MOHABBAT AND ORS.versusSTATE OF M.P.

                           [2009) 1 S.C.R. 883


                        MOHABBAT AND ORS.                                A
                                     v.
                             STATE OF M.P.
                   (Criminal Appeal No. 203 of 2009)
                          FEBRUARY 3, 2009.
                                                                         B
             [DR.ARIJIT PASAYAT AND ASOK KUMAR
                         GANGULY, J.J.]

          Penal Code, 1860 - s. 302 rlw & 149, 147 and 148 -
     conviction of nine accused - By courts below - On the basis         c
     of evidence of sole eye-witness - Appeal to this court by three
     accused - Held: On facts, prosecution failed to establish the
     accusations against two of the appellant-accused - Hence,
     acquitted - Accusation against one of the appellant-accused
     established.                                                        o
          Witness - Related witness - Reliance on - Held:
     Relationship is not a factor to affect credibility of a witness -
     But in case of plea of false implication, court to adopt careful
     approach in analysis thereof.
         Appellants-accused Nos. 7,6 and 1 were convicted u/             E
     s. 302 r/w 149, 147 and 148 IPC, by courts below
     alongwith 6 other accused, on the basis of evidence of
     eye-witness (PW6).
         In appeal, the appellants-accused contended that                F
     their conviction was not justified as PW6, on whose
     version conviction was based, and also the deceased in
     his dying declaration, had not implicated them; and that
     the witness was partisan being brother of the deceased.
         Partly allowing the appeal, the Court                           G
         HELD: 1. It is not correct to say that the witness being
     a close relative and consequently being a partisan
     witness, should not be relied upon. Merely because the
     eye-witnesses are family members, their evidence cannot
=t                                 883                                   H
    884        SUPREME COURT REPORTS            (2009] 1 S.C.R.


A 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 accused cannot be a ground
  to discard the evidence which is otherwise cogent and
8 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. Foundation has to be laid if plea of
  false implication is made. In such cases, the court has to
C adopt a careful approach and analyse evidence to find
  out whether it is cogent and credible. [Paras 10 and 7]
  [889-A-B; 887 -H; 888-A-C]
      Dalip Singh and Ors. v. The State of Punjab AIR 1953
  SC 364; Guli Chand and Ors. v. State of Rajasthan 1974 (3)
D SCC 698; Vadivelu Thevar v. State of Madras AIR 1957 SC
  614; Masalti and Ors. v. State of U.P. 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 Ors.
  v. State of Orissa 2002 (8) SCC 381; Babula/ Bhagwan
E Khandare and Anr. v. State of Maharashtra 2005(10) SCC
  404; Salim Saheb v. State of M.P. 2007(1) SCC 699 and
  Sonelal v. State of M.P. 2008 (11) SCR 75, relied on.
       2. In the instant case, PW-6 has referred to the
  incident in detail. He has specifically named the persons.
F Though it was the stand of the State that in the dying
  declaration, all the accused persons were named, it
  appears that PWs 6 and 7 did not state about the dying
  declaration vis-a-vis accused Nos. 6 and 7. In view of the
  facts, it cannot be said that the prosecution has
  established the accusations so far as accused Nos. 7
G and 6 are concerned. But the prosecution has clearly
  established the accusations so far as accused No.1 is
  concerned. [Para 14] [890-C-F]
                        Case Law Reference:

H         AIR 1953 SC 364         Relied on           Para 8
            MOHABBAT AND ORS. v. STATE OF M.P.                  885


