There is no universal rule that the evidence of the deceased’s relatives must be verified in order for the perpetrator to be convicted. Orissa High Court

AFR HIGH COURT OF ORISSA: CUTTACK CRLA No.19 of 2003 From the judgment dated 20.12.2002 passed by learned Sessions Judge Khurda at Bhubaneswar in S.T. Case No.802.) Benga @ Imam Mahammad State of Orissa Mr. Dharanidhar Nayak Senior Advocate M s. Akash Bhuyan R.K. Pradhan M. Mohanty P.K. Mohanty N.K. Mohanty B. Rout and P.K. Deo Advocates For Respondent: Mr. Sk. Zafarulla Additional Standing Counsel THE HONOURABLE KUMARI JUSTICE S. PANDA HON’BLE SHRI JUSTICE S. K. PANIGRAHI Date of Hearing 19.05.2021Date of judgment 19.05.2021 S. K. Panigrahi J. 1. The present appeal has been directed against the judgment of conviction and order of sentence dated 20.12.2002 passed by the learned Sessions Judge Khurdaat Bhubaneswar in S.T. Case No.82 of 2002 whereby the appellant has been convicted for com mission of offence punishable under Section 302 of the I.P.C. and sentenced to undergo imprison ment for life. 2. Shorn of unnecessary details the substratum of the matter presented before us remain that the deceased was a fish vendor at Unit IV Fish Market Bhubaneswar and used to reside nearby. The appellant used to sell mutton in the said market. The appellant was married to the sister of the deceased and they had one son and two daughters. Ranju allegedly deserted the appellant and left with another man whereafter the appellant refused to take care of the children. The mother of the deceased who also used to reside in the same colony brought the children to her house and started looking after the m. Thereafter there was regular quarrel between the appellant and the deceased over the maintenance of the children. On 31.07.2001 at 8:15 P.M . there was a heightened quarrel between the appellant and the deceased in course of which the appellant attempted to strike at the abdome n of the deceased with a knife M.O. 1) but the blow struck his thigh just below the abdome n as the latter tried to ward it off. The appellant charged again and this time struck the deceased on his forehead. Thereafter the wife of the deceased came to the rescue of her husband and wrenched away the knife from the appellant and threw it on the ground and in the process she sustained injuries on her right palm. 3. The I.I.C. Kharavelanagar Police Station after receiving an anonymous phon e call about the occurrence alerted the police patrol team over V.H.F. and proceeded to the scene of occurrence. When they reached at the spot they found the deceased lying on the ground in pool of blood. The deceased was im mediately shifted to Capital Hospital Bhubaneswar in a police Jeep by the S.I. B.K. Aich. The doctor on casualty duty declared the deceased as ‘brought dead’. Charan Biswal P.W.2) the brother of th e deceased who was present at the spot lodged the F.I.R. with the I.I.C.(P.W.7) Kharavelanagar P.S. Bhubaneswarwhereupon Kharavelanagar P.S. Case No.189 dated 31.07.2001 was registered. 4. During the course of investigation the I.O. proceeded to the village and took the appellantinto his custody. The body of the deceasedwas sent for post morte m examination. The appellant was then arrested and forwarded to the court. The I.O. also effected seizure of knife a pair of blood stained chappal belonging to the deceased another pair blood stained chappal belonging to the accused blood stained earthand sample earthproduced the wearing apparels of the deceased a lungi and a napkin M.O.III) before a police constable who thereby produced it before the I.O. After completion of investig ation charge sheet was submitted against the accused. 5. To bring home the charges the prosecution examined as many as 8 witnesses. P.W.1 is the M edical Officer who conducted autopsy over the deadbody of the deceased.P.W.2 is the brother of the deceased and the informant in the present case. P.W.3 is the police constable who carried the dead body to the hospital and the seizure witness of M.O.II and M.O.III. P.W.4 is an independent witness who has a vegetable shop in Unit IV market and also a seizure witness. P.W.5 is the Medical Officer who has treated P.W.6 who is the wife of the deceased. P.W.7 is the I.I.C. of Kharavelanagar P.S. and P.W.8 is the Investigating Officer. P.W.2 and P.W.6 are the only eye witnesses.On the other hand defence has examined two witnesses. 6. Mr.Dharanidhar Nayak learnedSenior Coun sel appellant submits that out of the two eye witnesses P.W.2 informant) the brother of the deceased has turned hostile. He even denied to have lodged the F.I.R. and given any state ment to the Inve stigating Officer. On the other hand conviction cannot be established only on the basis of the sole testimon y of P.W.6 without any proper corroboration from an y other independent witness. Additionally the injury sustained by the appellant has not been explained by the prosecution which vitiates the prosecution story. Further P.W.4 on his deposition before the Court stated that the police took his signature on som e written papers. He further stated that he has not been examined by the police and nothing has been seized in his presence. Therefore without any seizure the prosecution case cannot be established. Further P.W.5 in her evidence opined that she tried to rescue her husband from the appellant and thereby sustained injuries. Howe ver in the cross exa mination she has admitted that both the injuries could not have been inflicted by the same weapon. P.W.6 in her 161 CrPC statement has not mentioned at which part of the body the appellant made an assault. This casts aspersion s on h er role as an eye witness. Therefore the prosecution should not rely on her deposition. The Investigating Officerhas admitted in his cross examination that he has not reflected in the C.D. or in the seizure list that he has sealed the M.O.I and M.O.VI and neither has he produced the seal before the court. Therefore after seizure without any seal on the material casts doubt on the prosecution case. Moreo ver the depositions and evidences of the prosecution witnesses are contradictory to each other. In view of the above he urged that the accused be entitled to the benefit of doubt as the prosecution has failed to prove the case against him beyond reasonable doubt. 