Court : IN THE SUPREME COURT OF INDIA
Brief : Interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes relating to the properties
Citation :
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO 1059 OF 2005
Ram Bharosey ... Appellants
Versus
State of U.P. ...Respondents
JUDGMENT
J.M. PANCHAL, J.
The instant appeal by Special Leave is
directed against Judgment dated August 17, 2004
rendered by Division Bench High Court of Judicature at
Allahabad in Criminal Appeal No. 828 of 1981 by which
the conviction of the appellant under Section 302 IPC
and sentence of life imprisonment imposed by the
2
learned III Additional Sessions Judge, Agra in S.T. No.
120 of 1980 is confirmed.
2. The facts emerging from the record of the case are
as under:-
The first informant i.e. Bhure Lal had gone to
Shamsabad, Agra (U.P.) on December 30, 1979 at the
Filter Centre of one Ravi Pandit to take diesel. He was
accompanied by his son Puran Singh and two residents
of his own village namely Rajendra and Pohan Singh.
Only the son of the first informant got two cans of
diesel. The first informant with his son and others was
returning home at about 3.00 to 3.15 P.M. When he
was at a distance of 40 to 50 steps from Ram Khera Toll
Naka, he was accosted by (1) Ram Bharose (the
appellant herein), (2) Jagge, (3) Munna and (4)
Brijendra. On spotting Puran Singh, the accused told
that Puran should not be permitted to return alive. The
appellant and Jagge had Tamanchas with them.
Accused Jagge told Puran Singh that he would take
revenge for the death of his father and was free to flee
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anywhere. Seeing danger to his life, Puran Singh started
running for his life, leaving his bicycle and shoes. The
appellant and Jagge fired shots at him by Katta but no
bullet hit him. Puran Singh was running towards
village and when he attempted to take shelter in the
house of Karua, he found that the said house was
closed. Therefore, he started running by the side of
Mango tree. Both the appellant and Jagge who were
closely following him fired shots at him but the bullets
hit the Mango tree. When Puran Singh was running
towards Filter Centre after crossing the road, the
appellant and Jagge as well as Brijendra and Munna
surrounded him near Shisham tree. Brijendra and
Munna caught his hands after which the appellant fired
a shot at him from his Tamancha which hit his chest.
On receiving bullet injury Puran fell on the ground and
died on the spot within three to four minutes. The
accused persons had thereafter fled towards Jarolli.
The complainant and his colleagues could not chase the
accused as accused were having Tamanchas. The first
informant, i.e., Bhure Lal met Kaptan Singh who
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reduced the FIR into writing and obtained his thumb
impression thereon. The complaint so prepared was
presented before the Officer of Shamsabad Police
Station. After registering the complaint, Sub-Inspector
Mahendra Nath visited the place of occurrence with
Poohan Singh. The Investigating Officer recorded
statements of those persons who were found to be
conversant with the facts of the case. He held inquest
on the dead body of the deceased and made
arrangements for sending dead body for post-mortem
examination with all the documents through Constable
Ranvir Singh and Shailendra Singh. On the basis of
statements made by the first informant Bhure Lal, the
Investigating Officer prepared map of scene of offence.
From the clothes of the deceased, he seized currency
notes worth Rs. 11/- which were smeared with blood as
well as permit of diesel which was obtained by the
deceased. The Investigating Officer also recovered four
khokha karatoosh and 12 Bore Gun from the spot. On
completion of investigation and receipt of report from
Forensic Science Laboratory, the four accused were
5
charge-sheeted in the Court of Learned Judicial
Magistrate First Class having jurisdiction in the matter
for commission of offence punishable under Section 302
read with Section 34 of Indian Penal Code. As the
offence punishable under Section 302 IPC is exclusively
triable by Court of Sessions, the case was committed by
the Learned Magistrate to the Sessions Court for trial.
3. The Learned Judge framed charge against the
appellant under Section 302 IPC and against other
accused under Section 302 read with Section 34 IPC.
The charge was read over and explained to the appellant
and others. They pleaded not guilty to the same and
claimed to be tried. Therefore, prosecution examined
several witnesses and produced documents to prove its
case against the appellant and others.
4. On completion of recording of evidence of
prosecution witnesses, the Learned Judge
explained to the appellant and other accused the
circumstances appearing against them in the
evidence of prosecution witnesses and recorded
6
their further statements as required by Section
313 of the Code of Criminal Procedure 1973. In
the further statements, the appellant and others
denied the prosecution case. Three witnesses, i.e.,
(1) Sirajuddin, who was a Clerk, Municipal Board,
Shamsabad as D.W. 1, (2) Rohatan Singh, as D.W.
2 and (3) Daya Shankar, as D.W. 3, were examined
by the accused in support of their defence that
they were innocent.
5. After considering the evidence adduced by the
prosecution and defence as well as hearing the
Learned Counsel for the parties the Trial Court
held that it was proved beyond reasonable doubt
that deceased Puran Singh died a homicidal death.
