Rajasthan High Court - Jodhpur
Vishnu vs State on 1 April, 2019
Author: Vinit Kumar Mathur
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1055/2006
Vishnu S/o Bhav Singh Banjara, R/o Chhota Majesariya, Police
Station Rathanjana.
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. N.S. Bhati, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Per Hon'ble Mr. Vinit Kumar Mathur, J.
01/04/2019 The present jail appeal was admitted by this Court on 13/12/2006 and an Amicus Curiae was appointed to assist the Court on behalf of the accused appellant.
The appellant herein was convicted under Section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs.1,000/- in default of payment of fine, to further undergo one year simple imprisonment vide judgment dated 12/10/2006 passed by the learned District and Sessions Judge (Fast Track), Pratapgarh in Sessions Case No. 06/2006.
Being aggrieved of his conviction and sentence, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
Succinct facts, relevant and essential for disposal of the appeal are noted hereinbelow :
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(2 of 11) [CRLA-1055/2006] A verbal report was lodged by PW.9 Mangilal to Station House Officer, Police Station Rathanjana (Ex.P.29) on 01/12/2005 to the effect that he had a grocery shop which was located in front of his house in Village Majesariya. At around 9 p.m. while he was sitting at his shop along with Amrit Lal, Poonam Chand Meena and Vakil Banjara, his nephew Vishnu came from his house hurling abuses to him. When his wife Shanti and daughters Mamta, Sundar and Pushpa heard the foul language used by the appellant, they came outside and questioned him about the same. Vishnu inflicted sword blows upon his wife who fell flat on the ground. When he tried to intervene, he was also inflicted a sword blow. He rushed back to his shop after having sustained injury and the coat worn by him also got cut by the sword blow. On hearing the cries, Amrit Lal, Poonam Chand and Vakil came outside the shop. They saw the appellant running away from the spot with the sword. He along with other inhabitants of the village took his wife to Pratapgarh in a tractor where she died due to sword injuries received by her on the left side of her neck and the fingers and palm of the right hand. The incident happened on account of the enmity kept by the appellant for the reason that he and his wife had to pay Rs.2,000/- to Vishnu in pursuance of a decision in connection to their land.
On the basis of this report, a formal FIR No.143/2005 (Ex.P42) was registered at the Police Station Rathanjana, District Chittorgarh and the investigation commenced.
After investigation, a charge sheet was submitted against the accused-appellant for the offences under Sections 302 and 324 IPC in the Court of concerned Magistrate. Since the offence under Section 302 IPC was sessions triable, the case was committed to (Downloaded on 05/06/2021 at 02:06:13 AM) (3 of 11) [CRLA-1055/2006] the Court of Sessions Judge for trial. The learned Sessions Judge referred the matter to learned District and Sessions Judge (Fast Track), Pratapgarh.
The trial Court framed charges against the accused appellant for the above offences. He pleaded not guilty and claimed trial.
The prosecution examined as many as 19 witnesses and exhibited 52 documents in support of its case.
The accused was questioned under Section 313 Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution evidence. He denied the same and claimed to be innocent.
After hearing and appreciating the submissions advanced by the defence and the prosecution and after appreciating and evaluating the evidence available on record, the learned trial Court, proceeded to convict and sentence the appellant as above.
We have heard the arguments advanced by learned counsel for the appellant and the learned Public Prosecutor.
Mr. Kalu Ram Bhati, learned amicus curiae appearing on behalf of the appellant has vehemently and fervently contended that the appellant has been falsely implicated in the case. There are material contradictions and omissions in the testimony of the prosecution witnesses. There is no credible witness as all the eye witnesses named in the present case are close relatives of the deceased. Their testimony cannot be believed as they are interested witnesses and it will not be safe to rely upon the same.
Alternatively, learned amicus curiae further urged that it has come on record that there was a heated altercation between the deceased and the appellant. The appellant inflicted sword blows (Downloaded on 05/06/2021 at 02:06:13 AM) (4 of 11) [CRLA-1055/2006] in sheer anguish in heat of passion & sudden provocation. Therefore, the conviction of the accused-appellant is required to be toned down from Section 302 IPC to Section 304 Part I IPC.