7. The plea of the appellant is that on the night of occurr ence he and the deceased had a liquor bout during which the deceased had quarrel with some pe ople and those people came to the Unit IV market and attacked both of them. 8. Per contra learned Counsel for the State has submitted that the report of the Medical Officer reveals that the deceased suffered homicidal death due to the injury inflicted by the seized weapon who is one of the eye witnesse s and also sustained injuries while trying to save the deceased from the onslaught.Hence he sub mits the prosecution hassufficiently proved the motive of the accused in co mmitting such a heinous crime. Having made the aforesaid submissions learned Counsel for the State submits tha t the prosecution has been successful in establishing the truth beyond reasonable doubt that the appellant herein is the author of the crime and that the present appeal ought to be dismissed being devoid of merit. 9. Heard learned Counsel for the parties.It can be sum marised that the learned Court below in order to bring home the culpability of the appellant has relied upon the following circumstances namely Statement of eye witnesses Corroboration of witnesse s’ depositions. While doing so the Trial Court has proceeded to hold that these circumstances establish a complete chain which prove beyond reaso nable doubt that the appella nt has com mitted the murder of the 10. Upon perusal of the evidence produced before the Trial Court with regard to the first circumstance i.e. statement of the eye witness stated hereinabove the evidence of P.W.6 has been relied upon.The evidenc e of an eyewitness if credible constitutes needless to say the best possible evidence. There is wealth of judicial authority for the proposition that conviction may rest on the sole testimon y of an eyewitness sans any other evidence provided alwa ys the evidence of the eyewitness is absolutely credible. In a recent case of Dali p Ku ma r v St ate o f D elhi1 Delhi High Court iterated that: is required “14. As the value of evidenc e inc reases however so does the rigour and strictness of the scrutiny to which the evidence to be subjected. While therefore upholding the principle that conviction can rest on the sole testimony of an eye witness w ithout any supportive evidence whatsoever the Supreme Court has been at pains to also hold that in all such cases the c redibility of the evidence of the eye witness is required to be conclusively established. For this the court is required to assess among other things the evidence of tendered during investigation when compared w ith his evidence during trial and to examine whether the evidence tendered the eye witness as 1CRL.A.45 2002 &Crl. M.A.10587 2019 during trial is cogent and coherent and free from any disabling inconsistencies as well as the extent to which the evidence of the eye witness is consistent with the evidence of other witnesses tendered during trial. While embarking on this exerc ise needless to say the court is required to be mindful of the distinction between minor and major inconsistencies and may only take cognizance of those inconsistenc ies which dent the case of the prosecution. At the same time inconsistenc ies even if minor may if they are suffic iently large in number substantially weaken the credibility of the testimony of the w itness concerned. 15. In the ultimate eventuate these are all factors of which the criminal court is bound by oath to be duly sensitised. At all times the court is required to be alive to the fact that the facts c umulatively seen and the evidence holistically assessed may exonerate accused or may cast doubt on his guilt and to the legal position that in either c ase the accused is entitled to acquittal.” Further the Supreme Court in the case of Ama r Singh vs The State4 SCC 343 In the instant case with a view to base a conviction on the evidence of an ocular witness and circumstantial evidence the prosecution has established all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances also leads to a perfect flow of the chain of eve nts which would permit no other conclusion than the guilt of the accused. The circumstances present in the cases are not depende nt upon any h ypothesis. The present case is not based on suspicion and it cannot falsify the statement of an ocular eye witness even if she is related or interested witness. Further if it is found that the appreciation of evidence in a case which is entirely based on circumstantial evidence is on a different footing than a case like the present one wherein an ocular witness is present and stated what she has been at the time of occurrence. Had it been a case of only on circumstantial evidence this would have vitiated by serious errors and the Court would have certainly interfered. 