The Learned Judge found that evidence of first
informant who was father of the deceased was
trust worthy and reliable. The Learned Judge held
that the FIR was not anti-timed and was promptly
filed in which the appellant and Jagge were
identified by their names while the two other
accused were described by their relationship.
7
According to the Learned Judge motive for
commission of the crime in question was proved by
the prosecution which was that Hukam Singh who
was father of accused Jagge and Munna was killed
in 1976 for which deceased Puran Singh was
prosecuted but acquitted and therefore in order to
take revenge of death of father of Jagge and
Munna, the deceased was murdered. The Learned
Judge further held that it was proved beyond
reasonable doubt that death of the deceased was
caused due to the shot fired by the appellant
which act was done by him in furtherance of
common intention of all the accused. Therefore,
the Learned Judge convicted the appellant under
Section 302 IPC and other accused under Section
302 read with Section 34 IPC and imposed
sentence of life imprisonment on them.
6. Feeling aggrieved, the appellant and others
preferred Criminal Appeal No. 828 of 1981 before
the High Court of Judicature at Allahabad. The
Division Bench of the Allahabad High Court, by
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Judgment dated August 17, 2004, has confirmed
conviction and sentence imposed on the appellant
but set aside the conviction and sentence imposed
on three other accused. Therefore, the appellant
has approached this Court.
7. This Court has heard the Learned Counsel for the
parties at length and in great detail. This Court
has taken into consideration the record of the
case. The contention advanced by the Learned
Counsel for the appellant that High Court has
failed to analyse, assess and discuss each piece of
evidence carefully on its merits before reaching its
conclusion and therefore the appellant should be
acquitted, has no substance. It is true that while
deciding a Criminal Appeal filed under Section 374
of the Code of Criminal Procedure, 1973, the High
Court must go into all the details of oral and
documentary evidence adduced in the case and
conclusions should be drawn on the basis thereof.
9
There is no manner of doubt that the High Court
should discuss oral and documentary evidence on
record to indicate that points argued were
considered. However, the Judgment impugned in
the appeal indicates the conviction of the appellant
is confirmed after careful analysis, assessment and
discussion of relevant piece of evidence on record.
After noticing that prosecution side had presented
8 witnesses whereas the defence had produced
three witnesses, the High Court has discussed
evidence of relevant witnesses. The Judgment
rendered by the High Court further makes it very
clear that Mr. P.N.Mishra, Learned Advocate for
the appellant and others had raised three points
for consideration of High Court which were (1)
accused persons have been involved falsely due to
enmity, (2) only one injury was found on the dead
body of the deceased and (3) no body could have
caught/held the deceased when he was being fired
from close range. All the three points urged have
been effectively discussed and dealt with by the
10
High Court. In fact, the arguments Nos. 2 and 3
appealed to the High Court and therefore the three
accused who were convicted under Section 302
with the aid of Section 34 IPC have been acquitted.
The acquittal of the three accused itself indicates
application of mind by the High Court to the
evidence on record. It is experience of one and all
that in the memorandum of appeal or revision,
several grounds are taken/pleaded but at the time
of the arguments the learned advocate would
confine himself to few points which he considers to
be best and press only those points to be
considered by the Court. It is not the case of the
appellant that a particular point was argued but is
not dealt with by the High Court. In the
memorandum of Special Leave Petition no
grievance is made by the appellant that certain
points were urged but were not considered by the
High Court. As the Learned Advocate for the
appellant and others had emphasized three points
before the High Court, the High Court was justified
11
in considering those points and not adverting to all
the points which were raised in the memorandum
of appeal. This is not a case where the High
Court has confirmed conviction of the appellant by
an indifferent process of rejecting the defence
evidence on a uniform assumption that the defence
evidence is always false. This is not one of those
cases where the High Court has simply affirmed
the findings of the Trial Court without recording
reasons. On appreciation of evidence adduced by
the parties, the High Court has drawn its own
conclusions. This is not one of those cases
wherein High Court has proceeded to dispose of
the appeal of the appellant without appraisal of
evidence. Therefore, it is wrong to contend that
High Court having failed to analyse, assess and
discuss each piece of evidence on its merits
carefully before reaching its conclusion, the
Judgment impugned should be set aside. Except
mentioning that each piece of evidence was not
carefully analysed, assessed and discussed, the
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Learned Counsel for the appellant could not point
out to this Court as to which evidence was not
analyseed, assessed or discussed by the High
Court. Further, this Court had permitted the
Learned Counsel for the appellant to urge those
points before this Court which according to him
were relevant but not considered by the High
Court. Thereupon, the learned counsel has
advanced three contentions for consideration of
this Court, which are considered by the Court and
dealt with. Thus, there is no merit in the
contention that the High Court has failed to
analyse, assess and discuss each piece of evidence
and, therefore, the same is rejected.
8. The plea that prosecution having failed to adduce
evidence to establish that the accused had
knowledge that deceased Puran Singh was to come
to the petrol pump at the appointed time and
therefore the conviction of the appellant should be
set aside, has no substance. The prosecution in
this case never approached the Court with a case
13
that the accused had pre-meditated the murder of
the deceased after hatching a conspiracy. Bhure
Lal who is first informant and father of the
deceased has stated in paragraph 3 of his
testimony that when he along with his son and
others came near the octroi barrier, they were
accosted by the accused who were standing there.
