Supreme Court of India
ARJUN MAHTOversusSTATE OF BIHAR
- Citation
- 2008 INSC 937
- Decided
- 13 August 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
A witness's familial relationship to the deceased does not, by itself, render the testimony inadmissible; credible evidence stands, and the conviction under Section 395 IPC with the imposed sentence is upheld.
Summary
On 15 March 1983, a group of armed men entered the house of the informant Yusuf Ali Khan, injured him, his father and brother, and looted household property, constituting a dacoity. The trial court convicted five appellants under Section 396 IPC, later altered by the High Court to Section 395 IPC with a reduced sentence of seven years. The appellants challenged the conviction, arguing that key eyewitnesses were relatives of the deceased and thus unreliable, and that the passage of time warranted a further reduction in sentence; the State also appealed the acquittal of Dr. Shamim Ahmad Khan, who was not named in the FIR. The Supreme Court held that familial relationship alone does not vitiate a witness's credibility and that the evidence of the injured witnesses was cogent and credible. It affirmed the conviction under Section 395 IPC, rejected the plea for sentence reduction, and upheld the acquittal of the accused not named in the FIR. Consequently, all the appeals were dismissed.
Issues considered
- The credibility of eyewitnesses who are relatives of the deceased.
- Whether the conviction should be under Section 395 IPC instead of Section 396 IPC.
- Whether the sentence should be reduced on account of the passage of time.
- The correctness of acquitting an accused who was not named in the FIR.
Legislation cited
- Code of Criminal Procedure, 1973s. 319
- Indian Penal Code, 1860s. 395, s. 396
Subjects
dacoitywitness credibilityrelatives as witnessessentence reductionIPC Section 395evidenceacquittaltime lapse
Judgment
[2008] 12 S.C.R. 94
A ARJUN MAHTO
v.
STATE OF BIHAR
CRIMINAL APPEAL NO. 753 OF 2001
AUGUST 13, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM i'
~
SHARMA, JJ.]
Penal Code, 1860:
c s. 395 - Dacoity - Large number of persons entered the
premises and attacked the residents with lathi, gun and pharsa
- Thereafter looted the househol~ properties - Conviction of
five accused persons under s.395 - Challenge against, on
ground that witnesses were related to deceased hence not
D trustworthy and that sentence be reduced considering long
,,._
passage of time - Held: Evidence of injured witnesses and
other eye-witnesses support the prosecution case - No infir-
mity in order of conviction - Further, in case of dacoity, le-
niency in sentence would not only be undesirable but also
E would be improper - Passage of time would not wash away
gravity of offence - Sentence/Sentencing - Reduction of --In
case of dacoity.
s.395 - Dacoity- Accused not named in FIR - Acquittal
F by Courts below doubting prosecution version - Correctness
of - Held: Correct.
Evidence: Testimony of relatives - Evidentiary value of
- Held: Relationship not a factor to affect credibility of witness
- When there is a/legation of interestedness, the same has to
G be established - Mere statement, that being relatives of the
deceased, they are likely to falsely implicate the accused, can- ,.\
not be a ground to discard the evidence, which is otherwise
cog(lnt and credible.
H 94
ARJUN MAHTO v. STATE OF BIHAR 95
•
} The prosecution case was that on the fateful evening A
when informant PW-4 was in his house, 10 armed per-
sons entered into the house through an open door. One
of them fired twice from the gun which injured the infor-
mant. Informant fled inside the room. He was dragged into
the courtyard where his father PW-3 and his brother (de- B
ceased) were sitting. The deceased was caused injuries
1 with pharsa and gun shot while PW-3 was attacked with
lathi and pharsa. In the meantime, 20~25 more persons
. entered and began looting away the household proper-
ties. c
The trial Court held the appellants guilty under s.396
IPC, however, directed acquittal of 11 co-accused per-
sons. The appellants filed appeals before High Court while
the State filed an appeal questioning acquittal of one
'SAK'. D
The High Court dismissed the State's appeal while
in case of appellants altered the conviction from s.396 IPC
to s.395 IPC. The sentence of rigorous imprisonment for
life was altered to seven years rigorous imprisonment.
E
In these appeals, the appellant contended that since
the witnesses were related to the deceased, their evidence
could not be accepted particularly when two of them were
disbelieved and role of .'SAK' which was so eloquently
stated by witnesses was discarded and that most of ap- F
pellants suffered s·entence of nearly 4-% years and con-
sidering the long passage of time, the sentence should
be suitably reduced.
Dismissing the appeals, the Court
G
HELD: 1. Merely because the eye-witnesses are fam-
I
ily members, their evidence cannot per se be discarded.
