Rajiv Sharma, J@mdashThis appeal is instituted against the judgment dated 16/19.01.2013, rendered by the learned Addl. Sessions Judge, Ghumarwin, Distt. Bilaspur, (Camp at Bilaspur), H.P. in Sessions Trial No. 4-7 of 2011, whereby the appellant-accused (hereinafter referred to as accused), who was charged with and tried for offences punishable under Sections 302, 307, 325 and 323 IPC and Sections 27, 54 and 59 of the Arms Act, has been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 IPC and to pay a fine of Rs. 5,000/-. The accused was further sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs. 3,000/- for offence punishable under Section 307 IPC. He was also sentenced to undergo rigorous imprisonment for a term of three years and one year alongwith fine of Rs. 2,000/- and Rs. 1,000/-, respectively for the offences punishable under Sections 325 and 323 IPC. He was further sentenced to undergo rigorous imprisonment for three years and fine of Rs. 2,000/- for the offence punishable under Sections 25, 54 and 59 of the Arms Act. In lieu of default of payment of fine, he was ordered to undergo rigorous imprisonment for a term of six months, three months, two months, one month and two months, respectively under the aforesaid counts.
2. The case of the prosecution, in a nut shell, is that Nand Lal (PW-5) on 14.10.2010 at about 4:30-5:00 PM, at Kandrour was sitting in his courtyard on a chair and accused fired at him on his back side from his gun which hit him on his right arm and right side of his back. He fell down from the chair. Sita Devi (PW-7), wife of Nand Lal, was sitting in the room and Biasan Devi (PW-6), daughter-in-law of Nand Lal was at the water tap at a distance of 8-10 feet in front of Nand Lal. Accused was wearing a belt on his shoulder around his waist having cartridges. Nand Lal was taken inside the kitchen by Sita Devi and Smt. Biasan Devi. Accused came towards window of kitchen and the door of the window was closed and thereafter, accused ran towards the road. Jai Nand (PW-3) was sitting in his courtyard. His wife Urmila Devi (PW-4) was serving tea to him and Mamta Devi, wife of his brother was also sitting at a distance of 6-7 feet. Accused came towards Jai Nand in the courtyard with a gun and fired at him. Due to fire, pellet hit him on his right foot and calf. He fell down. Pallets also hit on Urmila Devi and Mamta Devi. On the same day, Soma Devi (PW-8) was working at a distance of 5-7 feet from her son, namely, Ramesh, who was working near the wall of his house. Accused fired at Ramesh also on his right chest. Rakesh Kumar (PW-9), came at the spot and accused started running towards road and fell down. He was caught hold off by the people, who had gathered at the spot. Rakesh Kumar snatched the gun from the accused and gave it to Sita Devi and belt containing cartridges was kept by the side of the road. Injured Jai Nand, Nand Lal and Ramesh were taken to RH Bilaspur for treatment. Accused was detained at the spot by the police. Dr. Poonam Jaswal, PW-1 medically examined Ramesh, Nand Lal, Mamta, Urmila Devi and Jai Nand and issued MLCs Ext. PW-1/A, PW-1/C, PW-1/E, PW-1/F and Ext. PW-1/G, respectively. Accused was also medically examined vide MLC Ext. PW-1/I. Ramesh Kumar died on the way to IGMC, Shimla. His post mortem was conducted by Dr. Rishi Tandon, PW-12 and Dr. Ankur Dharmani, on 15.10.2011 vide report Ext. PW-12/B. The opinion given by doctor was that the cause of death was fire arm injury probable with gunshot from near range, leading to rupture of vital organs i.e. liver and right lung alongwith hemorrhage, leading to shock and death. The probable time that had elapsed between injury and death was 2 to 10 hours and between death and post mortem was 12 to 18 hours. The statement of Jai Nand Ext. PW-3/A was registered in the Hospital, on the basis of which FIR Ext. PW-10/A was recorded. The case property was sent for chemical examination. On completion of the investigation, challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 19 witnesses. The accused was also examined under Section 313 Cr.P.C. He denied the incriminating circumstances put to him. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Anup Chitkara, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. M.A. Khan, Addl. Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated 16/19.1.2013.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
6. PW-1 Dr. Poojan Jaswal, has conducted the medical examination of Sh. Ramesh Kumar, Nand Lal, Mamta, Urmila Devi and Jai Nand and issued MLCs Ext. PW-1/A, PW-1/C, PW-1/E, PW-1/F and Ext. PW-1/G, respectively. Accused was also medically examined vide MLC Ext. PW-1/I.
