Sheo Kumar and Others vs State of U.P.

Kamal Kishore, J.—This is a criminal appeal against the judgment and order dated 7.8.1989, passed by Sri Dharam Paul, the then learned I Vth Additional Sessions Judge, Unnao, sentencing the accused-Appellants, Baiju, Raja Ram and Shiv Kumar each to undergo ten years R.I. u/s 304, Part, II, I.P.C. and further sentenced to all these three accused Appellants to undergo one year R.I. u/s 323, l.P.C. and giving benefit of U. P. Children''s Act to the accused Ram Narain alias Munai releasing him on probation on his furnishing a personal bond of Rs. 5,000 with two sureties in the like amount to keep peace and good behaviour for the period of three years.

The accused Baiju son of Sri Sadhu, Ram Narain alias Munai son of Sri Sita Ram, Raja Ram son of Sri Baiju and Sheo Kumar son of Sri Sita Ram all residents of village Kakrahin Khera, within the limit of Police Station Bighapur, District Unnao have been made to face their trial with the brief allegations that on 24.7.1987, at about 7.30 a.m., all these accused-Appellants voluntarily caused injuries to Ram Kishore and his wife Smt. Urmila by beating in village Kakrahin Khera and it resulted into thereby causing the death of Ram Kishore on 28.7.1987 at Lucknow Medical College, Lucknow (now Medial University) . The report of this incident being N.C.R. No. 106 of 1987 was made by Ram Kishore deceased at the Police Station Bighapur on 24.7.1987, at about 8.30 a.m., which was changed into u/s 304, l.P.C. on the receipt of the information about his death having taken place, investigated and it ultimately resulted into submission of charge-sheet against all these four accused facing the trial. All these four accused Baiju, Shiv Kumar, Ram Narain and Raja Ram have been examined and charged u/s 304, I.P.C. and u/s 323, I.P.C. to which they have pleaded not guilty and attributed their false implication.

I have heard arguments and have gone through the record.

In the instant case, the occurrence is alleged to have taken place on 24.7.1987 at 7.30 a.m. The first information report regarding the occurrence has been lodged as N.C.R. in the same morning at 8.30 a.m., i.e., merely after one hour of the occurrence naming all the accused persons. The first information report regarding the occurrence has thus been promptly lodged and hence the same is reliable as per the ruling of Hon''ble Supreme Court in Thulia Kali v. State of Tamil Nadu 1972 CAR 280 (SC).

It has been argued by the learned Counsel for the Appellants that since P.W. 1, Smt. Urmila is the widow of the deceased and P.W. 2 Smt. Kalawati is the sister-in-law (bhabhi) of the deceased. No reliance should be placed on their testimony, since they are relation partisan witnesses. This argument advanced by the learned Counsel for the Appellants is not tenable. Merely because out of three witnesses examined by the prosecution, two witnesses are near relation, it cannot be said that their testimony is interested and to be discarded outrightly. It has, therefore, been argued by the learned Counsel for the Appellant that since out of three eye-witnesses examined by the prosecution, two are the relation witnesses. No reliance can be placed on the testimony of both relation witnesses. This argument of the learned defence counsel is not tenable. It has been held by the Hon''ble Supreme Court in the ruling in State of U.P. Vs. Paras Nath Singh and Others, , that there is no rule that even straightforward evidence of relations of the deceased needs corroboration for sustaining conviction. That such witnesses happen to be naturally able to identify the assailants (coupled with the recovery of the blood-stained earth from the place of occurrence) leaves no reasonable doubt about proof of guilt. In absence of circumstances showing witnesses as inclined to falsely involve the accused, their being related to the deceased is innocuous. The same view was followed in the ruling in State of Orissa Vs. Domana Majhi and Others, , where it was held that there is no rule either of law or of prudence that family members of the deceased in a murder case are incompetent witnesses. There may be cases where only the family members will be the witnesses to the occurrence and their evidence is not to be rejected merely on the ground of interestedness. In a case where the witness was the father of the deceased and was also inimical to the accused, it has been held by the Hon''ble Supreme Court in the ruling in State of Uttar Pradesh Vs. Sughar Singh and Others, , that he being a partisan witness, his testimony has to be viewed with great caution to what by itself cannot be sufficient ground to reject it unless the same is found to be untruthful by reason of other infirmities. It has been held by this Court in the ruling in Natthoo v. State of U.P. 1979 ACR 4 (SC) : 1978 Cri LJ 289, that mere relationship or interestedness of a witness is not sufficient to discard him if his presence on the spot, i.e., place of occurrence cannot be seriously doubted. Close relations would be the last persons to screen the real culprits and falsely implicate innocent persons and hence, the mere fact of relationship, far from being the foundation of criticism of the evidence, is often a sure guarantee of truth ; when witness gives evidence on oath the presumptions should be that he has spoken the truth that is the oath he takes and the burden must lie on him that challenges the veracity of that statement to show that it is not true, and if that burden is not discharged by any of the recognized legal methods, then a Court can have no legal justification for not relying on the evidence of that witness. It has been held in the ruling in Gurubasavaiah and Another Vs. State of Karnataka, , that the evidence of close relatives need not be rejected as interested because normally close relations have no motive to shield the real offender. The Hon''ble Supreme Court has held in the ruling in Amar Singh Vs. State of U.P., , that the interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting for rejecting sworn testimony nor is it 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 witness 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. In a similar case, where the witnesses were family members and the closest relations of the deceased persons and it was quite natural for them to rush to the scene of the occurrence after listening the alarm raised by the deceased and others, it has been held by the Hon''ble Supreme Court in the ruling in Molu and Others Vs. State of Haryana, , that this by itself did not detract from the testimony of these witnesses. In a case of like nature where the deceased was in his hut along with his wife and the accused had given axe blow on the person of the deceased resulting the death of the deceased in presence of the wife of the deceased, it has been held by Hon''ble Supreme Court in the ruling in State of Rajasthan v. Smt. Kalki 1981 AWC 455, that she is the most natural witness and is not interested witness.

