[2008] 12 S.C.R. 94

ARJUN MAHTO

STATE OF BIHAR

CRIMINAL APPEAL NO. 753 OF 2001

AUGUST 13, 2008

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM ' i

SHARMA, JJ.]

Penal Code, 1860: c s. 395 - Dacoity - Large number of persons entered the premises and attacked the residents with lathi, gun and pharsa

- Thereafter looted the househol~ properties - Conviction of five accused persons under s.395 - Challenge against, on

D ground that witnesses were related to deceased hence not trustworthy and that sentence be reduced considering long passage of time - Held: Evidence of injured witnesses and ,,._

other eye-witnesses support the prosecution case - No infirmity in order of conviction - Further, in case of dacoity, le-

E niency in sentence would not only be undesirable but also would be improper - Passage of time would not wash away gravity of offence - Sentence/Sentencing - Reduction of --In case of dacoity.

s.395 - Dacoity- Accused not named in FIR - Acquittal F by Courts below doubting prosecution version - Correctness of - Held: Correct.

Evidence: Testimony of relatives - Evidentiary value of

- Held: Relationship not a factor to affect credibility of witness

- When there is a/legation of interestedness, the same has to be established - Mere statement, that being relatives of the deceased, they are likely to falsely implicate the accused, can- ,.\ not be a ground to discard the evidence, which is otherwise cog(lnt and credible.

H 94

ARJUN MAHTO v. STATE OF BIHAR 95 •

} The prosecution case was that on the fateful evening A when informant PW-4 was in his house, 10 armed persons entered into the house through an open door. One

of them fired twice from the gun which injured the informant. Informant fled inside the room. He was dragged into the courtyard where his father PW-3 and his brother (de- B ceased) were sitting. The deceased was caused injuries 1 with pharsa and gun shot while PW-3 was attacked with lathi and pharsa. In the meantime, 20~25 more persons .. entered and began looting away the household properties. c The trial Court held the appellants guilty under s.396 IPC, however, directed acquittal of 11 co-accused persons. The appellants filed appeals before High Court while the State filed an appeal questioning acquittal of one

'SAK'.

The High Court dismissed the State's appeal while in case of appellants altered the conviction from s.396 IPC to s.395 IPC. The sentence of rigorous imprisonment for life was altered to seven years rigorous imprisonment.

E In these appeals, the appellant contended that since the witnesses were related to the deceased, their evidence could not be accepted particularly when two of them were disbelieved and role of .'SAK' which was so eloquently stated by witnesses was discarded and that most of ap- F pellants suffered sentence of nearly 4-% years and considering the long passage of time, the sentence should be suitably reduced.

Dismissing the appeals, the Court

HELD: 1. Merely because the eye-witnesses are fam- G

I ily 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 ac- H

A cused, cannot be a ground to discard the evidence, which is otherwise cogent and credible. 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. Founda-

B tion 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. [Para 5] [100, G-H; 101-A-B]

~ Dalip Singh and Ors. v. The State of Punjab AIR (1953) c SC 364; Guli Chand and Ors. v. State of Rajasthan (1974) 3

SCC 698; Vadive/u Thevar v. State of Madras AIR (1957) SC 614; Masalti and Ors. v. State of UP AIR (1965) SC 202; State of Punjab v. Jagir Singh AIR 1973 SC 2407; Lehna v.

State of Haryana (2002) 3 SCC 76; Gangadhar Behera and D Ors. v. State of Orissa (2002) 8 SCC 381; Babula/ Bhagwan Khandare and Anr. v. State of Maharashtra (2005)10 SCC 404; Salim Sahab v. State of M.P (2007) 1 sec 699 - relied on. ..,_

2.1. In the instant case, the evidence of the injured

E witness PW 4 is of vital importance. Similar is the case of PW 2. Even though PWs 1 and 3 have not been fully believecfyet the credibility of the evidence of PWs 2 and 4 cannot be doubted on that score. It is a serious case of dacoity, any leniency in sentence would not only be un-

F desirable but also would be improper. The passage of time cannot wash away gravity of offence. [Para 12] [103,8-C]

2.2. So. far as the acquittal of 'SAK' is concerned, the trial court and the High Court doubted prosecution version implementing him, because he was not named in the

G FIR. [Para 12] [103, B]

