Ram Sanehi And Others vs State Of U.P.
2023 Latest Caselaw 2126 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                           "A. F. R."
 

 
							  Reserved on: 16.11.2022
 
						        Delivered on: 25.01.2023
 
Court No. - 1
 
Case :- CRIMINAL APPEAL No. - 551 of 1982
 
Appellant :- Ram Sanehi And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.K.Singh,Anurag Kumar Singh,Brij Mohan Sahai,Sunil Kumar Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Renu Agarwal,J.

(Delivered by Hon'ble Renu Agarwal,J.)

1. The present Criminal Appeal has been filed under Section 374(2) Cr.P.C. against the judgment and order passed by IInd Additional District & Sessions Judge, Hardoi on 14.07.1982, in S.T. No.06 of 1982, arising out of Case Crime No.43/143, Police Station Pali, District Hardoi, convicting the appellants Ram Sahai, Bishram, Jograj and Motilal and sentencing them to rigorous imprisonment for life under section 302 read with section 34 IPC.

2. Wrapping the facts in brief, complainant Jhinguri son of Lochan, Resident Ahir Mauja Anta, had previous enmity with Ram Sahai as his brother Prakash (deceased) had fired at Ram Sahai 10 years ago and his brother was tried and convicted for the same with the imprisonment of 7 years and he come out of jail few days before the incident after completing his incarceration. Accused Bishram & Jograj are the real brother and nephews of accused Ram Sahai. Accused Motilal is also the nephew of Ram Sahai. On the date of incident i.e. on 11.07.1981 at about 6.30 p.m. complainant had gone for defecation near pond on the western side of village and his brother Prakash was going to home from the path situated on the north side of pond. He heard a sound of fire shot and saw his brother running towards village followed by Ram Sahai son of Diwani armed with katta, Jograj son of Murli armed with lathi, Moti son of Chote armed with Spear, Bishram son of Murli armed with Katta. His brother fell down on the western path near the house of Baijnath. All the four accused started beating and assaulting his brother with the arms in their hands. He rushed towards the place of occurrence and shouted to save his brother. Raghunandan, Bare, Darbari and many other villagers reached there and scolded the accused, but all the accused started threatening them and dragged & beat his brother, rushed towards western side of sugar cane field. They followed the accused keeping some distance, then the accused leaving the brother of complainant in the fields of Jawahar took to their heels towards western side. His brother sustained injuries of Kanta, Spear Bhala and Fire Arm. There was slight cut on the neck of deceased. The written report was moved to police station in the next morning and is is explained in the FIR itself that he could not report in the night due to fear and darkness.

3. On the basis of written report FIR was lodged in Police Station Pali, District Hardoi and the investigation was entrusted upon S.I. Prahalad Tiwari, who recorded the statement of complainant and proceed to the place of occurrence immediately. He conducted inquest and prepared inquest report alongwith other connected papers Photo Lash, Challan Lash, letter to CMO and Letter to R.I, etc. The dead body was sealed and sent for postmortem examination to District Hospital Shahajahanpur. Investigating officer thereafter recorded the statement of witnesses. He visited to place of occurrence and found the bundle of grass at the place of occurrence and prepared site plain (Ex. Ka-9), collected grass and prepared recovery memo (Ex. Ka-10). Investigating officer collected six pellets and 3 bullets at the scene of occurrence. He collected the same and prepared recovery memo (Ex. Ka-11). He also collected plain and blood stained earth from two different places and prepared recovery memo Ex.Ka-12 and Ex.Ka-13, respectively. The investigating officer deputed S.I., B. P. Singh for the arrest of accused. Accused Ram Sahai and Bhishram were arrested on 15.07.1981 and Jograj and Motilal surrendered in court on 02.07.1981. After collecting essential evidence the investigating officer submitted charge sheet in the court on 24.07.1981.

4. All the accused were summoned in the court and after the compliance of section 207 Cr.P.C. all the accused were committed to the Court of Session for their trial. Charges were framed against the accused under section 302 read with section 34 IPC and read over and explained to the accused, who abjured from the charges and claimed to be tried.

