SHIO SHANKAR DUBEY & ORS. versus STATE OF BIHAR on 9 May 2019

1. This appeal has been filed by the three appellants challengingthe judgment of High Court of Patna dated 16.07.2013, by which CriminalAppeal (DB) No. 410 of 1990 filed by them questioning their convictionand sentence under Section 302 and some other sections of I.P.C. hasbeen dismissed.

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A2. The prosecution case is that on 16.05.1980, one Raj BallamRai, informant alongwith his brother Raj Keshwar Singh came to SasaramCourt. After finishing his work in court informant proceeded with hisbrother to his residence near Dharamshala. Raj Keshwar Singh was onrickshaw and the informant was on the bicycle. Raj Keshwar Singhwas armed with a double barell gun. The further case is that at aboutB9:00 am when they reached 50 to 60 yards east of Kargahar More, theinformant saw that Doodnath Dusadh, Jamadar Dusadh and Ram NandanDusadh stopped the rickshaw. They were armed with Lohbanda. ShioShankar Dubey was armed with Rifle and his brother Ram PraveshDubey was armed with lathi and they were also alongwith them. TheyCpulled down Raj Keshwar Singh from rickshaw and started assaultingwith Lohbanda. The Mukhiya that is Shio Shankar Dubey asked themto kill in a hurry. The informant fled away. Shio Shankar Dubey openedfire but none received any injury. The accused persons thereafter fledaway towards south.

D3. At 9:30 am, the police official namely, S.N. Singh of SasaramPolice Station arrived at the place of occurrence to whom Raj BallamRai gave a fardbeyan. On the basis of fardbeyan given at the place ofoccurrence by informant, First Information Report was registered against05 accused.E4. The prosecution, to prove its case, produced 15 witnesses.PW11, informant, fully supported the prosecution case. PW13, RaghoRam Singh, who was also an eyewitness, supported the prosecutioncase. PW5 was another eyewitness, who saw 04 of the accused runningaway from the spot. Formal witnesses were also produced by theprosecution. On the spot seizure was also made by one SiddhanathFSingh, Inspector of Police, which seizure also contained copy of fourapplications, which were typed at District Court, Sasaram and werebeing carried by the deceased alongwith him in a diary, which applicationswere marked as Ext.3/2 to 3/5.

5. Inquest Report was also prepared on the spot. Body was sentGfor post mortem. Post mortem report was prepared as Ext.4. Onedefence witness, DW1, Dasrath Ram was also produced, who broughtthe register of the employees for the period 1961 to 1963 containing thesignatures of deceased Raj Keshwar Singh.

6. The trial court vide its judgment and order dated 14.09.1990Hconvicted 04 accused, (one of the accused namely, Doodnath Dusadh having died during the pendency of trial. The appellant No.1 – ShioShankar Dubey, accused No.3, was convicted for the offence underSections 302/149/148 I.P.C. and Section 27 of the Arms Act. Theappellant No.2 – Ram Pravesh Dubey, accused No.4, was convictedfor the offence under Sections 302/149/147 I.P.C. The third appellant,i.e., Jamadar Dusadh, accused No.1 was convicted under Sections 302/147 and 379 I.P.C. Four accused, who were convicted filed criminalappeal in the High court, which has been dismissed. One RamnandanDusadh also having died during pendency of the appeal before the HighCourt, the three surviving accused are in the appeal before this Court.

7. Learned counsel for the appellant in support of the appealsubmits that PW11 – informant being brother of the appellant and PW13being husband of the niece of the deceased were all close relatives andinterested witnesses, the Courts below committed an error in relying onthe testimony of interested witnesses. There being no independentwitnesses corroborating the charge against the appellants the appellantsought not to have been convicted and sentenced. It is further submittedthat PW5, who claimed to be an eyewitness and deposed before thecourts below that he saw four accused running away from the spot, hehas not taken the name of Ram Pravesh Dubey, the appellant No.2.PW5 having not taken the name of Ram Pravesh Dubey, the presenceof Ram Pravesh Dubey on the spot is not proved and the Courts below have ignored this evidence. Ram Pravesh Dubey having not been provedto be on the spot, could not have been convicted. It is further submittedthat inquest report mentioned a bullet injury whereas in the post mortemreport, no bullet injury was found. There being no bullet injury found inthe post mortem report, the entire prosecution theory is inconsistent.Learned counsel for the appellant further submits that there was nomotive for appellants to kill Raj Keshwar Singh.

