Saturday, 10 October 2020

Whether court can convict accused relying on the evidence of related witness?

18. Let us now consider the law on evidentiary value of

a related witness. Commenting on the aspect, Justice

Vivian Bose in Dalip Singh & Ors. Vs. State of Punjab

 AIR 1953 SC 364 rightly opined that;

“25. We are unable to agree with the

learned Judges of the High Court that

the testimony of the two eye-witnesses

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 vs.

The State of Rajasthan. We find,

however, that it unfortunately still

persists, if not in the judgments of

the Courts, at any rate in the

arguments of counsel.”

26. 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 relative would be the last to

screen the real culprit and falsely

implicate an innocent person…….”

19. It may further be noted that Babu Lal(PW11)is an

unrelated witness. His testimony substantially supports

the evidence of PW3 and PW12 in all material

particulars. In any case, being related to the deceased

does not necessarily mean that they will falsely

implicate innocent persons. In this context, it was

appropriately observed by Justice H.R. Khanna in State

of Uttar Pradesh vs. Samman Dass (1972) 3 SCC 201

“23………………….It is well known that the close

relatives of a murdered person are most

reluctant to spare the real assailant and

falsely involve another person in place of

the assailant……………….”

20. Again in a later decision of this Court in

Khurshid Ahmed vs. State of Jammu and Kashmir

 (2018) 7 SCC 429  one of us, Justice N.V. Ramana

 on the issue of evidence of a

related witness was justified in declaring that:

“31. There is no proposition in law that

relatives are to be treated as untruthful

witnesses. On the contrary, reason has to

be shown when a plea of partiality is

raised to show that the witnesses had

reason to shield actual culprit and falsely

implicate the accused (See Harbans Kaur Vs.

State of Haryana)”

The above precedents make it amply clear that the

testimony of the related witness, if found to be

truthful, can be the basis of conviction and we have

every reason to believe that PW3 and PW12 were

immediately present at the spot and identified the

accused with various deadly weapons in their hands.

21. The learned counsel for the appellant next refers

to the defence version of the injuries being caused

through a fall on the Nullah and the old enmity being

the cause for implicating the accused. On this issue,

we may benefit by adverting to the observation of

Justice Faizan Uddin in Sushil & Ors. Vs. State of U.P.

(1995) Supp 1 SCC 363 where the learned Judge so

 correctly observed:

“8…………….It goes without saying that enmity

is a double-edged weapon which cuts both

ways. It may constitute a motive for the

commission of the crime and at the same time

it may also provide a motive for false

implication. In the present case there is

evidence to establish motive and when the

prosecution adduced positive evidence showing

the direct involvement of the accused in the

crime, motive assumes importance. The

evidence of interested witnesses and those

who are related to the deceased cannot be

thrown out simply for that reason. But if

after applying the rule of caution their

evidence is found to be reliable and

corroborated by independent evidence there is

no reason to discard their evidence but it

has to be accepted as reliable………….”

22. If the witnesses are otherwise trustworthy, past

enmity by itself will not discredit any testimony. In

fact the history of bad blood gives a clear motive for

the crime. Therefore this aspect does not in our

assessment, aid the defence in the present matter.

 [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 316 of 2011

Karulal  Vs The State of Madhya Pradesh

Hrishikesh Roy, J.

Dated: OCTOBER 09, 2020

1. This Appeal has been preferred by 5 accused,

namely, Karulal(A-5), Amra(A-6), Kachru(A-7),

Suratram(A-8) and Bhagirath(A-9). They challenge the

judgment and order dated 23.6.2009 in Criminal Appeal

No.1637 of 1999 whereby, the Madhya Pradesh High

Court, Indore Bench approved the conviction of the

appellants under Section 148, 302 read with Section 149

of the Indian Penal Code, 1860 (for short “the IPC”)

and the resultant sentence for such conviction ordered


by the 2nd Additional Sessions Judge, Mandsaur

(hereinafter referred to as, “the learned Trial

Court”).

2. The prosecution case is that at about 8-8.30AM

Madhavji the deceased, was present in his fields on

18.8.1993 and his son Bhawarlal (PW3) was grazing

cattle nearby. Bhawarlal suddenly heard his father cry

out and saw that Amra, Kachru, Karu, Surtaram, Lalu

(who is now dead) and Bhagirath were attacking his

father with axe, sword, farsa, lathi, etc. On hearing

commotion, Shyambai (PW 13), daughter of the deceased,

and Bhawarlal (PW9) son of Kaniram and Babulal (PW12),

also reached the spot. On seeing them, the accused ran

away. Bhawarlal then arranged a bullock cart and took

his injured father towards Narayangarh. When they

were crossing the houses of the accused, Badambai,

Munnabai, Ramibai, Sitabai and Veniram s/o Kachru,

blocked the cart and tried to prevent PW3 from lodging

the report and they also threatened to kill. But as

other persons gathered around, the cart could proceed


towards Narayangarh. On the way Madhavji died.

