Patna High Court
Ramayan Singh And Ors. vs State Of Bihar on 22 April, 1987
Equivalent citations: 1988(36)BLJR545
JUDGMENT S.H.S. Abidi, J.
1. Appellants Chote Lal Singh, Ramayan Singh and Rajendra Singh have been convicted under sections 302/34 of the Indian Penal Code (in short the 'Code') and have been sentenced to rigorous imprisonment for life. Appellant Chote Lal Singh has further been convicted under Section 302 of the Code and sentenced to rigorous imprisonment for life. The sentences have been ordered to run concurrently. The appellants have filed this appeal against the above conviction and sentences.
2. The case of the prosecution was that on 11-7-1976 at about 11 a. m. at village Sisva Korar within Paharpur police station of the district of East Champaran, Binod Singh (Since deceased) son of Baijnath Singh (P. W. 7) had gone to watch his chilli and Bhindi field. At about 2 to 2.30 p m. on that day Bhagmani Devi (P. W. 3) along with Atmla (P. W. 2) mother and sister of the deceased, and Kariman (not examined) left for the field to pluck chilli and Bhindi. On way Kariman proceeded to ease. Bbagmani Devi (P. W. 3) and Amila Devi (P. W. 2) proceeded towards the field. They saw appellants Chote Lal Singh, Ramayan Singh arid Rajendra Singh. Appellant Chote Lal Singh was cutting the throat of Binod and appellants Ramayan and Rajendra Singh had caught hold of Binod on a Machan on which he (Binod) was watching the held. All the three appellants threw Binod in the adjacent Bhanli paddy held and fled away, On receiving the information about the occurrence from Kariman the informant Had Narayan Singh (P. W. 8) along with Baijnath Singh and others rushed to the place of occurrence and saw the dead body of Binod Singh lying on the Bhanli paddy field. Han Narayan Singh (P. W. 8) who is the informant, was sent to police station along with Chaukidar Chaturi to lodge the information Han Narayan Singh (P. W. 8) went to police station and on his statement Jayanand Jha (P. W. 18) the then offlcer-in-charge drew up the first information report (Ext. 5). In the F. I. R. the informant Hari Narayaa Singh (P. W. 8) had not named any one as the culprit and hence the F.I.R. was registered against unknown. Jayanand Jha (P. W. 13; took charge of the investigation of the case and subsequently on his transfer he made over charge of the investigation to Bishwanath Singh (P. W. 11) another officer-in-charge, who after completing investigation submitted charge-sheet.
3. During the course of investigation Jayanand Jha (P. W. 13) came to the place of occurrence at Bhanli paddy field of Porakha Mahto of Siswa Korar at a distance of about 10 to 12 Bighas to the north of village Siswa Korar. There he found the dead body of Binod Singh on the south western corner of the said Bhanali field. He also found the field of Baijnath Singh adjacent south west of the said Bhanali field in which chilli and Bhindi crops were standing. He found a Sisam tree on the ridge intervening between the two fields and found some blood fallen on earth adjacent to the Sisam tree. There was a Machan in the field of Baijnath Singh on which also P.W. 13 found sufficient quantity of blood and on earth beneath it There was also blood on the chilli plants beneath the said machan. The investigating officer (P. W. 13) thereafter sent the dead body of Binod for postmortem examination after preparing the inquest report. After getting the postmortem examination report from Dr. Sita Ram Singh (P W 14) charge-sheet was submitted by Bishwanath Singh (P. W. 11) the then officer in-charge who had taken over the charge of the police station on the transfer of P. W. 13.
4. The appellants in defence denied the prosecution case and alleged that they have been falsely implicated in this case. No witness in defence was, however, examined by the appellants
5. The prosecution in support of its case examined 14 witnesses P. W. 1 is Narsingh Singh and uncle of the deceased who had said that he had been cutting Janora from his field which is at a distance of 14 to 18 Laggis from the Bhanali field and after hearing the cry of the mother of the victim namely Bhagtnani he went to the spot and saw the dead body of Binod thrown in the Bhanli paddy field and found him (Binod) dead. He saw the throat of Binod cut, and also saw the appellants Ramayan Singh, Chote Lal Singh and Rajendra Singh fleeing at a distance of 16 to 18 Laggis towards east. According to this witness P. Ws. 2 and 3 were saying that the appellants have killed the deceased and were taking away the dead body.
