Patna High Court
Dev Narain Mahto vs State Of Bihar & Ors on 10 January, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.174 of 2003
===========================================================
Deo Narain Mahto son of late Ram Sundar Mahto, Resident of Village Saleh
Chandan, P.S. Bithan, Distt-Samastipur.
.... .... Petitioner/s
Versus
1. State Of Bihar
2. Raj Kishore Mahto @ Mantun Mahto son of Uchit Mahto
3. Shiv Shankar Mahto son of late Ram Nath Mahto
4. Dilip Kumar Mahto son of Bindeshwari Mahto
5. Rajeeb Mahto son of Bindeshwari Mahto
6. Bindeshwari Mahto son of late Dhaniklal Mahto
7. Ramchandra Mahto son of late Dhaniklal Mahto
8. Uchit Mahto son of late Mangal Mahto, All the opposite parties 2 to 8 are
residents of Village-Saleh Chandan, P.S. Bithan, Distt-Samastipur .... ....
Respondent/s
===========================================================
Appearance :
For the Petitioner/s : Mr. Mritunjay Kumar, Adv.
For the O.P. Nos 2 to 8 : Mr. Aditya Praksh Sahay, Adv.
For the State : Mr. Madan Kumar, Addl. P.P. Incharge
===========================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 10-01-2014
Petitioner/informant has challenged the judgment
dated 28.01.2003 passed by Additional Sessions Judge, FTC-1,
Samastipur in Sessions Trial No. 347/1997/190/2000 whereby and
whereunder the O.Ps No. 2 to 8 have been acquitted.
2. It has been submitted on behalf of petitioner that
the judgment of acquittal recorded by the learned lower court happens
to be based upon wrong and flimsy grounds. It has also been
submitted that altogether eight PWs have been examined out of whom
PW-7 is the doctor who had conducted postmortem over the dead
body of Sunil (deceased). From his evidence as well as from the
2
postmortem report, it is evident that deceased Sunil had sustained
ante-mortem fire arm injury and that was found the cause of death.
Therefore, the version of the prosecution with regard to murder of
Sunil by means of fire-arm is fully proved. However, the learned
lower court wrongly and illegally took the aforesaid evidence contrary
to the prosecution case in the background of presence of semi digested
food in the stomach of deceased as well as having the location of fire-
arm injury towards downward direction which the doctor had deposed
on cross-examination.
3. PW-8 is the another doctor who had examined the
informant Dev Narain Mahto on 21.03.1996 at about 8.30 a.m. and
found injuries over his person caused by hard and blunt substance
which sufficiently proved the nature of assault made by one of the
O.P.s Shiv Shankar Mahto by butt of rifle over head of informant.
There happens to be no adverse evidence brought through by way of
cross-examination. However, did not find consideration by the learned
lower court. Now coming to the evidence of material witnesses, two
fold arguments have been made. The first one that from the FIR itself,
it is evident that Nawal Kishore Mahto, PW-2, Thakur Prasad Singh,
PW-4 and Anil Kumar son of informant examined as PW-1 are the
FIR named witnesses. They have supported the prosecution case in its
entirety. Therefore, taking into account their status being FIR named
3
witnesses as well as on account of having absence of contradiction,
development, embellishment in their evidence is suggestive of the fact
that they are truthful, creditworthy witnesses and on account thereof,
their evidence should not have been brushed aside on superficial
grounds. It has also been submitted that even discarding their
evidence for a moment PW-5, Dev Narain Mahto (informant) had
deposed and supported the prosecution case in toto without having
any sort of exaggeration. Therefore, the prosecution case is found
fully supported thereof.
