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(2008) 7 S,C.R. 7.14
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A
ASHOK KUMAR CHAUDHARY & ORS.
v.
STATE OF BIHAR
(Criminal Appeal No. 798 of 2008)
B
MAY 5, 2008
[C.K. THAKKER AND D.K. JAIN, JJ.]
Evidence:
Testimony of related witnesses - Evidentiary value of - c Accused assaulting the victims in a busy market - Conviction by trial court - Upheld by High Court - Plea that no public witness having been examined, related witnesses being 'interested' , their testimony was liable to be discarded - Held : Merely because a witness happens to be a relative of the Dvictimof crime, he cannot be characterized_as'interested'_ witness - Relationship per se does not affect credibility of a witness - Further, non-examination of a public witness by itself would not give rise to an adverse inference against the prosecution - On facts, courts below did not commit any infirmity Ein relyingonthe testimonyof prosecution witnesses and convicting the accused on its basis - However, keeping in view the facts and circumstances of the case, sentence modified - Sentence/sentencing - Penal Code, 1860 - Ss. 307 and 3241 34.
F FIR - Delay in lodging - HELD : ' Fardbeyan' having been promptly given to police in the hospital and it having been forwarded to the Police Station the same day and delay in registering the FIR having been satisfactorily explained, prosecution case cannot be thrown out merely on the ground Gof delay inlodging theFIR.
WORDS AND PHRASES
Expression 'interested' witness - Connvtation of.
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The three appellants (A-1 to A-3) were prosecuted for 714
ASHOK KUMAR CHAUDHARY & ORS. v. 715 STATE OF BIHAR
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commission of offences punishable u/ss 324 /34 and 307/p. 34 !PC. The prosecution case was that on the day of occurrence, the complainant (PW 5) and PW 4 with two others went to the 'haat' (local market) to make some purchases. At about 6 p.m. they saw A-3 armed with a 'Hasua' and A-1 and A-2 with daggers dragging a person E out of the 'haat' towards the road. The complainant along with his companions rushed to save the victirfl who turned out to be P.W.-2, the son of P.W.4. The appellants also assaulted P.W.4 and other persons, who got badly injured. Motive of the crime was stated to be previous enmity owing c to civil and criminal litigation between some of the members of both the sides. The trial Court convicted A-1 and A-3 u/s 324 IPC and sentenced them to rigorous imprisonment for two months. A-2 was convicted u/s 307 IPC and sentenced to three years R.I. The High Court 0 upheld the conviction and the sentence.
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In the instant appeal filed by the accused, it wafj-,, inter alia, contended for the appellants that the prose41.1tion having failed to examine independent witnesss. the evidence of related witnesses (PWs 4 and 5) anct: tht o,f E 'highly interested' witness (PW-2) was liab•9i to be discarded; that there was inordinate delay of fi.,e days in lodging the F.l.R.; and that the evidence of t~e doctors cast doubt on the kind of the weapon used for assult.
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Partly allowing the appeal, the Court
HELD: 1.1. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned G has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive. [para 7) [720-H; 721-A]
1.2 Insofar as the question of credit-worthiness of H
[2008] 7 S.C.R.
716 SUPREME COURT REPORTS
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A the evidence of relatives of the victim is concerned, it is well settled that though the Court has to scrutinize such evidence with greater care and caution, but such evidence c;rnnot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect Bthe credibility of a witness. It will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be crelied upon unless corroborated by public witnesses.It is the quality and not the quantity of evidence which matters. [para 7 and 12] [716-E, F, G, H; 723-F]
1.3 In the instant case, out of the nine witnesses examined by the prosecution, five are injured witnesses. D PW-2 is the main victim, who was dragged and assaulted in the first instance; and his father, PW-4, was also stabbed. Neither their testimony nor the evidence of other three injured witnesses gives an indication that any of the witnesses, whose testimony has been relied upon by the Etrialcourt and the High Court, bore any animus against the appellants. In view of consistent evidence that has come on record, it cannot be said that non-examination of pubic witness makes the case of the prosecution untrustworthy or that the courts below have committed Fany legal infirmity in relying upon the testimonyof the injured witnesses. [para 12] [722-E, F, G; 723-A, E, F, G]
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Dalip Singh Vs. State of Punjab [1954] 1 S.C.R. 145; Masalti Vs. State of UP [1964] 8 S.C.R. 133; Gu/i Chand & Ors. Vs. State of Rajasthan(197 4) 3 SCC 698; State of Punjab G Vs. Jagir Singh, Baljit Singh & Karam Singh(1974) 3 SCC 277; Rizan & Anr Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhattisgarh (2003) 2 SCC 661; and Namdeo Vs. State of Maharashtra 2007 AIR sew 1835 - relied on.