P. W. 2 is Amila Kumari, 8 years old sister of the victim, who had said that her brother had been sent for watching the chilli and Bhindi field and when at about 2 p.m. she went along with her mother to the said field, she saw the occurrence. P. W. 3 is Bhagmani Devi, the mother of the deceased, who had said that she had seen the occurrence when Binod was being killed P. W. 4, Saraswati Devi who is daughter of P. W. 7, has been tendered. P. Ws. 5 and 6, Girja Kumari and Ramnath Singh respectively, have also been tendered. P. W. 7, Baijnath Singh, is the father of the victim who had reached the spot on information. P. W. 8 is Hari Narain Singh, the informant and cousin of the deceased who had turned hostile, though on receiving information about the occurrence he had gone to Bhanali field and found Bhagmani Devi, the mother of the victim, and Amila Kumari, sister of the victim, weeping there and he bad also seen the neck of Binod cut and Ganji of the deceased smeared with blood and found blood on the Machaa as well as beneath it and he went to the police station and thereafter on his statement F. I. R. was recorded. He had said that Kariman had not given out the names of the appellants and that he had not learnt the names of the appellants on the spot. He had been declared hostile He had proved the signature on a protest petition (Ext. 2), though later on he had said that his signature bad been obtained on blank papers. Though in the examination in chief he says that he has made a protest petition in a case on 26-7-76.
P.W. 9 is Sachchidanand Verms, Advocate, who says that he had filed a protest petition (Ext 3; signed by Hari Narayan Singh and there is also a Vakalatnama (Ext. 4) in his favour. P.W. 10 is Balmukund Pandey who had proved F.I.R. (Ext. 5), P.W. 11 is the second T. O. who had assumed charge from 23-7-1977 and recorded the statements and thereafter completed investigation and submitted charge-sheet. P. W. 12 is Rajendra Prasad, Malkhana incharge, who had proved the entry No. 38. dated 5-1-1978 of the Malkhana register (Ext. 6) and entry No. 79, dated 142-1979 of the Malkhana register about the receipt of some clues, though these items have not bean produced in court not made material Exts. in the trial of the case. P W. 13 is the first I.O., Jaynand Jha who had recorded the F.I. R. and prepared the inquest report. P.W. 14 is Dr. Sitaram Prasad, who had conducted the postmortem examination on 12-7-1976 at about 6 p. m. and had found the following injuries on the person of the deceased :
A sharp cutting injury on the anterior side of neck size 6"-6". Trachea, Oosopsagus, both the carotid artery and all the neck muscles from anterior side were cut.
In the opinion of the Doctor (P.W. 14) the death was caused due to the above injuries which were sufficient in the ordinary course of nature to cause death and that the injuries might have been caused by sharp cutting instrument, might be by dagger or Chhura.
6. The learned trial Court after considering the entire materials on the records convicted and sentenced the appellants as said above.
7. The factum of death of Binod has well been proved by the evidence of P.Ws. 1, 2, 3, 7 and 8 who had seen the victim as also P. W. 13 who bad prepared the inquest report and lastly by the evidence of P. W. 14, Dr. Sitaram Prasad who had conducted postmortem examination over the deceased. Moreover, the defence has also not denied the murder of Binod Singh.
