REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1617 of 2014
SHIO SHANKAR DUBEY & ORS. ...APPELLANT(S)
VERSUS
STATE OF BIHAR ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed by the three
appellants challenging the judgment of High Court of
Patna dated 16.07.2013, by which Criminal Appeal (DB)
No. 410 of 1990 filed by them questioning their
conviction and sentence under Section 302 and some
other sections of I.P.C. has been dismissed.
2. The prosecution case is that on 16.05.1980, one
Raj Ballam Rai, informant alongwith his brother Raj
Keshwar Singh came to Sasaram Court. After finishing
his work in court informant proceeded with his
brother to his residence near Dharamshala. Raj
1
Keshwar Singh was on rickshaw and the informant was
on the bicycle. Raj Keshwar Singh was armed with a
double barell gun. The further case is that at about
9:00 am when they reached 50 to 60 yards east of
Kargahar More, the informant saw that Doodnath
Dusadh, Jamadar Dusadh and Ram Nandan Dusadh stopped
the rickshaw. They were armed with Lohbanda. Shio
Shankar Dubey was armed with Rifle and his brother
Ram Pravesh Dubey was armed with lathi and they were
also alongwith them. They pulled down Raj Keshwar
Singh from rickshaw and started assaulting with
Lohbanda. The Mukhiya that is Shio Shankar Dubey
asked them to kill in a hurry. The informant fled
away. Shio Shankar Dubey opened fire but none
received any injury. The accused persons thereafter
fled away towards south.
3. At 9:30 am, the police official namely, S.N.
Singh of Sasaram Police Station arrived at the place
of occurrence to whom Raj Ballam Rai gave a
fardbeyan. On the basis of fardbeyan given at the
place of occurrence by informant, First Information
Report was registered against 05 accused.
2
4. The prosecution, to prove its case, produced 15
witnesses. PW11, informant, fully supported the
prosecution case. PW13, Ragho Ram Singh, who was
also an eyewitness, supported the prosecution case.
PW5 was another eyewitness, who saw 04 of the accused
running away from the spot. Formal witnesses were
also produced by the prosecution. On the spot
seizure was also made by one Siddhanath Singh,
Inspector of Police, which seizure also contained
copy of four applications, which were typed at
District Court, Sasaram and were being carried by the
deceased alongwith him in a diary, which applications
were marked as Ext.3/2 to 3/5.
5. Inquest Report was also prepared on the spot.
Body was sent for post mortem. Post mortem report
was prepared as Ext.4. One defence witness, DW1,
Dasrath Ram was also produced, who brought the
register of the employees for the period 1961 to 1963
containing the signatures of deceased Raj Keshwar
Singh.
3
6. The trial court vide its judgment and order dated
14.09.1990 convicted 04 accused, (one of the accused
namely, Doodnath Dusadh having died during the
pendency of trial. The appellant No.1 – Shio Shankar
Dubey, accused No.3, was convicted for the offence
under Sections 302/149/148 I.P.C. and Section 27 of
the Arms Act. The appellant No.2 – Ram Pravesh
Dubey, accused No.4, was convicted for the offence
under Sections 302/149/147 I.P.C. The third
appellant, i.e., Jamadar Dusadh, accused No.1 was
convicted under Sections 302/147 and 379 I.P.C. Four
accused, who were convicted filed criminal appeal in
the High court, which has been dismissed. One
Ramnandan Dusadh also having died during pendency of
the appeal before the High Court, the three surviving
accused are in the appeal before this Court.
7. Learned counsel for the appellant in support of
the appeal submits that PW11 – informant being
brother of the appellant and PW13 being husband of
the niece of the deceased were all close relatives
and interested witnesses, the Courts below committed
an error in relying on the testimony of interested
4
witnesses. There being no independent witnesses
corroborating the charge against the appellants the
appellants ought not to have been convicted and
sentenced. It is further submitted that PW5, who
claimed to be an eyewitness and deposed before the
courts below that he saw four accused running away
from the spot, he has not taken the name of Ram
Pravesh Dubey, the appellant No.2. PW5 having not
taken the name of Ram Pravesh Dubey, the presence of
Ram Pravesh Dubey on the spot is not proved and the
Courts below have ignored this evidence. Ram Pravesh
Dubey having not been proved to be on the spot, could
not have been convicted. It is further submitted
that inquest report mentioned a bullet injury whereas
in the post mortem report, no bullet injury was
found. There being no bullet injury found in the
post mortem report, the entire prosecution theory is
inconsistent. Learned counsel for the appellant
further submits that there was no motive for
appellants to kill Raj Keshwar Singh.
