Allahabad High Court
Mahendra vs State on 25 September, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Criminal Appeal No. 173 of 1989 Mahendra ---- Appellant Vs. State of U.P. ---- Respondent For Appellant : Sri Shiv Vilas Mishra, Amicus Curiae For Respondent/State : Sri Amit Sinha, Addl. Govt. Adv. Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J (25.9.2019)
1. This appeal arises out of impugned judgement and order dated 19.01.1989 passed by 4th Additional Sessions Judge, Varanasi in Sessions Trial No. 197 of 1987, convicting the accused appellant under Section 302 of IPC and sentencing him to undergo rigorous life imprisonment.
2. In the present case, name of the deceased is Jagarnath. Number of civil and criminal litigations were pending between the accused persons and the complainant party. In the night intervening 4/5.11.1986, accused persons, namely, Mahendra and Ram Gain entered the house of deceased Jagarnath, who was taking rest on his cot along with PW-2, Hari Nath and PW-1, Kailash Nath (both sons of the deceased). Accused-appellant, Mahendra asked Jagarnath as to whether he would compromise the court case or not and when it was refused by Jagarnath, accused-appellant caused gunshot injury on his head from the close range, resulting instantaneous death of the deceased. On the basis of written report dated 05.11.1986, Ex.Ka.-1 lodged by PW-2, Hari Nath, FIR was registered on 05.11.1986 at 6:20 am vide Ex.Ka.-3 against appellant Mahendra and co-accused Ram Gain under Section 302 of IPC.
3. Inquest on the dead body of the deceased was conducted on 05.11.1986 vide Ex. Ka-5 and the body was sent for postmortem which was conducted on 07.11.1986 by PW-5, Dr.C.B. Tripathi vide Ex. Ka-2.
4. As per the postmortem report, following injuries were found on the body of the deceased:
(i) Gunshot wound of entrance 3½ cm x 3 cm x skull cavity deep over right side head-temporo parietal region-2 cm behind ear. Scorching, blackening, tattooing present over and around margins. Underneath bones had a hole of size 3 cm x 3 cm and radiating fracture of parietal, temporal and occipital bones and base. Pellets and wad and discs were found lodged in the brain and skull cavity.
According to Autopsy Surgeon, the cause of death of the deceased is due to coma as a result of head injury.
5. While framing charge, the trial Judge has framed charge against accused-appellant, Mahendra under Section 302 of IPC, whereas against co-accused Ram Gain charge was framed under Section 302/34 of IPC.
6. So as to hold accused persons guilty, prosecution has examined six witnesses. Statements of accused persons were also recorded under Section 313 Cr.P.C, in which they pleaded their innocence and false implication.
7. By the impugned judgment, the trial Judge has convicted accused-appellant, Mahendra under Section 302 of IPC, whereas co-accused Ram Gain was convicted under Section 302/34 of IPC and sentenced them rigorous imprisonment for life.
8. Accused-appellant, Mahendra has preferred the present appeal, whereas co-accused Ram Gain preferred the Criminal Appeal No. 157 of 1989. During the pendency of the appeal, co-accused Ram Gain had expired and therefore, his appeal has been dismissed being abated and the present appeal confines only in respect of accused-appellant Mahendra.
9. Learned counsel for the appellant submits:
(I) that when number of cases were pending between two parties, question of appellant going to the house of deceased Jagarnath, does not arise.
(II) that no prudent man would go in the house of his enemy at 2 am in the night.
(III) that when the dispute was already pending in the court, there was no question for appellant to kill the deceased.
(IV) that co-accused Ram Gain is alleged to have accompanied the appellant, whereas there was some case between Ram Gain and father of accused-appellant, Mahendra and two enemies would not go together.
(V) that statements of PW-1, Kailash Nath and PW-2, Hari Nath are not reliable especially when PW-1 and PW-2 are the interested witnesses.
(VI) that PW-3, Suryabanshi has been examined as a chance witness and how at 2 am in the night such witness would be present, is a big question.
10. On the other hand, supporting the impugned judgement, it has been argued by State counsel that the conviction of the accused-appellant is in accordance with law and there is no infirmity in the same. He further submits that as there were number of disputes between the accused-appellant and that of complainant family, when the deceased had refused to compromise the matter, he was done to death by the accused-appellant. He further submits that while gaining entry in the house of the deceased, accused-appellant was having country made pistol with him which he used for killing the deceased and the statements of the eye witnesses found due support from the postmortem report.
11. We have heard counsel for the parties and perused the record.
12. PW-1, Kailash Nath is a son of the deceased. He has stated that number of cases were pending between two families and accused-appellant, Mahendra is his cousin in relation. On the date of incident, he was sleeping in his house along with his mother, whereas his father was sleeping along with PW-2, Hari Nath. After hearing the commotion, when he came out from his room, he saw his father having some discussion with the accused persons, who were abusing him. Accused-appellant asked his father to compromise the matter and when he refused to do so, he caused gunshot injury to him, resulting his death. He states that at the time of incident, the light was on and there was sufficient light. In the cross-examination, this witness remained firm and has reiterated as to the manner in which the incident occurred. Various unnecessary questions were put to this witness but he has answered all those questions, based on which, the prosecution case is further clear that it is the accused-appellant who killed the deceased.
