THUKARAM AND ORS.versusSTATE OF KARNATAKA

                                  [2008] 5 S.C.R. 37
      •.

II(
                             THUKARAM AND ORS.                                 A
                                         v.
                             STATE OF KARNATAKA
                        (Criminal. Appeal No. 482 of 2008)
                                 MARCH 13, 2008
      >                                                                        B
               [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

                Penal Code, 1860 - s.304 (II):
                Conviction under - Based on evidence of related
           witnesses - Justification - Held: Relationship is not a factor to   c
           affect credibility of a witness - Foundation has to be laid if
           plea of false implication is made - In such cases, the Court
           has to adopt a careful approach - Evidence - Related witness
           - Appreciation of.
                                                                               D
                The conviction of Appellant No.1 by Courts below,
           under s.304(11), IPC, was challenged before this Court on
           the ground that the same was based on the evidence of
           related witnesses, viz. PWs 1,2 and 5.
                Dismissing the appeal, the Court                               E
                 HELD: 1.1. The stand that PWs 1, 2 and 5 were related
           to the deceased is really of no consequence. 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. F
           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. The ground that the witness being a
           close relative and consequently being a partisan witness, G
           should not be relied upon, has no substance. [Paras 7, 8,
           11) [39-D, E; 40-C]
                1.2. In the instant case, in any case PWs. 6 & 10 were
                                          37                                   H
                                                                               ,•

    38       SUPREME COURT REPORTS                 [2008] 5 S.C.R.


                                                                      ~
A   independent witnesses and it has not been shown as to
    why they would depose falsely against the appellants. The              ~

    evidence on record clearly establishes that the appellants
    have been rightly held guilty. [Para 15] [41-D, E]

         Dalip Singh and Ors. v. The State of Punjab AIR (1953)
B   SC 364; Guli Chand and Ors. v. State of Rajasthan (1974) 3
    SCC 698;Vadivelu Thevar v. State of Madras AIR (1957) SC
    614;Masa/ti 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 Ors. v.
c   State of Orissa (2002) 8 SCC 381 ;Babula/ Bhagwan Khandare
    and Anr. V. State of Maharashtra (2005) 10 SCC 404 and
    Salim Saheb v. State of M.P (2007) 1 SCC 699 - relied on.
         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
    No. 482 of 2008.
D
         From the final Jud~iment and Order dated 03.01.2007 of
    the High Court of Karnataka at Bangalore in Criminal Appeal
    No. 428 of 2001.

         Shankar Divate for the Appellants.
E
         Anitha Shenoy for the Respondent.

         The Judgment of the Court was delivered by

         DR. ARIJIT PAS,.,'fAT, J. 1. Leave granted.
F      2. Challenge in this appeal is to the judgment of a learned
  Single Judge of the Karnataka High Court upholding the
  conviction of the appellant for offence punishable under Section
  304(11) of the Indian Penal Code, 1860 (in short the 'IPC') and
  sentence of imprisonment for five years was imposed. The
G appellants preferred an appeal before the Karnataka High Court.

         3 . As noted above, the learned Single Judge of the High
    Court upheld the conviction, but reduced the sentence.
                                                                     '1'
        4. In support of the appeal, learned counsel for the
H   appellants submitted that originally there were six accused
        THUKARAM AND ORS. v. STATE OF KARNATAKA                       39
                 [DR. ARIJIT PASAYAT, J.]
J
     persons. A3 was acquitted by the trial court whereas appellant         A
     Tukaram was found guilty of offence punishable under Section
     304 (II). However the sentence of seven years as was imposed
     by the trial court was reduced to five years.

            5. It was further submitted that evidence of PWs 1,2 & 5
     . should not have been accepted as they were related to the            B
>·
       deceased.

          6. Learned counsel for the respondent-State on the other
     hand submitted that there is no legal bar in accepting the
     evidence of a relative. A relative would normally not protect person   c
     who is guilty and would shield the actual assailant.

           7. So far as the appellant is concerned, the trial court and
     the High Court have analysed the evidence in great detail and
     have concluded that the appellant was the author of the crime.
     Stand that PWs. 1,2 & 5 were related to the deceased is really         D
     of no consequence.

          8. 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
                                                                            E
     such cases, the court has to adopt a careful approach and
     analyse evidence to find out whether it is cogent and credible.

         9. In Dalip Singh and Ors. v. The State of Punjab (AIR
     1953 SC 364) it has been laid down as under:-                          F
          "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 relation would be       G
          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       H
    40        SUPREME COURT REPORTS                    [2008) 5 S.C.R.


A        for such a criticism and the mere fact of relationship far
         from being a foundation is often a sure guarantee of truth.
         However, we am not attempting any sweeping
         generalization. Each case must be judged on its own facts.
         Our observations are only made to combat what is so
B        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."                  ""'

         10. The above decision has since been followed in Guli
    Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in
c   which Vadive/u Thevar v. State of Madras (AIR 1957 SC 614)
    was also relied upon.
        11. We may also observe that the ground that the witness
  being a close relative and consequently being a partisan
  witness, should not be· relied upon, has no substance. This theory
D
  was repelled by this Court as early as in Dalip Singh's case
  (supra) in which surprise! was expressed over the impression
  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:
E
        "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
        observation is basE~d on the fact that the witnesses are
F       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
        criminal cases and one which another Bench of this Court
        endeavoured to dispel in - 'Rameshwar v. State of
G
        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."
                                                                            ..,.
      12. Again in Masalti and Ors. v. State of U.P (AIR 1965
H SC 202) this Court obse,rved: (p. 209-210 para 14):
  THUKARAM AND ORS. v. STATE OF KARNATAKA                      41
           [DR. ARIJIT PASAYAT, J.]

     "But it would, we think, be unreasonable to contend that        A
     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   s
     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."
      13. To the same effect is the decision in State of Punjab v.   C
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) SCC 381).
      14. The above position was highlighted in Babula/
                                                                     0
Bhagwan Khandare and Anr. V. State of Maharashtra [2005( 10)
SCC 404] and in Salim Saheb v. State of M.P (2007(1) SCC
699).
      15. In any case PWs. 6 & 10 were independent witnesses
and it has not been shown as to why they would depose falsely        E
against the appellants. The evidence on record clearly
establishes that the appellants have been rightly held guilty.
     16. The appeal is dismissed.
8.8.B.                                       Appeal dismissed.       F