It is noteworthy that both the aforesaid witnesses, i.e., P.W. 1 Smt. Urmila and P.W. 2 Smt. Kalawati are the injured witnesses. The injuries on the person of both P.W. 1 Smt. Urmila and P.W. 2 Smt. Kalawati is the hallmark on their persons at the seen of occurrence. It has been held by the Hon''ble Supreme Court in the ruling in Balwant Singh v. State 1978 SCC 837, that the injured witnesses would not spare their real assailants and falsely involve innocent persons. In the instant case, the occurrence has taken place during the fore-noon at 7.30 a.m. and the assailants had inflicted injuries from short distance. In a case of like nature where the occurrence took place during the day time and the assailant had fired from a short distance, it was held by Hon''ble Supreme Court in the ruling in State of Haryana v. Harpal Singh 1979 ACC 60, page 35, that there can be no difficulty for the injured in such a case to identify the assailant and there is no reason as to why the injured will falsely implicate persons who were not at the scene of occurrence and exculpate the real assailants.

It has been argued by the learned Counsel for the Appellants that since Smt. Phulbasa the mother of one of the Appellants has sustained injuries and her injuries have not been explained by the prosecution. The same is fatal for the prosecution, as per the ruling of Hon''ble Supreme Court in Lakshmi Singh and Others Vs. State of Bihar, , no doubt that the aforesaid law laid down by the Hon''ble Supreme Court is a good law, however, the same is not helpful for the Appellants. Since Smt. Phulbasa is not an accused in the present case and the injuries sustained by her are minor and superficial in nature. The arguments of the learned Counsel for the Appellants to the contrary is thus not tenable.

Lastly, it was argued by the learned Counsel for the Appellants that the motive as given by the prosecution is not sufficient for the accused persons to commit the present crime. Proof of motive satisfies the judicial mind about the likelihood of the authorship, but its absence only demands deep forensic search and cannot undo the effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamendable to easy proof that Courts have to go without clear evidence thereon if other clinching evidence exists, as was held by the Hon''ble Supreme Court in the ruling in Chaman Lal Vs. State, . In the instant case, the occurrence took place during the broad daylight at 9.00 a.m. and there is direct evidence of the witnesses on the point. Moreover, it has been held in the ruling in Chaman Lal Vs. State, , that want of ample proof of motive for murder does not by itself improbabilise the charge. It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes clear and can be proved. Some times, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the implicit reliance is placed, then the question whether there is any motive or not becomes wholly irrelevant, as was held in the ruling in Molu and Ors. v. State 1976 Cri LJ 1685.

The appeal is devoid of merit and is hereby dismissed.