/
When there is allegation of interestedness, the same has
to be established. Mere statement that, being relatives of
the deceased, they are likely to falsely implicate the ac-
H
96 SUPREME COURT REPORTS [2008] 12 S.C.R.
.
A cused, cannot be a ground to discard the evidence, which ~
is otherwise cogent and ·credible. Relationship is not a
factor to affect credibility of a witness. It is more often than
not that a relation would not conceal actual culprit and
make allegations against an innocent person. Founda-
B tion has to be laid if plea of false implication is made. In
such cases, the court ·has to adopt a careful approach
.... and analyse evidence to find out whether it is cogent and ~-
credible. [Para 5] [100,G-H; 101-A-B]
~
Dalip Singh and Ors. v. The State of Punjab AIR (1953)
c SC 364; Guli Chand and Ors. v. State of Rajasthan (1974) 3
SCC 698; Vadive/u Thevar v. State of Madras AIR (1957) SC
614; Masalti and Ors. v. State of UP AIR (1965) SC 202;
State of Punjab v. Jagir Singh AIR 1973 SC 2407; Lehna v.
State of Haryana (2002) 3 SCC 76; Gangadhar Behera and
D Ors. v. State of Orissa (2002) 8 SCC 381; Babula/ Bhagwan
Khandare and Anr. v. State of Maharashtra (2005)10 SCC 404;
Salim Sahab v. State of M.P (2007) 1 sec 699 - relied on. ..,_
2.1. In the instant case, the evidence of the injured
witness PW 4 is of vital importance. Similar is the case of
E PW 2. Even though PWs 1 and 3 have not been fully be-
lievecfyet the credibility of the evidence of PWs 2 and 4
cannot be doubted on that score. It is a serious case of
dacoity, any leniency in sentence would not only be un-
desirable but also would be improper. The passage of time
F cannot wash away gravity of offence. [Para 12] [103,8-C]
2.2. So. far as the acquittal of 'SAK' is concerned, the
trial court and the High Court doubted prosecution ver-
sion implementing him, because he was not named in the
FIR. [Para 12] [103,B]
G
Case Law Reference \
,.\
AIR (1953) SC 364 relied on Para 6
AIR (1957) SC 614 relied on Para 7
H (197 4) 3 sec 698 relied on Para 7
ARJUN MAHTO v. STATE OF BIHAR 97
[DR. ARIJIT PASAYAT, J.]
)
AIR (1965) SC 202 relied on Para 9 A
AIR 1973 SC 2407 relied on Para 10
(2002) 3 sec 76 relied on Para 10
(2002) a sec 381 relied on Para 10
(2oos)1 o sec 404 relied on Para 11 8
4 (2007) 1 sec 699 relied on Para 11
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 753 of 2001
From the final Judgment and Order dated 18.8.2000 of
c
the High Court of Judicature at Patna in Crl. Appeal No. 371 of
1987
WITH
Criminal Appeal Nos. 1179 and 754 of 2001 D
H.L. Agrawai, Gaurav Agrawal, Prashant Kumar, K.K.
Gupta and Naresh Bakshi for the Appellant.
Gopal Singh, Manish Kumar Singh and Shweta Km. Singh
for the Respondents. E
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. These three appeals have a