4. The learned lower court while dealing with the
evidence of the prosecution witnesses failed to consider that they were
consistent with regard to genesis as well as manner of occurrence and
they have also shown themselves conclusively being an eyewitness to
the occurrence. The defence during cross-examination of each and
every individual witness had failed to demolish their evidence and as
such, the learned lower court should have accepted their evidence in
their entirety. Being interested witness is not a ground to discredit
their evidence. Whatever caution has been prescribed is to the extent
of minute observation of the evidence. Apart from this "falsus in uno
falsus in omnibus" is not at all a sound principle so recognized and as
such even discarding the irrelevant portion of the evidence of each of
the PWs, the learned lower court should have held that prosecution
4
witnesses remained firm and intact over genesis as well as manner of
occurrence. From the judgment of the learned lower court, it is
apparent that evidence of all the witnesses have not been considered
and dealt with under the garb of aforesaid settled principle. It has
further been submitted that the case of the prosecution has been
disbelieved mainly on the ground that there is over-writing on the
relevant parts in the Fardbeyan which suggests that there is
interpolation in the timing of recording of Fardbeyan as well as timing
of occurrence. In this connection, it has been submitted that when the
evidence is taken together with the evidence of PW-7, it is apparent
that there is no discrepancy. Moreover, the witnesses are consistent
over the time. While examining PW-6, the I.O. he has also disowned
the same. Therefore, there was no cogent and sufficient reason before
the learned trial court which could have discredited the evidence of
the PWs on that very score. In sum and substance, it has been
submitted that the judgment of acquittal rendered by the learned lower
court is contrary to the evidence available on the record as well as
learned lower court had committed grave error during course of
consideration of the evidence. As such, the same is fit to be set aside.
5. Counter meeting with the submissions raised on
behalf of the petitioner, it has been submitted on behalf of O.P. No.2
to 8 that there is presumption of innocence of accused as per criminal
5
jurisprudence till he is convicted by the competent court. Also, it is
further found fortified when there is judgment of acquittal. Therefore,
unless and until there is perversity while deciding the issue, the
judgment of acquittal should not be interfered with during course of
revisional jurisdiction moreso, at the instance of private party. It has
also been submitted that when two views are possible one leaning in
favour of accused then that view is to be honoured. The learned lower
court had accepted and honoured the view leaning in favour of
O.P.No.2 to 8 by way of acquitting them, as such, the aforesaid
finding under the score of revisional jurisdiction should not be
interfered with.
6. It has further been submitted that the exercise of
revisional jurisdiction at the instance of an individual/private party
against the judgment of acquittal has been deprecated, moreover,
when the State had not chosen to challenge the judgment of acquittal
by way of filing an appeal. The caution so prescribed while
considering the revision petition at the instance of private party has
been led by the Hon'ble Apex Court times without number and the
basic feature of the aforesaid conclusive finding happens to be that in
normal phenomena, in routine manner such exercise should not be
taken up. Certain criteria have been prescribed whereunder
interference is found to be permissible. The aforesaid criteria are
6
found centralized with basic point that in case there is gross error,
procedural lapses at the part of learned lower court while recording
judgment of acquittal, then only such adventure is permissible.
7. Now coming to the facts of the case, it has been
submitted that presence of over-writing in the Fardbeyan at all
relevant places has got a bearing. The prosecution has come up with a
definite case that occurrence had taken place at 6.30 a.m. so that the
prosecution witnesses including the informant would claim
themselves as an eyewitness to occurrence but that is not the fact. The
informant as well as the deceased might have been assaulted in the
preceding night itself at some difference place in different manner for
which there was no eyewitness nor the informant was able to identify
the assailant. The informant had already put his presence at the police
station at early hour. From the Fardbeyan, it is evident that the
occurrence so alleged happens to be of 2.30 a.m. and then thereafter
interpolation has been made by way of over-writing to suggest that it
had taken place at 6.30 a.m. In likewise manner, there is over-writing
at the timing at which hour the Fardbeyan was recorded. That means
to say the timing of occurrence as well as timing of recording of
Fardbeyan both have been shifted and changed with an ulterior motive
to implicate the O.P. No.2 to 8 in the background of the fact that both
the parties are on constrained relationship in the background of land
7
dispute.
8. It has also been submitted that the Doctor, PW-7 had
conducted postmortem over the dead body of Sunil on 22.03.1996 at
about 11:00 a.m and had opined the time elapsed since death as 36
hours which covers the original timing of 2.30 a.m. so disclosed by
the informant himself.