8. Learned Counsel for the appellants argued that in this case the F. !. R. does not mention the names of the appellants and it is against unknown persons and the appellants have been falsely implicated in this case. Had the witnesses seen the appellants committing the offence the names of the appellants should have been mentioned in the F. I. R. Next it was argued that P. Ws. 2 and 3 are the only eye-witnesses who had seen the occurrence but they are sister and mother of the deceased and so their evidence is not to be relied on. Thirdly it was argued that Narain Singh (P. W. 1) is said to have gone to the Superintendent of Police at Motihari and filed a petition stating that the statements of the witnesses were not being recorded till 9 a. m. on the next date, whereas the I. O. reached the spot at about 10.45 p. m. on the same date and inspected the place of occurrence and though he had recorded the statements of the witnesses and so the prosecution case not to be doubted on that score. It was further argued that the appellants have been implicated falsely on account of enmity and there was no motive for the appellants to commit the offence. It was further argued that P. Ws. 2 and 3 are partisan witnesses have not said before the police that the neck of Binod was cut though in court they said that the neck was cut. Lastly it was argued that the possibility of others committing crime cannot be ruled out and the appellants have been roped falsely in this case.
9. In this case it appears that the F. I. R. had been recorded by P. Ws 16 on the basis of the statements of P. W. 8 Hari Narain Singh who is not an eye-witnesses but he was told according to him by Kariman in examination in chief. P. W. 8 has said that on 11-7-1976 at about 11 a.m. who was sitting beneath the tree of Kadam where Baijnath Singh, Jagannath Singh and Raghuni Singh and others were sitting. There Kariman came running from the north and said that Binod after being killed had been thrown in the Bhanli field, where the mother and father of the victim had also come, and the neck of Binod was cut and Ganji of Binod was blood-stained. He had also said that he saw the blood on the Machan and Binod was aged about 17-18 years at that time. Kariman did not say to him about the names of the appellants. He did not know about the names of the appellants at the spot. He sent his brother Munni Lal Singh and called for the Choukidar and taking the Choukidar he had gone to the police station where he gave his statement which was read over to him after being written by the S. I. This witness denied before the police that during the dispute son of Baijnath Singh namely Binod Singh, the deceased, had opposed the demand of appellants for removal of Berhi and for that reason there was good deal of dispute with the appellant Chote Lal Singh, He also denied to have said before the police that Binod had said that at that time his (Binod) family was weak and hence Chote Lal Singh and others were creating disturbances but on attaining majority he (Binod Singh) would protest against such high handedness and would always remember it, and further when the matter came to the knowledge of Chote Lal Singh then Chote Lal Singh got enraged and began to give out threat that he would destroy him. This witness denied to have said before the S. I. that the mother of the deceased namely P. W. 3 was calling the names of the appellants. He further denied to have said that on inquiry he had not said about the murder of the victim at the hands of the appellants. He had, however, said that he was very much affected mentally on account of death of Binod and so at the time of getting the F.I.R. recorded he thought it proper to say what he had himself seen and not what had been said by others to him. He later on said that it was not correct to say that on the spot the names of the appellants were given out to him and intentionally he omitted the names of the appellants. He said that it was not correct to say that to spoil the prosecution case he had not got recorded the names of the appellants in the F.I. R.
10. This witness has become unfriendly and so he has been declared hostile by the prosecution. From his statement it appears that he is not an eye-witness and whatever he stated before the police that was the diction of Kariman, This witness has tried to go back to the statements given by him before the police A witness who is declared hostile by the prosecution is not a witness of the prosecution, but his testimony cannot be left out from consideration. It is definite from his statement that he is not an eye-witness to the occurrence. He was told by Kariman about the occurrence and so he reached the spot and found the victim there and blood on the Machan as well as on the ground, thereafter he went to the police station and lodged the information. He has given out in his statement that he was mentally disturbed and so he gave out that much matter which he had himself seen and not what had been told to him by others. So he has omitted the names of the appellants in the F. I. R. and also in the statement in court.