common matrix and judgment of a Division Bench of the Patna
High Court. By the impugned judgment, the State's appeal was F
dismissed while in the case of present appellants their convic-
tion was altered from Section 396 of the Indian Penal Code,
1860 (in short the 'IPC') to Section 395 IPC. The sentence of
. Rigorous Imprisonment for life was altered to seven years rig-
orous imprisonment. G
2. Factual position in a nutshell is as follows:
The case of the prosecution, briefly stated, as contained
in the Fardbayan (Ext.2) of the informant Yusuf Ali Khan son of
Khalil Bux Khan (P.W.4) is as follows: H
98 SUPREME COURT REPORTS [2008] 12 S.C.R.
A The Fardbayan was recorded at the P.O. Village Khaira,
P.S. Auras, District Gaya at 8 p.m. relating to the alleged occur-
rence of 7 p.m. on the same day on 15.03.1983. The Fardbayan
. was recorded by Mohd. Asfaque Ali (P.W.5}, the officer incharge
of Bankey Bazar outpost. It is alleged that the informant was at
B his house at about 7 p.m. Suddenly 10 armed persons entered
into the house through the open door. One of them fired twice
from the gun making the informant injured. He fled inside the ,.._
room. He was dragged into the courtyard where his father Khalil
Bux Khan (P.W. 3), and his brother-Nausher Ali Khan (hereinaf-
c ter referred to as the 'deceased) were sitting. On the deceased
Na usher Ali Khan injuries with Pharsa and gun shot was caused
while Khalil Bux Khan (P.W.3) suffered injuries with lathi and
Pharsa. It is mentioned in the fardbeyan that the man who caused
injuries to the informant with gun shot was of fair complexion
and a tall man whose name he did not know. In the meantime
D
20-25 more persons entered through the door and inside the
house and began looting away the household properties. Among
them the informant identified as many as 12 persons namely,
(1) Bindeshwari Sao (2) Suraj Pasi (3) Ram Lal Chamar, (4)
Baijnath Mishra, (5) Bishaum Singh, (6) Arjun Mahato (7)
·E Basudeo Yadav, (8) a teacher of Bankey Bazar High School
resident of village Sarka Jamuara, (9) Ram Swarup Ram (10)
Lalu Khan an.d (11) Vijoy Yadav and Sa mm id Ahmed Khan. The
source of identification was the light of lantern burning in the
house. The value and the list of the articles was to be furnished
F subsequently. Altogether 70-80 dacoits were alleged to have
participated in the dacoity. While retreating the dacoits were ~
rising slogans "M.C.C. Zindabad". After the dacoits had left, the
informant came to know that dacoits had also entered into the
house of his uncle and grandfather and after causing injuries to
G them they had also looted away a Licensed gun from their house.
It is said that during inyestigation after recording the . ~
Fardbayan and formal F.l.R. (Ext.3) the LO. sent the injured per- '
sons to the hospital for their -medical treatment. Some of the
accused persons were also placed in theT.I. Parade and some
H
ARJUN MAHTO v. STATE OF BIHAR 99
[DR. ARIJ!T PASAYAT, J.]
) of the accused were identified by the witnesses in the T. I. Pa- A
rade. One of the injured named Na usher Ali Khan was removed
to Calcutta hospital, where he died, from Magadh Hospital Gaya
for further treatment whose P.M. Report was procured by the
1.0. from Park Street Police Calcutta.
After investigation charge-sheet was submitted by the of- B
ficer against some of the accused persons named in the F.l.R
and also against some of the accused who were identified in
the T. I. Parade and also against some of these who were named
subsequently by the witnesses before the investigating police
officer whose names neither figured in the F.l.R. nor were said c
to have .been identified in the test identification parade. Some
of the accused named in the F.l.R. were not sent up by the po-
lice fortrial. However, some of them were made accused by
the orders of the trial court under Section 319 of the Code of
Criminal Procedure, 1973 (in short 'Cr.P.C.'). Some of the P.Ws D
were already examined before charge was ordered to be
framed against four of the accused under Section 319 Cr.P.C.
which resulted in the de nova trial of all the accused person
Altogether eight witnesses were examined on behalf of
the prosecution. Three of them i.e. Ganzaffar Ali Khan (PW 1), E
Zahid Ali Khan (PW 2) and Yusuf Ali Khan (PW 4) were three
sons of Khalil (PW 2) in whose house the alleged dacoity took
place. PW 4 the informant was also seriously injured and ac-
cording to the prosecution sustained eleven injuries.
F
-\ The trial court placed reliance on the evidence of all the
four witnesses who claimed to be eye witnesses. Placing reli-
ance on their evidence, the trial court held the five appellants in
the three appeals before this Court to be guilty of offence pun-
ishable under Section 396 IPC. However, he directed acquittal
G
of the eleven co-accused persons. The convicted accused per-
sons preferred two appeals before the High Court while the State
J
preferred an appeal questioning acquittal of Dr. Sha min Ahmad
Khan alias Samman Khan. The High Court held that though the
evidence of PWs 1 & 3 cannot be said to be cogent, the evi-
H
100 SUPREME COURT REPORTS [2008] 12 S.C.R.
{
A dence of PWs 2 & 4 were without blemish. Accordingly it up-
held the judgment of the trial court, so far as finding the
appellant's guilt is concerned. It found that occurrence took place
on 15.3.1983 and the deceased breathed his last long after
about a month. That being so the appropriate conviction would
s be under Section 395 IPC. Accordingly the conviction was al-
tered and sentence imposed was also altered.
3. In support of the appeal learned. counsel for the appel-
lant submitted that even in the FIR there was no consistency.