7. PW-3 Jai Nand deposed that on 14.10.2010, he was sitting in his courtyard. His wife was serving tea to him. Mamta Devi, wife of his brother was also sitting in the courtyard at a distance of 6-7 feet from him. The accused Raj Kumar came towards the courtyard with a gun and fired at him. Due to the fire by the accused, the pallet hit him on his right foot and right calf. He fell down on the ground and accused Raj Kumar ran away towards the road. The accused was carrying a belt of cartridges on his shoulder across the waist. He was brought inside the house by his wife and some villagers, who had come to the spot on hearing the gun shot and cries of his wife. He was brought to RH Bilaspur in a private car. After some time, he came to know in the hospital that Nand Lal and Ramesh were also fired at by accused Raj Kumar with his gun. His statement was recorded by the police under Section 154 Cr.P.C. vide Ext. PW-3/A. He identified gun Ext. P-1. In his cross-examination, he admitted that his family and the family of the accused were having inimical terms since very long regarding landed property. He also admitted that the disputed land was situated near the Petrol Pump at Kandrour.
8. PW-4 Urmila Devi has corroborated the statement of PW-3 Jai Nand. She testified that on 14.10.2010, her husband was sitting in the courtyard at about 5:00 PM. Mamta Devi was also sitting in their courtyard. She was serving tea to her husband. In the meantime, a loud noise was heard from the house of Ramesh Kumar. Accused Raj Kumar came from the side of house of Ramesh Kumar with a gun in his hand and fired at her husband. Her husband fell down on the ground. He got gunshot injuries on his right foot and right calf. Mamta Devi also received pallet injury on her back and she received a pallet injury on her left foot. The accused ran towards the road side. She alongwith the other persons brought her husband to RH Bilaspur. Two empty cartridges were also lying near their house at the place from where the accused had fired on her husband. After some time the police reached the spot. She was also medically examined. In her cross-examination, she deposed that the police had come on the spot after 20 minutes.
9. PW-5 Nand Lal is another material witness. He deposed that on 14.10.2010, he was at his home sitting on a chair in the courtyard. The chair was made of plastic. At about 4:30-5:00 PM, when he was sitting in the courtyard, he was fired upon on the back side, which hit him on his right arm and the right side of his back. Due to the gunshot, he fell down from the chair. When he fell down, he saw accused Raj Kumar coming towards him with the rifle in his hand and wearing a belt on his shoulder around the waist with cartridges. His wife Sita Devi was sitting inside the room and his daughter-in-law Biasan Devi was near the water tap at a distance of 8-10 feet in front. He fell down. He was taken inside the kitchen to save him from the accused. Accused Raj Kumar ran towards the road. He was taken to RH Bilaspur. In his cross-examination, he admitted that he had a dispute regarding landed property which was decided by the SDM in their favour. He identified Kurta Ext. P-2 having marks of pallets and payzama Ext. P-3. He also identified bathroom chappal Ext. P-4 and chair Ext. P-5. In his cross-examination, he also reiterated that all the PWs from PW-1 to PW-9, as per list of witnesses, were from the same family and have a dispute with the accused over a piece of land.
10. PW-6 Biasan Devi has also corroborated the statement of PW-5 Nand Lal. She also narrated the manner in which her father-in-law was fired at by the accused. She has seen accused at some distance from her father-in-law carrying rifle in his hand. She saw accused coming towards her father-in-law. She alongwith her mother-in-law took her father-in-law to the kitchen. Accused Raj Kumar went towards the road.