9. Then it has been submitted that PW-6, the I.O. had not
found a drop of blood at the place where dead body of deceased was
found. After going through the evidence of PWs, more particularly,
PW-1 it is evident that after sustaining gun shot injury, the deceased
fell down and copious blood came out from the injury which must
have been found by the I.O. while inspecting place of occurrence had
there been the place of occurrence same as suggested by prosecution.
Non presence of blood is another circumstance which falsifies the
case of the prosecution as suggested during course of trial.
10. It has also been submitted that presence of semi
digested food is of no consequence in ordinary course of nature but it
has got relevancy so far present case is concerned. Although neither
the prosecution has deposed the time of meal nor the O.P. Nos. 2 to 8
extracted during course of cross-examination, the time of meal, kind
of food taken by deceased but the fact remains that had the deceased
died at 6.30 a.m., semi digested food would not have found its
8
presence instead thereof complete digested food would have been
found. Therefore, presence of semi digested food is suggestive of the
fact that the deceased might have been murdered near about 2.30 a.m.
which happens to be earlier prosecution version and so happens to be
the cause for disbelieving the prosecution version by the learned
lower court.
11. It has also been submitted that from the evidence of the
PWs it is crystal clear that they have got bondage of relationship so
much so that they are also involved in a murder case jointly. Not only
this, from the evidence of PW-5, the informant, apart from visualizing
dubious character, being an accused in so many kinds of heinous
offences are also admitted. That means to say, the criminal
background of the family of prosecution party is another circumstance
which suggest as well as probabilizes the manner of death of deceased
at different place in different manner.
12. The aforesaid factual aspect is found further
strengthened after considering the evidence of the prosecution
witnesses that at the time of death the deceased was fully dressed
which usually the persons in the countryside are not often. Therefore,
the cumulative effect of the aforesaid event does suggest that the
prosecution has not come with the clean hand relating to the genesis
as well as manner of occurrence rather taking an advantageous
9
position got the O.P. No.2 to 8 involved in this case after having
murder of the deceased at some different location in some different
manner. It has further been submitted that when the evidence of PWs
are taken up conjointly, each of them are found inconsistent with each
other and on account thereof, demolishes the veracity of the evidence
of the PWs. Therefore, the judgment impugned does not require
interference.
13. The learned APP fairly submitted that having the
judgment of acquittal, virtually, blurred the interest of the prosecution
even having revision at the instance of private party.
14. On several occasion, the court faced with issue and
illuminated it by laying down definite proposition of law. In
Venkatesan v. Rani and others reported in AIR 2013 SC 3320, the
Hon'ble Apex Court has laid down guidelines for adjudicating upon
revision against acquittal. The relevant para is quoted below :-
"6. To answer the questions that have arisen in
the present case, as noticed at the very outset, the
extent and ambit of the revisional jurisdiction of the
High Court, particularly in the context of exercise
thereof in respect of a judgment of acquittal, may be
briefly noticed. The law in this regard is well settled
by a catena of decisions of this Court. Illustratively,
as also chronologically, the decisions rendered in
Pakalapati Narayana Gajapathi Raju vs. Bonapalli
Peda Appadu[1], Akalu Ahir v. Ramdeo Ram[2],
Mahendra Pratap Singh v. Sarju Singh[3], K.
Chinnaswamy Reddy v. State of A.P.[4] and
Logendranath Jha v. Polai Lal Biswas[5] may be
referred to. Specifically and for the purpose of a
10
detailed illumination on the subject the contents of
paras 8 and 10 of the judgment in the case of Akalu
Ahir v. Ramdeo Ram (supra) may be usefully
extracted below.
"8. This Court, however, by way of
illustration, indicated the following categories of
cases which would justify the High Court in
interfering with a finding of acquittal in revision:
(i) Where the trial court has no jurisdiction to
try the case, but has still acquitted the accused;
(ii) Where the trial court has wrongly shut out
evidence which the prosecution wished to produce;
(iii) Where the appellate court has wrongly
held the evidence which was admitted by the trial
court to be inadmissible;
(iv) Where the material evidence has been
overlooked only (either) by the trial court or by the
appellate court; and
(v) Where the acquittal is based on the
compounding of the offence which is invalid under
the law.