Bhawarlal and Babulal reached Narayangarh Police

Station with the dead body and lodged report at about

11.55 AM, within four hours of the incident. The

distance between the police station and the spot is

about 8 Kilometres.

3. On completion of the investigation, charge sheet

was filed against six accused under Sections 148, 302

read with Section 149 of the IPC. Four others namely,

Badambai, Munnabai, Ramibai and Sitabai were charged

under Section 506 IPC as they allegedly obstructed and

threatened the Informant, when they were proceeding

with the injured in the bullock cart.

4. On evaluating the evidence against the 4 ladies

charged under Section 506 IPC, the Trial judge held

that this charge of obstruction and threat to kill the

Informant, has not been proved and accordingly ordered

for their acquittal.


5. Then the evidence against the accused who were

charged under Section 148, 302 read with Section 149

IPC was considered. To prove its case, the prosecution

examined 15 witnesses of whom, PW 1 witnessed the

arrest of the accused. Four others, i.e.

Kishanlal(PW6), Prabhulal (PW7), Bhawarlal(PW9) s/o

Kaniram and Nanuram(PW13) had turned hostile and did

not support the case of the prosecution. Dr. P.N.

Shrivastav (PW2) had performed the autopsy on the body

of the deceased and noted the following nine injuries

on his person:

(1) Incise wound 4” x 2” x 1/2" on left side of

head with some pointed object.

(2) Compound fracture on right tumor and swelling

around it which was hard and appeared to have been

afflicted by some blunt object.

(3) Compound fracture of right Radioulna bone

caused by some blunt object.

(4) Compound fracture of left Tumor wound caused by

a hard blunt object.

(5) Cut wound on upper left arm 2” x 1” x 1/2" left

Brachial bone with cut with dried blood inflicted

with some sharp object.

(6) Compound fracture of left “Alna” with dried

blood caused with some hard blunt object.

(7) Cut wound measuring 2x2x1” on right ankle with

dried blood with some hard and blunt object

resulting in cut veins.

(8) Compound fracture or right Tibia and Fabula

with some hard and blunt object.


(9) Cut wound 2 x 2-1/2” on left thigh with cut

veins and cut Femoral Artery with dried blood

caused with some hard and cutting object.

6. According to the Doctor, the death was result of

the bleeding following the injuries inflicted by hard,

blunt and sharp-edged weapons and shock. He further

opined during cross examination as under:

“Death of Madhav was caused as a cumulative

effect of various injuries caused to his body.

Injuries to the Tibia, Fabula, Radius and Alna

and Humor bone shall not be fatal unless those

are various serious. No fracture was found in

the injury listed at no.1. If any person falls

in the Nullah and suffers injuries from the

rocks lying underneath and if his hands and

feet come in contact with those rocks, fracture

to Fabula, Tibia, Radius and Alna are possible

as a result thereof.”

7. Bhawarlal (PW3), Babulal (PW11) and Shyamkalabai

(PW12) were the eyewitnesses of the incident. In his

testimony, Bhanwar Lal, son of the deceased, stated

that on 18.8.1993 morning he was grazing his oxen in

the nearby field when he heard the anguished cry of

Madhavji and while running towards his father, the PW3

saw Lala, Karu, Amra, Kachru, Surat Ram and Bhagirath


attacking his father. His sister Shyam Kala (PW12)

also reached the field. According to the (PW3), Lala

and Amra were armed with lathis, Surat Ram was holding

knife, Kachru had a sword, Karuji was holding an axe

having edges like Farsa, Bhagirath too was holding an

axe. The son rushed home and arranged a bullock cart

where the injured Madhavji was placed and then they

proceeded to the Narayangarh police station where he

lodged the FIR. The PW3 also mentioned that injured

Madhavji had told him in the field itself, before he

went to fetch the bullock cart that Lala, Amru, Kachru,

Surat Ram and Bhagirath had assaulted him.

8. Shyam Kala Bai (PW12) is the daughter of the

deceased. While heading towards field, she heard

shrieks for help from her father who was shouting that

Lalaji’s sons were attacking him. She rushed to the

place of occurrence and saw her brother Bhanwar Lal

(PW3) and Babu Lal(PW11) also reaching the spot. She

saw her father in an injured condition and the accused

running away with various weapons in their hand. She


accompanied her injured father in the bullock cart with

her brother and stated that Madhavji expired on the way

to Narayangarh.