5. Prosecution produced following eight witnesses to prove the prosecution story:-

(i) P.W.-1 Ram Prasad, who brought the dead body for postmortem examination,

(ii) P.W-2 Jhinguri, complainant,

(iiI) P.W.-3, Bade, who is said to be witness of the case,

(iv) P.W.-4, Prahlad Tewari, investigating officer,

(v) P.W.-5, Head Constable, Bhola Singh, who proved the G.D. Ex. Ka-17 regarding the dispatch of the case property,

(vi) P.W.-6, Constable. Shivlal who brought the case property in sealed bundles to Sadar Malkhana, Hardoi,

(vii) P.W.-7, Dr. M.L. Tandon, who conducted postmortem examination of the dead body of Prakash at 4.00 P.M. on 13.07.1981.

(viii) P.W.-8, Constable, Ram Samujh Yadav, who brought the case property from place of occurrence to Police Station Pachdeora, District Hardoi on 13.07.1981.

6. Besides ocular evidence the following documentary evidences are also produced and proved by the prosecution.

(i) Ex. Ka.-1, First Information Report,

(ii) Ex. Ka-2, Sight Plan,

(iii) Ex. Ka-3, inquest report,

(iv) Ex. Ka-10, recovery of grass,

(v) Ex. Ka-11, recovery of Tikuli and Charra,

(vi) Ex. Ka-12, recovery of blood stain and plain earth,

(vii) Ex. Ka-18, report of postmortem examination,

(ix) Ex. Ka-19, Affidavit filed by one Vishwa Nath Pandey,

(x) Ex. Ka-20, Affidavit filed by Rangnath Mishra,

(xi) Ex. Ka-21, report of chemical examiner,

(xii) Ex. Ka-22, report of Serologist and the recovery list.

7. On the basis of evidence produced in court, learned trial court found all the accused Ram Sahai, Bishram, Jograj and Motilal guilty of the charges under section 302 read with section 34 IPC and convicted & sentenced them to undergo imprisonment for life. Aggrieved with the judgment and order dated 14.07.1982 passed by learned trial court, the present appeal is filed.

8. During the course of appeal, the accused Ram Sahai, Bishram and Motilal, have expired and appeal was ordered to be abated against them, vide order dated 20.11.2019, passed by Co-ordinate Bench of this Court and now in fact the appeal survives only on behalf of appellant Jograj, hence the Court proceed to hear it.

9. We have heard the submissions of Sri Brij Mohan Shai, learned counsel for the appellants, Sri Chandra Shekhar Pandey, learned Additional Government Advocate for the State and perused the material brought on record.

10. Learned counsel for the appellants submitted that the finding arrived by the learned trial court are perverse and contrary to the evidence on record. The medical evidence is in not in consonance with the eye witness account given in the FIR. The prosecution case is falsified with the absence of abrasion on the body which makes whole story of prosecution doubtful. There is material contradictions in the statement of witnesses, therefore, the judgment and order passed by the trial court is liable to be set-aside.

11. On the contrary, learned AGA for the State-respondent argued that the judgment and order passed by trial court is based on cogent evidence and there is no material contradictions between the medical evidence and the ocular evidence. The appellants committed brutal murder and created terror in whole of the village. Motive of the case is proved, therefore, the judgment of the trial court is liable to be upheld.

12. It transpires from the FIR that on account of previous enmity the appellants assaulted Prakash, the brother of complainant Jhinguri. The incident occurred on 11.07.1981 at 18.30 p.m. and the report was lodged on 12.07.1981 at 7.10 a.m. The delay has been explained in the FIR itself that the brother of complainant was assaulted and murdered brutally by appellants, therefore, due to fear and darkness of night he could not lodged the FIR in the night and lodged the report in the morning, therefore, the delay is properly explained. Before elucidating the evidence produced in the trial court it is desirable to recapitulate them in brief.

13. P.W.-1, stated on oath that he was posted as a constable clerk in Chauki Pachdewra and brought the dead body of deceased Prakash in sealed condition with the necessary documents and sample seal and handed over the dead body in District Hospital, Shahjahanpur. He stated that constable-58 Ramdayal, watchman Ram Sahai and the brother of complainant Sarkas were also with him. He endorsed his arrival in G.D. No.3 at 6.10 a.m. on 13.07.1981 and got the docket prepared. He identified the dead body before doctor and after postmortem, the cloths of deceased were handed over to him in sealed envelop from the Hospital, which he submitted on the next day in Chauki Pachdewra. The dead body, envelop and bundles remained in his custody intact and sealed.