These categories were, however, merely
illustrative and it was clarified that other cases of
similar nature can also be properly held to be of
exceptional nature where the High Court can
justifiably interfere with the order of acquittal."
"10. No doubt, the appraisal of evidence by the
trial Judge in the case in hand is not perfect or free
from flaw and a Court of appeal may well have felt
justified in disagreeing with its conclusion, but from
this it does not follow that on revision by a private
complainant, the High Court is entitled to re-appraise
the evidence for itself as if it is acting as a Court of
appeal and then order a re-trial. It is unfortunate that
a serious offence inspired by rivalry and jealousy in
the matter of election to the office of village Mukhia,
should go unpunished. But that can scarcely be a
valid ground for ignoring or for not strictly following
the law as enunciated by this Court.
The observations in para 9 in the case of Vimal
Singh v. Khuman Singh[6] would also be apt for
recapitulation and, therefore, are being extracted
below.
11
"9. Coming to the ambit of power of the High
Court under Section 401 of the Code, the High Court
in its revisional power does not ordinarily interfere
with judgments of acquittal passed by the trial court
unless there has been manifest error of law or
procedure. The interference with the order of
acquittal passed by the trial court is limited only to
exceptional cases when it is found that the order
under revision suffers from glaring illegality or has
caused miscarriage of justice or when it is found that
the trial court has no jurisdiction to try the case or
where the trial court has illegally shut out the
evidence which otherwise ought to have been
considered or where the material evidence which
clinches the issue has been overlooked. These are the
instances where the High Court would be justified in
interfering with the order of acquittal. Sub-section (3)
of Section 401 mandates that the High Court shall not
convert a finding of acquittal into one of conviction.
Thus, the High Court would not be justified in
substituting an order of acquittal into one of
conviction even if it is convinced that the accused
deserves conviction. No doubt, the High Court in
exercise of its revisional power can set aside an order
of acquittal if it comes within the ambit of
exceptional cases enumerated above, but it cannot
convert an order of acquittal into an order of
conviction. The only course left to the High Court in
such exceptional cases is to order retrial."
7. The above consideration would go to show
that the revisional jurisdiction of the High Courts
while examining an order of acquittal is extremely
narrow and ought to be exercised only in cases where
the Trial Court had committed a manifest error of law
or procedure or had overlooked and ignored relevant
and material evidence thereby causing miscarriage of
justice. Re-appreciation of evidence is an exercise
that the High Court must refrain from while
examining an order of acquittal in the exercise of its
revisional jurisdiction under the Code. Needless to
say, if within the limited parameters, interference of
the High Court is justified the only course of action
that can be adopted is to order a re-trial after setting
aside the acquittal. As the language of Section 401 of
12
the Code makes it amply clear there is no power
vested in the High Court to convert a finding of
acquittal into one of conviction."
15. That means to say, unless and until the court below had
committed a manifest error of law or procedure or had overlooked and
ignored the relevant, crucial evidence already available on the records
leading to miscarriage of justice, in casual and routine manner
exercise of revisional jurisdiction has been forbidden. That means to
say, there should be proper scrutiny on that very score whether serious
lapses did exist in consonance with the materials available on the
record. Then and then only, the interference is found permissible
otherwise the opportunity is found completely shunned.
16. As per Ext-3, Fardbeyan of PW-5 Deo Narain Mahto
recorded on 21.03.1996 at about 8.15 hours (over-writing) at Bithan
P.S. by PW-6 alleging inter alia that on the same day at about 6.30
a.m. (over-writing) he along with is son Sunil Kumar were at his
Darwaza. At that very time, Raj Kishore @ Mantun, Shiv Shankar
Mahto, Dilip Kumar Mahto, Rajiv Mahto, Bindeshwari Mahto,
Ramchandar Mahto, Uchit Mahto armed with country made pistol,
rifle respectively came at his Darwaza. Out of whom Bindeshwari
Mahto, Ramchandar Mahto, Uchit Mahto caught hold his son Sunil
and directed to assault as he was not ready to relinquish the land. On
the instigation of Uchit Mahto, Raj Kishore Mahto shot at by his
13
country made pistol on the left chest of Sunil on account thereof, he
sustained injury and fell down. Thereafter, Dilip Mahto pounced upon
his chest and pressed causing instantaneous death. During intervening
period, he tried to save his son during course of which Shiv Shankar
Mahto gave a butt blow on his head causing severe injury. After
hearing sound of firing the villagers began to assemble seeing whom
all the accused persons escaped towards western direction who were
chased but gone out of grip. Nawal Kishore, Thakur Prasad and Anil
Kumar along with others were named who witnessed the occurrence.