11. This witness (P. W. 8) has thus offered an explanation before the Court that as he was mentally disturbed on account of the death of Binod, he did not mention that portion which he had not seen with his own eyes. He had also seen the victim lying injured and dead on the spot and the weeping of P.Ws. 2 and 3 and not the accused assaulting the deceased and causing his death. He, therefore, did not give out the names of the accused which might have been not known to him as he had not seen the accused committing the offence. He has also not said that Kariman has given out the names of the appellants so in these circumstances non-mentioning of the names of the appellants by the witnesses in the F. !. R. as well as in the statement in Court does not affect the case of the prosecution as he is not an eye-witness and he has tried to say what he had seen himself,
12. Narsingh Singh (P. W. 1) is the uncle of the deceased whose statement shows that he was cutting Janera in his field and was at a distance of about 14-18 Laggis then he heard the cry of the mother of the victim and Amila (P. W. 2) and so he reached the place of occurrence and found the dead body of Binod. He has said that the appellants were killing the victim and taking away the dead body. He has said that he had seen the appellants running from a distance of about 16-18 Laggis, He has said about the names of the appellants and recognised them in court, he had also found blood on the Machan and beneath it, and then he asked Kariman to go and give information at the house of Binod. There Choukidar Chaturi had also come, and Choukidar and Harinarain Singh (P. W. 8) went to the police station. According to this witness there was delay in the arrival of the police, so he went to Motihari and made an application to the Superintendent of Police, Motihari, against the police. Before the occurrence appellants were asking Baijnath Singh (P. W. 7) to remove his Berhi which he refused to remove. P. W. 1 has admitted that Baijnath Singh was his nephew. This witness has admitted that the place of occurrence is at a distance of about a Bighas from the Basti and that his field was near the place of occurrence. He has also said that Binod's mother and sister (P Ws. 3 and 2 respectively) were giving out the names of the appellants. The informant was given out the names of the appellants by him. He further said that he had himself seen the appellants at the time of occurrence. He denied that he did not say before the police that he had himself seen the appellants, though said that the mother and sister of Binod were crying and telling that they (appellants) were taking away the dead body of the deceased,
13. Amila Kumari (P. W. 2), the sister of the victim has said that she had sent her brother (Binod) for watching the chilli and bhindi crops and when she went along with her mother at the said field she saw the three appellants assaulting the deceased. His head was caught hold of by Ramayan Singh, and the feet by appellant Rajendra and Chote Lal Singh was cutting the neck and then the appellants wanted to take him away and then she and her mother cried whereupon Harisingh Singh (P. W. 1) had come on an alarm and chased the appellants, The dead body was thrown in the Bhanli field. She has said that she was examined by the police on the same night. She has not said before the police that appellant Rajendra was catching hold of legs of the victim, rather one had said that he was catching hold of the head of Binod.
14. The next eye-witness is Bhagmani Devi (P.W. 3) the mother of the victim, who had also stated like P. W. 3, the sister of the deceased. She had also stated that the deceased had gone to watch the chilli field and when she along with her daughter (p. W. 2) came to the said field she saw the victim being assaulted and his neck being cut by the appellant Chote Lal Singh and blood was also on the Machan and beneath it and that Harsingh Singh (P. W. 1) had arrived on the spot on alarm and on his arrival the appellants were fleeing away and he (P. W. 1) had seen them running. She had become senseless after seeing the dead body of her son and from her house her husband and daughter Saraswati had arrived. She was very much upset After sometime she became a bit normal then she told about the occurrence to her husband and others, and at that time Hari Narayan Singh (P.W. 2) was not there. She gave out the names of the appellants and recognised them in court. She further said that there was a Berhi which the appellants wanted to remove and had given out the threat to her husband that if it was not removed her son would be killed and destroyed. When appellant Chote Lal Singh was saying so then Binod (the deceased) said that he was troubling his father and when he would be grown up he would also see. She had also said that her statement was recorded on that very date in the same night. She had said that there has been partition between Harinarain and that they are living separately. She also said that Binod also used to go on the field for watching the crops of and on and at times her husband also remained there in the night. She denied that she was tutored by any one and said that she remained at the place of occurrence till the next date and the statement of Nasingh Singh P.W. 1) was recorded on the next date,
15. Baijnath Singh (P. W. 7) is the father of the victim who had reached the spot on hearing the news through Kariman and found the dead body of Binod in the Bhanali field. He also found blood on the Machan and beneath it, Before his arrival his daughter and Narsingh Singh (P.W. 1) were there who were weeping. At that time his wife and daughter were not in a position to say anything to any body. Narsingh Singh called the Choukidar and thereafter sent Harinarain Singh for lodging information with the police. He also gave out the names of the appellants to Han Narain Singh. After P. Ws 2 and 3 felt easy they told him (P. W. 7, that appellant Chote Lal was cutting the neck of Binod. Appellant Rajendra was catching hold of his head and appellant Ramayan was catching hold of his legs. Narainsigh Singh also told him that the appellants after throwing the dead body of Binod in the Bhanali field were running away. Further this witness said that before the occurrence the appellants wanted to remove his Berhi but he was against it. He further said that he was bringing wheat from Areraj on a tyre cart. When he reached outside the village the appellant Chote Lal had stopped the tyre cart and had threatened to kill in case he proceeded further and so he unyoked his bullocks which this appellant along with tyre cart took before his door and kept it for three days. Thereafter a Panchayati was held and the Panchas asked the appellant Chote Lal to return the tyre cart with wheat. Appellant Chote Lal removed his Berhi and did not release his tyre cart. On this the deceased (Binod) said that the appellants were creating trouble to his family regularly and so on becoming major he would take revenge for it on which the appellant Chote Lal threatened to kill him. This witness said that he did not lodge the report with the police. He has also said that the I. O. had come in the night.