8. Learned counsel appearing for the State refuting
the submissions of the learned counsel for the
5
appellant submits that informant PW11 was
accompanying the deceased and his evidence was found
trustworthy. The Courts below did not commit an
error in relying on his evidence. It is submitted
that the mere fact that PW11 and PW13 are related to
the deceased does not in any manner impeach their
truthfulness. It is submitted that the mention of
the bullet injury in the inquest report was due to
error of judgment by the person writing inquest
report. The skull being crushed in a manner and
bones being fractured, impression was drawn that
bullet entered from behind the skull and came out of
the mouth, which in no manner can be said to be fatal
to the prosecution case. It is submitted that PW5 is
a trustworthy witness, who is not related to the
deceased and saw the accused running away from the
spot.
9. We have considered the submissions of the learned
counsel for the parties and have perused the records.
10. PW11, who is a brother of the deceased, has fully
corroborated the prosecution case in his evidence.
6
In spite of thorough cross-examination, the witnesses
could not be shaken. The submission of the appellant
that witnesses PW11 and PW13 being related to the
deceased are interested witnesses and should not be
relied does not commend us. The mere fact that
deceased was brother of the informant and PW13 is the
husband of the niece of the deceased and does not
impeach their evidence in any manner. The mere fact
that witness is related does not lead to inference
that such witness is an interested witness. This
Court has occasion to consider such submission in
number of cases. In Kartik Malhar Vs. State of
Bihar, (1996) 1 SCC 614, this Court held that a close
relative who is a very natural witness cannot be
regarded as an interested witness. In paragraph Nos.
15 and 16, following was laid down:-
“15. As to the contention raised on behalf
of the appellant that the witness was the
widow of the deceased and was, therefore,
highly interested and her statement be
discarded, we may observe that a close
relative who is a natural witness cannot be
regarded as an interested witness. The term
‘interested’ postulates that the witness
must have some direct interest in having
the accused somehow or the other convicted
for some animus or for some other reason.
In Dalbir Kaur (Mst) v. State of Punjab,
7
(1976) 4 SCC 158, it has been observed as
under: (SCC pp. 167-68, para 11)
“Moreover, a close relative who is a
very natural witness cannot be
regarded as an interested witness.
The term ‘interested’ postulates that
the person concerned must have some
direct interest in seeing that the
accused person is somehow or the
other convicted either because he had
some animus with the accused or for
some other reason. Such is not the
case here.”
16. In Dalip Singh v. State of Punjab, AIR
1953 SC 364 it has 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 relative 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 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
generalisation. 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
8
prudence. There is no such general
rule. Each case must be limited to
and be governed by its own facts.”
11. Further in Namdeo Vs. State of Maharashtra,
(2007) 14 SCC 150, same propositions were reiterated
by this court elaborately referring to the earlier
judgments, this Court rejected the same submission in
paragraph Nos. 29, 30 and 38, which are to the
following effect:-
“29. It was then contended that the only
eyewitness, PW 6 Sopan was none other than
the son of the deceased. He was, therefore,
“highly interested” witness and his
deposition should, therefore, be discarded
as it has not been corroborated in material
particulars by other witnesses. We are
unable to uphold the contention. In our
judgment, a witness who is a relative of
the deceased or victim of a crime cannot be
characterised as “interested”. The term
“interested” postulates that the witness
has some direct or indirect “interest” in
having the accused somehow or the other
convicted due to animus or for some other
oblique motive.
30. Before more than half a century, in
Dalip Singh v. State of Punjab, AIR 1953 SC
364, a similar question came up for
consideration before this Court. In that
case, the High Court observed that
testimony of two eyewitnesses required
corroboration since they were closely
related to the deceased. Commenting on the
approach of the High Court, this Court held
that it was “unable to concur” with the
9
said view. Referring to an earlier decision
in Rameshwar Kalyan Singh v. State of
Rajasthan, AIR 1952 SC 54, Their Lordships
observed that it was a fallacy common to
many criminal cases and in spite of
endeavours to dispel, “it unfortunately
still persists, if not in the judgments of
the courts, at any rate in the arguments of
counsel” (Dalip Singh case, AIR p. 366,
para 25).
38. From the above case law, it is clear
that a close relative cannot be
characterised as an “interested” witness.