He had further disclosed that there is cases pending in between them
relating to land dispute and so he had alleged commission of murder
in the aforesaid background.
17. From Bithan outpost, the Fardbeyan was forwared to
Hasanpur P.S. for registration of the case on the basis thereof,
Hasanpur (Bithan) P.S. Case No. 39/1996 was registered although, till
then the investigation was already taken up by the PW-6 who had
recorded the Fardbeyan. After completing the investigation charge-
sheet was submitted whereupon trial commenced. During course of
trial altogether eight PWs were examined along with exhibit of so
many documents. After analyzing the same by the judgment
impugned the accused were acquitted, hence this revision at the
instance of informant/petitioner.
14
18. After going through the judgment impugned, it is
evident that the learned lower court have not disbelieved the place of
occurrence as is evident from para-29 of the judgment, also explained
the event whereunder blood was not found by the I/O at P.O. with
certain finding in the background of observation of the court order
from para-28 thereof, with regard to discrepancy over timing of
recording of Fardbeyan as well as timing of occurrence inconsonance
with the evidence of PW-6 has been taken note of. It is also evident
from para-32 thereof, that the learned lower court had not considered
the status of other witnesses to be an eyewitness to occurrence in the
background of disclosure made in the Fardbeyan thought admitted the
status of PW-5 as sole eyewitness to occurrence. It is also evident
from para-30 thereof, that the learned lower court had taken into
account the apparel having worn by the deceased and the cumulative
effect ultimately debilitated the prosecution version as is evident from
para-34 of the judgment.
19. In the case of Gangabhavani v. Rayapati Venkat
Reddy as reported in 2013 (4) PLJR (SC) 345 the Hon'ble Apex
Court has an occasion to deal with the situation whereunder the
witnesses have not been cross-examined on particular point. For
better appreciation the relevant paragraphs are quoted below:-
"17. This Court in Laxmibai (Dead) Thr.
L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs.
15
& Ors., AIR 2013 SC 1204 examined the effect of
non- cross examination of witness on a particular
fact/circumstance and held as under:
"31. Furthermore, there cannot be any
dispute with respect to the settled legal proposition,
that if a party wishes to raise any doubt as regards the
correctness of the statement of a witness, the said
witness must be given an opportunity to explain
his statement by drawing his attention to that part
of it, which has been objected to by the other
party, as being untrue. Without this, it is not
possible to impeach his credibility. Such a law has
been advanced in view of the statutory provisions
enshrined in Section 138 of the Evidence Act, 1872,
which enable the opposite party to cross-examine a
witness as regards information tendered in evidence
by him during his initial examination in chief, and the
scope of this provision stands enlarged by Section
146 of the Evidence Act, which permits a witness to
be questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is
to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate
upon any doubts as regards the same, in the absence of
questions put to him with respect to the circumstances
which indicate that the version of events provided by
him, is not fit to be believed, and the witness
himself, is unworthy of credit. Thus, if a party intends
to impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to give
a full and proper explanation. The same is essential to
ensure fair play and fairness in dealing with
witnesses." (Emphasis supplied)
(See also: Rohtash Kumar v. State of
Haryana, JT 2013 (8) SC 181; and Gian Chand &
Ors. v. State of Haryana, JT 2013 (10) SC 515).
18. Thus, it becomes crystal clear that the
defence cannot rely on nor can the court base its
finding on a particular fact or issue on which the
witness has not made any statement in his
examination-in-chief and the defence has not cross
examined him on the said aspect of the matter.