16. Jayaaaad Jha (P. W. 13) is the first investigating officer of this case who recorded the F. I, R. and started the investigation. He says that on the basis of the statement of Hari Narain Singh he recorded the F. I R. which was also read over to him. The same night at about 9 p. m. he started for the place of occurrence. He inspected the place of occurrence with the help of torch light and a lantern and found the dead body in the field and also blood on the chilli plants and beneath the said Machan. He found the neck of the victim cut. He also prepared the inquest report (Ext. 7). The dead body was sent to Motihari Sadar Hospital He also searched for the appellants the same night but they were found missing He also prepared the seizure list of the articles found on the spot. The same night he recorded the statements of P. Ws. 2, 3, 4, 5 and other witnesses and returned to the police station on 13-7-1976 (although it appears to be wrong he should have returned on 12-7-1976) at about 9 a. m. He got the postmortem report on 19-8-1976 thereafter he recorded the statements of other witnesses. On 25-7-1977 he handed over charge to P. W. 11 on his transfer; who completed investigation and submitted charge-sheet. This is the entire evidence of the occurrence Learned Counsel for the appellants has challenged this evidence and said that this is not reliable.
17. As regards the first contention raised about the omission of the names of the appellants in the F. I. R. it appears that the F. I. R. does not mention the names of the appellants. The report has been lodged by P. W. 8 Hari Narain Singh who is not an eye-witness and has said that he was very much upset after reaching the spot and seeing the occurrence and so he thought fit and proper to say in the F. 1. R. only that much which he bad seen and not what had been said to him by anybody. From the statements of P. Ws. 1 and 7 it appears that when P. W. 8 was being sent to the police station he was told the names of the appellants. Though P. W. 8 has been declared hostile on other grounds, but his evidence cannot be discarded and can be looked in view of the corroboration of his statement by P. Ws. 1 and 7 that they had given out the names of the appellants to him but P. W. 8 did not think it fit to give out that much of the occurrence which he had not seen. He had seen the victim lying on the spot with blood on the Machan and beneath it, and the women weeping in the chilli field where the occurrence took place, so he omitted the other facts about the names of the appellants as he had not seen it and so he had tried to explain the omission. But P. W. 1, Narsiagh Singh, is quite categorical that when he had come to the place of occurrence he found the appellants running away. The statement of P. Ws. 2 and 3, sister and mother of the victim respectively, is quite clear and categorical that the appellants had committed the offence. Even P. W. 7 has said that P. Ws. 2 and 3 were weeping and they gave out the names of the appellants after they became easy. It appears that after the lodging of the report at about 8 P. M. the I. O. left for the place of occurrence and at 9 p. m. he reached there and found the victim at the place of occurrence and prepared the inquest report (Ext. 7) which is dated 12-7-1976 at about 7 a. m.