         1974 (3) sec 698            Relied on            Para 9      A
         AIR 1957 SC 614             Relied on            Para 9
         AIR 1965 SC 202              Relied on           Para 11
         AIR 1973 SC 2407            Relied on            Para 12
         2002 (3) sec 76             Relied on            Para 12     B
         2002 (8) sec 381            Relied on            Para 12
         2005(10) sec 404            Relied on            Para 13
+        2001(1) sec 699             Relied on            Para 13
         2008 (11) SCR 75            Relied on            Para 13
          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
                                                                      c
     No. 203 of 2009.
          From the Judgment and Order dated 29.3.2007 of the High
     Court of Madhya Pradesh, Bench at Indore in Criminal Appeal
     No. 669 of 2001.
                                                                       D
          P.C. Agarwal, Amboj Agarwal and Santosh Singh for the
     Appellant.
          Govind Goel, C.D. Singh, Sunny Chowdhary, Vairagya
     Vardhan Dubey, Aitya Singh and Upasana Nath for the
     Respondent.                                                       E
          The Judgment of the Court was delivered by
          DR. ARIJIT PASAYAT, J.1. Leave granted.
          2. Challenge in this appeal is to the judgment of a Division
     Bench of the Madhya Pradesh High Court, Indore Bench, which
    by the impugned judgment disposed of three appeals filed by F
    the accused persons who faced trial in Sessions Trial No.276/
    2000 before learned llnd Additional Sessions Judge, Dhar.
    Nine accused persons faced trial. They were charged for
    commission of offences punishable under Sections 147, 148
    and Section 302 and in the alternative under Section 302 read G
    with Section 149 of the Indian Penal Code, 1860 (in short the
    'IPC'). The trial Court convicted each one of them under Section
    302 read with Sections 149, 147 and 148 IPC and imposed
    sentences to life imprisonment and fine with default stipulation
    of one year and two years respectively.                            H
    886          SUPREME COURT REPORTS               [2009] 1 S.C.R.


A         3. Prosecution version in a nutshell is as follows:
         On 02.09.2000, Yunus (hereinafter referred to as the
    'deceased') along with Jafar (PW-6) at about 2.30 p.m. left by
    bike for Ujjain. On the way near Kesur, one Kadar (PW-4) met
    them, and they had a talk with him. Since it was 4.00 p.m., Jafar
B   (PW-6) and the deceased changed their mind and did not go
    to Ujjain and came back to Dhulana. On the way accused
    persons armed with swords were standing there. Seeing that
    the accused persons were standing the deceased left his bike
    and ran inside the house of Bagdiram (PW-5) to take shelter.
C   However, the accused persons removed the tin ceiling of the
    house, entered it and struck sword blows on him. Yunus the
    deceased came out of the house, where accused again dealt
    sword blows on him. The accused ran away. Thereafter, Jafar
    (PW-6) reached the spot. Village Chowkidar Ranchhod (PW-
D   7) also came there. The deceased had a talk with Chowkidar
    Ranchhod (PW-7). Yunus said that it was accused persons who
    caused injuries to him. By that time one Mehboob (PW3) of
    Babeda Village had come there. Jafar requested him to
    intimate his relatives. He informed Dawood (PW8), Mubarak,
E   Ayub (PW-9). At that time Yunus (the deceased) was alive who
    told them also that accused have caused these injuries.
    Thereafter, he was taken to hospital where Dr. P.C. Gupta
    (PW-11) examined him and found that he is dead. The matter
    was reported to police by intimation Ex.P/20. The Police Dhar
F   registered Merg No.067/2000 under Section 174, of Code of
    Criminal Procedure, 1973 (in short the 'Code'). FIR was chalked
    out as Ex.P/57 and investigation was started by the Kanwan
    Police Station as the case was in its jurisdiction. After
    investigation, charge-sheet was filed.
G       After postmortem on the body of the deceased Yunus, Dr.
  Borasi (PW-10) found the cause of death as shock and
  hemorrhage from multiple injuries over the body especially wrist
  imputation and anckle joint injury. The deceased had 9 incised
  injuries on different parts of the body. Heart chamber was
H empty. The wrist of left hand was fractured and imputed, ulna,
       MOHABBAT AND ORS. v. STATE OF M.P.                     887
             [DR. ARIJIT PASAYAT, J.)