14. P.W.-2 complainant stated that Murli, Chote, Ram Singh and Ram Sahai are four sons of of Dewani. Ten years ago his brother Prakash (now deceased) was tried under section 307 IPC for firing on appellant Ram Sahai and he was convicted with the imprisonment of seven years and he was released from the jail two years before this incident, therefore, there was inimical relationship between the families. At about nine months ago when he went for defecation near the western side of pond at about 6.30 p.m. he saw his brother Prakash going towards eastern side towards his house. Immediately he heard the sound of fire and his brother started running and raising alarm, but he fell down on the southern path in front of house of Hemsingh and in the north west of the house of Baijnath due to fire arm injury. Two fires were shot by Ram Sahai, even after he fell down. Bishram assaulted with Kanta, Jograj with lathi and Motilal with pointed and sharp edged spear. He came to the north west corner of the house of Baijnath. On hearing the sound of fire witnesses Raghunandan, Bare and Darbari also reached there and challenged the accused, but the appellant did not pay any heed and picked the body of his brother and threw it in the southern corner of the fields of Jawahar. The witnesses identified the cloths of the deceased produced before him in the court.

15. P.W.-3 Bare is an eye witness of the case who stated on oath that 8-9 months ago at about 6.30 p.m. he heard the sound of three fires and the alarm raised by some one, he immediately reached on the north south corner of the residence of Baijnath. Jhinguri Raghunandan and Darbari also arrived there. Bishram by Kanta, Jograj with lathi and Motilal by spear were assaulting Prakash who was lying on the ground on the north west side of Baijnath and on the southern path in front of the house of Hemsing. They scolded Ram Sahai etc., then they hang Prakash and took him towards western side and threw in the fields of Jawahar and when they saw Prakash he was dead. He also stated that he saw blood on the ground.

16. P.W.-4 Prahlad Tiwari, S.I. Chauki Pachdeora, District Pali, Hardoi, stated on oath that the case was registered Chauki and he identified his signature Ex. Ka-1. He proved Ex.Ka-1 as well as G.D. No.6 dated 12.07.1981, Ex.Ka-2. He also proved site plain, inquest report and the necessary papers related to inquest from Ex.Ka-3 to Ex. Ka-8. This witness also proved site plain Ex.Ka-9, recovery memo Ex. Ka-10 and recovery memo of grass Ex.Ka-2. This witness proved recovery memo of bullets and pellets as material Ex.-11. The container was opend before the witness in court and he proved that the material is the same which he collected, sealed and saved it from the place of occurrence and brought it as Material Exhibit-3. The witness proved the recovery memo of plain and blood stain earth as Material Exhibit-12 & Material Exhibit-13 and proved all the recovered items as Material Exhibit-4. He obtained the result of postmortem and made it a part of case diary. He arrested Ram Sahai and Bishram at about 8.30 p.m. on 15.07.1981 and entered in G.D. No.24 at 23.00 p.m. and recorded the statement of accused Jograj and Motilal on 24.07.1981 with permission of court, as they were sent to jail on 22.07.1981 on the application for surrender. The witness proved charge sheet and G.D. No.9 dated 13.07.1981 at 09.30 a.m. as Ex. Ka-15 and G.D. No.16 on the same day at 16.35 as Ex. Ka-16 and G.D. No.6 dated 31.08.1981 at 6.20 a.m. as Ex. Ka-17.

17. P.W.-5 Bhola Singh and P.W.-6 Shivlal are formal witnesses, who proved Ex. Ka-17

18. P.W.-7 Dr. M.L.Tandon, conducted postmortem of the body of deceased and prepared postmortem report and proved it. He found following postmortem injuries on the dead body:-

"1 Incised wound 12 cm. x 4 cm. x Bone deep on left side neck on the back part 8 cm. below and behind lobule of left ear 6th and 7th Carvical vertibra body cut (fractured) Margins clean cut.

2. Incised wound 2 cm. x 0.5 cm. x muscle deep on left side back 1.5 cm. below injury no.1.

3. Incised wound 2 cm. x 0.5 cm. x muscle on back and mid-line 17 cm. below injury no.2 Margins clean cut.

4 Gun shot would of entry 1.5 cm. x 0.5 cm. x bone deep on left cheek adjacent to left mostril, Margins inverted, Blackening present around the wound. Upper jaw and teeth broken. Direction from front to back downwards and to the right.

