Holding

A witness's familial relationship to the victim does not automatically vitiate his testimony, and the medical evidence corroborates the ocular evidence, thereby sustaining the conviction under Section 302 r/w Section 34 IPC and Section 27 Arms Act.

Summary

The appellants Ajeet Kumar Rai, Vinay Kumar Rai and Ashutosh Kumar Rai were convicted for the murder of Nanda Kumar Singh under Section 302 read with Section 34 of the IPC and for a violation of Section 27 of the Arms Act. The prosecution proved that the first two accused restrained the deceased, urged the third to fire, and the third shot the victim, resulting in death. The appellants challenged the conviction on two grounds: that the eye‑witnesses were close relatives of the deceased and therefore partisan, and that there was a discrepancy between the medical report and the ocular testimony. The Supreme Court held that a witness's relationship to the victim is not a per se ground for discarding his testimony and that the medical evidence was consistent with the eye‑witness accounts. Consequently, the Court affirmed the applicability of Section 34 IPC and upheld the convictions, dismissing the appeals.

Issues considered

The credibility of eye‑witnesses who are relatives of the deceased
Whether a discrepancy exists between medical evidence and ocular evidence that would undermine the prosecution case
The applicability of Section 34 IPC (common intention) to the facts of the case

Legislation cited

Subjects

murderSection 34 IPCcommon intentionwitness credibilityrelative witnessesmedical evidenceocular evidenceArms Actcriminal appeal

Judgment

[2008] 12 S.C.R. 146 I

A VINAY KUMAR RAI AND ANR. '<..
v.
THE STATE OF BIHAR
(Criminal Appeal No. 371 of 2006)
AUGUST 18, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Penal Code, 1860:
ss. 302134 - Murder - Two accused caught hold of de-
c ceased and on their exhortation, third accused fired at de-
ceased resulting in his death- Incident witnessed by witnesses
- Conviction of first two accused uls. 302 rlw s. 34, and third
accused u/s. 302 and u/s. 27 of the Arms Act by courts below
- Justification of - Held: Justified - Witnesses being close
D relative or partisan witness, their evidence should not be dis-
carded - Evidence of prosecution witnesses and eye-wit-
nesses established the occurrence ofincident, thus s. 34 ap- ~.
,,..,........::....__

plicab/e - Also, there was no discrepancy between medical
evidence and ocular evidence - Arms Act - s. 27.
E· -------
Evidence Act, 1872:
s. 3 - Related witness - Testimony, evidentiary value of
- Held: Relationship is not a factor to affect credibility of a
witness.
F Medical evidence vis-a-vis ocular evidence - Discrep-
ancy between - Effect on prosecution case.
According to the prosecution case, there was enmity
between NK and the appellants-A1, A2 and A3. On the fate-
G ful day, when NK had gone to his fields, the appellants came
their. A1 and A3 caught hold of NK and exhorted A-2 to fire
at NK. A 2 fired NK on the temple which later resulted in
his death. Thereafter, the appellants ran away. On hear-
ing the alarm raised by NK, PW 7-father of NK and his
+- ,l
I

H 146
VINAY KUMAR RAI & ANR. v. THE STATE 147
OF BIHAR

> nephew-PW 4 reached the scene of occurrence. They A
witnessed the entire incident. FIR was lodged. The case
was registered u/s. 302/34 IPC and s. 27 of the Arms Act.
Investigations were carried out. The witnesses were ex-
amined. The trial court convicted A 1 and A 3 u/s. 302 r/w
s. 34 IPC, and A 2 u/s. 302 IPC and imposed rigorous im- B
prisonment for life. A 2 was also convicted u/s. 27 of the
Arms Act and sentenced to rigorous imprisonment for
three years. Aggrieved, appellants filed appeals on the
ground that there was discrepancy between the medical
evidence and the oral evidence and the eye-witnesses c
were related to the deceased. The High Court upheld the
conviction of the appellants. Hence the present appeals.
Dismissing the appeals, the Court
HELD: 1.1 Merely because the eye-witnesses are
D
family members, their evidence cannot per se be dis-
carded. When there is allegation of interestedness, it has
-t
),.
\
to be established. Mere statement that being relatives of
the deceased they are likely to falsely implicate the ac-
cused, cannot be a ground to discard the evidence which
is otherwise cogent and credible. Relationship is not a E
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-
tion has to be laid if plea of false implication is made. In
such cases, court has to adopt a careful approach and F
........ analyse evidence to find out whether it is cogent and cred-
ible. [Para 6][152,E-G]
1.2 The over insistence on witnesses having no re-
lation with the victims often results in criminal justice go-
G
ing away. When any incident happens in a dwelling house
the most natural witnesses would be the inmates of that
-+-
house. It is unpragmatic to ignore such natural witnesses
and insist on outsider who would not have even seen any
• thing. If the Court has discerned from the evidence or even
H
148 SUPREME COURT REPORTS [2008] 12 S.C.R.