11. PW-7 Sita Devi is the wife of PW-5 Nand Lal. She deposed that her husband was sitting in the courtyard. Her daughter-in-law Biasan Devi was at water tap. She heard noise of gunshot. She came out of the room. She saw that her husband felling down from the chair. Her daughter-in-law reached near her husband. Accused Raj Kumar was standing at some distance with gun in his hand. The accused again pointed the rifle towards her husband. They lifted her husband and took him to kitchen and closed the door. Rifle was snatched by Rakesh Kumar from the hands of accused Raj Kumar on the road and was given to her. After some time, police also came on the spot. It was taken into possession by the police vide memo Ext. PW-7/A. She identified gun Ext. P-1.
12. PW-8 Smt. Soma Devi, deposed that her son Ramesh was working near the wall of the house. She was also working at a distance of 5-7 feet from Ramesh near their house. When she heard the noise of gunshot fire, she came to her son as he was crying. She took him in her lap. He was having a bullet injury on his right side chest below the nipple. She saw accused Raj Kumar standing at some distance from Ramesh. He was holding a gun in his hand. He was wearing a belt of cartridges on his shoulder across the waist. The accused thereafter went towards the house of Jai Nand. Thereafter, she raised noise and police came to the spot.
13. PW-9 Rakesh Kumar deposed that he received telephonic message on behalf of Nand Lal that Raj Kumar accused had fired a gun shot on Nand Lal and asked him to send a vehicle. He took the vehicle with a driver up to the gate of the school where Nand Lal was brought by his wife Sita Devi and daughter-in-law Biasan Devi. They took Nand Lal to RH Bilaspur. In the meantime, some noise was heard at some distance from school at Kandrour below the road from the house of Ramesh and Pohlo Ram. Accused Raj Kumar came running towards the road and fell down. He was caught by the people who had gathered there and was made to sit on the road. He was having belt of cartridges on his shoulder across the waist. He snatched the gun from him and gave it to Sita Devi wife of Nand Lal. The police also came to the spot. The gun was handed over to the police. He identified the gun Ext. P-1. The empty cartridges were found lying near the house of Jai Nand on the path leading to road. Those two empty cartridges were also made into a cloth parcel and were sealed with seal-K. These were taken into possession vide seizure memo Ext. PW-9/D. He identified the cartridges Ext. P-7 and P-8. The blood stained soil and grass was also taken into possession from the spot. The police took into possession the belt containing 17 live cartridges and made into a cloth parcel and the parcel was sealed with seal bearing impression "K". Out of the 17 cartridges, 15 were of one Company and remaining two were of another Company. He identified cartridges Ext. P-11 to Ext. P-22, which out of 17 cartridges were found on the road and were taken into possession by the police. The accused had shown the spot near the house of Ramesh saying that he had thrown an empty cartridge and got the said empty cartridge recovered which was sealed by the police in a cloth parcel with seal bearing impression "T" and taken into possession vide seizure memo Ext. P-9/F. He identified empty cartridges Ext. P-24. Thereafter, kurta and paizama of Nand Lal was produced by his wife to the police which was also sealed into a cloth parcel and sealed with seal impression "T". He identified kurta Ext. P-2 and paizama Ext. P-3. Thereafter, the police inspected the courtyard of Nand Lal and found nine pallets near the water tap. The nine pallets were taken into possession. He identified 9 pallets vide memo Ext. P-25. Thereafter, the police came to the house of Jai Nand and inspected the courtyard. 11 pallets were found in the courtyard and were taken into possession. He identified the same.
14. PW-10 HC Dev Raj has proved the disclosure statement made by the accused, on the basis of which, recoveries were effected. He also made deposition that the case property was handed over to him and nobody has tampered with the same, till it was in his possession.
15. PW-12 Dr. Rishi Tandon has conducted the post mortem examination of the deceased. He issued report Ext. PW-12/B. According to him, the cause of death was fire arm injury probably with gunshot from near range leading to rupture of vital organs i.e. liner and right lung alongwith hemorrhage, leading to shock and death.
16. PW-13 Sh. Naseeb Singh Patial, has proved report Ext. PW-12/C and PW-12/D dated 1.12.2010 and 8.12.2010, respectively.