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ASHOK KUMAR CHAUDHARY & ORS. v. STATE OF BIHAR
717
2.1 It is trite that mere delay in lodging the first A information report is not by itself fatal to the case of the prosecution. In the event the delay is properly and satisfactorily explained, the prosecution case cannot be thrown out merely on the ground of delay in lodging the F.l.R. Obviously, the explanation has to be considered in B the light of the totality of the facts and circumstances of the case. This is a matter of appreciation of evidence. [para 14 and 16] [723-H; 724-A, B, C, G]
State of H.P Vs. Gian Chand (2001) 6 SCC 71; Ramdas & Ors. Vs. State of Maharashtra (2007) 2 SCC 170 - relied C on.
2.2 In the instant case, PW-5 promptly gave his fardbeyan to the police on the very next day, i.e. 18th July, 1988 in the hospital at Patna. The fardbeyan was forwarded D by the police to the police station concerned the same day and on the basis thereof, the formal F.l.R. was registered on 22nd July, 1988. Though there is no denying the fact that there was delay in registration of F.l.R. but it is nobody's case that the F.l.R. was not in consonance with the fardbeyan or it was embellished in any manner. E The courts below have found that in the light of the surrounding circumstances and the fact that the police station was about 12 kms. away from the place of occurrence, the delay has been satisfactorily explained; and, therefore, it cannot be said that the courts below have F committed an error in accepting the explanation for the delay. [para 17] [725-A, B, C, D]
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(2008] 7 S.C.R.
SUPREME COURT REPORTS
718
A [para 19] [725-G; 726-A]
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 798 of 2008.
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From the Judgment and Order dated 1.12.2006 of the High Court of Judicature at Patna in Criminal Appeal No. 141 of 1992. P.N. Lekhi, Samar Bansal, Lokesh Kumar and M.K. Garg, for the Appellants.
Manish Kumar and Gopal Singh for the Respondent.
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The Judgment of the Court was delivered by
D.K. JAIN, J. 1. Leave granted.
. .7,19
ASHOK KUMAR CHAUDHARY & ORS. v. . . STATE OF BIHAR '[D.K. JAIN, '.l.1
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accused Nos.1, 3 and 2 respectively in the charge-sheet, faced A trial in Sessions Trial Case No. 187 of 1989, for having committed offences punishable under Sections 324 and 307 read with Section 34 of the Indian Penal Code, 1860 (for short the l.P.C.). The trial court found appellants A-1 and A-3 guilty of off~nce under Section 3241.P.C. ahd sentenced them to undergo B rigorous imprisonment for two months each. However, appellant, A-2 was found guilty of offence under Section 307 1.P.C. and was sentenced to undergo rigorous imprisonment for three years. All the three convicts preferred common appeal to the High Court of Judicature at Patna. The High Court upheld the decision of c the trial court, which has resulted in the present appeal.
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[2008] 7 S.C.R.
720 SUPREME COURT REPORTS
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A 5. Out of the total nine witnesses examined by the prosecution to establish its case, five were the persons who had been injured in the assault. Relying on the testimony of the injured witnesses, the trial court convicted the appellants for the offences aforenoted. As noted above, conviction and sentences Bawarded to the appellants have been affirmed by the High Court.
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ASHOK KUMAR CHAUDHARY & ORS. v. STATE OF BIHAR [D.K. JAIN, J.]
721
be a relative of the victim of the crime, he/she cannot be A characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive. B
B
8. In Dalip Singh Vs. State of Punjab1 , this Court had the occasion to deal with the question as to whether a relative is per se an "interested" witness. Dispelling the general impression that relatives were not independent witnesses, speaking for the Court, Vivian Bose, J., observed thus:
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"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."
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9. In Masalti Vs. State of U.P2 ., a four-Judge Bench of F this Court had observed that though the evidence of an interested or partisan witness has to be weighed by the Court very carefully but it would be unreasonable to contend that evidence given by a witness should be discarded only on the ground that it is evidence of a partisan or interested witness. The mechanical G rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. (Also see: Guli Chand
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1 [1954] 1 S.C.R 145
2 [1964]8SC.R 133
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SUPREME COURT REPORTS
[2008] 7 S.C.R.