He is a “natural” witness. His evidence,
however, must be scrutinised carefully. If
on such scrutiny, his evidence is found to
be intrinsically reliable, inherently
probable and wholly trustworthy, conviction
can be based on the “sole” testimony of
such witness. Close relationship of witness
with the deceased or victim is no ground to
reject his evidence. On the contrary, close
relative of the deceased would normally be
most reluctant to spare the real culprit
and falsely implicate an innocent one.”
12. We, thus, reject the submission of the appellant
that PW11 and PW13 being related to deceased, their
evidence cannot be relied.
13. Now, the next submission of the learned counsel
for the appellant that PW5, who is held to be an
eyewitness has in his statement only taken names of
the four accused, who, according to him, were seen
running away from the spot. It is submitted that PW5
10
did not take the name of Ram Pravesh Dubey, the
appellant No.2. The statement of PW5 has been
brought on the record. PW5 in his statement stated
that at 9 O’clock in the morning, he had gone to
Sasaram and when he went about fifty steps south to
Rouza Road from G.T. Road, he saw the accused persons
namely Ram Nandan Dusadh, Dudnath Dusadh, Jamadar
Dusadh and Shankar Dubey fleeing on Rouza Road going
from the west to the east. It is true that in his
statement, he mentioned names of only four persons,
who were seen fleeing on Rouza Road. The mere fact
that he did not mention name of Ram Pravesh Dubey
cannot lead to the inference that Ram Pravesh Dubey
was not involved in the incident. There may be
several reasons due to which, he could not see Ram
Pravesh Dubey. When PW11 and PW13, whose evidence
has been relied by the trial court as well as High
Court, have categorically proved the presence of Ram
Pravesh Dubey and his participation in the
occurrence. The mere fact that PW5 did not see Ram
Pravesh Dubey fleeing is not conclusive nor on that
basis, we can come to any inference that Ram Pravesh
Dubey was not involved in the occurrence.
11
14. Now, we come to the another submission of the
appellants that in the inquest report, it was
mentioned that pellet from back in the head has come
out of the mouth, but there was no bullet injury
found in the post mortem report. In column No.5 of
the inquest report brought as Annexure-P42, following
was stated:-
“It appears that the pellet from back in
the head has come out of the mouth.
(illegible) part has been cut. The brow on
the eyes are (illegible). Left elbow has
bruise injury. Left had has also bruise
injury. Lacerated.”
15. We may further notice other details given in the
inquest report in column No.4, following was
noticed:-
“Head in north-east direction, leg in south
direction, felt facing upward, the back
portion of the head heavily damaged, both
the eye closed. Eye has blackened. Injury
in mouth also. Blood is oozing from the
mouth also.”
16. Now, we come to the post mortem report. Post
mortem report has been extracted by the High Court in
12
paragraph No.12 of the judgment. The injuries
noticed in paragraph No.12 are as follows:-
“12. XXXXXXXXXXXXXXXXXXXXXX
(i) Lacerated wound 2" X 1" with commuted
fracture of occipital bone in two
multiple pieces at back of head. Some
fragments of bone had pierced into
brain covering. There was collection of
blood clot outside and inside
durameter. Corresponding part of the
brain was found softened and with
lacerated injury. There was no
blackening of margin of surrounding
area or no tatooing.
(ii) Bruise 4" X 2" in front of face
involving right eye brow, right malar
bone and bridge of nose with multiple
fracture of right mallar bone, nosal
bone and right maxilla.
(iii) Bruise 2" x 1" left and below the
nose with fracture of left maxilla and
lacerated cut of cheek from inside 1" X
1/2".
(iv) Abrasion 1" x ½" of upper lip right to
mid-line.
(v) Lacerated cut ½" x ½" left margin of
tongue with blood clot in the mouth.
(vi) Abrasion ½" x ½" at left knee.
(vii) Abrasion 1" x ½" at left forearm.
Injury Nos. (i), (ii) and (iii) are
grievous in nature caused by hard blunt
substance, may be lathi and Lohbanda.
Injury Nos. (iv), (v), (vi), (vii) are
simple in nature, caused by hard blunt
13
substance, may be lathi and Lohbanda. Time
elapsed since death within 12 hours.