17. PW-16 ASI Narayan Singh, has visited the spot on 14.10.2010 after receiving the information. The injured was sent to RH, Bilaspur. He also got recovered the cartridges.
18. PW-18 Dr. R.S. Kanwar has proved the opinions Ext. PW-18/A and Ext. PW-18/B.
19. PW-19 Dr. Vinit Aggarwal, has proved that Jai Nand was admitted at IGMC, Shimla.
20. The case of the prosecution, precisely, is that accused went to the house of PW-5 Nand Lal. He fired at him. He fell down. He was taken to the kitchen by his daughter-in-law, PW-6 Biasan Devi and PW-7 Sita Devi, his wife. The accused was identified by PW-5 Nand Lal, PW-6 Biasan Devi and PW-7 Sita Devi. Thereafter, the accused fired gun shot at PW-3 Jai Nand, who received injuries on his right foot and right calf. He also fell down from the chair. He was also taken to RH Bilaspur. The statement of PW-3 Jai Nand has been corroborated by his wife Smt. Urmila Devi. They had also identified the accused. According to them also, the accused was carrying gun and was also carrying belt of cartridges around his waist. Thereafter, the accused shot at Ramesh Kumar. He was taken to hospital. He died while being taken to IGMC, Shimla.
21. PW-5 Nand Lal has categorically testified that the accused had fired at him from his back. It hit him on his back and arm. He was taken to kitchen by his daughter-in-law and his wife. He was then taken to RH Bilaspur. PW-1 Dr. Poojan Jaswal has noticed multiple penetrating injuries present all over right arm, right back, left back close to spine and left scapular region. He issued MLC Ext. PW-1/C. PW-5 Nand Lal, PW-6 Biasan Devi and PW-7 Sita Devi have seen accused carrying the gun. He was identified by PW-5 Nand Lal, PW-6 Biasan Devi and PW-7 Sita Devi.
22. PW-3 Jai Nand also deposed that he was fired gunshot by the accused. He received pallet injuries on his right foot and right calf. He identified the accused. PW-4 Urmila Devi also saw the accused coming towards his husband and firing at him. He was also medically examined by PW-1 Dr. Poojan Jaswal. He noticed gunshot injury on right calf and right foot. He issued MLC Ext. PW-1/G. PW-1 Dr. Poojan Jaswal has also examined Ramesh Kumar. He noticed penetrating injury over right lower chest wall, one hand breaths right or mid line and approximately three fingers above lower edge of ribcage. He issued MLC Ext. PW-1/A. He referred the patient to the department of Surgery Orthopedic, IGMC, Shimla for further management.
23. The accused was also examined by PW-1 Dr. Poojan Jaswal. He noticed injuries on left red eye, on left cheek splattered with bright blood, swelling left nose, soft swelling back of scalp, abrasion of triangle shape on left knee at five O'' clock position, three lineal abrasions 1 cm long on lower back and right index finger nail, splattered with blood. The patient was advised C.T. Scan. He issued MLC Ext. PW-1/I.
24. Mr. Anup Chitkara, Advocate, for the accused has argued that the accused had no intention either to injure Nand Lal and Jai Nand or to kill Ramesh Kumar. According to him, his client was beaten mercilessly by the people and he has fired at them in his defence. This version cannot be believed. The accused has received injuries when he was being overpowered by the people gathered on the spot. Accused, firstly fired at Nand Lal and Jai Nand and finally at Ramesh Kumar. The gun shot to Ramesh Kumar has resulted in the death while taking him to hospital. The injuries received by Nand Lal were grievous. The injury received by Jai Nand was simple in nature and the same, according to PW-1 Dr. Poojan Jaswal, was possible with gunshot with multiple pallets. Similarly, PW-1 Dr. Poojan Jaswal has opined that injury received by PW-5 Nand Lal was possible with pallets of gunshot. He also opined that injury No. 1 mentioned in the MLC of Ramesh Kumar, deceased could be caused by gunshot.