13. PW-2, Hari Nath is the informant and other son of the deceased. While supporting the prosecution case, he too has stated that number of litigations were pending between two families and on the date of incident, accused-appellant gained entry in his house and had altercation with his father and when his father refused to compromise the matter, he caused gunshot injury on his head from close range, resulting his death. In the cross-examination, this witness also remained very firm and has elaborated the entire incident.
14. PW-3, Suryabanshi is a neighbour of the deceased. He states that at about 2:00 am in the night, he woke up to ease himself and after hearing some cries from the house of deceased and when he reached to his house, he saw accused-appellant Mahendra and Ram Gain having some altercation with the deceased and then the accused-appellant caused gunshot injury to the deceased, resulting his death. He further states that he made efforts to catch hold the appellant but he fled away from the spot. In the cross-examination, he has further clarified the entire incident in an elaborate manner and has reiterated as to the manner in which the deceased was done to death by the appellant.
15. PW-4, Surendra Yadav took the dead body of the deceased for postmortem.
16. PW-5, Dr.C.B. Tripathi is the Autopsy Surgeon and as per his report one injury was found which has already been mentioned in paragraph no. 4 of this judgment.
17. PW-6, R.S. Pandey is the Investigating Officer and has duly supported the prosecution case.
18. Close scrutiny of the evidence, in particular, statements of PW-1, Kailash Nath, PW-2, Hari Nath and PW-3, Suryabanshi, make it clear that number of litigations were pending between accused-appellant, Mahendra and that of family of the deceased and on the night of the incident, appellant gained entry in the house of the deceased, asked him to compromise the dispute and when he refused to do so, appellant caused gunshot injury on the head of the deceased, resulting his death. Incident has been witnessed by PW-1, PW-2, both sons of the deceased and PW-3 Suryabanshi, neighbour of the deceased. All the three eye witnesses remained very firm in the court. While supporting the prosecution case, their statements have been duly supported by the postmortem report of the deceased which has been proved by PW-5, Dr. C.B. Tripathi. There is absolutely no evidence on record as to why PW-1, PW-2 and PW-3 would falsely implicate the appellant. After due appreciation of the evidence, the trial court was justified in convicting the accused-appellant.
19. We find no substance in the argument of the defence that only interested witnesses have been examined. Law in this respect is very clear.
It is well settled principle of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai vs. State of Bihar (2001) 7 SCC 318; State of U.P. vs. Jagdeo Singh (2003) 1 SCC 456; Bhagalool Lodh & Anr. vs. State of U.P. (2011) 13 SCC 206; Dahari & Ors. vs. State of U.P. (2012) 10 SCC 256; Raju @ Balachandran & Ors. vs. State of Tamil Nadu (2012) 12 SCC 701; Gangabhavani vs. Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298; Jodhan vs. State of M.P. (2015) 11 SCC 52).
20. The Supreme Court in the matter of Bur Singh and Anr. vs. State of Punjab, (2008) 16 SCC 65 has held that merely because the eyewitnesses 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. Further, the Supreme Court in the matter of Sudhakar vs. State, AIR 2018 SC 1372 and Ganapathi vs. State of Tamil Nadu, AIR 2018 SC 1635 relying in its earlier judgments held as under:
"18. Then, next comes the question 'what is the difference between a related witness and an interested witness?. The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PW 1 and 5 were not only related witness, but also 'interested witness' as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73] : (2008 AIR SCW 6322). As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."
Relationship is not a factor to affect credibility of a witness. 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 the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized 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. (See- Harbans Kaur and another vs. State of Haryana, 2005 AIR SCW 2074; Namdeo vs. State of Maharashtra, 2007 AIR SCW 1835; Sonelal vs. State of M.P., 2008 AIR SCW 7988; and Dharnidhar vs. State of Uttar Pradesh and Others & other connected appeals, (2010) 7 SCC 759).
We further find no substance in the argument of the defence that there was no occasion for the appellant to gain entry in the house of the deceased. As stated above, number of litigations were pending between two families and on the date of incident, appellant had entered the house of the deceased asking him to compromise the case and when the deceased refused to do so, he was done to death by the appellant.
21. We, accordingly, affirm the judgement and order passed by the trial court.
22. Taking cumulative effect of the evidence, we are of the considered view that appeal is liable to be dismissed and the same is, accordingly, dismissed.
23. The accused-appellant is reported to be on bail. His bail bond stands cancelled and he be taken into custody immediately for serving the remaining sentence.
24. We appreciate the assistance rendered by Sri Shiv Vilas Mishra, Amicus Curiae and direct the State Government to pay Rs. 7,000/- towards his remuneration Dated: 25.09.2019 AKK/Anand (Raj Beer Singh, J) (Pritinker Diwaker, J)