8. Learned counsel appearing for the State refuting the submissionsof the learned counsel for the appellant submits that informant PW11was accompanying the deceased and his evidence was found trustworthy.The Courts below did not commit an error in relying on his evidence. Itis submitted that the mere fact that PW11 and PW13 are related to thedeceased does not in any manner impeach their truthfulness. It issubmitted that the mention of the bullet injury in the inquest report wasdue to error of judgment by the person writing inquest report. The skullbeing crushed in a manner and bones being fractured, impression was AB

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Adrawn that bullet entered from behind the skull and came out of themouth, which in no manner can be said to be fatal to the prosecutioncase. It is submitted that PW5 is a trustworthy witness, who is notrelated to the deceased and saw the accused running away from thespot.

B9. We have considered the submissions of the learned counsel forthe parties and have perused the records.

10. PW11, who is a brother of the deceased, has fully corroboratedthe prosecution case in his evidence. In spite of thorough cross-examination, the witnesses could not be shaken. The submission of theCappellant that witnesses PW11 and PW13 being related to the deceasedare interested witnesses and should not be relied does not commend us.The mere fact that deceased was brother of the informant and PW13 isthe husband of the niece of the deceased and does not impeach theirevidence in any manner. The mere fact that witness is related does notlead to inference that such witness is an interested witness. This CourtDhas occasion to consider such submission in number of cases. In KartikMalhar Vs. State of Bihar, (1996) 1 SCC 614, this Court held that aclose relative who is a very natural witness cannot be regarded as aninterested witness. In paragraph Nos. 15 and 16, following was laiddown:- E

“15. As to the contention raised on behalf of the appellant thatthe witness was the widow of the deceased and was, therefore,highly interested and her statement be discarded, we may observethat a close relative who is a natural witness cannot be regardedas an interested witness. The term ‘interested’ postulates that thewitness must have some direct interest in having the accusedsomehow or the other convicted for some animus or for someother reason. In Dalbir Kaur (Mst) v. State of Punjab, (1976)4 SCC 158, it has been observed as under: (SCC pp. 167-68,para 11)

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“Moreover, a close relative who is a very natural witness cannotbe regarded as an interested witness. The term ‘interested’postulates that the person concerned must have some directinterest in seeing that the accused person is somehow or theother convicted either because he had some animus with theaccused or for some other reason. Such is not the case here.”

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16. In Dalip Singh v. State of Punjab, AIR 1953 SC 364 it haslaid down as under:

“A witness is normally to be considered independent unless heor she springs from sources which are likely to be tainted andthat usually means unless the witness has cause, such as enmityagainst the accused, to wish to implicate him falsely. Ordinarily,a close relative would be the last to screen the real culprit andfalsely implicate an innocent person. It is true, when feelingsrun high and there is personal cause for enmity, that there istendency to drag in an innocent person against whom a witnesshas a grudge along with the guilty, but foundation must be laidfor such a criticism and the mere fact of relationship far frombeing a foundation is often a sure guarantee of truth. However,we are not attempting any sweeping generalisation. Each casemust be judged on its own facts. Our observations are onlymade to combat what is so often put forward in cases beforeus as a general rule of prudence. There is no such generalrule. Each case must be limited to and be governed by its ownfacts.”

11. Further in Namdeo Vs. State of Maharashtra, (2007) 14SCC 150, same propositions were reiterated by this court elaboratelyreferring to the earlier judgments, this Court rejected the same submissionin paragraph Nos. 29, 30 and 38, which are to the following effect:-

“29. It was then contended that the only eyewitness, PW 6 Sopanwas none other than the son of the deceased. He was, therefore,“highly interested” witness and his deposition should, therefore,be discarded as it has not been corroborated in material particularsby other witnesses. We are unable to uphold the contention. Inour judgment, a witness who is a relative of the deceased or victimof a crime cannot be characterised as “interested”. The term“interested” postulates that the witness has some direct or indirect“interest” in having the accused somehow or the other convicteddue to animus or for some other oblique motive.

30. Before more than half a century, in Dalip Singh v. State ofPunjab, AIR 1953 SC 364, a similar question came up forconsideration before this Court. In that case, the High Courtobserved that testimony of two eyewitnesses required corroboration A

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Asince they were closely related to the deceased. Commenting onthe approach of the High Court, this Court held that it was “unableto concur” with the said view. Referring to an earlier decision inRameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC54, Their Lordships observed that it was a fallacy common tomany criminal cases and in spite of endeavours to dispel, “itBunfortunately still persists, if not in the judgments of the courts, atany rate in the arguments of counsel” (Dalip Singh case, AIR p.366, para 25).