20. PW-5 Dev Narain Mahto being an informant is the
16
maker of the document (Fardbeyan) while PW-6 being the person
who had recorded the Fardbeyan (scribe) as well as who happens to
be the I.O. From Ext-2, Fardbeyan itself, it is evident that apart from
having the signature of informant, PW-5 exhibited as Ext-1, the
signature of FIR attesting witness happens to be Ext-1/A as well as
Ext-1/B. The FIR attesting witnesses have been examined as PW-2 as
well as PW-4. After going through the evidence of PW-2, PW-4 and
PW-5 it is apparent that defence had not cross-examined these three
PWs on the score of timing/interpolation when there is consistent
version of the witnesses, PW-1 in examination-in-chief "then Ramdas
Mahto and Thakur Prasad carried his father to police station on
bicycle". PW-2 in examination-in-chief "then thereafter he along with
Thakur Prasad and Shibu Mahto carried Dev Narain Mahto to police
station." PW-4 had not deposed on that very score while PW-5 had
stated that he had given his Fardbeyan at Bithan police station
whereupon he had put his signature. Ramdas Mahto and Thakur
Prasad had also put their signature. In that background at least the
FIR attesting witnesses by their presence have shown that the
Farbeyan was given by PW-5 in their presence at Bithani police
station in continuity, therefore, they should have been cross-examined
on that very score coupled with the evidence of informant (PW-5)
who had also reiterated the earlier version. Had there been a cross-
17
examination on that very score, they should have an opportunity to
explain whether there was interpolation at their behest or at the behest
of Investigating Authority oral the end of accused to get the
prosecution case completely smashed. Moreover, it is evident that the
learned lower court had wrongly interpreted the evidence of PW-6
during cross-examination so recorded under para-9 in Para-28 of the
judgment and which has been taken as sheet anchor to disbelieve the
case of the prosecution. For better appreciation, the aforesaid
paragraph (PW-6, para-9) is quoted below in its verbatim:-
21.03.96ko Bithan Thana Prabhari, Yogendra Das The. Fardbeyan Mein Ghatna Ka Samay 2 ½ baje Subah Likha Hai. Jise 6.30- 2.30 ko interpolate kar banaya hai aisi Baat Nahin Hai. Double pen chala hai. 9.15 hrs ko 8.15 kiya hua hai Aisi Baat Nahin Hai. Teen Line ke baad 9.15 ko ghata kar 8.15 kiya gaya Hai Aisi Baat Nahin Hai. Ki 9 per double chalakar 8 Banaya Gaya Hai. 2.30 ko 6.30 Banaya Gaya Hai Aisi Baat Nahi Hai.
21. It appears from para-28 of the judgment that the learned lower court had not properly considered the evidence in its right perspective whereunder the denial of the witnesses by way of suggestion has acknowledged by twisting it.
22. Now coming to the postmortem report, again the learned lower court made a mistake. Direction of cartridge towards downward may affect on account of various reasons including 18 deflection on account of striking over a bone. Modi in his medical jurisprudence had observed:-
"On the other hand, a bullet of low velocity causes contusion and laceration of the margins of the wound of entrance. It is easily deflected and deformed by striking some hard object and often lodges in the body. The track made by a bullet widens as it goes deeper. This is reference of a penetrated wound. If a bullet creases a bone, it may produce a gutter with or without fracturing it and may or may not give the direction or deflection of the bullet."
PW-7 had found following ante-mortem injury on the dead body:-
(A) Abrasion 2"x1" on right leg lower part. (B) Lacerated wound 2 ½" x 1" on right ankle laterally. (C) One circular lacerated wound with inverted margin, blackening and charring around the wound, size ¼" in diameter x cavity deep on left upper chest. Blow left clavicle.
(2) On deep dissection of chest and abdomen,
(i) There were fractures of 2nd & 3rd ribs, left side interiorly.
On further dissection, plura and lungs on left side was lacerated blood and blood clots were found in chest cavity. The abdomen cavity was full of blood and blood clots and laceration of liver was pumped.