18. It appears that P. W. 1 had given an application along with the Vakalatnama before the Superintendent of Police, Motihari, complaining that the statement of witnesses had not been recorded. For this application this witness has said that he had left the place of occurrence at about 6-7 p. m. on 11-7-1976 and he was suspecting that the police was siding the appellants and so he went to Motihari. It appears that the I. O. reached the spot at about 9 p. m. on 11-7-1976 whereas this witness had left at about 6-7 p. m. and so under that impression he gave the application in which he had said that the I. O. had not reached the place of occurrence till 9 a. m, Factually it may not be correct, but appears to be that this witness had got some apprehension and so he complained to the Superintendent of Police. In his application before the S. P. he has mentioned the names of appellant Chote Lal and others. So from this it appears that 6-7 p. m. when he left the place of occurrence he was in full knowledge of the facts that the names of the appellants were Chote Lal Singh and others ; and these names have been given out by P. Ws. 1 and 7 to P. W. 8, had omitted to give the names as he wanted to give out in the F. I. R. that much which he bad himself seen and so the I. O. reached the spot the same night and recorded the statements of the witnesses. P. Ws. 2 and 3 have given out the names of the appellants. From this fact it becomes apparent that the names of the appellants were not unknown.
19. It has been held in the case of R.K. Pandey v. State of M. P. that the F. 1. R. is a previous statement which can be used only to corroborate or contradict the maker thereof, and that the omission of important facts affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In another decision in the case of Bishan Dass v. State of Punjab , it has been held that the non-mentioning of the names of the accused has got no affect unless its satisfactory explanation for this serious omission in the F. I. R. in there and for that reason the case of the prosecution cannot be doubted. Is the case of State of Rajasthan v. Kartar Singh the Supreme Court observed :
The First Information Report was made not by one of the persons immediately concerned but by a person who had the information from another. In these cases sometimes a fact gets omitted which should have been mentioned. Fazaldeen and Gurdeep Singh had stood by the first information report, although there was no mention in it about the pistol shot This was noticed by the High Court. In these circumstances the suspicion should have fallen on the correctness of the statements of Fazaldeen and Gurdeep Singh rather than the statements by Mohinder Singh, Kartar Kaur and Samandar Singh.
20. In the case of Hallu v. State of M.P. , the Supreme Court observed at page 1939 that:
the inference arising from the fact that the names of the accused are not mentioned in the first information report must vary from case to case.
In the case of Bishan Dass v. State of Punjab A.I.R. 1971. C S. 573, the Supreme Court observed :
...On the other hand, Exh. PK the First Information Report, mentions as the miscreant, some unknown man'. Had there been no satisfactory explanation for this serious omission we might have been inclined to doubt the veracity of the prosecution...P. W. 6 testified that on reaching the scene after the explosion, he found P. W. 7 and the other injured persons lying unconscious. P. W. 6, therefore, could not elicit any information from P. Ws 7 and 8, during his 10 minutes' stay at the scene. P. Ws. 7 and 8 swore they had been rendered unconscious. The courts below have believed them on this point and we see no reason to disagree.
In a Division Bench decision in the case of Mrs. Heera Paul v. State of Nagaland 1971 Cr. L. J. 530, it was observed :
The First Information Report is not a piece of substantive evidence. It is difficult to accept the argument that from mere absence of the name of the accused in the first information report, the entire evidence of P. Ws. 2 and 4 should be rejected. The first information report can be used to corroborate the statement of the informant or to contradict him. But, because of some infirmity in the first information report given by a witness who has not seen the occurrence, the evidence of the eye-witnesses cannot be rejected if otherwise the evidence is trustworthy. One has to remember that P. W. 1 is a Government officer and having not seen the occurrence, even if he could gather about the identity of the accused, he might feel hesitant to immediately put it in writing and might have intended only to set the police in motion for investigating into the case.
In the case of Darshan Singh v. Stale of Punjab , it was observed :
...Fact that the names of the other accused are not mentioned in the F. I. R. was atleast a circumstance which the prosecution had to explain, though no rule of law stipulates that an accused whose name is not mentioned in a F. I. R. is entitled to an acquittal.
