be eye witnesses, namely, PW1,

PW2 and PW8 for the reasons that they are all close

relations of the deceased.  It has also been stated

that there is admitted enmity between the parties.

The other ground which was urged is that, there was

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delay in lodging the FIR.  According to prosecution

version,  the  incident  took  place  early  in  the

morning hours and the FIR was lodged at 1:30 p.m.

It was also stated that there are certain injuries

on  the  accused  persons,  which  have  not  been

explained  and,  therefore,  the  genesis  of  the

prosecution  has  been  suppressed  and  no  reliance

shall be placed on the same.   

15. This Court finds that the High Court has

relied on the evidence of PWs.1, 2 and 8 and has

noted  that  no  reliance  could  be  placed  on  the

testimony of PWs.9, 10 and 11.  In paragraphs 4, 5,

6 and 7 of the High Court judgment, the evidence of

PWs1, 2 and 8 have been discussed in detail.  PW1

is the first informant who sated that at about 8:30

a.m. on the day of occurrence, he was in his house

and deceased-Khemsingh and PW2-Gulab were also in

their house and both of them were sitting on a cot.

Accused No.4, who owns the adjoining house was also

sitting  in  front  of  his  house  on  a  cot.   The

deceased  asked  accused  No.4  to  transfer  certain

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land in the name of the deceased.  According to

PW1-informant, in the consolidation proceedings the

land of the family of the deceased was entered in

the name of the accused No.4 and the land of the

accused  No.4  was  entered  in  the  name  of  the

deceased.  As a result of the same, a dispute had

cropped up.  It also has come in evidence that the

land of the deceased was acquired for construction

of dam and compensation for the same was not yet

received.  Therefore, there was some land dispute

between the parties.   

16. On  the  date  of  the  incident,  when  the

deceased and the accused No.4 were conversing on

those lines, the appellant, who is the cousin of

the deceased, came to the spot and inflicted fatal

knife  injury  on  the  deceased  and  PW2  was  also

inflicted with an injury by knife by accused No.2

on  his  chest.  As  a  result  of  the  fatal  knife

injury, the deceased died on the spot and PW1 took

PW2-Gulab  to  Ghati  Hospital  at  Aurangabad  for

treatment.   In  respect  of  the  incident  he  has

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lodged  a  complaint  to  the  police.   In  cross

examination  the  evidence  of  PW1  could  not  be

discredited.   PW2,  the  brother  of  PW1  and  an

injured  witness  gave  the  same  version  of  the

incident.  He has also stated about injuries which

he received and also the fact that he was taken to

hospital  by  PW1.   He  was  initially  taken  to

Government Hospital at Pachod and then referred to

Ghati Hospital, Aurangabad.   

17. PW8 is the wife of PW1 and also claims to

be an eye witness.  According to PW8, her father-

in-law, Khemsingh and brother-in-law, who is PW2

and the injured witness, were sitting in a cot in

front of their house.  She also repeated the same

version which is given by PW1.  

18. This Court finds that the evidence of PW1-

the informant, PW2-the injured witness and PW8 are

virtually consistent in unfolding the prosecution

case.   Both the Trial Court and the High Court

found that the presence of PW1, 2 and 8 at the

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place  of  occurrence  was  natural  and  nothing  was

elicited  from  them  in  cross  examination  to  show

that these witnesses were elsewhere and not in the

place where the occurrence took place.   

19. In so far as the delay in lodging the FIR

is concerned, the High Court has dealt with the

question in paragraph 12 of the judgment and has

come to the conclusion that immediately after the

incident PW1 went to the police station with PW2

and the Court finds that there is nothing wrong on

the  part  of  the  police  in  not  lodging  the  FIR

immediately  and  in  giving  greater  attention  to

ensure  prompt  treatment  to  the  injured  person.

This  has  come  from  the  evidence  of  PW12,  P.S.I

Shirsath, who revealed that initially when PW1 went

to the police station he recorded his complainant

but the FIR came to be registered on the basis of

complaint of PW1 at 1:30 p.m.  There was thus a

delay of few hours but this does not vitiate the

prosecution case, rather this is consistent with

normal human conduct.  It would be the effort of

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everyone  to  try  to  first  save  the  life  of  a

severely injured person rather than spend time in

anything else.

20. So far as injuries on the accused persons

are concerned, it has been recorded by the High

Court that accused persons never brought on record

the nature of injuries sustained by them.   The

injury certificates were not produced.  PW1 has not

disputed that there is counter case which has been

registered against them and the same is pending in

the Sessions Court.  PW12 has also admitted that

two of the accused persons who were acquitted had

sustained injuries but the nature of injuries has

not been brought on record.  In the absence of the

injury report and especially in view of the facts

stated  hereinabove,  it  cannot  be  urged  that  the

prosecution tried to suppress the genesis of the

case.   