23. It is evident from the evidence of PW-7 that during his cross-examination at para-8 had narrated that the injury was caused from above to downward so lungs, plura and liver were affected.
From the consistent oral evidence including the evidence of PW-7, it is evident that deceased had sustained single fire-arm injury over his left chest and in the aforesaid background presence of injury 19 projecting downward could not be seen as adverse to the prosecution case. However, PW-5 has not been cross-examined on this score, at least the distance from which firing was made.
24. In likewise manner, presence of semi digested food in the stomach is of no relevance as none of the witnesses including PW-
7, the doctor was cross-examined on that very score as well as the time of intake and the quality of food so taken.
25. Absence of blood at the place of occurrence has itself been explained under para-29 of the judgment and on account thereof needs no further explanation. The issue has further been taken into account in the case of Ganga Singh v. State of Madhya Pradesh as reported in (2013) 7 SCC 278 under paras-12, 13 and 14 which are as follows:-
"12. According to Mr. Mehrotra, however, PW-5 is not a reliable witness as she has made a significant omission in her evidence by not stating anything about the seizure of the blouse, dhoti and broken bangles which were made in her presence. But we find that no question has been put to PW-5 in cross-examination with regard to seizure of the blouse, dhoti and broken bangles in her presence. If the appellant's case was that PW-5 cannot be believed because she made this significant omission in her evidence, a question in this regard should have been put to her during her cross- examination. To quote Lord Herschell, LC in Browne vs. Dunn [(1894) 6 R 67 (HL) "......it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that the imputation is intended to be made, and not to take his 20 evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit."
13. Section 146 of the Indian Evidence Act also provides that when a witness is cross-examined, he may be asked any question which tend to test his veracity. Yet no question was put to PW-5 in cross-examination on the articles seized in her presence. In the absence of any question with regard to the seizure of the blouse, dhoti and broken bangles in presence of PW-5, omission of this fact from her evidence is no ground to doubt the veracity of her evidence.
14. The evidence of PW-5, in this case, is also corroborated by other evidence. Section 157 of the Indian Evidence Act provides that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact may be proved. The evidence of PW-5 is corroborated by the evidence of her mother-in-law (PW-2) before whom she stated about the commission of the rape by the appellant soon after the incident the very same evening. The evidence of PW-5 is also corroborated by the FIR (Ex.9) before the Investigating Officer, PW-10, before whom she lodged the complaint one day after the incident."
26. Now coming to the oral evidence not only all the PWs namely, PWs-1, 2, 3, 4 and 5 have supported the prosecution case in its entirety but during cross-examination also it is found that they have not made any embellishment, material development. Furthermore, it is evident that PW-1 had not been cross-examined on the factum of occurrence though some sort of cross-examination is visualizing from 21 paras-4 as well as 7, PW-2 (para-9), PW-3 (para-2) PW-4 (para-3) and PW-5 (para-9, 10 and 11). The assault over PW-5, apart from ocular evidence has been supported by Doctor so examined as PW-8 who had found following injuries on his person as well as the PW-5 in para-9 of his cross-examination supported the same :-
1. Lacerated wound in the mid line of head 3 cm x ½ cm x 6 cm above the hair line.
2. Abrasion on right leg 6 cm below right knee 1 cm x 1 cm.
All injuries were caused by hard and blunt substance, such as lathi. Nature of injury no01 after getting x-ray report simple in nature. Injury no.2 was simple in nature.
Age of injury- within six hours.
Nature of Identification:-
Scar mark on middle of upper forearm posterior aspect.
27. It is evident from the evidence of witnesses that they are inter-related and so are delirious. Being inter-related is no ground for rejection of their evidence save and except having caution during course of scrutinizing the evidence that the same be scrutinized meticulously. The aforesaid issue has been taken into consideration in the case of Kanhaiya Lal v. State of Rajasthan as reported in 2013 (5) SCC 655 under paragraphs- 23, 24, and 25 which are as follows:-
23. The next limb of argument of Mr. Jain, learned counsel for the appellants, is that all the alleged eye witnesses are closely related to the 22 deceased Purshottam and the prosecution has chosen not to examine any independent witness despite number of houses situate in the close vicinity of the house of Purshottam and that itself creates a dent in the version of the prosecution. When relatives, who are alleged to be interested witnesses, are cited by the prosecution, it is the obligation of the court to scrutinize their evidence with care, caution and circumspection. In the case at hand, the entire occurrence took place in and around the house of Purshottam. Five people had been done to death. In such a circumstance, it is totally unexpected that other villagers would come forward to give their statements and depose in the court. It is to be borne in mind that Ram Narayan, Sarpanch of the village, solely on the basis of suspicion, had seen to it that five persons meet their end. Such a situation compels one not to get oneself involved and common sense give consent to such an attitude.