25. The cause of death of Ramesh Kumar was firearm injury probably with gunshot from near range leading to rupture of vital organs i.e. liver and right lung alongwith hemorrhage, leading to shock and death as per post mortem report Ext. PW-12/B. The probable time that had elapsed between injury and death was 2 to 10 hours and between death and post mortem was 12 to 18 hours. PW-13 Sh. Naseeb Singh Patial, has proved report Ext. PW-12/C and PW-12/D. According to Ext. PW-12/D, the cartridge cases marked as exhibit E/1 (I) and E/1(II) have been fired from the right barrel of the firearm marked as exhibit E/B(DBBL gun) and the firearm gun was in working condition. The gunshot holes were detected on the kurta and T-shirt. The cartridge was fired from the left barrel of the firearm. Five cartridges used for test firing purpose were taken from the exhibit E/2. The gun was snatched by PW-9 Rakesh Kumar from the accused. The fired cartridges and unused cartridges were also recovered on the basis of disclosure statement made by the accused.
26. Mr. Anup Chitkara, Advocate, has also argued that all the witnesses cited by the prosecution are closely related to victim''s family and thus their statements cannot be relied upon. He also contended that the relations between the complainant party and the accused were strained and the possibility of his client being falsely implicated can also be ruled out. It is settled law that the statements of closely related witnesses can be relied upon but it has to be done with caution.
27. Their lordships of the Hon''ble Supreme Court in the case of
"42. In fact. the High Court went a step further and held that these two witnesses corroborated Rajendra Kumar Misra also. Rajendra ''Kumaz is the brother-in-law of Tribeni Sahai''s brother Radhey Shyam Sharma who at the relevant time was stationed at Lucknow as Deputy Inspector General of Police and as a Member of the vigilance Commission. The trial court observed rightly that the witness, could not be disbelieved merely because he was related to Tribeni Sahai. But it gave various reasons for not accepting his evidence at its face value."
28. Their lordships of the Hon''ble Supreme Court in the case of
"5. We have gone through the statements of Gurbachan Singh (PW. 5) and Harnam Singh (P.W. 2) and we find that the High Court has not read them correctly. Gurbachan Singh was the brother of the deceased, but that could be no reason for disbelieving him. The High Court should have appreciated the fact that being such a close relation, he would have no reason for leaving out the real assailant of his brother Balbir Singh, and implicating respondent Ramji Dass falsely. Moreover it should have noticed the fact that there was not even a suggestion, in the court of the Committing Magistrate or in the trial Court, that Gurbachan Singh had any enmity or other reason to falsely implicate the respondent. His statement could not therefore be viewed with suspicion merely because of his relationship with the deceased."
29. Their lordships of the Hon''ble Supreme Court in the case of
"12. According to the evidence of Puran, PW 3 he had taken the land of one Pt. Ram Saroop situated near out-skirt of the village, and had cultivated the same himself. He deposed that on the date and time of the occurrence when he was in his field he heard the uproar and cries of deceased Jyoti and Bahori, PW 1 and when he rushed towards the cries near his field he saw that the witnesses Bhagwan Sahai, PW 2, Harish Chandra, PW 4 and Sat Pal, PW 7 were also running towards the place of occurrence. He saw that the deceased was surrounded by the four appellants as well as the four acquitted accused. The appellant Arjun, Ram Pal and Bhagwan Sahai were armed with pick-axes while 4th appellant Mukho was armed with a lance and the acquitted accused were having lathies According to Puran PW 3, the appellant Arjun first gave a pick-axe blow on the right side of Jyoti''s head, appellant Ram Pal attacked on the right side of the head, Mukho gave a blow with lance at the back side of the head as result of which Jyoti fell on the ground. Thereafter the appellant Bhagwan Sahai gave blows of pick-axe on his right cheek and the appellant Mukho also gave lance blow on his right cheek. Puran is totally an independent witness. His presence in the field near the place of occurrence was quite natural as according to him the crop was standing in the field cultivated by him. The evidence of these eye-witnesses, PW 1, PW 2, PW 3, PW 4 and PW 7 further finds corroboration from the medical evidence of Dr. Mangal, PW 8 as already discussed earlier. The injuries found on the person of the deceased tally with the ocular version of all these eye witnesses which further lend assurance and support to the prosecution case. In view of these facts and circumstances we find no reason whatsoever to differ from the concurrent view taken by the two Courts below as the evidence on the basis of which the conviction of these four appellants is founded is fully reliable and trust-worthy and hence no other view is possible than the one already taken by the Trial Court and the High Court. Normally Supreme Court does not appraise the evidence for itself under Article 136 of the Constitution. The conclusion of High Court on question of fact on appreciation of evidence is considered to be final, yet we have scrutinized the evidence to satisfy ourselves to see whether there is any infirmity in the conclusions recorded by the High Court and we find that there is no cause for any interference."