patella were fractured. Left tibia, fibula bones were fractured.     A
Injuries were of grievous nature and were sufficient in the
ordinary course of nature to cause death. Ex. P/18 is his
postmortem report. According to him, the death was within 24
hours from the time of postmortem.
     Since the accused persons pleaded innocence trial was           B
held. PWs 3, 4, 5 and 7 who were projected as eye witnesses
by the prosecution did not support the prosecution version and
resiled from the statements made during investigation.
However, PW-6 the brother of the deceased who was going
alongwith the deceased re-iterated the statements made during        C
investigation. Placing reliance on the evidence of PW-6, the trial
Court found the accused persons guilty.
     4. In appeal, stand was that when four of the so called eye
witnesses did not support the prosecution version, merely only
on the basis of evidence of PW-6, the brother of the deceased,       D
conviction should not have been recorded. It has been
vehemently urged by learned counsel for the appellants that
PW-6 is the reiative, so his version should not have been relied
upon. Apart from that, it was submitted that before doctor PW-
9 the deceased had made a dying declaration but had not              E
implicated the accused p~: ;:ms. The High Court did not find
any substance. Accordingly, the appeals filed by the nine
appellants were dismissed.
     5. The present appeal is by accused Nos.1, 6 and 7. It is
submitted by learned counsel for the appellants that PW-6 had        F
not implicated the appellants and he being the only witness on
whose version the conviction was recorded the trial Court and
the High Court should not have found them guilty.
    6. Learned counsel for the respondent-State on the other         G
hand supported the judgment of the High Court.

     7. Merely because the eye-witnesses are family 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         H
    888          SUPREME COURT REPORTS                [2009] 1 S.C.R.


A 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 witnesses for furthering the prosecution version.
  Relationship is not a factor to affect credibility of a witness. It
B is more often than not that a relation would not conceal actual
  culprit and make allegations 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.
c       8. 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
D         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 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
          is personal cause for enmity, that there is a tendency to
E
          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
F         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."
G
        9. 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.
H
        MOHABBAT AND ORS. v. STATE OF M.P.                     889
              [DR. ARIJIT PASAYAT, J.]

      10. We may also observe that the ground that the witness A
 being a close relative and consequently being a partisan
 witness, should not be relied upon, has no substance. This
 theory was repelled by this Court as early as in Da/ip Singh's
 case (supra) in which surprise was expressed over the
 impression which prevailed in the minds of the Members of the B
 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
      requires corroboration. If the foundation for such an C
      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 D
     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
     the Courts, at any rate in the arguments of counsel."            E
    11. 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
      evidence given by witnesses should be discarded only on F
     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
     as to how much evidence should be appreciated. Judicial G
     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."
     12. To the same effect is the decisions in State of Punjab
v. Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana         H
    890         SUPREME COURT REPORTS             [2009] 1 S.C.R.


A   (2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State
    of Orissa (2002 (8) SCC 381).
       13. The above position was also highlighted in Babula/
  Bhagwan Khandare and Anr. v. State of Maharashtra
B [2005(10) SCC 404], Salim Saheb v. State of M.P. (2007(1)
  SCC 699) and Sone/al v. State of M.P. (SLP (Crl.) No.3220
  of 2007 disposed of on 22.7.2008).
       14. It needs to be noted that PW-6 has referred to the
  incident in detail. According to him initially five persons had
c come running. He has specifically named the persons. He has
  further stated that the deceased being afraid jumped out of the
  motor cycle and ran away. The witness has further stated that
  the deceased ran for some distance and entered into the house
  of one Bagdiram and closed the door from inside. Thus at that
0 time nine persons including the present appellants came
  running and they were armed. It has further been stated by him
  that the deceased opened the door and started running away
  and was attacked with sword. In the cross examination he had
  admitted that the deceased was attacked by Kamal, Ansar,
E lnayat and Mohabbat inside the house of Bagdiram. Though it
  was the stand of learned counsel for the State that in the dying
  declaration all the accused persons were named, it appears
  that PWs 6 and 7 did not state about the dying declaration vis-
  a-vis lsrail and Iqbal. PWs 8 and 9 have also given different
  names. In view of the aforesaid, it cannot be said that the
F prosecution has established the accusations so far as accused
  Iqbal and lsrail i.e. accused Nos. 7 and 6 are concerned. But
  the prosecution has clearly established the accusations so far
  as Mohabbat accused No.1 is concerned. The appeal filed by
  accused Mohabbat is dismissed while the appeal filed by Iqbal
G and lsrail is allowed. They be set at liberty forthwith unless
   required to be in custody in any other case, if any.
          15. The appeal is allowed to the aforesaid extent.

    K.K.T.                                  Appeal partly allowed.
H