21. The omission of important facts, like name of the accused is relevant for the consideration of the veracity of the prosecution case. But it has to be seen whether the omission is natural and probable or intentional. If the person making the information intentionally omits some facts and has got some explanation, that has to be considered and if he unintentionally or innocently omits then the effect of this omission also is to be seen on the case of the prosecution. In the present case the maker of the F. I, R. is definitely not an eye-witness. He was told about the occurrence and so he went there and he has given an explanation about non-mentioning of the facts which he had not seen himself and definitely had not seen the appellants committing the offence and so he did not mention their names. Further in the evidence of P. W. 13 that he recorded the statement of P. Ws. 2 and 3 in the same night and P. Ws. 2 and 3 have also admitted the same and in their statements the names of the appellants have been given out. Further in the application (Ext. A) which is said to have been filed by P. W. 1 to the S. P. against the conduct of the police officers in not recording the statements of witnesses the name of Chote Lal Singh and others have been mentioned. So from all these evidence it is apparent that the names of the appellants were very much known to the eye-witnesses. P. Ws. 2 and 3 were there and had seen the killing and then P. W. 1 who had come immediately after the occurrence had seen the appellants running from the spot.
22. In the case of Angnoo v. State of U.P. , it was observed :
All the appellants were well known to the witnesses and there is no reason to doubt their evidence that they were able to recognise all the ten of them. Persons well known can be recognised within a very short time. The appellants were seen by them while continuing the attack on Mahadeo and while they were going away after completing the assault.
Thus this omission of the names in the F. 1. R. is not for the reason that the names of the appellants were not known to the witnesses This omission was by P. W. 8 who was not an eye-witness and who has given an explanation for the omission that he had informed the police as to what he had seen. P. Ws. 1, 2, 3 and 8 have also fully supported the case of the prosecution about the participation of the appellants in the offence. Thus the omission of the names of the appellants has been fully explained and there can be no adverse effect when there is reliable evidence of P. Ws. 1, 2, 3 and 8. The omission of the names of the accused cannot be regarded as an adequate ground for disbelieving the eye-witness account. Further although it is a circumstance in favour of the accused, but it is not a proof of the innocence of the accused.
23. The next contention of the learned Counsel for the appellants was that in this case possibility of other persons committing the offence could not be ruled out and the appellants have been roped on account of enmity. As to this contention P. Ws. 1, 2, 3 and 8 have deposed that threat had been given out to Baijnath Singh (P. W. 7) for removal of Berhi and even a Panchayati was held. When the deceased had said that on getting grown up he would see the persons who were creating trouble to his family, the appellant Chote Lal had given out threat for killing and destroying the family of the deceased Though enmity is a double edged weapon and also gives a particular impetus to the witnesses to implicate the accused falsely, but in this case the conduct of the appellants is such as deposed by the witnesses, that the participation of the appellants cannot be doubted. The presence of the appellants on the spot has been given out by P. Ws. 2 and 3 who had seen them near the Machan and cutting the throat of Binod and taking away his dead body and thereafter throwing the same in the Bhanali field. Similarly P. W. 1 had also seen the appellants running The possibility of the appellants committing the offence cannot be ruled out. The overt act of cutting the neck and thereafter taking the dead body and throwing the same in the Bhanali field are all such circumstances which are relevant to fasten the guilt of the appellants. Further the postmortem report also mentions that the occurrence had taken place within 48 hours and it also corroborates the evidence of the witnesses. Further the appellants had also no business to be present on the spot at that time. In these circumstances the contention of the learned Counsel for the appellants that the appellants have been falsely implicated in this case and there is possibility of others committing the offence is without any basis, as the postmortem report also corroborates the evidence of P. Ws. 2 and 3. Whatever had been deposed by them is fully corroborated by the postmortem examination report.
24. The other contention of the learned Counsel for the appellants is that the witnesses in this case are all interested, inimical and partisan and so their evidence is liable to be disbelieved, As to this contention the evidence of P. Ws. 1. 2 and 3 is no doubt of partisan character. They are relations which fact has been admitted by them. But on that score alone their evidence cannot be brushed aside. The Supreme Court in the case of Dilip Singh v. State of Punjab , has observed :
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 a tendency to drag an innocent person against whom a witness has a grudge along with the guilty, but formulation must be laid or such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee to truth.
