Vinay Kumar Rai &
ANR. Vs. State of Bihar  INSC 1381 (18 August 2008)
THE STATE OF BIHAR
(Criminal Appeal No. 371 of 2006) AUGUST 18, 2008 [Dr. Arijit Pasayat and P.
Sathasivam, JJ.] The Judgment of the Court was delivered by Dr. ARIJIT PASAYAT,
in these appeals is to the judgment of a Division Bench of the Patna High Court
upholding the conviction of the appellants for offence punishable under Section
302 read with Section 34 of the Indian Penal Code, 1860 (in short `IPC') so far
as accused Ajeet Kumar Rai @ Ajeet Narayan Rai and Vinay Kumar Rai, appellant
No.1 in Criminal appeal 371 of 2006 and Ashutosh Kumar Rai @ Sanjay Kumar Rai,
appellant in other Criminal Appeal. Ashutosh Kumar Rai was further charged for
committing the murder of Nanda Kumar Singh punishable under Section 302 IPC and
Section 27 of the Arms Act, 1959 (in short `Arms Act'). The High Court
dismissed the appeals. The present appeals had been filed by Vinay Kumar Rai
(A-3) and Ajeet Kumar Rai @ Ajeet Narayan Rai (A-1) and Ashutosh Kumar Rai
(A-2). The Presiding Officer, Additional Court No.1, Fast Track Court in
Sessions Trial Nos. 578/96 and 1/2001 held Ajeet Kumar Rai and Vinay Kumar Rai
guilty under Section 302 read with Section 34 IPC and accused Ashutosh Kumar
Rai under Section 302 IPC and sentenced to undergo RI for life. He was also
found guilty of offence under Section 27 of the Arms Act and sentenced to
undergo RI for three years. Two appeals were filed before the High Court which
by the impugned judgment dismissed the same. All accused were put on trial for
committing the murder of Nanda Kumar Singh (hereinafter referred to as the
`deceased') in furtherance of their common intention for offence punishable
under Section 302 read with Section 34 IPC.
version in a nutshell is as follows:
According to the
first information report given by Vishwanath Singh (PW-7) before the police on
26.7.1996 at 1.10 p.m., at about 12 noon, while he was sitting on the verandah
of the house and his son Nand Kumar Singh, the deceased had gone to the field
to inquire as to whether the land has been ploughed or not, he did not find
tractor there and while he was returning he saw the appellants and started shouting.
Hearing the alarm, the informant along with Sachida Nand Singh (PW-4) rushed
there and found that appellants Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet
Narayan Rai had caught hold of his son and appellant Ashutosh Kumar Rai @
Sanjay Kumar Rai had put pistol on his right temple. The moment they saw him
and Sachida Nand Singh, appellant Vinay Kumar and Ajeet Kumar Rai @ Ajeet
Narayan Rai exhorted to fire at which appellant Ashutosh Kumar Rai alias Sanjay
Kumar Rai fired at his son on the temple.
injuries his son fell down and all the appellants fled away brandishing the
pistol. When the informant and his nephew Sachidanand Singh reached there, they
found injury above the temple and immediately put him on a rickshaw and brought
to the Government Hospital, Sasaram where the doctor declared him brought dead.
On the basis of the aforesaid information, Sasaram (M) P.S. Case No.386 of 1996
was registered under Section 302/34 of IPC and 27 of the Arms Act.
According to the
first information report, the motive for the occurrence is the pendency of
litigation before the Director of Consolidation.
The police, after
investigation, submitted charge sheet against the appellants and they were
ultimately committed to the court of Sessions where all the appellants were
charged for offence under section 302/34 of IPC whereas, appellant Ashutosh
Kumar Rai alias Sanjay Kumar Rai was further charged for offence under section
302 of IPC and section 27 of the Arms Act.
The appellants denied
to have committed any offence and pleaded false implication on account of
previous enmity and their further defence was that the deceased was killed on
the same day at about 12 noon by fire arm by some unknown persons near the
house of Ram Nagina Singh.
Prosecution in order
to substantiate the accusations examined nine witnesses out of which
Sachidanand (PW-4), Sunil Kumar Singh (PW-5), Srikant Singh (PW-6) and Vishwa
Nath Singh (PW-7) claimed to be eye-witnesses. The last named person was the
informant. In order to prove their innocence, the accused persons examined four
witnesses. The trial Court believed the evidence of the eye-witnesses and found
the accused guilty.
appeal, it was submitted that there was discrepancy between the medical
evidence and the oral evidence and, therefore, the prosecution version should
not have been accepted. The primary stands were regarding the alleged
discrepancy between the medical evidence and the ocular evidence and the
eye-witnesses being related to the deceased. The High Court did not find any
substance in any of these stands and dismissed the appeals.
stands taken before the High Court were reiterated in these appeals. It was
highlighted by learned counsel for the appellants that it is unusual that eye
witnesses who are closely related to the deceased did not try to intervene to
save the deceased from the assailants.
counsel for the State on the other hand with reference to the conclusions of
the High Court pointed out that the witnesses have said that they saw the incidence
from a distance of about 15 to 20 yards. They stated that the deceased was shot
dead even before they reached the place of occurrence. Therefore, there was no
question of intervening to save the life of the deceased.