13. The Hon’ble Apex Court in the case of C.Chenga Reddy and Ors. v. Stat e of A.P. 4 has dealt with a case where su spicion has been allowed to take the place of reason and has held in no uncertain terms that 4(1996) 10 SCC 193 “21. In a c ase based on circumstantial evidence the settled law is that the circ umstances from which the conclusion of guilt is draw n should be fully proved and such circumstances must be conc lusive in nature. Moreover all the c irc umstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. I n the present case the courts below have overlooked these settled princ iples and allowed suspic ion to take the place of proof besides relying upon some inadmissible evidence.” instant case the circumstantial evidence intercepted by the testimon y of one ocular witness which itself is sufficient to complete the chain without any ‘ifs’ and ‘buts’ or any kind of hypothetical premise. 14. Thegeneral presumption that gover ns the criminal prosecution is that related witness would not falsely testify against an innocent person as they would prefer to see the real culprits getting punished as held in Jar nail Sin gh vs. Stat e of Punja b 5. However testimon y of such witnesses should be analysed with caution for its credibility as held in G ang adh ar Beh era & Others vs. Stat e of O disha6. It is well settled that the testimo ny of a related witness cann ot be discredited mechanically because rela tionship of the witness cannot be a ground to determine the credibility of the testimony as held in 5(2009) 9 SCC 719 6 2003 SCC32 Raju alias Balachandran vs. State of Tamil Nadu 7 and reiterated in A. Alagupandian vs. State of Tamil Nadu. 8 In Balraje vs. State of Maharashtra9 the apex Court has succinctly held that : “If after careful analysis and scrutiny of their evidence the version given by the witnesses appears to be clear cogent and credible there is no reason to discard the same”. Hence it is the truthfulness of the statement that the law takes into account and the credibility of a related witness is not dependent upon its relationship with either party and the court should exercise care and caution to determine the admissibility of its testimonial by relying only on the truth. A mere relationship of the witness would be no ground to reject it. A close relative who is a natural witness the circumstances of the case cannot be regar ded as an interested 15. Similarly in Bhagwan Swarup V.State of U.P.10 State of U.P. V. Paras Nath Singh11and Swarn Singh V.State of Punjab1 2 the Apex Court held that: “The fact that the witnesses are related to each for disregarding evidence. Relative should have no interest to is no criterion 7. AIR 2013 SC 983 8 Criminal Appeal No.1315 OF 200996 SCC 673 10AIR 1971 SC 429 11AIR1973 SC 1073 12 1976 Cri. L.J. 1757 the relations of falsely implicate the accused or protect the real culprit. There is no general rule that the evidence the deceased must be corroborated for securing the conviction of the offender. Each case depends upon its own facts and circumstances..” 16. The Investigating Officer has been successful in corroborating the prosecution story. The seized weapon used in the crime and other articles at the instance of the accused the testimo ny of P.W.6 does form a formidable chain establishing that the accused is the real brain behind the crime. The entire circumstantial evidence and the testimon y of P.W.6 show beyond reasonable doubt regarding the involve ment of the accused without any iota of doubt. 17. For evidence introduced and to be made admissible in courts requires a degree which should exclude falsity and help expose the correct facts in a trial. Witnesses disputably stand at the pinnacle of the justice delivery sequence. The testimo ny should be such it clarifies situation while maintaining a favourable attitude towards the side for whom the statement is being given. When the witnesses are not able to depose correctly or turn ‘hostile’ in the court of law it shakes public confidence in the criminal justice delivery system. Accentuating this view Bentham said: “witnesse s are the eyes and ears of justice”. Howe ver it seem s the ‘eyes and ears’ have defied the prosecution in so far as prosecution witnesse s Nos.2and 5 have turned hostile. Their alleged stateme nts made to the police Under Section 161 of Code of Criminal Procedure were not confronted to them and marked as exhibits and further the I.O. has not spoken in his evidence anything about the alleged stateme nts of the above hostile witnesses recorded Und er Section 161 of Cr.P.C. as held by the Apex Court in three Judges Bench in the case of V.K. Mishra v. State of Uttarakhand13: “16. Sec tion 162 Cr.PC bars use of statement of w itnesses recorded by the polic e exc ept for the limited purpose of contradiction of suc h w itnesses as indic ated there. T he statement made by a w itness before the police Under Sec tion 161(1) CrPC c an be used only for the purpose of contradicting suc h w itness on w hat he has stated at the trial as laid dow n in the proviso to Section 162(1) CrPC. T he statements under S ection 1 61 CrPC rec orded during the investigation a re not substantive pieces of evidenc e but c an be used primarily for the limited purpose:of contradicting suc h w itness by an acc used under Section 1 45 of the Evidence Act the contradiction of suc h w itness also by the prosec ution but w ith the leave of the Court and iii) the re examination of the witness if necessary. 