XXXXXXXXXXXXXXXXXX”
17. A perusal of the injuries, which have been
noticed in the post mortem report indicates that
there was fracture of occipital bone in two multiple
pieces at back of the head. Some fragments of bone
had pierced into brain covering. Multiple fracture
of right mallar bone, nosal bone and right maxilla
has also been noticed. The nature of the injuries,
which were found in the post mortem report indicates
that on seeing the injuries, the officers recording
the inquest report thought that since occipital bone
in two multiple pieces at back of head have been
fractured and some fragments of bone had pierced into
brain covering, the bullet entered from the back side
of the head and came out of the mouth, which is
noticed in the inquest report and the officer writing
the inquest report made his opinion by seeing the
injury by bare eyes. The nature of injuries
especially injury in the back of head led him to
believe that bullet entered from back of the head and
came out of the mouth. The above impression recorded
14
in the inquest report was only opinion of person
preparing inquest report and due to the above
impression recorded in the inquest report and no
bullet having been found in the post mortem report,
it cannot be concluded that incident did not happen
in a manner as claimed by the prosecution. The
mention of bullet injury was only an opinion of the
officer writing the inquest report and in no manner
belies the prosecution case as proved by eyewitnesses
PW11 and PW13.
18. Learned counsel for the appellant has further
contended that there was no motive proved. PW11 in
his statement clearly mentioned that as his nephew
had contested election against the accused Shio
Shankar Dubey for the post of Mukhiya, due to which
Shio Shankar Dubey was angry with his deceased
brother. In paragraph No.5 of the statement,
following has been stated:-
“5. Accused Shiv Shankar Dubey was the
Mukhiya of my Gram Panchayat Gotpar
Khatadihri at the time of occurrence. My
nephew Ram Bachan Singh had contested
election against the accused Shio Shankar
Dubey for the post of Mukhiya. This is why
15
Shio Shankar Dubey was angry with my
deceased brother and all the accused
jointly murdered him. Bikram Dusadh had
been jailed three to four days earlier to
this occurrence. He was full brother of
the accused namely Dudnath Dusadh and
Jamadaar Dusadh and son of the accused Ram
Nandan Dusadh. The accused were suspicious
of the fact that my deceased brother had
got him jailed.”
19. In paragraph No.58, the trial court has
discussed about the motive and it held that motive
for the occurrence has been proved from the oral
evidence of PW11 and Ext. 5 and Ext.5/1.
20. There is one more fact, which needs to be noted
in the present case. The occurrence is of 9.00 AM on
16.05.1980 and within half an hour of the occurrence,
police officials from Police Station, Sasaram arrived
on the spot, a fardbeyan of the informant, PW11 was
recorded on the spot itself by the police officials.
At 9.30 AM, the fardbeyan has been proved. The
inquest report and the seizure report were provided
at 10.00 AM and 10.15 AM respectively on the spot.
FIR was sent to the court on 17.05.1980. Trial court
has noticed the entire sequence of the events and has
16
rightly come to the conclusion that there was no
opportunity for the informant to implicate other
leaving the real culprits. In paragraph Nos. 72, 73
and 74, the trial court records following:-
“72. The salient feature of the present
case is that the occurrence took place at 9
a.m. on 16-5-80. The Fardbeyan was
recorded at 9-30 a.m. at the place of
occurrence. The inquest report and the
seizure list was prepared at 10 a.m. and
10.15 a.m. respectively at the spot. The
postmortem was done on the same day at
12.10 p.m. These facts are proved from
ext.6 (Fardbeyan) Ext. 7 (inquest report),
Ext.8 (seizure list) and Ext. 4 (postmortem
report).
73. The F.I.R. was sent to the court on 17-
5-80. Admittedly, it was morning court and
the court closes at 12 noon. So the F.I.R.
was sent on 17-5-80 in the earliest
possible time. One accused was also
arrested and sent to custody on 17-5-80.
This fact is proved from the order sheet of
the lower court dated 17-5-80 which is the
first order sheet in this case before lower
court.
74. From the facts mentioned in the above
para there was no opportunity for the
informant to implicate other leaving the
real culprit. Sot this cannot be a case of
false implication.”
21. The prosecution case in the present case being
fully proved against the accused, the eyewitness
17
account of PW11, who was accompanying the deceased
has given the eyewitness account of the entire
incident. The names of all the five accused and role
attributed to them have been promptly recorded by the
police officials within half an hour of the incident
on the spot. The medical evidence corroborates the
ocular evidence. Both the Courts below have not
committed any error in convicting the appellants and
sentencing them. We do not find any error in the
judgment of courts below. There is no merit in the
appeal. The appeal is dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
May 09, 2019.
