Hariram vs State Of Madhya Pradesh

This Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure 1973 (in short called as “Cr.P.C.â€) is directed against the

judgment of learned 1st Additional Sessions Judge, Chhatarpur in Session Trial No.122/07 dated 17-01-2008 whereby the appellant has been convicted

for offences under Section 302 and 307 of IPC and Section 27 of the Arms Act. For the offence under Section 302 of the IPC, sentence of life

imprisonment and fine of Rs.500/- is imposed whereas for offence under Section 307 of IPC, R.I. for ten years on each count (on four counts) and

fine of Rs.500 for each count has been imposed. For offence under Section 27 of the Arms Act, the sentence of seven years (S.I.) and fine of

Rs.500/ is imposed with default stipulation. The Court directed that all the sentences shall run concurrently.Â

Draped in brevity, the case of the prosecution is that on 18-05-2007 the complainant Jagdish Yadav (PW/3)Â lodged an FIR that on 18.05.2007 at

7:30 am he was standing at the front door of his house. The appellant Hariram alongwith his his friend Bali Vishwakarma’s son came there in a

motorcycle. The son of Bali Vishwakarma was driving the motorcycle and appellant was sitting in the back seat with his 12 Bore gun. At the door of

house where complainant was standing, the motorcycle was stopped by the aforesaid boy. The appellant with an intention to kill Dhaniram fired at him

by his 12 Bore gun. Dhaniram sustained gunshot injuries in various places of his body. He fell down and became unconscious. The complainant made

an attempt to save Dhaniram. The appellant fired on complainant also because of which his left arm, neck, shoulder, right thigh were injured and

bleeding started from the wounds. At this juncture, Nanhe Lal, Shyam Bai came to save them and they also sustained gunshot injuries in various parts

of their body. The daughter Sapna also received gunshot injury. The son of Bali Vishwakarma and the appellant fled in their bike. The complainant

took the injured to Police Station in a tractor. Later on, Dhaniram died.   Â

The defence of the appellant was that he preferred the complaint against Dhaniram because of his corruption in “Kapildhara Yojnaâ€. Since the

complaint was preferred by the appellant against Dhaniram, Dhaniram Sarpanch and their family members were keeping animosity with him. On the

date of incident, the appellant was travelling in a motorcycle with one Tunde and when he reached Dhaniram’s house, his motorcycle was stopped

by Dhaniram because of which he fell down from the motorcycle. Nanhe Lal was carrying the gun of Dhaniram and he fired at him with an intention

to kill him. The gunshot injury was, however, accidentally received by Dhaniram and other persons.

In view of the rival stand taken by the parties, the Court below rightly opined that indisputably Dhaniram died because of gunshot injuries.  The

stand of the prosecution was that Dhaniram died because of gunshot injuries given by present appellant whereas the present appellant had taken a

diametrically opposite stand by contending that the fire was at the instance of Nanhe Lal by using the licensed gun of Dhaniram.

The Court below framed charges under Sections 302/34 and 307/34 IPC against the appellant. The appellant denied the charges in toto and his

plea was recorded by the trial Court. The Court below framed an issue whether on 18.05.2007 at around 8.30 a.m. in Village Nimani, in front of the

house of Sarpanch Dhaniram, the appellant and co-accused with common intention and premeditated mind fired and murdered Dhaniram ?Â

In order to examine this question, the Court below considered the medical report of Dr. G.S. Ahirwar (PW-5), who has stated that on 18.05.2007,

he was posted in Community Health Centre, Bada Malehra as Medical Officer. The Constable â€" Harinarayan brought Dhaniram for medical

examination. There were severe wounds in his body which are mentioned in Para 6 of the impugned judgment. Considering the critical condition

of Dhaniram, he was referred to District Hospital, Chhatarpur. At the time he was brought to the Doctor, his whole body became pale. Dr.

M.P.S. Khare (PW-12) conducted the post-mortem of the body of Dhaniram Yadav. He in his report described the nature of wounds in the body of

Dhaniram in great detail. The reason of death was shown as excess bleeding, damage to heart and lungs by firearm and because of shock.

Three injured witnesses â€" Shymbai (PW-1), Jagdish Rawat (PW-13) and Nanhe Lal (PW-14) entered the witness box. They belong to same

family and admitted their relation with Dhaniram. The argument of defence was that no independent witness entered the witness box and supported

the story of the prosecution. The aforesaid witnesses being relatives of Dhaniram were bound to support the story of prosecution. Their story

cannot be believed. Another defence of the appellant before the Court below was that the cartridge allegedly used in the incident, was sealed and

sent for examination. The seal is not found in seizure memo. After seizure where the cartridge was kept is also not shown. No register of

“malkhana†was produced. After 12 days from alleged seizure, some report was sent to FSL. The story of prosecution that the deceased

was fired from the front was not supported by the medical evidence.