38. From the above case law, it is clear that a close relative cannotbe characterised as an “interested” witness. He is a “natural”witness. His evidence, however, must be scrutinised carefully. Ifon such scrutiny, his evidence is found to be intrinsically reliable,inherently probable and wholly trustworthy, conviction can be basedon the “sole” testimony of such witness. Close relationship ofwitness with the deceased or victim is no ground to reject hisevidence. On the contrary, close relative of the deceased wouldnormally be most reluctant to spare the real culprit and falselyimplicate an innocent one.”

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12. We, thus, reject the submission of the appellant that PW11and PW13 being related to deceased, their evidence cannot be relied.

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13. Now, the next submission of the learned counsel for theappellant that PW5, who is held to be an eyewitness has in his statementonly taken names of the four accused, who, according to him, were seenrunning away from the spot. It is submitted that PW5 did not take thename of Ram Pravesh Dubey, the appellant No.2. The statement ofFPW5 has been brought on the record. PW5 in his statement stated thatat 9 O’clock in the morning, he had gone to Sasaram and when he wentabout fifty steps south to Rouza Road from G.T. Road, he saw theaccused persons namely Ram Nandan Dusadh, Dudnath Dusadh,Jamadar Dusadh and Shankar Dubey fleeing on Rouza Road going fromthe west to the east. It is true that in his statement, he mentioned namesGof only four persons, who were seen fleeing on Rouza Road. The merefact that he did not mention name of Ram Pravesh Dubey cannot lead tothe inference that Ram Pravesh Dubey was not involved in the incident.There may be several reasons due to which, he could not see RamPravesh Dubey. When PW11 and PW13, whose evidence has beenHrelied by the trial court as well as High Court, have categorically proved the presence of Ram Pravesh Dubey and his participation in theoccurrence. The mere fact that PW5 did not see Ram Pravesh Dubeyfleeing is not conclusive nor on that basis, we can come to any inferencethat Ram Pravesh Dubey was not involved in the occurrence.

14. Now, we come to the another submission of the appellantsthat in the inquest report, it was mentioned that pellet from back in thehead has come out of the mouth, but there was no bullet injury found inthe post mortem report. In column No.5 of the inquest report brought asAnnexure-P42, following was stated:- “It appears that the pellet from back in the head has come out ofthe mouth. (illegible) part has been cut. The brow on the eyes are(illegible). Left elbow has bruise injury. Left had has also bruiseinjury. Lacerated.”

15. We may further notice other details given in the inquest reportin column No.4, following was noticed:- “Head in north-east direction, leg in south direction, felt facingupward, the back portion of the head heavily damaged, both theeye closed. Eye has blackened. Injury in mouth also. Blood isoozing from the mouth also.”

16. Now, we come to the post mortem report. Post mortem reporthas been extracted by the High Court in paragraph No.12 of the judgment.The injuries noticed in paragraph No.12 are as follows:- “12. XXXXXXXXXXXXXXXXXXXXXX

(i) Lacerated wound 2" X 1" with commuted fracture of occipitalbone in two multiple pieces at back of head. Some fragmentsof bone had pierced into brain covering. There was collectionof blood clot outside and inside durameter. Correspondingpart of the brain was found softened and with lacerated injury.There was no blackening of margin of surrounding area orno tatooing.

(ii) Bruise 4" X 2" in front of face involving right eye brow, rightmalar bone and bridge of nose with multiple fracture of rightmallar bone, nosal bone and right maxilla.

(iii) Bruise 2" x 1" left and below the nose with fracture of leftmaxilla and lacerated cut of cheek from inside 1" X 1/2".

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A(iv) Abrasion 1" x ½” of upper lip right to mid-line.

(v) Lacerated cut ½” x ½” left margin of tongue with blood clotin the mouth.

(vi) Abrasion ½” x ½” at left knee.

B(vii) Abrasion 1" x ½” at left forearm.

Injury Nos. (i), (ii) and (iii) are grievous in nature causedby hard blunt substance, may be lathi and Lohbanda.

Injury Nos. (iv), (v), (vi), (vii) are simple in nature, causedby hard blunt substance, may be lathi and Lohbanda. Time elapsedCsince death within 12 hours.