18
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1617 of 2014
SHIO SHANKAR DUBEY & ORS. ...APPELLANT(S)
VERSUS
STATE OF BIHAR ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed by the three
appellants challenging the judgment of High Court of
Patna dated 16.07.2013, by which Criminal Appeal (DB)
No. 410 of 1990 filed by them questioning their
conviction and sentence under Section 302 and some
other sections of I.P.C. has been dismissed.
2. The prosecution case is that on 16.05.1980, one
Raj Ballam Rai, informant alongwith his brother Raj
Keshwar Singh came to Sasaram Court. After finishing
his work in court informant proceeded with his
brother to his residence near Dharamshala. Raj
1
Keshwar Singh was on rickshaw and the informant was
on the bicycle. Raj Keshwar Singh was armed with a
double barell gun. The further case is that at about
9:00 am when they reached 50 to 60 yards east of
Kargahar More, the informant saw that Doodnath
Dusadh, Jamadar Dusadh and Ram Nandan Dusadh stopped
the rickshaw. They were armed with Lohbanda. Shio
Shankar Dubey was armed with Rifle and his brother
Ram Pravesh Dubey was armed with lathi and they were
also alongwith them. They pulled down Raj Keshwar
Singh from rickshaw and started assaulting with
Lohbanda. The Mukhiya that is Shio Shankar Dubey
asked them to kill in a hurry. The informant fled
away. Shio Shankar Dubey opened fire but none
received any injury. The accused persons thereafter
fled away towards south.
3. At 9:30 am, the police official namely, S.N.
Singh of Sasaram Police Station arrived at the place
of occurrence to whom Raj Ballam Rai gave a
fardbeyan. On the basis of fardbeyan given at the
place of occurrence by informant, First Information
Report was registered against 05 accused.
2
4. The prosecution, to prove its case, produced 15
witnesses. PW11, informant, fully supported the
prosecution case. PW13, Ragho Ram Singh, who was
also an eyewitness, supported the prosecution case.
PW5 was another eyewitness, who saw 04 of the accused
running away from the spot. Formal witnesses were
also produced by the prosecution. On the spot
seizure was also made by one Siddhanath Singh,
Inspector of Police, which seizure also contained
copy of four applications, which were typed at
District Court, Sasaram and were being carried by the
deceased alongwith him in a diary, which applications
were marked as Ext.3/2 to 3/5.
5. Inquest Report was also prepared on the spot.
Body was sent for post mortem. Post mortem report
was prepared as Ext.4. One defence witness, DW1,
Dasrath Ram was also produced, who brought the
register of the employees for the period 1961 to 1963
containing the signatures of deceased Raj Keshwar
Singh.
3
6. The trial court vide its judgment and order dated
14.09.1990 convicted 04 accused, (one of the accused
namely, Doodnath Dusadh having died during the
pendency of trial. The appellant No.1 – Shio Shankar
Dubey, accused No.3, was convicted for the offence
under Sections 302/149/148 I.P.C. and Section 27 of
the Arms Act. The appellant No.2 – Ram Pravesh
Dubey, accused No.4, was convicted for the offence
under Sections 302/149/147 I.P.C. The third
appellant, i.e., Jamadar Dusadh, accused No.1 was
convicted under Sections 302/147 and 379 I.P.C. Four
accused, who were convicted filed criminal appeal in
the High court, which has been dismissed. One
Ramnandan Dusadh also having died during pendency of
the appeal before the High Court, the three surviving
accused are in the appeal before this Court.
7. Learned counsel for the appellant in support of
the appeal submits that PW11 – informant being
brother of the appellant and PW13 being husband of
the niece of the deceased were all close relatives
and interested witnesses, the Courts below committed
an error in relying on the testimony of interested
4
witnesses. There being no independent witnesses
corroborating the charge against the appellants the
appellants ought not to have been convicted and
sentenced. It is further submitted that PW5, who
claimed to be an eyewitness and deposed before the
courts below that he saw four accused running away
from the spot, he has not taken the name of Ram
Pravesh Dubey, the appellant No.2. PW5 having not
taken the name of Ram Pravesh Dubey, the presence of
Ram Pravesh Dubey on the spot is not proved and the
Courts below have ignored this evidence. Ram Pravesh
Dubey having not been proved to be on the spot, could
not have been convicted. It is further submitted
that inquest report mentioned a bullet injury whereas
in the post mortem report, no bullet injury was
found. There being no bullet injury found in the
post mortem report, the entire prosecution theory is
inconsistent. Learned counsel for the appellant
further submits that there was no motive for
appellants to kill Raj Keshwar Singh.