The simple case of the prosecution is that when
Bhure Lal and others reached near the octori
barrier, they saw the four accused standing there
and the accused challenged Puran and fired shots
at him. While proving this case, it was not
obligatory at all for the prosecution to adduce
evidence to establish that the accused had
knowledge that deceased Puran was to come to
petrol pump with his father at a particular time. It
is well settled that no direct evidence of knowledge
on the part of an accused that he knew that the
deceased was to come at a particular place can be
led in a criminal trial. It is only from the proved
circumstances of a particular case that the Court
14
would attribute such a knowledge to an accused.
It may be that the accused persons had come to
Shamsabad in connection with their work and
when they saw their target, they decided to do
away with him. In this case the case of the
prosecution is that out of the four, two accused
had fired arms and had used the same to murder
the deceased. To prove this case, direct evidence
has been tendered by the prosecution. Therefore,
so called failure of the prosecution to adduce
evidence to establish that accused had knowledge
that the deceased was to come to the petrol pump
at the specified time, is of no consequence.
9. The argument that only interested witnesses were
examined and no independent witness was
examined to prove the prosecution case and
therefore the case of the prosecution should be
disbelieved is devoid of merits. Neither the first
informant Bhure Lal who is examined as P.W.1 nor
eye witness Poohan Singh examined as P.W.3
could be branded as an interested witness. Merely
15
because a witness is close relative of the deceased
he does not become an interested witness.
Interested witness is one who is interested in
securing conviction of a person out of vengeance or
enmity or due to disputes relating to the
properties. The facts of the case do not show that
the first informant who is father of the deceased
had any dispute with any of the accused including
the appellant. His simple case is that Hukam
Singh who is father of accused Jagge and Munna
was murdered for which his deceased son was
prosecuted but acquitted and therefore in order to
take revenge, the deceased was done to death. The
cross examination of the material witnesses makes
it very clear that the son of the first informant was
prosecuted for murder of Hukam Singh but
acquitted. This fact would not show in any
manner that the first informant was interested in
securing conviction of the appellant and therefore
he had wrongly deposed on oath before the Court
that his son died due to the shot fired by the
16
appellant. Even if it is assumed for the sake of
argument that the witness examined in this case
are close relatives of the deceased and, therefore,
should be regarded as interested witnesses, the
law relating to appreciation of evidence of an
interested witness is well settled, according to
which the version of an interested witness cannot
be thrown over board but has to be scrutinized
carefully and critically before accepting the same.
This Court finds that the Trial Court and the High
Court had subjected the evidence of witness Bhure
Lal and witness Pooran Singh to careful scrutiny
before accepting the same. Therefore, on the facts
and in the circumstances of the case this Court is
of the opinion that neither the Trial Court nor the
High Court committed error in placing reliance on
the testimony of first informant who is father of the
deceased and P.W.4.
10. The argument that the accused in the instant case
were not known to the witnesses examined in the
17
case and in the absence of holding of Test
Identification Parade benefit of doubt should be
given to the appellant as his identification as one
of the accused is not established by the
prosecution satisfactorily, is merely stated to be
rejected. As far as the appellant is concerned, he
is named by the first informant in the FIR itself.
The first informant knew very well that his son was
prosecuted for the murder of father of accused
Jagge and Munna. During cross-examination, it
was never suggested to the first informant that the
appellant or for that purpose any of the accused
was not known to him. The evidence of the first
informant makes it clear beyond pale of doubt that
he was knowing the appellant and three other
accused prior to the occurrence in question and
named the appellant and another in the FIR
whereas description of two other accused was
given in the FIR. His evidence further shows that
his relatives are living in Inayatpur and he was
visiting his relatives often. This assertion made by
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the first informant could not be demolished by
defence during his cross examination. Once this
assertion is believed to be true, it becomes at once
clear that he would know the appellant and others.
The evidence of Investigating Officer indicates that
after reading FIR he did not feel that either witness
Bhure Lal or witness Poohan Singh was not
knowing the accused persons by their faces and
names and, therefore, it was necessary to hold test
identification parade. Further, it could not be
satisfactorily established by the defence that the
appellant or any of the accused had demanded
holding of identification parade and that the said
prayer was either rejected by the Investigating
Officer or the Learned Magistrate. On the facts of
the case, this Court is of the firm opinion that the
identity of the appellant is not in dispute at all and
he is not entitled to any benefit on the ground that
he was not identified by the witnesses.
11. Thus the prosecution case that the appellant fired
a shot from tamancha at the deceased which
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caused his death is satisfactorily established.
Therefore, conviction of the appellant under
Section 302 cannot be regarded as erroneous or
illegal so as to warrant interference by this Court
in the instant appeal. The appeal has no merits
and therefore deserves to be dismissed.
Accordingly, the appeal is dismissed.
..............................J.
[B. Sudershan Reddy]
..............................J.
[J.M. Panchal]
