VINAY KUMAR RAI AND ANR. v.

THE STATE OF BIHAR (Criminal Appeal No. 371 of 2006)

AUGUST 18, 2008 [Dr. Arijit Pasayat and P. Sathasivam, JJ.]

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Challenge in these appeals is to the judgment of a Division Bench of the Patna High Court upholding the conviction of the appellants for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short ‘IPC’) so far as accused Ajeet Kumar Rai @ Ajeet Narayan Rai and Vinay Kumar  Rai,  appellant  No.1  in  Criminal  appeal  371  of  2006  and Ashutosh  Kumar  Rai  @  Sanjay  Kumar  Rai,  appellant  in  other Criminal  Appeal.  Ashutosh  Kumar  Rai  was  further  charged  for committing  the  murder  of  Nanda  Kumar  Singh  punishable  under Section  302 IPC and Section  27 of  the  Arms Act,  1959 (in  short ‘Arms  Act’).  The  High  Court  dismissed  the  appeals.  The  present appeals had been filed by Vinay Kumar Rai (A-3) and Ajeet Kumar Rai @ Ajeet Narayan Rai (A-1) and Ashutosh Kumar Rai (A-2). The Presiding  Officer,  Additional  Court  No.1,  Fast  Track  Court  in Sessions Trial  Nos.  578/96 and 1/2001 held Ajeet  Kumar Rai and Vinay Kumar Rai guilty under Section 302 read with Section 34 IPC and  accused  Ashutosh  Kumar  Rai  under  Section  302  IPC  and sentenced to undergo RI for life. He was also found guilty of offence under Section 27 of the Arms Act and sentenced to undergo RI for three years. Two appeals were filed before the High Court which by the impugned judgment dismissed the same. All accused were put on trial for committing the murder of Nanda Kumar Singh (hereinafter referred  to  as  the  ‘deceased’)  in  furtherance  of  their  common intention for offence punishable under Section 302 read with Section 34 IPC.  

2. Prosecution version in a nutshell is as follows: According  to  the  first  information  report  given  by  Vishwanath

Singh (PW-7) before the police on 26.7.1996 at 1.10 p.m., at about 12 noon, while he was sitting on the verandah of the house and his

son Nand Kumar Singh, the deceased had gone to the field to inquire as to whether the land has been ploughed or not,  he did not  find tractor there and while he was returning he saw the appellants and started shouting. Hearing the alarm, the informant along with Sachida Nand Singh (PW-4)  rushed there  and found that  appellants  Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai had caught hold of his son and appellant Ashutosh Kumar Rai @ Sanjay Kumar Rai had put pistol on his right temple. The moment they saw him and Sachida Nand Singh, appellant Vinay Kumar and Ajeet Kumar Rai @ Ajeet  Narayan  Rai  exhorted  to  fire  at  which  appellant  Ashutosh Kumar Rai alias Sanjay Kumar Rai fired at his son on the temple. Sustaining the injuries his son fell  down and all the appellants fled away brandishing  the  pistol.  When  the  informant  and his  nephew Sachidanand  Singh  reached  there,  they  found  injury  above  the temple and immediately put him on a rickshaw and brought to the Government  Hospital,  Sasaram  where  the  doctor  declared  him brought dead. On the basis  of the aforesaid information,  Sasaram (M) P.S. Case No.386 of 1996 was registered under Section 302/34 of IPC and 27 of the Arms Act.

According  to  the  first  information  report,  the  motive  for  the occurrence  is  the  pendency  of  litigation  before  the  Director  of Consolidation.

The police,  after  investigation,  submitted charge sheet  against the  appellants  and they were ultimately  committed  to  the court  of Sessions where all  the appellants  were charged for offence under section 302/34 of IPC whereas, appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai was further charged for offence under section 302 of IPC and section 27 of the Arms Act.

The  appellants  denied  to  have  committed  any  offence  and pleaded  false  implication  on account  of  previous  enmity  and their further defence was that the deceased was killed on the same day at about 12 noon by fire arm by some unknown persons near the house of Ram Nagina Singh.

Prosecution in order to substantiate the accusations examined nine witnesses out of which Sachidanand (PW-4), Sunil Kumar Singh (PW-5),  Srikant  Singh  (PW-6)  and  Vishwa  Nath  Singh  (PW-7) claimed  to  be  eye-witnesses.  The  last  named  person  was  the informant.  In order  to  prove their  innocence,  the accused persons

examined four witnesses. The trial Court believed the evidence of the eye-witnesses and found the accused guilty.  

3.  In  appeal,  it  was  submitted  that  there  was  discrepancy between the medical evidence and the oral evidence and, therefore, the prosecution version should not have been accepted. The primary stands were regarding the alleged discrepancy between the medical evidence  and  the  ocular  evidence  and  the  eye-witnesses  being related to the deceased. The High Court did not find any substance in any of these stands and dismissed the appeals.  

4.  The stands  taken before  the High Court  were reiterated  in these  appeals.  It  was  highlighted  by  learned  counsel  for  the appellants  that  it  is  unusual  that  eye  witnesses  who  are  closely related to the deceased did not try to intervene to save the deceased from the assailants.  

5.  Learned  counsel  for  the  State  on  the  other  hand  with reference to the conclusions of the High Court pointed out that the witnesses have said that they saw the incidence from a distance of about 15 to 20 yards. They stated that the deceased was shot dead even before they reached the place of occurrence. Therefore, there was no question of intervening to save the life of the deceased.  

6. 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.

7. 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.” 8. The above decision has 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.

9. 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.” 10. 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.” 11.  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).  

12. 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).

13. The over insistence on witnesses having no relation with the victims  often  results  in  criminal  justice  going  away.  When  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)].

14.  It  is  to  be  noted  that  PWs  4  and  7  have  stated  in  their evidence  about  the  presence  of  PWs  5  and  6.  Interestingly,  Raj Kumar  Singh  (PW-1)  in  his  statement  also  stated  about  their presence  at  the  place  of  occurrence.  Though  it  was  pleaded  by learned counsel for the appellants that PW-1’s evidence cast a doubt about  the  prosecution  version  it  is  to  be  noted  that  PW-1  never

claimed  to  be  an  eye  witness.  The  evidence  of  PWs  and  eye witnesses  clearly  established  that  accused  Ajeet  Kumar  Rai  and Vinay Kumar Rai caught hold of deceased and on their exhortation appellant Ashutosh shot at the deceased. Therefore, Section 34 has application.  

15.  Coming  to  the  alleged  discrepancy  between  the  ocular evidence and the medical evidence as rightly noted by the High Court there was no discrepancy. The medical evidence was clearly in line with what  has been stated  by eye-witnesses.  The High Court  has noted that the expression used by the witnesses cannot be analysed in  hypothetical  manner.  According  to  the  eye  witnesses  gunshot injury was caused on the right temple but the injury was found on the upper eyelid and everted wound on the right oricle margin. Therefore, it can never be said that medical evidence is contrary to the ocular evidence.  

16. Looked at from any angle, the appeals are without merit and deserve dismissal which we direct.