On the strength of the submissions made above, learned Amicus Curiae appearing for the appellant has prayed that the present appeal may be allowed and the appellant may be acquitted of the charge levelled against him by setting aside the judgment dated 12/10/2006 passed by learned trial Court.
E converso, learned public prosecutor has vehemently and fervently opposed the submissions advanced on behalf of the appellant. He contends that the prosecution had been able to prove the offence alleged against the appellant beyond all reasonable doubt. There is no reason to discard the testimony of the eye witnesses i.e. PW.1 Sundar Bai, PW.3 Vakil Banjara, PW.5 Mamta, PW.6 Amrit Lal, PW.9 Mangilal and PW.10 Pushpa. The testimony of eye witnesses is fully corroborated from the medical evidence as PW.14 Dr. Vijay Agarwal stated that the cause of death was due to injuries sustained by the deceased on her neck and hand as well as the postmortem report (Ex.P.36) which shows the cause of death to be injuries sustained by the deceased.
He further urges that the recovery of weapon of offence i.e. sword (Ex.P.7) on the information supplied by the appellant under Section 27 of the Indian Evidence Act (Ex.P.50) and the FSL report (Ex.P.52) wherein the blood group on the weapon of offence is matching with the blood group of deceased found on the clothes of deceased sent to the FSL which establishes the guilt of the accused beyond all reasonable doubt. He, therefore, submits that no interference in the impugned judgment is called for. (Downloaded on 05/06/2021 at 02:06:13 AM)
(5 of 11) [CRLA-1055/2006]
We have given our thoughtful consideration to the
submissions advanced at bar and have carefully sifted and re- appreciated the evidence available on record threadbare.
The incident happened just in front of the shop owned by the complainant located opposite to his house. The testimony of the eye witnesses clearly narrating the sequence of events which shows that the appellant was holding a sword in his hand and while he came from his house hurling abuses, a question for the same was asked by the wife of the complainant who was inflicted sword blows by the appellant resulting into her death.
The sequence of prosecution story narrated by the prosecution witnesses is as under :-
PW.1 Sundar Bai being daughter of the deceased stated that while sitting at her home along with mother Shanti, sisters Mamta, Pushpa, brothers Madan, Jeetu and aunty Mathari heard the foul language uttered by the appellant and when her mother came out of their house asking the appellant as to why was he calling bad names, the appellant who was holding a sword in his hand inflicted the injuries on her neck and hand and when her father came out of his shop, he was also assaulted by the appellant with the sword. Her father went back to his shop.
Her mother was taken to Pratapgarh hospital by tractor where she succumbed to the injuries. Nothing significant was elicited during the cross-examination of this witness so as to doubt the credibility or veracity of the deposition made by her in the examination-in-chief.
PW.3 Vakil who was sitting at the shop of Mangilal along with Poonam Chand and Amrit Lal stated that the appellant inflicted (Downloaded on 05/06/2021 at 02:06:13 AM) (6 of 11) [CRLA-1055/2006] sword blows to the deceased when she came out of her house after hearing the foul language uttered by the appellant.
PW.5 Mamta, PW.6 Amrit Lal, PW.9 Mangilal and PW.10 Pushpa are the witnesses to the incident who had narrated the same sequence of events as has been narrated by PW.1 Sundar Bai and PW.3 Vakil.
PW.14 Dr. Vijay Agarwal who conducted the autopsy upon the dead body of the deceased described the dimensions and places of the injuries sustained on the body of deceased Shanti Bai. The cause of death was opined to be hemorrhagic shock due to excessive bleeding.
PW.19 Abhay Singh is the Police Officer who investigated the matter. During the course of investigation, he recorded statements of witnesses, collected samples, prepared memos in accordance with the provisions of law and submitted the charge sheet before the Court of competent jurisdiction.