21. It  may  be  true  that  all  the  vital

witnesses, namely, PW1, 2 and 8 are relations of

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the deceased but that by itself cannot discredit

their  evidence.   It  is  a  fight  between  the

relations it has come on record that the appellant

is the cousin of the deceased.  In such a case, the

relations  are  likely  to  be  the  most  appropriate

witnesses.   

22. Certain decisions have been cited at the

Bar  which  need  to  be  considered  and  explained.

About appreciation of evidence of witnesses who are

related to the deceased, learned counsel for the

appellant relied on a decision of this Court in

Avtar Singh Vs.  State of Punjab - (2006) 12 SCC 524. In that case the facts were totally different

and it was opined by the learned Judges, in the

peculiar facts of that case, that enmity and bad

blood  between  the  rival  groups  was  established

beyond doubt. In that case no report was lodged

with the police regarding the occurrence and this

Court looked into the evidence and opined that the

story  about  making  an  effort  to  lodge  a  report

earlier was not true. In that case the nambardar 12

and  the  chowkidar  who  were  alleged  to  have

accompanied PW 1 to the police station were not

examined and there was a categoric denial by PW 6 -

Station House Officer about anyone reporting the

incident to him before 4.12.1989. This Court found

that  the High Court has not  at all noticed the

facts.   In  the  background  of  those  facts,  this

Court held that proper caution was not exercised by

the High Court in appreciating the highly partisan

evidence adduced by the prosecution.

23. But  in  the  instant  case,  the  factual

scenario is totally different. Here the occurrence

took place within the house at the instance of the

close  relatives  and  in  such  a  situation  only

relatives would be the witnesses. Of course, in the

present case also there was some enmity in view of

the land dispute but that by itself is not a ground

to discard the evidence of the witnesses, who are

relatives  when  their  evidence  is  cogent  and

credible. Factually, the decision of this Court in

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Avtar  Singh (supra)  stands  on  a  completely different footing.

24. On  the  question  of  appreciating  the

evidence of witnesses, who are related, this Court

in Dalip Singh and Ors. Vs. The State of Punjab - AIR  1953  SC  364,  spoke  very  eloquently  through

Justice Vivian Bose. In that case the learned Judge

clearly laid down the law relating to appreciation

of evidence by relations with such lucidity that it

deserves to be quoted: “26.  ...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 here 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 generalisation.  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

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rule. Each case must be limited to and be governed by its own facts.”  

25. The principle laid down in the aforesaid

passage has been subsequently reiterated by this

Court  in  Guli  Chand  and  Others Vs.  State  of Rajasthan – (1974) 3 SCC 698. Justice Beg, as His Lordship then was, quoted the said passage in para

No. 11 of the said report.

26. The said principle was also followed by a

Constitution  Bench  of  this  Court  in  Masalti  and Ors. Vs. State of Uttar Pradesh – AIR 1965 SC 202 . The  Constitution  Bench  speaking  through  Chief

Justice  Gajendratgadkar  approved  the  decision  in

the case of Dalip Singh (supra) and held as under: “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. Often  enough,  where  factions  prevail in villages and murders are committed as  a  result  of  enmity  between  such factions, criminal Courts have to deal with evidence of a partisan type. The

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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.”

27. Justice Thomas, speaking for this Court,

in the case of State of Rajasthan Vs. Teja Ram and others –  (1999)  3  SCC  507,  held  that  over insistence on witnesses having no relation with the

victim will result in the criminal justice system

going awry.  In para 20, the learned Judge held

that when any incident happens in a dwelling house,

the most natural witnesses would be the inmates of

the  house  and  in  such  a  situation  “it  is

unpragmatic to ignore such natural witnesses and

insist on outsiders who would not have even seen

anything”.  The learned Judge further clarified;

‘The 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

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replete with other residents also’.  The aforesaid

observation fits in with the fact situation in this

case in as much as the incident took place within

the precincts of the house of the deceased and the

relations are the only natural witnesses.  

28. Again in  Salim Sahab Vs.  State of M.P. – (2007) 1 SCC 699, this Court extracted the above

passage in  Dalip Singh (supra) in paragraph No.12 of the report.  The ratio in  Dalip Singh (supra) has been reiterated by this Court very recently in

Bur Singh and another Vs.  State of Punjab – AIR 2009 SC 157, in para 7 of the report.   

29. We  find  that  in  the  instant  case,  the

evidence of the eye witnesses, namely, P.W.s 1, 2,

and 8 has been considered by the High Court with

due  caution  and  care  before  accepting  the  same.