5. Gunshot would of exit 2 cm. x 1.5 cm. x bone deep on inner aspect upper lip and jaw Communicating to injury no.4 with upper teeth of both Sides broken.

6. Incised wound 3 cm. x 1 cm. x muscle deep on left side neck 2 cm. above left clavical Margins clear cut.

7. Multiple incised would in an area os 29 cm. X 27 on left side chest and upper abdomen 3 cm. below left clavical. Smallest size 1 cm. X 0.5 on x muscle deep to largest size 2 cm. x 1 cm. x chest cavity deep Margins clear cut.

8. Gun shot wound of entry 1.5. cm. X 0.5 cm. x chest cavity deep on left side chest 12 cm. away and below the left nipple, Margins inverted. Direction from front to back and to right.

9. Gun shot wound of entry 1 cm. x 0.5 cm. x abdominal cavity deep on left side abdomen 13 cm. above and left of umbilicus. Margins inverted. Blackening around the wound present.

10. Gun shot wound of entry 1 cm. x 0.5 cm. x abdominal cavity deep on left side abdomen just near left anterior superior iliac spin. Margins inverted Direction from front to back downward and to left. No blackening. No tattooing.

11. Gun shot wound of exit 1.5. cm. x 1 cm. x abdomen cavity deep on left upper thigh 3 cm below left anterior Superior iliac spin and communicating injury no.10 margins everted.

12. Gun shot wound of entry 1.5 cm. x 0.5 cm. x abdomen cavity deep right side abdomen 2 cm. to the right of umilicus with piece of intestine and omentum coming out of the wound. Margins inverted. Blackening present. Direction from front to back.

13. Gun shot wound of entry on right side abdomen 11 cm. above injury no.12. Blackening around the wound present. Direction front to back. Margins inverted.

14. Contusion 3 cm. x 2 cm. on top of right shoulder.

15. Lacerated wound 2 cm. x 1 cm. muscle deep in web space between right thumb and right index finger of right hand.

16. Incised would 1 cm. x 0.5 cm. x muscle deep on back of right hand middle. Margins clean cut.

17. Incised would 1 cm. x 0.5 cm. x Bone deep on front of left leg 14 cm. below knee, Margins clean cut.

18. incised wound 2 cm. x 1 cm. x muscle deep in web space between left little and right finger of left hand. Margins clean cut.

Internal examination

6th and 7th Cervical vertebra fractured. Vassels of the neck cut and lacerated. Left side pleura and lung lacerated. Heart empty.

Chest cavity contained 4 oz. Blood and 1 big metallic pallet was recovered from the cavity. Peritoneum lacerated. Abdominal cavity contained about 4 oz. blood one big metallic pellet recovered.

Somach contained 1-½ oz. Semidigested food material. Small intestine lacerated. Large intestine contained fecal matter at places.

Liver was lacerated 1 one big metallic pellet was recovered from left lobe of liver."

19. It is opined by the doctor that death of deceased was caused by Ante-mortem injuries and haemorrhage. Injury nos.1, 2, 3, 6, 7, 16, 17 and 18 were incised wounds and may be caused by sharp edged weapon as Kanta and injury nos. 4, 5, 8, 9, 10, 11, 12 and 13 were caused by fire arm, which he opined more than one in number. P.W.-7 identified the cloths of deceased and the three pellets recovered from the body of deceased, as Ex.Ka.-18. It is also stated that injury nos.6, 16 and 18 can be caused by pointed and sharp edged weapon like spear

20. P.W.-8, Ram Samujh Yadav, proved G.D. No.9 date 13.07.1981 time 9.30.

21. Besides the above mentioned oral evidences Vishwanath Pandey, clerk in the office of District Hospital, Hardoi, Raghunath Mishra, Head Constable No.34, C.P., Malkhana Moharar produced their affidavit in court and stated that the case property in five bundles were sent to chemical examiner Agra, U.P.. through constable-681 Shivlal, O.P. Pachdeora, Police Station Pali and case property remained intact during this period. Raghunath Mishra stated in his affidavit that the case property (4 contenor and 1 potli) were send through constable Shivlal-681 for chemical test to CMO Office Hardoi and it remained intact.