30. Their lordships of the Hon''ble Supreme Court in the case of
"28. There is no doubt that P.Ws. 1, 2, 5, and 6 relied upon and believed by the trial as well as the High Court are not friendly to the accused persons on account of previous existing enmity between them. The admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eye-witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye-witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing."
31. Their lordships of the Hon''ble Supreme Court in the case of
"7. There are three eye-witnesses of the incident, that is, P.W.1 Ramraj son of the deceased Ram Lachhan, P.W.2 Firangi and P.W.4 Sudama, who is an injured witness and whose son Rajendra is the other deceased. The High Court doubted the evidence of these eyewitnesses merely on the ground that they had motive in supporting the prosecution case. Legally speaking, we are unable to accept this reasoning. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed in a public place, strangers are not likely to be present at the time of occurrence. Ultimately, eye-witnesses have to be persons who have reason to be present on the scene of occurrence because they happen either to be friends or family members of the victim. The law is long settled that for the mere reason that an eye- witness can be said to be an interested witness, his/her testimony need not be rejected. For the interest which an eye-witness may have, the court can while considering his or her evidence exercise caution and give a reasonable discount, if required. But this surely cannot be reason to ignore the evidence of eye-witnesses. The High Court was clearly in error in not considering the evidence of eye-witnesses at all in the present case for the reason that they were interested witnesses. As seen earlier, one of the eye-witnesses in an injured person who received injuries in the incident itself. He was rather seriously injured. If he was not present at the time of occurrence, wherefrom he received the injuries, would be an obvious question. In fact, P.W.4 is also the father of the deceased Rajendra. It is common in villages that male members of a family sleep together in the open during summer season. Sleeping near the tube-well is understandable because that would lend some coolness to the atmosphere. The High Court totally ignored the other aspect of the evidence of the eyewitnesses. That is, the evidence was consistent and the version of the witnesses tallied with each other. In our view, there was no reason to discard the evidence of the eye-witnesses. This evidence is clinching and it clearly implicates the accused persons. There is no reason to doubt the veracity of the evidence of at least P.W.1 and P.W.4 and that is sufficient to convict the accused persons."
32. Their lordships of the Hon''ble Supreme Court in the case of
"9. Evidence of PWs 1, 5 and 7 is cogent and credible. Merely because there was some animosity between PW-1 and accused persons as claimed by the prosecution, that cannot be a ground to discard his evidence even if it is credible and cogent."
33. Their lordships of the Hon''ble Supreme Court in the case of
"13. We shall first 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.
16. 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 - ''
34. Their lordships of the Hon''ble Supreme Court in the case of
"5. Mr. U.R. Lalit, learned Senior Counsel appearing in support of the appeal, submitted that though the occurrence has taken place in the broad day-light, the prosecution failed to examine a single independent witness but has examined PWs 2 and 3 who are nobody else than sons of the deceased. These witnesses consistently supported the prosecution case, disclosed in the First Information Report, in all material particulars, in their statements made before the Police as well as substantive evidence in Court. The trial court as well as the High Court has placed reliance upon their evidence and were of the view that merely because they were related to the deceased, the same ipso facto could not have been the ground to discard their evidence. In our view, the trial court as well as the High Court was quite justified in placing reliance upon their evidence as they were natural witnesses and consistently supported the prosecution case. That apart, their evidence has been accepted by this Court by upholding conviction of accused Laxman Singh and there is no reason to discard their evidence even in relation to the appellants."