8. Learned counsel appearing for the State refuting
the submissions of the learned counsel for the
5
appellant submits that informant PW11 was
accompanying the deceased and his evidence was found
trustworthy. The Courts below did not commit an
error in relying on his evidence. It is submitted
that the mere fact that PW11 and PW13 are related to
the deceased does not in any manner impeach their
truthfulness. It is submitted that the mention of
the bullet injury in the inquest report was due to
error of judgment by the person writing inquest
report. The skull being crushed in a manner and
bones being fractured, impression was drawn that
bullet entered from behind the skull and came out of
the mouth, which in no manner can be said to be fatal
to the prosecution case. It is submitted that PW5 is
a trustworthy witness, who is not related to the
deceased and saw the accused running away from the
spot.
9. We have considered the submissions of the learned
counsel for the parties and have perused the records.
10. PW11, who is a brother of the deceased, has fully
corroborated the prosecution case in his evidence.
6
In spite of thorough cross-examination, the witnesses
could not be shaken. The submission of the appellant
that witnesses PW11 and PW13 being related to the
deceased are interested witnesses and should not be
relied does not commend us. The mere fact that
deceased was brother of the informant and PW13 is the
husband of the niece of the deceased and does not
impeach their evidence in any manner. The mere fact
that witness is related does not lead to inference
that such witness is an interested witness. This
Court has occasion to consider such submission in
number of cases. In Kartik Malhar Vs. State of
Bihar, (1996) 1 SCC 614, this Court held that a close
relative who is a very natural witness cannot be
regarded as an interested witness. In paragraph Nos.
15 and 16, following was laid down:-
“15. As to the contention raised on behalf
of the appellant that the witness was the
widow of the deceased and was, therefore,
highly interested and her statement be
discarded, we may observe that a close
relative who is a natural witness cannot be
regarded as an interested witness. The term
‘interested’ postulates that the witness
must have some direct interest in having
the accused somehow or the other convicted
for some animus or for some other reason.
In Dalbir Kaur (Mst) v. State of Punjab,
7
(1976) 4 SCC 158, it has been observed as
under: (SCC pp. 167-68, para 11)
“Moreover, a close relative who is a
very natural witness cannot be
regarded as an interested witness.
The term ‘interested’ postulates that
the person concerned must have some
direct interest in seeing that the
accused person is somehow or the
other convicted either because he had
some animus with the accused or for
some other reason. Such is not the
case here.”
16. In Dalip Singh v. State of Punjab, AIR
1953 SC 364 it has 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 relative 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 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
generalisation. 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
8
prudence. There is no such general
rule. Each case must be limited to
and be governed by its own facts.”
11. Further in Namdeo Vs. State of Maharashtra,
(2007) 14 SCC 150, same propositions were reiterated
by this court elaborately referring to the earlier
judgments, this Court rejected the same submission in
paragraph Nos. 29, 30 and 38, which are to the
following effect:-
“29. It was then contended that the only
eyewitness, PW 6 Sopan was none other than
the son of the deceased. He was, therefore,
“highly interested” witness and his
deposition should, therefore, be discarded
as it has not been corroborated in material
particulars by other witnesses. We are
unable to uphold the contention. In our
judgment, a witness who is a relative of
the deceased or victim of a crime cannot be
characterised as “interested”. The term
“interested” postulates that the witness
has some direct or indirect “interest” in
having the accused somehow or the other
convicted due to animus or for some other
oblique motive.
30. Before more than half a century, in
Dalip Singh v. State of Punjab, AIR 1953 SC
364, a similar question came up for
consideration before this Court. In that
case, the High Court observed that
testimony of two eyewitnesses required
corroboration since they were closely
related to the deceased. Commenting on the
approach of the High Court, this Court held
that it was “unable to concur” with the
9
said view. Referring to an earlier decision
in Rameshwar Kalyan Singh v. State of
Rajasthan, AIR 1952 SC 54, Their Lordships
observed that it was a fallacy common to
many criminal cases and in spite of
endeavours to dispel, “it unfortunately
still persists, if not in the judgments of
the courts, at any rate in the arguments of
counsel” (Dalip Singh case, AIR p. 366,
para 25).
38. From the above case law, it is clear
that a close relative cannot be
characterised as an “interested” witness.