9. On the day of the incident, Babu Lal (PW11) was

walking towards his village after spending the night in

the residence of the deceased. In the morning he had

tea with Madhavji who then went ahead to his field.

While proceeding a little later, the witness heard

Madhavji shouting that he was being killed. When the

PW11 rushed to the field, he noticed the accused

attacking Madhavji with lethal arms. Madhavji had

suffered a head injury from an axe blow, apart from

other injuries to his hands and feet. The witness

placed the injured on the bullock cart driven by the

son (PW3). The witness was following the bullock cart

on his foot. Madhavji had expired while proceeding

towards Narayangarh.

10. On evaluating the evidence, the learned Trial Court

found that the six accused (including Lala who died),


being armed with lethal weapons, illegally assembled in

order to attack the deceased Madhavji. While adverting

to the eyewitness, PW3 and PW12 (children of the

deceased), the Court highlighted the third eyewitness

(PW11), who was not related. The trial Court also

discussed the slight inconsistency in the evidence of

PW3 and noted that his examination in chief and cross

examination was conducted after long gap of one and a

half years. His testimony as an eyewitness was however

found to be consistent with the other two eyewitnesses.

11. Similarly, the evidence of Shyam Kala Bai (PW12)

was also found to be reliable by the learned trial

Court as her presence at the spot of attack was

confirmed by PW3 and PW11 (eyewitnesses) and they

corroborated each other, on all material particulars.

12. On the defence version of Ram Singh (DW1) and

Mangi Lal (DW2), who projected that Madhavji suffered

the injury on account of an accidental fall into the

Nullah, the learned Trial Court noted that the DW2, who


was the Chowkidar of the village, never visited the

place of occurrence nor he reported about the alleged

accident of Madhavji to the police which, he ought to

have done in normal course of his duty as the village

Chowkidar. Likewise the evidence of DW1 was found to

be untrustworthy as he claimed to have accompanied

Bhanwar Lal to the police station but in the related

Exhibit there was no mention of DW1 accompanying the

complainant Bhanwar Lal.

13. On the possibility of the injuries being caused

through a fall, the evidence of Dr. P.N.Shrivastav

(PW2) was discussed vis-à-vis the testimony of the two

DWs. The learned trial Judge noted that Dr. Shrivastav

has merely accepted that injuries could be sustained

through a fall from some height. But it was then

specifically recorded by the learned judge that the

Doctor never stated that the injuries were the result

of accidental fall. In fact the defence never suggested

that the injuries were not the result of the violent

attack by the accused on the person of Madhavji.


Accordingly, it was concluded that the injuries on the

vital parts were inflicted by the accused in

furtherance of their common objective.

14. As the accused pleaded false implication due to old

enmity with the deceased’s family, this aspect was

considered in detail. On evaluation of the evidence of

the eyewitnesses and the post mortem report, the

defence plea of false implication was found to be

untrue. It was then held that the accused persons had

intentionally caused the fatal injuries on the deceased

Madhavji and accordingly they were convicted under

Section 302 read with 149 IPC and were sentenced to

life imprisonment with fine of Rs.1,000/- each and in

default to undergo six months further rigorous

imprisonment. For the conviction under Section 148

IPC, the accused were sentenced to 3 years rigorous

imprisonment with fine of Rs.3,000/- each. It may

again be noted that amongst the six charged accused,

Lala died during the trial.


15. The High Court in the appeal, rejected the plea of

the appellants attempt to discredit the three

eyewitnesses by observing that while it may be possible

that the eyewitnesses may not have witnessed the actual

assault but as they immediately reached the field on

hearing the shrieks of Madhavji, their testimony on the

accused being armed with lethal weapons and fleeing the

spot soon after the assault, cannot be discarded. The

High Court found consistency in the testimony of the

eyewitnesses and noted that the injuries attributed by

the eyewitnesses to the accused, is corroborated by the

medical evidence. It was then concluded that there is

no infirmity in the judgment of conviction rendered by

the learned Trial Court and the appeal against

conviction was accordingly dismissed.

16. Before us, the learned counsel for the appellant-

Mr. T. Mahipal submits that the evidence of PW3 and

PW12 should be discarded as they are the children of

the deceased. He then submits that because of past

enmity, the appellants were falsely implicated. The


counsel also refers to few of the witnesses not

supporting the prosecution version.