Case Law Reference

AIR (1953) SC 364 relied on Para 6 ,.\

AIR (1957) SC 614 relied on Para 7

H (197 4) 3 sec 698 relied on Para 7

AIR (1965) SC 202 relied on Para 9 A

AIR 1973 SC 2407 relied on Para 10

(2002) 3 sec 76 relied on Para 10

(2002) a sec 381 relied on Para 10

(2oos)1 o sec 404 relied on Para 11 8

(2007) 1 sec 699 relied on Para 11

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 753 of 2001

c From the final Judgment and Order dated 18.8.2000 of the High Court of Judicature at Patna in Crl. Appeal No. 371 of 1987

WITH

Criminal Appeal Nos. 1179 and 754 of 2001

H.L. Agrawai, Gaurav Agrawal, Prashant Kumar, K.K.

Gupta and Naresh Bakshi for the Appellant.

Gopal Singh, Manish Kumar Singh and Shweta Km. Singh for the Respondents.

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. These three appeals have a common matrix and judgment of a Division Bench of the Patna High Court. By the impugned judgment, the State's appeal was F dismissed while in the case of present appellants their conviction was altered from Section 396 of the Indian Penal Code, 1860 (in short the 'IPC') to Section 395 IPC. The sentence of . Rigorous Imprisonment for life was altered to seven years rigorous imprisonment.

2. Factual position in a nutshell is as follows:

The case of the prosecution, briefly stated, as contained in the Fardbayan (Ext.2) of the informant Yusuf Ali Khan son of Khalil Bux Khan (P.W.4) is as follows: H

A The Fardbayan was recorded at the P.O. Village Khaira, P.S. Auras, District Gaya at 8 p.m. relating to the alleged occurrence of 7 p.m. on the same day on 15.03.1983. The Fardbayan . was recorded by Mohd. Asfaque Ali (P.W.5}, the officer incharge of Bankey Bazar outpost. It is alleged that the informant was at

B his house at about 7 p.m. Suddenly 10 armed persons entered into the house through the open door. One of them fired twice from the gun making the informant injured. He fled inside the ,.._

room. He was dragged into the courtyard where his father Khalil Bux Khan (P.W. 3), and his brother-Nausher Ali Khan (hereinafc ter referred to as the 'deceased) were sitting. On the deceased Na usher Ali Khan injuries with Pharsa and gun shot was caused while Khalil Bux Khan (P.W.3) suffered injuries with lathi and

Pharsa. It is mentioned in the fardbeyan that the man who caused injuries to the informant with gun shot was of fair complexion

D and a tall man whose name he did not know. In the meantime

20-25 more persons entered through the door and inside the house and began looting away the household properties. Among them the informant identified as many as 12 persons namely,

(1) Bindeshwari Sao (2) Suraj Pasi (3) Ram Lal Chamar, (4)

E Baijnath Mishra, (5) Bishaum Singh, (6) Arjun Mahato (7) Basudeo Yadav, (8) a teacher of Bankey Bazar High School resident of village Sarka Jamuara, (9) Ram Swarup Ram (10) Lalu Khan an.d (11) Vijoy Yadav and Sa mm id Ahmed Khan. The source of identification was the light of lantern burning in the house. The value and the list of the articles was to be furnished F subsequently. Altogether 70-80 dacoits were alleged to have participated in the dacoity. While retreating the dacoits were rising slogans "M.C.C. Zindabad". After the dacoits had left, the informant came to know that dacoits had also entered into the house of his uncle and grandfather and after causing injuries to G them they had also looted away a Licensed gun from their house.

It is said that during inyestigation after recording the . Fardbayan and formal F.l.R. (Ext.3) the LO. sent the injured per- ' sons to the hospital for their -medical treatment. Some of the

H accused persons were also placed in theT.I. Parade and some

ARJUN MAHTO v. STATE OF BIHAR 99

[DR. ARIJ!T PASAYAT, J.]

) of the accused were identified by the witnesses in the T. I. Pa- A rade. One of the injured named Na usher Ali Khan was removed to Calcutta hospital, where he died, from Magadh Hospital Gaya for further treatment whose P.M. Report was procured by the

1.0. from Park Street Police Calcutta.