Thus, no exception can be taken to the fact that no independent witness was examined. As far as the relatives are concerned, Radhey Shyam, PW-1, is the brother of the deceased, Ram Lal, PW-2, is the brother of Radhey Shyam, Panna Bai, PW- 3, is the mother of Purshottam and Nirmala Bai, PW-5, is his wife, and Anita, PW-5, Badribai, PW-8, Manisha, PW-9 and Kaushalya, PW-10, are also close relatives and these witnesses have been cited as eye witnesses.
24. In Hari Obula Reddy and others v. The State of Andhra Pradesh[(1981) 3 SCC 675], a three-Judge Bench has opined that it cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.
25. In Kartik Malhar v. State of Bihar[(1996) 23 1 SCC 614], this Court has stated that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
28. The learned lower court had only shown suspicion against their conduct forming a ground to reject their evidence in the background of being inter-related is not a sound principle of law. In likewise manner the learned lower court in para-35 had taken into account the propriety of the document so exhibited as Ext-8, 8/A, 8/B, 8/C inconsonance with Ext-A and B. The propriety of document whether on account of non probate of a will is admissible to the extent of devolvement of the property but failed to construe that on account thereof, the parties are on strained relationship. Enmity is a double edged sword. It may be a motive for false implication while it may be a motive for commission of offence and that has to be adjudged on the basis of the evidence so produced during trial.
29. Now coming to ocular evidence, it is apparent from the judgment impugned that the learned lower court had not dealt with in proper way. The learned lower court failed to assign any cogent reason to discard the evidence of other PWs. Apart from it, the learned lower court also failed to acknowledge Section 134 of the Evidence Act whereunder it is quality and not quantity, which matters. Why the 24 evidence of PW-5 the informant as well as injured is to be disbelieved, the judgment impugned did not justify. In Mano Dutt & Anr v. State of Uttar Pradesh reported in (2012) 4 SCC 79 it has been held under para-30,31 which are as follows:-
"30. Salik Ram was examined as PW2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution. However, the other injured witness, Nankoo, was not examined. In our view, non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.
31. We may merely refer to the case of Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], where this Court held as under:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar,[ (1973) 3 SCC 25 881 Malkhan Singh v. State of U.P. [(1975) 3 SCC 311, Machhi Singh v. State of Punjab [(1983) 3 SCC 470, Appabhai v. State of Gujarat, [(1988) supp SCC 241, Bonkya v. State of Maharashtra, [(1995) 6 SCC 447 Bhag Singh [(1997) 7 SCC 712 Mohar v. State of U.P. [(2002 7 SCC 606 (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, [(2008) 8 SCC 270 Vishnu v. State of Rajasthan, [(2009) 10 SCC 477 Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 and Balraje v. State of Maharashtra. [(2010) 6 SCC 673]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, [(2009) 9 SCC 719 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka [1994 supp (3)SCC 235] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-
examination and nothing can be elicited to discard 26 his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
30. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
To the similar effect is the judgment of this Court in the case of Balraje."
30. Consequent thereupon, the judgment impugned is set aside. Petition is allowed. The matter is remitted to the learned lower court to hear both the parties and will pass judgment in accordance with law and for that Opposite Parties No. 2 to 8 are directed to surrender before the learned lower court within four weeks failing which the court below will be at liberty to procure attendance of O.P. Nos. 2 to 8 in accordance with law.
(Aditya Kumar Trivedi, J) Patna High Court 10th January, 2014 Perwez/AFR