17. The court c annot suo motu make use of statements to police not proved and ask questions w ith reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of w itnesses cannot be admitted evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the w itness during cross examination and also during the cross examination of the investigating officer. The statement before the 1 3(2015) 9 SCC 588 investigating officer c an be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by draw ing attention to the parts intended for contradiction.” 18. Nonetheless even at the advent of hostility the court expect s the prosecution to endeavour in corroborating the ‘hostile’ testimo nies as a last ditch effort into buttressing its side of the story and has rightly done so. However the prosecution has taken the aid of the solitary ocular witness along with the circumstantial evidence and avoided the o nset of ‘defeatism’. Consequentially the testimo nies of the witnesses in this case are not inadmissible in its entirety. The seizure witness P.W.5 turned hostile during cross examination and clearly denied the seizure of articles but the use of the M.O.I in the crim e is certain and not otherwise negated. 19. With the above backdrop and discussion this Court come s to an irresistible conclusion that the prosecution has been successful in bringing home the charges against t he appellant beyond reasonable doubt and that the Court below has appropriately dealt with the evidence and the attuning circumstances in proper perspective. Mere fact that the solitary witness is related to the deceased or did not state the incident in the sam e language or in a manner which is natural in the opinion of the court does n ot affect in any way the credibility of the witness. In view of the discussion made hereinabove the court below has maintained a positive judicial attitude towards victim justice and while considering the credibility of evidence or testimo nial the court has also exercised due care and caution to arrive at the truth. There see ms to be absence of any bias or presumptions while connecting the chain and have perfectly corroborated with the circumstantial evidence. 21. Accordingly the Criminal Appeal filed by the appellant is dismissed. The judgment of convicti on and order of sentence dated 20.12.2002 passed by the learned Sessions Judge Khurda atBhubaneswar in S.T. Case No.82 of 2002 is hereby It is brought to the notice that the appellant is on bail by order of this Court dated 02.07.2008. In such view of the matter the bail bonds stand cancelled and the trial court is directed to issue warrant of arrest against the appellant to suffer remaining part of the sentence. The LCR be returned forthwith to th e court from which it was received. S.K. Panigrahi J.) S. Panda J.) Or issa High Court Cu tta ck Th e 19 th day of March 2021 A KK LNB A KP 

Summary: The fact that the witnesses are related to each other is no criterion for disregarding their evidence. Relative should have no interest to falsely implicate the accused or protect the real culprit. There is no general rule that the evidence of the relations of the deceased must be corroborated for securing the conviction of the offender. Each case depends upon its own facts and circumstances. The judgement was passed by the High Court of Orissa in the case of Benga @ Imam Mahammad v. State of Orissa [CRLA No.19 of 2003] by Division Bench consisting of Hon’ble Justice S. Panda &amp; S. K. Panigrahi. The present appeal has been filed against the judgment of conviction and order of sentence passed by the learned Sessions court, whereby the appellant has been convicted for commission of an offence punishable under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life. Learned Counsel for the appellant submits that out of the two eye-witnesses, the brother of the deceased has turned hostile. He even denied having lodged the F.I.R. and given any statement to the Investigating Officer. On the other hand, a conviction cannot be established only on the basis of the sole testimony of P.W.6 without any proper corroboration from any other independent witness. Additionally, the injury sustained by the appellant has not been explained by the prosecution which vitiates the prosecution story. Further, on his deposition before the Court stated that the police took his signature on some written papers. He further stated that he has not been examined by the police and nothing has been seized in his presence. Learned Counsel for the respondent has submitted that the report of the Medical Officer reveals that the deceased suffered homicidal death due to the injury inflicted by the seized weapon. Further, he relied upon the evidence of P.W.6 who is one of the eye-witnesses and also sustained injuries while trying to save the deceased from the onslaught. Hence, he submits that the prosecution has sufficiently proved the motive of the accused in committing such a heinous crime. Having made the aforesaid submissions, learned Counsel for the State submits that the prosecution has been successful in establishing the truth beyond reasonable doubt that the appellant herein is the author of the crime and that the present appeal ought to be dismissed being devoid of merit. While relying on the case of Gangadhar Raju alias Balachandran vs. State of Tamil Nadu, the court noticed that “It is well settled that the testimony of a related witness cannot be discredited mechanically because the relationship of the witness cannot be a ground to determine the credibility of the testimony.”