722
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A & Ors. Vs. State of Rajasthan3 and State of Punjab Vs. Jagir Singh, Baljit Singh & Karam Singh4 ).
723
ASHOK KUMAR CHAUDHARY & ORS. v. STATE OF BIHAR [D.K. JAIN, J.]
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testimony has been relied upon by the trial court and the High A. Court, bore any animus against the appellants. It is true that in the cross-examination, an attempt was made to cast a doubt that on account of an old case filed by the appellant No.1Ashok against PW-4, the said witness was deposing against the appellants but in the light of the graphic details of the incident B given by the said witness, who had also sustained serious injuries in the stomach, there was no reason for the Courts below to disbelieve the evidence of PW-4. Similarly, PW-5, who, in his cross-examination had divulged that appellant Kailash Chaudhary was his brother by gotra, was also injured, had been c cross-examined at length, but nothing could be elicited to show that he had any animosity towards the appellants or to discredit his deposition in support of the prosecution. The Trial Court as well as the High Court have found the evidence of all these witnesses to be trustworthy and reliable, and it has been D recorded that their evidence inspires confidence and stands corroborated by the medical evidence. The Trial Court has also taken note of some minor variation in the timing of the occurrence, which has also been highlighted before us by learned counsel for the appellants, and has held that negligible E· variation of half an hour between the testimony of PW-1 to PW5, wherein all of them have given the time of occurrence either at about 5.30 P.M. or between 5-6 P.M. (PW-5) and the evidence of PW-8, wherein the time of occurrence has been given as 5.00 P.M. hardly affects the prosecution case. In view of consistent evidence that has come on record, it cannot be said F that non-examination of pubic witness makes the case of the prosecution untrustworthy or that the courts below have committed any legal infirmity in relying upon the testimony of the injured witnesses. It is the quality and not the quantity of evidence which matters. G
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[2008] 7 S.C.R.
SUPREME COURT REPORTS
724
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A report is not by itself fatal to the case of the prosecution. Nevertheless, it is a relevant factor of which the Court is obliged to take notice and examine whether any explanation for the delay has been offered and if offered, whether it is satisfactory or not. If no satisfactory explanation is forthcoming, an adverse Binference may be drawn against the prosecution. However,in the event, the delay is properly and satisfactorily explained; the prosecution case cannot be thrown out merely on the ground of delay in lodging the F.l.R. Obviously, the explanation has to be considered in the light of the totality of the facts and ccircumstances of the case.
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"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding D the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay E and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the F entire prosecution case."
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1 (2001 l 6 sec 71
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H 8 (2007) 2 sec 170
725
ASHOK KUMAR CHAUDHARY & ORS. v. STATE OF BIHAR [D.K. JAIN, J.]
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Even in the absence of direct explanation, there rpay be host of A circumstances appearing on record which may provide reasonable explanation for the delay.
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726
SUPREME COURT REPORTS
[2008] 7 S.C.R.
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th8 said variation in fardbeyan fades into insignificance and cannot be held to be fatal to the case of the prosecution.
R.P.
Appeal partly allowed
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Colour shows how this judgement treated each authority
Dalip Singh Vs. State of PunjabRelied on¶8
[1954] 1 S.C.R. 145 · Who else cites this
Masalti Vs. State of U.P.Relied on¶9
[1964] 8 S.C.R. 133 · Who else cites this
Guli Chand & Ors. Vs. State of RajasthanRelied on¶9
(1974) 3 SCC 698 · Who else cites this
State of Punjab Vs. Jagir Singh, Baljit Singh & Karam SinghRelied on¶9
(1974) 3 SCC 277 · Who else cites this
Rizan & Anr. Vs. State of ChhatisgarhRelied on¶10
(2003) 2 SCC 661 · Who else cites this
Namdeo Vs. State of MaharashtraRelied on¶11
2007 AIR sew 1835 · Who else cites this
State of H.P. Vs. Gian ChandRelied on¶15
(2001) 6 SCC 71 · Who else cites this
Ramdas & Ors. Vs. State of MaharashtraRelied on¶16
(2007) 2 SCC 170 · Who else cites this
3 provisions across 1 enactments
Ashok Kumar Chaudhary
Kailash Chaudhary
Baiju Chaudhary
State of Bihar
C.K. Thakker
D.K. Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