Therefore, we cannot accept the contention of the

learned counsel for the appellant that the evidence

of the aforesaid eye witnesses should be rejected

just because they are related to the deceased. 17

30. On  the  other  question,  namely,  non-

explanation  of  injury  on  the  accused  persons,

learned  counsel  for  the  appellant  has  cited  a

decision in  Lakshmi Singh and Ors. Vs.  State of Bihar – (1976) 4 SCC 394. In the said case, this Court  while  laying  down  the  principle  that  the

prosecution has a duty to explain the injuries on

the person of an accused held that non-explanation

assumes considerable importance where the evidence

consists of interested witnesses and the defence

gives a version which competes in probability with

that of the prosecution case.   

31. But  while  laying  down  the  aforesaid

principle, learned Judges in paragraph 12 held that

there are cases where the non-explanation of the

injuries  by  the  prosecution  may  not  affect  the

prosecution case. This would “apply to cases where

the injuries sustained by the accused are minor and

superficial or where the evidence is so clear and

cogent,  so  independent  and  disinterested,  so

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probable, consistent and creditworthy, that it far

outweighs the effect of the omission on the part of

the  prosecution  to  explain  the  injuries.”

Therefore,  no  general  principles  have  been  laid

down  that  non-explanation  of  injury  on  accused

person shall in all cases vitiate the prosecution

case.  It depends on the facts and the case in hand

falls within the exception mentioned in paragraph

12 in Lakshmi Singh (supra).

32. In the instant case no defence plea has

been put up. Apart from that the High Court found

that the defence did not bring on record the injury

report  and  the  nature  of  injuries  was  not  made

known to the Court.     

33. Therefore,  the  ratio  in  Lakshmi  Singh (supra) is not attracted in the instant case. In

this context, this Court may refer to the decision

of this Court in  State of Gujarat Vs.  Bai Fatima and Anr. – (1975) 2 SCC 7, which has been followed in Lakshmi (supra). In Bai Fatima (supra), learned

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Judges have laid down the following principle in

paragraph 17, which is quoted below: “17. In a situation like this when the prosecution  fails  to  explain  the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:  

(1)  That  the  accused  had inflicted  the  injuries  on  the members of the prosecution party in exercise of the right of self- defence. (2)  It  makes  the  prosecution version  of  the  occurrence doubtful and the charge against the  accused  cannot  be  held  to have  been  proved  beyond reasonable doubt. (3)  It  does  not  affect  the prosecution case at all.”

34. In  the  opening  words  of  the  aforesaid

paragraph  17,  learned  Judges  were  thinking  of  a

case  where  private  defence  was  pleaded.  In  the

instant case, no plea of private defence was taken.

So here and especially when the injury report is

not on record, the third “result” pointed in  Bai Fatima (supra) would apply.

35. On  the  aforesaid  point,  learned  counsel

for  the  appellant  relied  on  a  decision  of  this 20

Court in  State of Rajasthan Vs.  Rajendra Singh – AIR  1998 SC 2554. In that  case, this Court was

considering the State’s appeal against an order of

acquittal. It is well known that the considerations

which weigh with this Court in deciding a State’s

appeal against an order of acquittal by the High

Court are totally different from a case where there

are a concurrent findings both by the Trial Court

and  the  High  Court  about  the  guilt  of  the

appellant.

36. In  a  case  leading  to  an  appeal  against

acquittal,  the  Court  is  to  consider  whether  the

view taken by the High Court is a possible view.

But that is not the position in a case like the

present one where there are concurrent findings of

guilt  against  the  appellant.  Therefore,  the

decision  in  Rajendra  Singh (supra)  has  to  be considered in the facts of that case.  

37. On this point, reliance was also placed by

the learned counsel for the appellant on a decision

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of this Court in  Subramani and Ors. Vs.  State of T.N. – (2002) 7 SCC 210. In that case plea of right of  defence  was  taken  and  the  Court  while

considering the said plea laid importance on the

failure of the prosecution to explain the injuries.

In that case the Court held as under:  “26.  ....though  the  appellants  had suffered  injuries  on  vital  parts  of the  body,  even  though  simple,  the prosecution  failed  to  give  any explanation for such injuries. We are not persuaded to accept the submission of learned counsel for the State that the  injuries  being  simple,  the prosecution  was  not  obliged  to  give any explanation for the same. Having regard to the facts of the case the omission  on  the  part  of  the prosecution to explain the injuries on the  person  of  the  accused  may  give rise  to  the  inference  that  the prosecution  is  guilty  of  suppressing the  genesis  and  the  origin  of  the occurrence and had thus not presented the true version....”

38. In the instant case, those considerations

are not present. Private defence is not pleaded and

virtually could not be pleaded in the facts of this

case  and  the  injury  report  was  not  brought  on

record.

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39. For the reasons aforesaid, this Court does

not find that any error was committed by the High

Court  in  affirming  the  judgment  of  conviction

passed by the Trial Court.  There is no merit in

the appeal, which is dismissed accordingly.

.......................J. (S.B. SINHA)

.......................J. New Delhi (ASOK KUMAR GANGULY) March 23, 2009

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