35. Their lordships of the Hon''ble Supreme Court in the case of
"15. The trial court was of the view that absence of an independent eye-witness in the background of previous enmity, was a serious lacuna. But what the trial court failed to notice is that previous enmity was not denied and the prosecution case is that Kallu and other accused came in a group to Sadruddin''s house specifically to beat him up. Therefore, the mere fact that there was enmity between Sadruddin and Kallu cannot be a ground to reject the clear evidence of the eye-witnesses -- PWs 4, 6, 7, 9 and 10 who were the injured, and PW-3. The High Court has, therefore, rightly held that the appellants and other accused were the assaulting party; that they had come together with weapons and had acted jointly and had run away after injuring Sadruddin and four female members of his family."
36. Their lordships of the Hon''ble Supreme Court in the case of
37. Their lordships of the Hon''ble Supreme Court in the case of
"29. Each of the reasoning assigned by the High Court, in our opinion, is contrary to the well-settled legal principle. The witnesses examined on behalf of the prosecution, apart from being eyewitnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidences. Although in accepting the same, some amount of caution is required to be maintained."
38. Their lordships of the Hon''ble Supreme Court in the case of
"11. It is to be noted that PWs 7 and 13 were the injured witnesses and PW-10 was another eye-witness and was the informant. Law is fairly well settled that even if acquittal is recorded in respect of co-accused on the ground that there were exaggerations and embellishments, yet conviction can be recorded if the evidence is found cogent, credible and truthful in respect of another accused. The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence.
12. In law testimony of an injured witness is given importance. When the eye-witnesses are stated to be interested and inimically deposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically deposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witness appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence."
39. Their lordships of the Hon''ble Supreme Court in the case of
"11. 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. No evidence has been led in this regard."
40. Their lordships of the Hon''ble Supreme Court in the case of
"7. We shall first 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.
10. 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 -`
41. Their lordships of the Hon''ble Supreme Court in the case of
"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."
42. Their lordships of the Hon''ble Supreme Court in the case of
"23. On reappraisal and scrutiny of the evidence discussed hereinabove, we find no particular reason as to why the two eyewitnesses PW-1 and PW-11 should falsely depose against the appellants. It is difficult to believe that the relatives of deceased Dinesh would spare his real assailants and falsely involve other persons responsible for committing the offence. It is well settled that if the witness is related to the deceased, his evidence has to be accepted if found to be reliable and believable because he would inter alia be interested in ensuring that real culprits are punished. The trial court as well as the High Court have rightly held that there was a motive for the accused to commit murder of Dinesh because as per the prosecution evidence, A-1 was nursing a grudge against the deceased because he allegedly sexually assaulted his daughter, for which offence Dinesh was acquitted by the trial court on 18.03.2002 whereas the prosecutrix was later on married to DW-3 on 26.05.2002. Dinesh was murdered on the intervening night of 29/30.05.2002 in the house of A-1 in village Sundana. The evidence of PWs 1 and 11 has been found to be satisfactory, reliable, consistent and creditable by the trial court as well as by the High Court. Both the witnesses have been cross-examined at length by the defence, but nothing tangible has been extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. They have given reliable and consistent version of the crime and their evidence inspires confidence. On our examination of the judgment given by the trial court and confirmed by the High Court, we find that both the Courts have properly and rightly appreciated and re- appreciated the entire evidence on record and there is no infirmity or perversity in the findings recorded by the Courts below to interfere with the well-reasoned judgments."
43. The enmity is a double edged weapon. In the present case, the basis for firing at deceased Ramesh Kumar, PW-3 Jai Nand and PW-5 Nand Lal, is the litigation going on between the parties, more particularly, when the accused had lost the case before the Court of SDM. The accused also had the knowledge that if the firearm is shot from the close range, it may result in the death of a person. Thus, the prosecution has proved the case against the accused under Sections 302, 307, 325, 323 IPC and under Sections 27, 54 and 59 of the Arms Act.
44. Consequently, there is no merit in this appeal and the same is dismissed.