He is a “natural” witness. His evidence,
however, must be scrutinised carefully. If
on such scrutiny, his evidence is found to
be intrinsically reliable, inherently
probable and wholly trustworthy, conviction
can be based on the “sole” testimony of
such witness. Close relationship of witness
with the deceased or victim is no ground to
reject his evidence. On the contrary, close
relative of the deceased would normally be
most reluctant to spare the real culprit
and falsely implicate an innocent one.”
12. We, thus, reject the submission of the appellant
that PW11 and PW13 being related to deceased, their
evidence cannot be relied.
13. Now, the next submission of the learned counsel
for the appellant that PW5, who is held to be an
eyewitness has in his statement only taken names of
the four accused, who, according to him, were seen
running away from the spot. It is submitted that PW5
10
did not take the name of Ram Pravesh Dubey, the
appellant No.2. The statement of PW5 has been
brought on the record. PW5 in his statement stated
that at 9 O’clock in the morning, he had gone to
Sasaram and when he went about fifty steps south to
Rouza Road from G.T. Road, he saw the accused persons
namely Ram Nandan Dusadh, Dudnath Dusadh, Jamadar
Dusadh and Shankar Dubey fleeing on Rouza Road going
from the west to the east. It is true that in his
statement, he mentioned names of only four persons,
who were seen fleeing on Rouza Road. The mere fact
that he did not mention name of Ram Pravesh Dubey
cannot lead to the inference that Ram Pravesh Dubey
was not involved in the incident. There may be
several reasons due to which, he could not see Ram
Pravesh Dubey. When PW11 and PW13, whose evidence
has been relied by the trial court as well as High
Court, have categorically proved the presence of Ram
Pravesh Dubey and his participation in the
occurrence. The mere fact that PW5 did not see Ram
Pravesh Dubey fleeing is not conclusive nor on that
basis, we can come to any inference that Ram Pravesh
Dubey was not involved in the occurrence.
11
14. Now, we come to the another submission of the
appellants that in the inquest report, it was
mentioned that pellet from back in the head has come
out of the mouth, but there was no bullet injury
found in the post mortem report. In column No.5 of
the inquest report brought as Annexure-P42, following
was stated:-
“It appears that the pellet from back in
the head has come out of the mouth.
(illegible) part has been cut. The brow on
the eyes are (illegible). Left elbow has
bruise injury. Left had has also bruise
injury. Lacerated.”
15. We may further notice other details given in the
inquest report in column No.4, following was
noticed:-
“Head in north-east direction, leg in south
direction, felt facing upward, the back
portion of the head heavily damaged, both
the eye closed. Eye has blackened. Injury
in mouth also. Blood is oozing from the
mouth also.”
16. Now, we come to the post mortem report. Post
mortem report has been extracted by the High Court in
12
paragraph No.12 of the judgment. The injuries
noticed in paragraph No.12 are as follows:-
“12. XXXXXXXXXXXXXXXXXXXXXX
(i) Lacerated wound 2" X 1" with commuted
fracture of occipital bone in two
multiple pieces at back of head. Some
fragments of bone had pierced into
brain covering. There was collection of
blood clot outside and inside
durameter. Corresponding part of the
brain was found softened and with
lacerated injury. There was no
blackening of margin of surrounding
area or no tatooing.
(ii) Bruise 4" X 2" in front of face
involving right eye brow, right malar
bone and bridge of nose with multiple
fracture of right mallar bone, nosal
bone and right maxilla.
(iii) Bruise 2" x 1" left and below the
nose with fracture of left maxilla and
lacerated cut of cheek from inside 1" X
1/2".
(iv) Abrasion 1" x ½" of upper lip right to
mid-line.
(v) Lacerated cut ½" x ½" left margin of
tongue with blood clot in the mouth.
(vi) Abrasion ½" x ½" at left knee.
(vii) Abrasion 1" x ½" at left forearm.
Injury Nos. (i), (ii) and (iii) are
grievous in nature caused by hard blunt
substance, may be lathi and Lohbanda.
Injury Nos. (iv), (v), (vi), (vii) are
simple in nature, caused by hard blunt
13
substance, may be lathi and Lohbanda. Time
elapsed since death within 12 hours.