Though certain persons were named and overt acts were at-
e tributed to them the evidence in Court was at variance with the
statement. So far as the appellant Bindeshwari Rao is con-
cerned, it is submitted that though he was named in the FIR, the
role attributed to him was not specific. It was also submitted
that most of the appellants have suffered sentence of nearly 41'2
D years and considering the long passage of time, the sentence
should be suitably reduced. In the case of accused appellant
Bindeshwari Rao, it is submitted that though he has suffered
custody for about one year, considering the unclear role attrib-
uted to him by the prosecution his case deserves sympathetic
E consideration. Witnesses were related to the deceased and
their evidence should not be accepted particularly even two of
them were dis-believed and the role of Dr. Shamim Ahmad Khan
which was so eloquently stated by the witnesses has been dis-
carded.
F 4. Learned counsel for the State supported the judgment
of the High Court.
5. Merely because the eye-witnesses are family me~bers
their evidence cannot per se be discarded. When there is alle-
G gation of interestedness, the same has to be established. Mere
statement that being relatives of the deceased they are likely to
falsely implicate the accused cannot be a ground to discard the
evidence which is otherwise cogent and credible. We shall also
deal with the contention regarding interestedness of the wit-
H, nesses for furthering prosecution version. Relationship is not a
ARJUN MAHTO v. STATE OF BIHAR 101
[DR. ARIJIT PASAYAT, J.]
) factor to affect credibility of a witness. It is more often than not A
that a relation would not conceal actual culprit and make alle-
gations against an innocent person. Foundation has to be laid
if plea of false implication is made. In such cases, the court has
to adopt a careful approach and analyse evidence to find out
whether it Is cogent and credible. B
6. In Dalip Singh and Ors. v. The State of Punjab (AIR
1953 SC 364) it has been laid down as under:-
"A witness is normally to be considered independent unless
he or she springs from sources which are likely to be c
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 relation would be
the last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and there
D
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.
However, we are not attempting any sweeping E
generalization. Each case must be judged on its own facts.
Our observations are only made to combat what is so
often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must
be limited to and be governed by its own facts." F
7. The above decision has since been followed in Gu/i
Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in
which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)
was also relied upon.
G
8. We may also observe that the ground that the witness
} being a close relative and consequently being a partisan wit-
ness, should not be relied upon, has no substance. This theory
was repelled by this Court as early as in Dalip Singh's case
(supra) in which surprise w_as expressed over the impression H
102 SUPREME COURT REPORTS [2008] 12 S.C.R.
{
A which prevailed in the minds of the Members of the Bar that
relatives were not independent witnesses. Speaking through
Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the
High Court that the testimony of the two eyewitnesses
B 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 itis ,grounded on the
reason that they are closely related to the deceased we
c 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' (AIR 1952 SC 54 at p;59). We find, however,
that it unfortunately still persists, if not in the judgments of
D the Courts, at any rate in the arguments of counsel."
9. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC
202) this Court observed: (p. 209-210 para 14): ·"
"But it would, we think, be unreasonable to contend that
E evidence given by witnesses should be discarded only on
the ground that it is evidence of partisan or interested
witnesses ....... The mechanical rejection of such evidence
on the sole ground that it is partisan would invariably lead
to failure of justice. No hard and fast rule can be laid down
F as to how much evidence should be appreciated. Judicial
approach has to be cautious in dealing with such evidence;
but the plea that such evidence should be rejected because
it is partisan cannot be accepted as correct."
10. To the same effect is the decisions in State of Punjab
G v. Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana
(2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State
of Orissa (2002 (8) sec 381 ).
11. The above position was also highlighted in Babula/
H Bhagwan Khandare and Anr v. State of Maharashtra [2005( 10)
ARJUN MAHTO v. STATE Of BIHAR 103
[DR. ARIJIT PASAYAT, J.]
)
sec 404) and in Salim Sahab v. State of M.P (2007(1) sec A
699).
12. In the instant case, the evidence of the injured witness
PW 4 is of vital importance. Similar is the case of PW 2 even
though PWs 1 & 3 have not been fully believed yet the credibil-
ity of the evidence of PWs 2 & 4 cannot be doubted on that B
score. So far as the acquittal of Dr. Shamim Ahmad Khan is
concerned, the trial court and the High Court doubted prosecu-
' tion version so far as he is concerned because he was not
named in the FIR. It is a serious case of dacoity, any leniency in
sentence would not only be undesirable but also would be im- C
proper. The passage of time cannot wash away gravity of of-
fence. Therefore, judged from any angle these appeals have
no substance and are dismissed.
13. The accused persons who are on bail, shall surrender
0
to custody forthwith to serve remainder of their sentence.
14. The appeals fail and are dismissed.
D.G. Appeals dismissed.
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