In the case of Anganoo and Ors. v. State of U.P. , the Supreme Court observed :
Puttu Lal is no doubt the brother of the deceased, ,but this very circumstance would, in our opinion, add to the value of his evidence because he would be interested in ensuring the real culprits responsible for the murder of Mahadeo are punished and not an innocent persons.
Similarly in the case of Barati v. State of U.P. , the Supreme Court observed :
Relatives of the deceased would normally be most reluctant to spare the rare assailant and falsely mention the names of another person as the one responsible for causing the injuries to the deceased.
25. Further the evidence of relation witnesses is not to be discarded as has been laid down from time to time by the Courts. In the case of State of J. and K. v. Hajara Singh it was observed :
We agree with the reasoning and conclusion of the High Court that the substratum of the evidence of the eye-witnesses could not be rejected so far as Hazara Singh was concerned merely on the ground that their testimony was of an interested and partisan character nor on the ground that they were not speaking the whole truth.
In the case of State of Rajasthan v. Smt. Kalki and Anr. the Supreme Court observed :
True it is she is wife of the deceased, but she cannot be called an interested witness. She is related to the deceased. Related is not equivalent to interested. A witness may be called interested only when he or she derives some benefit from the result of a litigation. In the civil suit or in seeing an accused person punished, a witness who is a natural one and is the only possible eye-witness in the circumstances of the case cannot be said to be interested. In the instant case P. W. 1 had no interest in protecting the real culprit and falsely implicate the respondents.
26. It was observed in the case of State of U.P. v. Ballabh Das :
There is no law which says that in the absence of any independent witness, evidence of interested witness should be thrown out at the behest or should not be relied upon for convicting the accused. What the law requires is that there the witnesses are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication. We might also mention that the evidence of interested witness is not like that of an approver which is presumed to be tainted and requires corroboration. But the said evidence is as good as any other evidence"...That once it is found by the court on an analysis of the evidence of any interested witness that there is no reason to disbelieve him then the mere fact that the witness is interested cannot persuade the court to reject the prosecution case on that ground.
27. Thus from all these it is clear that a close relative would be the last person to screen away the real offender and will falsely implicate an innocent person. He will be rather interested in ensuring that the real offender is punished and not an innocent. Further a close relationship is a sure guarantee of the truth of the statement given by him specially when a witness is a natural witness being present on the spot and is also relation then he cannot be branded as interested in falsely implicating an accused. The law does not require that the evidence of interested witness is to be brushed aside, rather it requires the court to treat it like any other evidence and to take it as a rule with care and caution and not to treat it as an evidence of approver which needs corroboration. The court is to see while judging the case with care and caution that nobody is falsely implicated in any case, and on consideration of all these things if the court on the analysis of the evidence with care and caution finds that there is ring of truth and the evidence is trustworthy then the court is not to reject the evidence on that score.
28. Here in this case there is nothing to show that there were other witnesses on the spot or had been withheld by the prosecution for the reasons best known to it. Only P. Ws. 2 and 3, sister and mother of the deceased, were on the spot and P. W. 1 came immediately after the occurrence, so they were natural witnesses. Whatever version has been given out by them has been found to be trustworthy, reliable and has also been corroborated by the postmortem examination report and the objective findings of the investigating officer about the recovery on the spot. Further the appellants are said to have some grudge and even threat had been given out which fact has been deposed in court. The truth of the evidence of the witnesses has been tested by the cross-examination of an expert the defence counsel and these witnesses have withstood the same. In these circumstances, there appears to be ring of truth in the statement of these witnesses and so their statements are found to be trustworthy, reliable and credible after scrutinising it with care and caution
29. Thus on the consideration of the entire materials and evidence on the records the offence against the appellants is made out and so their conviction and sentences passed by the trial court are confirmed.
30. In the result this appeal is dismissed. All the appellants are on bail so their bail bonds are cancelled and they are directed to serve out their sentences.
Prabha Shanker Mishra, J.
31. I agree.