After investigation charge-sheet was submitted by the of- B

ficer against some of the accused persons named in the F.l.R and also against some of the accused who were identified in the T. I. Parade and also against some of these who were named subsequently by the witnesses before the investigating police officer whose names neither figured in the F.l.R. nor were said c

to have .been identified in the test identification parade. Some of the accused named in the F.l.R. were not sent up by the police fortrial. However, some of them were made accused by the orders of the trial court under Section 319 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.'). Some of the P.Ws D were already examined before charge was ordered to be framed against four of the accused under Section 319 Cr.P.C. which resulted in the de nova trial of all the accused person

Altogether eight witnesses were examined on behalf of E the prosecution. Three of them i.e. Ganzaffar Ali Khan (PW 1), Zahid Ali Khan (PW 2) and Yusuf Ali Khan (PW 4) were three sons of Khalil (PW 2) in whose house the alleged dacoity took place. PW 4 the informant was also seriously injured and according to the prosecution sustained eleven injuries.

F -\ The trial court placed reliance on the evidence of all the four witnesses who claimed to be eye witnesses. Placing reliance on their evidence, the trial court held the five appellants in the three appeals before this Court to be guilty of offence punishable under Section 396 IPC. However, he directed acquittal G of the eleven co-accused persons. The convicted accused per-

J sons preferred two appeals before the High Court while the State preferred an appeal questioning acquittal of Dr. Sha min Ahmad Khan alias Samman Khan. The High Court held that though the evidence of PWs 1 & 3 cannot be said to be cogent, the evi- H

A dence of PWs 2 & 4 were without blemish. Accordingly it upheld the judgment of the trial court, so far as finding the appellant's guilt is concerned. It found that occurrence took place on 15.3.1983 and the deceased breathed his last long after about a month. That being so the appropriate conviction would s be under Section 395 IPC. Accordingly the conviction was altered and sentence imposed was also altered.

3. In support of the appeal learned. counsel for the appellant submitted that even in the FIR there was no consistency.

Though certain persons were named and overt acts were ate tributed to them the evidence in Court was at variance with the statement. So far as the appellant Bindeshwari Rao is concerned, it is submitted that though he was named in the FIR, the role attributed to him was not specific. It was also submitted that most of the appellants have suffered sentence of nearly 41'2 D years and considering the long passage of time, the sentence should be suitably reduced. In the case of accused appellant Bindeshwari Rao, it is submitted that though he has suffered custody for about one year, considering the unclear role attributed to him by the prosecution his case deserves sympathetic E consideration. Witnesses were related to the deceased and their evidence should not be accepted particularly even two of them were dis-believed and the role of Dr. Shamim Ahmad Khan which was so eloquently stated by the witnesses has been discarded.

4. Learned counsel for the State supported the judgment of the High Court.

5. Merely because the eye-witnesses are family mebers their evidence cannot per se be discarded. When there is alle- G gation 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 wit- H, nesses for furthering prosecution version. Relationship is not a

) factor to affect credibility of a witness. It is more often than not A 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.

6. 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 c 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 D 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.

E 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." F

7. The above decision has since been followed in Gu/i 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.

8. 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 w_as expressed over the impression H

A 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 itis , 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."

9. 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 E 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 F 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."

10. To the same effect is the decisions in State of Punjab G

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) sec 381 ).

11. The above position was also highlighted in Babula/ H Bhagwan Khandare and Anr v. State of Maharashtra [2005( 10)

sec 404) and in Salim Sahab v. State of M.P (2007(1) sec A 699).

12. In the instant case, the evidence of the injured witness PW 4 is of vital importance. Similar is the case of PW 2 even though PWs 1 & 3 have not been fully believed yet the credibility of the evidence of PWs 2 & 4 cannot be doubted on that B score. So far as the acquittal of Dr. Shamim Ahmad Khan is concerned, the trial court and the High Court doubted prosecution version so far as he is concerned because he was not named in the FIR. It is a serious case of dacoity, any leniency in sentence would not only be undesirable but also would be im- C proper. The passage of time cannot wash away gravity of offence. Therefore, judged from any angle these appeals have no substance and are dismissed.

13. The accused persons who are on bail, shall surrender 0 to custody forthwith to serve remainder of their sentence.

14. The appeals fail and are dismissed.

D.G.

Appeals dismissed.