The recovery memo of weapon of offence i.e. Sword is Ex.P.7 and the information supplied by the appellant under Section 27 of the Evidence Act qua the same is Ex.P.50. The FSL report is Ex.P.52. The testimony of eye witnesses is clinching, depicting a clear story pointing towards the fact that the appellant came out of his house with a sword. While he was calling bad names and abusing, Shanti Bai, who was inside the house located in front of the shop of Mangilal, came out and tried to resist and asked the appellant about hurling abuses. The appellant assaulted her with a sword on her neck and hand. The appellant also inflicted the sword injuries to Mangilal who tried to intervene but taking into consideration the ferocity of the attack, he rushed back to his shop. Mangilal has also sustained injuries at the hands of (Downloaded on 05/06/2021 at 02:06:13 AM) (7 of 11) [CRLA-1055/2006] appellant by the sword which is clear from the injury report (Ex.P.30). The testimony of Mangilal and other eye witnesses, namely, PW.1 Sundar Bai, PW.3 Vakil Banjara, PW.5 Mamta, PW.6 Amrit Lal, PW.9 Mangilal and PW.10 Pushpa is very clear and describing the incident explicitly. Sequence of the events narrated by them gets fully corroborated by the medical evidence. All the eye witnesses stated that the appellant inflicted sword blows to the deceased Shanti Bai who is wife of Mangilal. The testimony of PW.14 Dr. Vijay Agarwal fortifies the statement of eye witnesses and the postmortem report (Ex.P.36) puts the seal on the prosecution story. The recovery of bloodstained sword at the instance of appellant and the FSL report clearly establishes the fact that it was none other than the appellant who was involved in the commission of offence alleged in the case.
We have no reason to disbelieve the testimony of the prosecution witnesses merely on the ground that they are closely related to the deceased. We find that all the witnesses including PW.9 Mangilal, an injured eye witness, deposed before the trial court in one line narrating the incident which is getting fully corroborated and fortified from the medical evidence as discussed above pointing towards the fact that the appellant has given fatal blows to the deceased.
Our view is supported by the observations made by the Hon'ble Supreme Court in para Nos.10 & 11 in the case of Md.Rojali Ali & Ors. vs. The State of Assam, Ministry of Home Affairs, reported in 2019(3) Scale 877 which read as under:-
"10. As regards the contention that all the eye- witnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said (Downloaded on 05/06/2021 at 02:06:13 AM) (8 of 11) [CRLA-1055/2006] to be an 'interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between 'interested' and 'related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the Accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the Accused (for instance, see State of Rajasthan v. Kalki, : (1981) 2 SCC 752; Amit v. State of Uttar Pradesh,: (2012) 4 SCC 107; and Gangabhavani v. Rayapati Venkat Reddy,: (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three-Judge bench decision in State of Rajasthan v. Kalki (supra):
14. "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 decree in a civil case, 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 a case cannot be said to be "interested"....
11. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR 145, wherein this Court observed:
26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the Accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person...."
Our view is also supported by the observations made by the Hon'ble Supreme Court in para Nos.24 to 28 in the case of (Downloaded on 05/06/2021 at 02:06:13 AM) (9 of 11) [CRLA-1055/2006] Yogesh Singh vs. Mahabeer Singh reported in AIR 2016 SC 5160, which read as under:-
"24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 = 1954 SCR 145, is one of the earliest cases on the point. In that case, it was held as follows:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 = (1977) 4 SCC 452, this Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
".. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it 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 interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be (Downloaded on 05/06/2021 at 02:06:13 AM) (10 of 11) [CRLA-1055/2006] intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by this Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. 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)".
Further, in the case of Surinder Singh & Anr. V. State of U.P. reported in 2003 Cri L J 4446, the Hon'ble Supreme Court observed as follows :
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(11 of 11) [CRLA-1055/2006] "Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. Hence, the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance". Therefore, solely on this ground that they are interested witnesses, their testimony cannot be discarded.
The repeated assault by the accused with a sharp edged weapon which ultimately proved fatal is sufficient to show that the intention of the accused-appellant was clear to cause death of deceased Shanti Bai. Therefore, we are not inclined to alter the conviction of the accused from Section 302 IPC to Section 304 Part I IPC.
In the wake of the above mentioned discussion, we do not find any merit in the present criminal appeal and the same is, accordingly, dismissed. The judgment dated 12/10/2006 passed by trial Court is upheld. The record of the trial court be returned forthwith.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J 1-SanjayS/-
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