17. On the other hand, Ms. Ankita Chaudhary, the

learned Dy. AG for the State of Madhya Pradesh argues

that the evidence of the 3 eyewitnesses conclusively

support the prosecution case. She then submits that

medical evidence and injuries corroborate the oral

testimonies. According to the learned counsel, bitter

relationship of the two groups provide a clear motive

for the accused to attack the victim.

18. Let us now consider the law on evidentiary value of

a related witness. Commenting on the aspect, Justice

Vivian Bose in Dalip Singh & Ors. Vs. State of Punjab

 AIR 1953 SC 364 rightly opined that;

“25. We are unable to agree with the

learned Judges of the High Court that

the testimony of the two eye-witnesses

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 vs.

The State of Rajasthan. We find,

however, that it unfortunately still

persists, if not in the judgments of

the Courts, at any rate in the

arguments of counsel.”

26. 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 relative would be the last to

screen the real culprit and falsely

implicate an innocent person…….”

19. It may further be noted that Babu Lal(PW11)is an

unrelated witness. His testimony substantially supports

the evidence of PW3 and PW12 in all material

particulars. In any case, being related to the deceased

does not necessarily mean that they will falsely

implicate innocent persons. In this context, it was


appropriately observed by Justice H.R. Khanna in State

of Uttar Pradesh vs. Samman Dass (1972) 3 SCC 201

“23………………….It is well known that the close

relatives of a murdered person are most

reluctant to spare the real assailant and

falsely involve another person in place of

the assailant……………….”

20. Again in a later decision of this Court in

Khurshid Ahmed vs. State of Jammu and Kashmir

 (2018) 7 SCC 429  one of us, Justice N.V. Ramana

 on the issue of evidence of a

related witness was justified in declaring that:

“31. There is no proposition in law that

relatives are to be treated as untruthful

witnesses. On the contrary, reason has to

be shown when a plea of partiality is

raised to show that the witnesses had

reason to shield actual culprit and falsely

implicate the accused (See Harbans Kaur Vs.

State of Haryana)”

The above precedents make it amply clear that the

testimony of the related witness, if found to be

truthful, can be the basis of conviction and we have

every reason to believe that PW3 and PW12 were

immediately present at the spot and identified the

accused with various deadly weapons in their hands.



21. The learned counsel for the appellant next refers

to the defence version of the injuries being caused

through a fall on the Nullah and the old enmity being

the cause for implicating the accused. On this issue,

we may benefit by adverting to the observation of

Justice Faizan Uddin in Sushil & Ors. Vs. State of U.P.

(1995) Supp 1 SCC 363


where the learned Judge so correctly observed:

“8…………….It goes without saying that enmity

is a double-edged weapon which cuts both

ways. It may constitute a motive for the

commission of the crime and at the same time

it may also provide a motive for false

implication. In the present case there is

evidence to establish motive and when the

prosecution adduced positive evidence showing

the direct involvement of the accused in the

crime, motive assumes importance. The

evidence of interested witnesses and those

who are related to the deceased cannot be

thrown out simply for that reason. But if

after applying the rule of caution their

evidence is found to be reliable and

corroborated by independent evidence there is

no reason to discard their evidence but it

has to be accepted as reliable………….”

22. If the witnesses are otherwise trustworthy, past

enmity by itself will not discredit any testimony. In

fact the history of bad blood gives a clear motive for

the crime. Therefore this aspect does not in our

assessment, aid the defence in the present matter.

23. The appellant’s counsel also submitted that few of

the witnesses had not supported the prosecution case

and were declared to be hostile. But there are enough

material evidence and trustworthy testimonies which

clearly support the case against the accused and the

prosecution need not fail on this count alone. Some

witness may not support the prosecution story for their

own reasons and in such situation, it is necessary for

the Court to determine whether the other available

evidence comprehensively proves the charge. In this

case, it is seen that the prosecution version is cogent

and supported by three eyewitnesses who have given a

consistent account of the incident. Their testimonies

are corroborated by the medical evidence. The learned

Trial Judge had elaborately discussed the evidence of

both sides and came to a logical conclusion which

inspires confidence. We are therefore of the view that

the hostile witnesses will not affect the conviction of

the appellants.

24. Proceeding on the above basis and on careful

examination of the manner in which the learned Trial

Judge analysed the evidence and rendered his verdict,

the conviction of the appellants according to our

assessment, was rightly ordered and correctly upheld by

the High Court. It is declared accordingly.

25. In the result, the appeal stands dismissed.

……………………………………………J.

[N.V. RAMANA]

……

………………………………………J.

[SURYA KANT]

……………………………………………J.

[HRISHIKESH ROY]

NEW DELHI

OCTOBER 09, 2020


Print Page

No comments:

Post a comment