22. After the conclusion of evidence of witnesses the statements of accused were recorded under section 313 Cr.P.C. All the accused denied the allegations and the evidences produced against them and stated that they are falsely implicated in the present case due enmity and partibandi. No defence witnesses were adduced, however, opportunity to adduced defence witness were given.

23. So far as enmity is concerned all the accused-appellant admitted in their statement under section 313 Cr.P.C. that they were falsely implicated as there was previous enmity between the parties. P.W.-2 Jhinguri specifically stated in FIR that his brother Prakash, (now deceased) was tried and convicted by the court for firing on appellant Ram Sahai and he was punished with seven years imprisonment in that case. He came out of jail two years before this incident. It is true that animosity is double edged weapon and it can be used to falsely implicate or the incident may occurred due to enmity. Now it is to be seen that whether the accused appellants was falsely implicated in the case or they are actually committed the offence. In this case the P.W.-2 and P.W.-3, are eye witnesses of the case, both appeared and deposed in the court. P.W.-2 specifically stated that when he went to defecation near pond he heard the sound of fire and cries of his brother and he also seen his brother crying and running towards his house. It is also stated that he fell down due to fire and two fire were shot even after he fell down. The accused-appellants were challenged by witnesses Raghunandan, Bare and Darbari and Bare as P.W.-3 has corroborated the evidence of P.W.-2 Jhinguri, on oath. Both of the witnesses proved that thereafter the appellants picked the dead body of deceased and threw in the fields of Jawahar. It is also admitted by P.W.-2 that when the Prakash was in jail the real brother of appellant Ram Sahai namely Chote was murdered by some one else and he alongwith his brother Sarkash, Anangpal and Harkaran were named in that case and they were acquitted of the charges of murder 4 to 5 months before the incident. The wife of his brother Sarkash was also murdered and Gangaram, Mulayam and Bhramarpal were tried for the same.

24. It is argued by learned counsel for the appellants that according to FIR the dead body of the deceased was dragged by the appellants, while taking towards the field of Jawahar. However, during the statement in court the witnesses stated that the dead body of Prakash was hang and thrown in the field of Jawahar. This is minor contradictions, which do not destroy the whole case of prosecution.

25. It is also argued on behalf of appellants that evidence of P.W.-2 is also doubtful, as appellants did not target him, however, animosity is said between both the families. In this contest it transpires from the record that deceased Prakash, aimed fire at Ram Sahai in earlier case, however, P.W.-3 has no direct concerned with that case, moreover, accused-appellants were following the deceased Prakash, while he was bringing the bundle of grass and going to his house. However, the victim was on the western side of pond for defecation. Hence there was no reason to target the complainant. Therefore, this argument is not tenable.

26. P.W.-4 collected the blood stain and the plain earth from the place of occurrence and from the place where the dead body was thrown, that material was send for chemical examination through letter Ex.Ka-21 and as per report Ex.Ka-22, human blood was found on the blood stained earth and underwear of deceased, as per serological report. It is also important to mention here that according to Ex.Ka-11, investigating officer collected six pellets and three bullets from the place of occurrence and on the bottom of bullets L.G. was engraved. According to P.W.-7 three pellets were recovered from the body of deceased and one matelic pellet was recovered from cavity of abdomen. According to P.W.-7 injury nos. 4, 5, 8, 9, 10, 11, 12 and 13 were caused by gun shot. All the case properties were produced before the P.W.-4 investigating officer, who proved in court that six tiklies and three pellets were recovered from the place of occurrence, which are proved by investigating officer in court. P.W.-4, investigating officer proved the site plan also, according to which the bundle of grass was recovered from the place shown by letter ''x' in site plain. This is the bundle of grass which the deceased was carrying on his head at the time of occurrence. However, "B" is the place where he was fired and he started running towards the village and "C" is the place where he is fell down due to the injury sustained by him. The dead body of deceased was recovered from the place shown by letter ''C' in the site plan.

27. It is stated on behalf of the present appellant Jograj that he is assigned role of assaulting by lathi and the persons who shot fire and assaulted by spear and kanta have already expired and the appeal has been abated against them.