The Court below considered the aspect of relation of prosecution witnesses with the deceased. It was also found that none of the witnesses have

admitted that the appellant lodged any complaint relating to alleged corruption by the deceased.

Learned amicus curiae contended that there is no reason to disbelieve the defence of the appellant. In absence of producing any independent

witness, the story of prosecution could not have been believed.

Per contra, learned Government Advocate supported the impugned judgment by taking this Court to the record.

No other point is pressed by learned counsel for the parties.

We have heard learned counsel for the parties and perused the record.

So far the testimony of related witnesses are concerned, this is trite law that evidence of relatives cannot be disbelieved or discarded solely on the

ground that they are relative of the deceased. If the statement is otherwise creditworthy and could not be demolished during crossexamination,

there is no justification in not believing his statement.Â

In Dalip Singh vs. State of Punjab (AIR 1953 SC 364), it has been observed as under:

“25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses 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 rule. 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. State of Rajasthan [Rameshwar v. State

of Rajasthan, AIR 1952 SC 54 : 1952 Cri LJ 547] .â€​

In the said case, it has also been further observed: (AIR p. 366, para 26)

“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. 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.â€​

In this context, it is requisite to quote the observations made by the Apex Court in State of Punjab vs. Jagir Singh (1974) 3 SCC 277, which

reads as under:

“23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as

to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of

interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court

has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have

to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time

reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.â€​

In Hari Obula Reddy vs. State of A.P., (1981) 3 SCC 675. the Apex Court has ruled that evidence of interested witnesses per se cannot be

said to be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduce a

passage from the said authority:

“13. … 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 intrinsically reliable or inherently probable, it may, by itself, be

sufficient, in the circumstances of the particular case, to base a conviction thereon.â€​

In State of U.P. Vs. Naresh, 2011 (4) SCC 324, the Apex Court held as under:

“29. A mere relationship cannot be a factor to affect credibility of a witness. The evidence of a witness cannot be discarded solely on the ground

of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has

credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse

the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh [(2009) 9 SCC 719 : (2010) 1 SCC (Cri)

107] ,Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] andBalraje [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211]).â€​

In Kanhaiya Lal Vs. State of Rajasthan, 2013 (5) SCC 655, the Apex Court held as under :

“23…………...When relatives, who are alleged to be interested witnesses, are cited by the prosecution, it is the obligation of the court to

scrutinise 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

eyewitnesses.â€​

In Jodhan Vs. State of M.P., 2015 (11) SCC 52, the Apex Court held as under:

“22. As per the evidence brought on record, the incident had taken place near the house of the deceased and the witnesses. The criticism that has

been advanced against these witnesses is to the effect that they are interested witnesses and hence, their version does not deserve acceptance is sans

merit, for they are the witnesses who were there at the spot and sustained injuries. They are close relatives and they have stood firm despite incisive

crossexamination. There can be no cavil over the proposition that when the witnesses are related and interested, their testimony should be closely

scrutinised, but as we find, nothing has been elicited in the cross-examination to discredit their version. On a studied scrutiny of their evidence, it can

be said with certitude that they have lent support to each other's version in all material particulars. There are some minor contradictions and omissions

which have been emphasised by the learned trial Judge. The High Court has treated the said discrepancies and the minor contradictions as natural.

That apart, their evidence also find support from the medical evidence and the initial allegations made in the FIR. The High Court has opined that there

is no inconsistency in their version and on a perusal of the said evidence, we find there is absolutely no inconsistency which will compel a court of law

to discard their version. The learned trial Judge, as is evincible, has attached immense emphasis to such omissions and contradictions which, according

to the High Court, with which we concur, are absolutely insignificant and trivial. It is also perceived that the learned trial Judge has given notable

stress on the fact that the accused persons and the informant were on inimical terms due to non-voting by the informant's party in their favour. In our

considered opinion, in the present case, the same cannot be a ground for not placing reliance on the eyewitnesses who have supported the prosecution

version.â€​

In Ram Chander Vs. State of Haryana, (2017) 2 SCC 321, the Apex Court held as under:

“33. The submission of the learned counsel for the appellants that since Guddi (PW 9) was in close relation with the deceased persons, she should

not be believed for want of evidence of any independent witness, deserves to be rejected in the light of the law laid down by this Court in Dalbir Kaur

v. State of Punjab [Dalbir Kaur v. State of Punjab, (1976) 4 SCC 158 : 1976 SCC (Cri) 527] and Harbans Kaur v. State of Haryana [Harbans Kaur v.