XXXXXXXXXXXXXXXXXX”
17. A perusal of the injuries, which have been
noticed in the post mortem report indicates that
there was fracture of occipital bone in two multiple
pieces at back of the head. Some fragments of bone
had pierced into brain covering. Multiple fracture
of right mallar bone, nosal bone and right maxilla
has also been noticed. The nature of the injuries,
which were found in the post mortem report indicates
that on seeing the injuries, the officers recording
the inquest report thought that since occipital bone
in two multiple pieces at back of head have been
fractured and some fragments of bone had pierced into
brain covering, the bullet entered from the back side
of the head and came out of the mouth, which is
noticed in the inquest report and the officer writing
the inquest report made his opinion by seeing the
injury by bare eyes. The nature of injuries
especially injury in the back of head led him to
believe that bullet entered from back of the head and
came out of the mouth. The above impression recorded
14
in the inquest report was only opinion of person
preparing inquest report and due to the above
impression recorded in the inquest report and no
bullet having been found in the post mortem report,
it cannot be concluded that incident did not happen
in a manner as claimed by the prosecution. The
mention of bullet injury was only an opinion of the
officer writing the inquest report and in no manner
belies the prosecution case as proved by eyewitnesses
PW11 and PW13.
18. Learned counsel for the appellant has further
contended that there was no motive proved. PW11 in
his statement clearly mentioned that as his nephew
had contested election against the accused Shio
Shankar Dubey for the post of Mukhiya, due to which
Shio Shankar Dubey was angry with his deceased
brother. In paragraph No.5 of the statement,
following has been stated:-
“5. Accused Shiv Shankar Dubey was the
Mukhiya of my Gram Panchayat Gotpar
Khatadihri at the time of occurrence. My
nephew Ram Bachan Singh had contested
election against the accused Shio Shankar
Dubey for the post of Mukhiya. This is why
15
Shio Shankar Dubey was angry with my
deceased brother and all the accused
jointly murdered him. Bikram Dusadh had
been jailed three to four days earlier to
this occurrence. He was full brother of
the accused namely Dudnath Dusadh and
Jamadaar Dusadh and son of the accused Ram
Nandan Dusadh. The accused were suspicious
of the fact that my deceased brother had
got him jailed.”
19. In paragraph No.58, the trial court has
discussed about the motive and it held that motive
for the occurrence has been proved from the oral
evidence of PW11 and Ext. 5 and Ext.5/1.
20. There is one more fact, which needs to be noted
in the present case. The occurrence is of 9.00 AM on
16.05.1980 and within half an hour of the occurrence,
police officials from Police Station, Sasaram arrived
on the spot, a fardbeyan of the informant, PW11 was
recorded on the spot itself by the police officials.
At 9.30 AM, the fardbeyan has been proved. The
inquest report and the seizure report were provided
at 10.00 AM and 10.15 AM respectively on the spot.
FIR was sent to the court on 17.05.1980. Trial court
has noticed the entire sequence of the events and has
16
rightly come to the conclusion that there was no
opportunity for the informant to implicate other
leaving the real culprits. In paragraph Nos. 72, 73
and 74, the trial court records following:-
“72. The salient feature of the present
case is that the occurrence took place at 9
a.m. on 16-5-80. The Fardbeyan was
recorded at 9-30 a.m. at the place of
occurrence. The inquest report and the
seizure list was prepared at 10 a.m. and
10.15 a.m. respectively at the spot. The
postmortem was done on the same day at
12.10 p.m. These facts are proved from
ext.6 (Fardbeyan) Ext. 7 (inquest report),
Ext.8 (seizure list) and Ext. 4 (postmortem
report).
73. The F.I.R. was sent to the court on 17-
5-80. Admittedly, it was morning court and
the court closes at 12 noon. So the F.I.R.
was sent on 17-5-80 in the earliest
possible time. One accused was also
arrested and sent to custody on 17-5-80.
This fact is proved from the order sheet of
the lower court dated 17-5-80 which is the
first order sheet in this case before lower
court.
74. From the facts mentioned in the above
para there was no opportunity for the
informant to implicate other leaving the
real culprit. Sot this cannot be a case of
false implication.”
21. The prosecution case in the present case being
fully proved against the accused, the eyewitness
17
account of PW11, who was accompanying the deceased
has given the eyewitness account of the entire
incident. The names of all the five accused and role
attributed to them have been promptly recorded by the
police officials within half an hour of the incident
on the spot. The medical evidence corroborates the
ocular evidence. Both the Courts below have not
committed any error in convicting the appellants and
sentencing them. We do not find any error in the
judgment of courts below. There is no merit in the
appeal. The appeal is dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
May 09, 2019.
18