28. As per injury report the injury nos.14 and 15 were found to be caused by lathi. Injury no.14 is contusion 3 cm. X 2 cm., on the top of right shoulder and injury no.15 is lacerated wound of 2 cm. X 1 cm. x muscle deep in web space between right thumb and right index finger of right hand. Therefore, there is no confusion regarding the presence of accused Jograj at the time of occurrence and the accused Jograj alongwith other co-accused assaulted the deceased Prakash and cause injury on him. According to the opinion of doctor P.W.-7, the death has taken place about two days before of postmortem examination and cause of death was opined as shock and haemorrhage as a result of antemortem injuries. It is also opined that injuries were sufficient to cause of death in ordinary course of nature. Prosecution proved the cogent evidence that fire arm, sharp & pointed weapon and lathi were used to cause death of deceased.

29. It is also argued that P.W.-2 Jhinguri is interested and related witness and, therefore, for this obvious reason he deposed against the accused persons, therefore, his statement could not be relied upon. Jhinguri, P.W.-2 is the real brother of deceased, he admitted in his statement that his brother Prakash was tried for the murder of Chote, who is the real brother of Ram Sahai, he also stated that he was prosecuted for the murder of the brother of accused Ram Sahai, therefore, he may be partisan witness, but merely because he is the brother of deceased and both families has inimical relationship, his evidence cannot be discarded, moreover his evidence is corroborated by independent witness Bare.

30. It is argued by learned counsel for the appellant that evidence of P.W-2 is not reliable as he is interested witness in the case. In this context Hon'ble Apex Court held in plethora of judgment that the evidence of related witness cannot be brushed aside merely on the ground that he is related to deceased.

31. It was held by Hon'ble Supreme Court in para-15 of the case of ''Gulab Vs. State of U.P.', reported in 2021 SCCOnline SC 1211 that:-

"a related witness cannot be said 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" witness 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 punish due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused".

32. It was also held by Hon'ble Supreme Court in para-28 of the case of ''Rajesh Yadav and Another etc. Vs. State of U.P.' reported in 2022 SCCOnline SC 150 that:-

"a related witness cannot be termed as an interested witness per se. One has to see the place of occurrence alongwith other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose."

33. In Kartik Malhar Vs. State of Bihar (1996) 1 SCC 614, the Hon'ble Apex Court has held as under:-

"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh's case (supra) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relative were not independent witnesses. Speaking through Vivian Bose, J., the Court observed :

We are unable to agree with the learned Judges of High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan [1952] SCR 377= AIR 1952 SC 54. We find, however, that it is unfortunately still persist, if not in the judgments of the Courts, at any rate in the arguments of counsel."

In this case, the Court further observed as under:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

In another case of Mohd. Rojali Versus State of Assam: (2019) 19 SCC 567, the Hon'ble Apex Court in this regard has held as under:-

"As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now wellsettled that a related witness cannot be said to be an ''interested' witnesses merely by virtue of being a relative of the victim. This court has elucidated the difference between ''interested' and '' related' witness 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 erms, 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 the 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 case was made by this Court in Dalip Singh v. State of Panjab 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..."

12. In case of related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and conistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199;

"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witnesses cannot be ignored or shown out solely because it comes from the mouth of a person who is closely related to the victim."

34. Hence prosecution proved the case beyond reasonable doubts by cogent evidence that the present appellant alongwith other co-accused assaulted the deceased and caused injuries, which doctor P.W.-7 opined as sufficient caused of death. Ocular witnesses proved the case and learned counsel for the appellant could not show any flaw or any material contradiction in the statements of witnesses. Learned counsel could not reveal any perversity or illegality in the judgment passed by the trial court.

35 Learned trial court considered the entire evidence on record led by prosecution and elucidated the evidences under the circumstances of the case and found that the evidences produced by the prosecution are sufficient to prove the case against the appellant beyond reasonable doubt.

36. In view of the forgoing discussion, we are of the view that reasoning given by the court below for convicting and sentencing the appellant no.3 Jograj, to rigorous imprisonment for life, for the alleged offence under section 302 read with section 34 IPC, are sufficient and prosecution established the guilt of the accused beyond reasonable doubt.

37. On the basis of above discussion, the appeal filed by the appellant Jograj is liable to be dismissed and is accordingly dismissed. The judgment of trial court is hereby confirmed.

38. The accused Jograj is in jail. He shall served out the punishment awarded by the trial court.

39. Let the copy of judgment and order as well as the records of trial court be transmitted to the trial court concerned forthwith for necessary information and compliance of this order.

(Renu Agarwal,J.)     (Ramesh Sinha,J.)
 
Order Date :- 25.01.2023
 
VKG