State of Haryana, (2005) 9 SCC 195 : 2005 SCC (Cri) 1213], which lays down the following proposition: (Harbans Kaur case [Harbans Kaurv. State

of Haryana, (2005) 9 SCC 195 : 2005 SCC (Cri) 1213] , SCC p. 198, para 7)

“7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of

partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused.â€​

In Namdeo v. State of Maharashtra [Namdeo v. State of Maharashtra, (2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773], this Court further held:

(SCC p. 164, para 38)

“38. … it is clear that a close relative cannot be characterised as an “interested†witness. He is a “natural†witness. His evidence,

however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy,

conviction can be based on the “sole†testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject

his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an

innocent one.â€​

The Court below also placed reliance on the judgment of Supreme Court in the case of State of Maharashtra Vs. Tulsiram, (2007 Cri.LJ 4319)

and opined that if witnesses are injured witnesses, their statements should be given due importance. In 2011 (6) SCC 288 (Brahm Swaroop Vs.

State of U.P.), the Apex Court held that 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 an inbuilt guarantee of his presence at the scene of the crime and is

unlikely to spare his actual assistant (s) in order to falsely implicate someone. The said principle is recently followed by Supreme Court in 2017 (13)

SCC 585 (Chandrasekar Vs. State). It was poignantly held that criminal jurisprudence attaches great weightage to the evidence of a person injured

in the same occurrence as it presumes that he was speaking the truth unless shown otherwise.

In our considered view, the Court below has not committed any error in considering the statements of injured witnesses and relatives as

trustworthy. The statements of related witnesses could not be demolished during cross-examination. No material contradiction could be established

by the appellant. The deposition of relatives are clear, cogent and without material contradiction. The same are supported by medical evidence. Thus,

the judgment of Court below deserves a stamp of approval on this count by this Court.Â

The Court below disbelieved the defence of the appellant that he was fired by Nanhe Lal for the reason that had it been a correct story, the

natural behaviour of the appellant would have been to lodge a report in the Police Station that an attempt to murder him was made by Nanhe Lal and

Dhaniram. We find substance in the reasoning given by the Court below. The Court below was also justified in ignoring the minor contradictions in

the statements of witnesses on the basis of judgment of Supreme Court reported in AIR 2002 SC 1965 (Krishna Mochi Vs. State of Bihar).

The Court below has considered the defence of the appellant in relation to the distance from which the gunshot was fired. After considering

statements of various witnesses, the Court below opined that villagers normally do not depose about distance with mathematical accuracy and

precision. The variation in the distance shown in their statements cannot be a reason to disbelieve the story of the prosecution.Reliance was rightly

placed on AIR 1978 SC 191 (State of U.P. Vs. Sughar Singh).

This is equally trite in law that if incident had taken place suddenly and the wounds were caused within short span of time, it is difficult for the

witnesses to narrate the incident with minute details. [See: AIR 2005 SC 2503 (Siman Vs. State)]. The common string in the statements of

eyewitness and medical report is that the gunshots were fired and reason of death is the gunshot injuries.

The Court below has given a finding that as per FSL report, the gunshots were fired from 12 bore gun of appellant - Hariram. Shri R.K.

Awasthi, S.I. (PW-15) categorically deposed that from the place of incident, he collected blood mixed soil, plain soil and cartridge. Although some

contradictions were there in relation to number of bullets fired, the Court below rightly opined that such contradictions will not wipe out the entire case

of prosecution. The Investigating Officer was not cross-examined on the question of delay in sending the cartridge, gun and other material to FSL.

In absence of any cross-examination on this aspect, the defence cannot get any benefit of the same. [See: AIR 2005 SC 1000 (State of U.P. Vs.

Satish)]. The defence has not cross-examined the Investigating Officer about any discrepancy in seizing and sending the material to FSL.

On the basis of material on record, in our considered opinion, the Court below has rightly reached to the conclusion that the appellant is guilty of

offences punishable under Sections 302 and 307 of IPC. The appellant had ill will against Dhaniram because of election dispute. The prosecution

has objectively established that bodily injuries were present. The nature of such injuries were duly established and it was clearly proved that there

was an intention on the part of the appellant to inflict those injuries to Dhaniram. The injuries, by no stretch of imagination, can be said to be

accidental or unintentional. This cannot be said that the intention was to cause some other kind of injury.  Since aforesaid ingredients were

established by leading credible evidence, the Court below has rightly concluded that the appellant is guilty of offence under Sections 302/34 and 307/34

IPC. Since the appellant’s licensed gun was used in murder and this fact was duly established by prosecution by leading evidence, the finding of

Court below deserves a stamp of approval wherein he was also held guilty under Section 27 of the Arms Act.

In view of aforesaid analysis, we find no reason to interfere in the judgment dated 17.01.2008. The appeal fails and is hereby dismissed.