XXXXXXXXXXXXXXXXXX”

17. A perusal of the injuries, which have been noticed in the postmortem report indicates that there was fracture of occipital bone in twomultiple pieces at back of the head. Some fragments of bone had piercedDinto brain covering. Multiple fracture of right mallar bone, nosal boneand right maxilla has also been noticed. The nature of the injuries, whichwere found in the post mortem report indicates that on seeing the injuries,the officers recording the inquest report thought that since occipital bonein two multiple pieces at back of head have been fractured and someEfragments of bone had pierced into brain covering, the bullet enteredfrom the back side of the head and came out of the mouth, which isnoticed in the inquest report and the officer writing the inquest reportmade his opinion by seeing the injury by bare eyes. The nature of injuriesespecially injury in the back of head led him to believe that bullet enteredfrom back of the head and came out of the mouth. The above impressionFrecorded in the inquest report was only opinion of person preparing inquestreport and due to the above impression recorded in the inquest reportand no bullet having been found in the post mortem report, it cannot beconcluded that incident did not happen in a manner as claimed by theprosecution. The mention of bullet injury was only an opinion of theGofficer writing the inquest report and in no manner belies the prosecutioncase as proved by eyewitnesses PW11 and PW13

18. Learned counsel for the appellant has further contended thatthere was no motive proved. PW11 in his statement clearly mentionedthat as his nephew had contested election against the accused ShioHShankar Dubey for the post of Mukhiya, due to which Shio Shankar Dubey was angry with his deceased brother. In paragraph No.5 of thestatement, following has been stated:- “5. Accused Shiv Shankar Dubey was the Mukhiya of my GramPanchayat Gotpar Khatadihri at the time of occurrence. Mynephew Ram Bachan Singh had contested election against theaccused Shio Shankar Dubey for the post of Mukhiya. This iswhy Shio Shankar Dubey was angry with my deceased brotherand all the accused jointly murdered him. Bikram Dusadh hadbeen jailed three to four days earlier to this occurrence. He wasfull brother of the accused namely Dudnath Dusadh and JamadaarDusadh and son of the accused Ram Nandan Dusadh. Theaccused were suspicious of the fact that my deceased brotherhad got him jailed.”

19. In paragraph No.58, the trial court has discussed about themotive and it held that motive for the occurrence has been proved fromthe oral evidence of PW11 and Ext. 5 and Ext.5/1.

20. There is one more fact, which needs to be noted in the presentcase. The occurrence is of 9.00 AM on 16.05.1980 and within half anhour of the occurrence, police officials from Police Station, Sasaramarrived on the spot, a fardbeyan of the informant, PW11 was recordedon the spot itself by the police officials. At 9.30 AM, the fardbeyan hasbeen proved. The inquest report and the seizure report were providedat 10.00 AM and 10.15 AM respectively on the spot. FIR was sent tothe court on 17.05.1980. Trial court has noticed the entire sequence ofthe events and has rightly come to the conclusion that there was noopportunity for the informant to implicate other leaving the real culprits.In paragraph Nos. 72, 73 and 74, the trial court records following:- “72. The salient feature of the present case is that the occurrencetook place at 9 a.m. on 16-5-80. The Fardbeyan was recorded at9-30 a.m. at the place of occurrence. The inquest report and theseizure list was prepared at 10 a.m. and 10.15 a.m. respectivelyat the spot. The postmortem was done on the same day at 12.10p.m. These facts are proved from ext.6 (Fardbeyan) Ext. 7 (inquestreport), Ext.8 (seizure list) and Ext. 4 (postmortem report).

73. The F.I.R. was sent to the court on 17-5-80. Admittedly, itwas morning court and the court closes at 12 noon. So the F.I.R.was sent on 17-5-80 in the earliest possible time. One accused A

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Awas also arrested and sent to custody on 17-5-80. This fact isproved from the order sheet of the lower court dated 17-5-80which is the first order sheet in this case before lower court.

74. From the facts mentioned in the above para there was noopportunity for the informant to implicate other leaving the realBculprit. Sot this cannot be a case of false implication.” 21. The prosecution case in the present case being fully provedagainst the accused, the eyewitness account of PW11, who wasaccompanying the deceased has given the eyewitness account of theentire incident. The names of all the five accused and role attributed toCthem have been promptly recorded by the police officials within half anhour of the incident on the spot. The medical evidence corroborates theocular evidence. Both the Courts below have not committed any errorin convicting the appellants and sentencing them. We do not find anyerror in the judgment of courts below. There is no merit in the appeal.The appeal is dismissed.

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Appeal dismissed.

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