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.
Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid
down as under:- "A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the accused, to
wish to implicate him falsely.
Ordinarily a close
relation would be the last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and there is personal cause
for enmity, that there is a tendency to drag in an innocent person against whom
a witness has a grudge along with the guilty, but foundation must be laid for
such a criticism and the mere fact of relationship far from being a foundation
is often a sure guarantee of truth.
However, we are not
attempting any sweeping generalization.
Each case must be
judged on its own facts. Our observations are only made to combat what is so
often put forward in cases before us as a general rule of prudence. There is no
such general rule. Each case must be limited to and be governed by its own
above decision has been followed in Guli Chand and Ors. v. State of Rajasthan
(1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC
614) was also relied upon.
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
Vivian Bose, J. it was observed:
"We are unable
to agree with the learned Judges of the High Court that the testimony of the
two eyewitnesses requires corroboration. If the foundation for such an
observation is based on the fact that the witnesses are women and that the fate
of seven men hangs on their testimony, we know of no such rule. If it is
grounded on the reason that they are closely related to the deceased we are
unable to concur. This is a fallacy common to many criminal cases and one which
another Bench of this Court endeavoured to dispel in - `Rameshwar v. State of
Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately
still persists, if not in the judgments of the Courts, at any rate in the
arguments of counsel."
in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p.
209-210 para 14):
"But it would,
we think, be unreasonable to contend that evidence given by witnesses should be
discarded only on the ground that it is evidence of partisan or interested
witnesses.......The mechanical rejection of such evidence on the sole ground that
it is partisan would invariably lead to failure of justice. No hard and fast
rule can be laid down as to how much evidence should be appreciated. Judicial
approach has to be cautious in dealing with such evidence; but the plea that
such evidence should be rejected because it is partisan cannot be accepted as
the same effect is the decisions in State of Punjab v. Jagir Singh (AIR 1973 SC
2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera and
Ors. v. State of Orissa (2002 (8) SCC 381).
above position was also highlighted in Babulal Bhagwan Khandare and Anr. v.
State of Maharashtra [2005 (10) SCC 404] and in Salim Sahab v. State of M.P.
(2007 (1) SCC 699).
over insistence on witnesses having no relation with the victims often results
in criminal justice going away. When any incident happens in a dwelling house
the most natural witnesses would be the inmates of that house. It is
unpragmatic to ignore such natural witnesses and insist on outsiders who would
not have even seen any thing. If the Court has discerned from the evidence or
even from the investigation records that some other independent person has
witnessed any event connecting the incident in question then there is
justification for making adverse comments against non- examination of such
person as prosecution witness. Otherwise, merely on surmises the Court should
not castigate a prosecution for not examining other persons of the locality as
Prosecution can be
expected to examine only those who have witnessed the events and not those who
have not seen it though the neighborhood may be replete with other residents
also. [See: State of Rajasthan v. Teja Ram and Ors. (AIR 1999 SC 1776)].
is to be noted that PWs 4 and 7 have stated in their evidence about the
presence of PWs 5 and 6. Interestingly, Raj Kumar Singh (PW-1) in his statement
also stated about their presence at the place of occurrence. Though it was
pleaded by learned counsel for the appellants that PW-1's evidence cast a doubt
about the prosecution version it is to be noted that PW-1 never claimed to be
an eye witness. The evidence of PWs and eye witnesses clearly established that
accused Ajeet Kumar Rai and Vinay Kumar Rai caught hold of deceased and on
their exhortation appellant Ashutosh shot at the deceased. Therefore, Section
34 has application.
to the alleged discrepancy between the ocular evidence and the medical evidence
as rightly noted by the High Court there was no discrepancy. The medical
evidence was clearly in line with what has been stated by eye-witnesses. The
High Court has noted that the expression used by the witnesses cannot be
analysed in hypothetical manner. According to the eye witnesses gunshot injury
was caused on the right temple but the injury was found on the upper eyelid and
everted wound on the right oricle margin. Therefore, it can never be said that
medical evidence is contrary to the ocular evidence.
at from any angle, the appeals are without merit and deserve dismissal which we