A from the investigation records that some other indepen- '"-
dent person has witnessed any event connecting the in-
cident in question then there is justification for making
adverse comments against non-examination of such per-
son as prosecution witness. Otherwise, merely on surmises
B the Court should not castigate a prosecution for not ex-
amining other persons of the locality as prosecution wit-
nesses. Prosecution can be expected to examine only '--
those who have witnessed the events and not those who
have not seen itthough the neighborhood may be replete
C with other residents also.[Para 13] [154,G-H; 155,A-C]
1.3 In the instant case, the ground that the witness
being a close relative and consequently being partisan
witness, should not be relied upon, cannot be accepted.
PWs 4 and 7 stated in their evidence about the presence
D of PWs 5 and 6. PW-1 in his statement also stated about
their presence at the place of occurrence. Though it was
pleaded by counsel for the appellants that PW-1 's evi-
dence cast a doubt about the prosecution version, it is to
be noted that PW-1 never claimed to be an eye witness.
E The evidence of PWs and eye witnesses clearly estab-
lished that accused A 3 and A 1 caught hold of deceased
and on their exhortation appellant A 2 shot at the de-
ceased. Therefore, s. 34 has application. [Paras 9 and 14]
.[153,F; 155,C-E]
F Dalip Singh and Ors. vs. The State of Punjab AIR 1953
SC 364; Guli Chand and Ors. vs. State of Rajasthan 1974 (3)
SCC 698; Vadivelu Thevar vs. State of Madras AIR 1957 SC
614; Masa/ti and Ors. vs. State of U. P AIR 1965 SC 202; State
of Punjab vs. Jagir singh AIR 1973 SC 2407; Lehna vs. State
G of Haryana 2002 (3) SCC 76; Gangadhar Behera and Ors.
vs. State of Orissa 2002 (8) SCC 381; Babula/ Bhagwan
Khandare and Anr. vs. State of Maharashtra 2005 (10) SCC
404; Salim Sahab vs. State of M.P 2007 (1) SCC 699; State
of Rajasthan vs. Teja Ram and Ors. AIR 1999 SC 1776 -
H referred to.
VINAY KUMAR RAI & ANR. v. THE STATE 149
OF BIHAR [DR. ARIJIT PASAYAT, J.]
> 1.4 The medical evidence was clearly in line with what A
has been stated by eye-witnesses. The High Court noted
that the expression used by witnesses cannot be
analysed in hypothetical manner. Therefore, it cannot be
said that medical evidence is contrary to the ocular evi-
dence. [Para 15] [155,F] B
Case Law Reference
.t
AIR 1953 SC 364 Referred to. Para 7
1974 (3) sec 698 Referred to. Para 8
AIR 1957 SC 614 Referred to. Para 8 c
AIR 1965 SC 202 Referred to. Para 10
AIR 1973 SC 2407 Referred to. Para 11
2002 (3) sec 76 Referred to. Para 11
D
2002 (8) sec 381 Referred to. Para 11
-t 2005 (10) sec 404 Referred to. Para 12
~
2001 (1) sec 699 Referred to. Para 12
AIR 1999 SC 1776 Referred to. Para 13
E
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 371 of 2006

From the final Judgment and Order dated 18.8.2005 of
the High Court of Judicature at Patna in Criminal Appeal No.
71 of 2002 F

WITH
Crl. No. 382 of 2006
Nagendra Rai, Rajeev Singh, Anshul Raj and Rajesh G
Prasad Singh for the Appellants.
Gopal Singh and Anukul Raj for the Respondents.

The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Challenge in these appeals is H
150 SUPREME COURT REPORTS [2008] 12 S.C.R.

A to the judgment of a Division Bench of the Patna High Court
upholding the conviction of the appellants for offence punish-
able under Section 302 read with Section 34 of the Indian Pe-
nal Code, 1860 (in short 'IPC') so far as accused Ajeet Kumar
Rai @Ajeet Narayan Rai and Vinay Kumar Rai, appellant No.1
B in Criminal appeal 371 of 2006 and Ashutosh Kumar Rai @
Sanjay Kumar Rai, appellant in other Criminal Appeal. Ashutosh
Kumar Rai was further charged for committing the murder of
Nanda Kumar Singh punishable under Section 302 IPC and
Section 27 of the Arms Act, 1959 (in short 'Arms Act'). The High
c Court dismissed the appeals. The present appeals had been
filed by Vinay Kumar Rai (A-3) and Ajeet Kumar Rai @ Ajeet
Narayan Rai (A-1) and Ashutosh Kumar Rai (A-2). The Presid-
ing Officer, Additional Court No.1, Fast Track Court in Sessions
Trial Nos. 578/96 and 1/2001 held Ajeet Kumar Rai and Vinay.
Kumar Rai guilty under Section 302 read with Section 34 IPC
0
and accused Ashutosh Kumar Rai under Section 302 IPC and
sentenced to undergo RI for life. He was also found guilty of
offence under Section 27 of the Arms Act and sentenced to
undergo RI for three years. Two appeals were filed before the
High Court which by the impugned judgment dismissed the
E same. All accused were put on trial for committing the murder
of Nanda Kumar Singh (hereinafter referred to as the 'de-
ceased') in furtherance of their common intention for offence
punishable under Section 302 read with Section 34 IPC.
F 2. Prosecution version in a nutshell is as follows:
According to the first information report given by
Vishwanath Singh (PW-7) before the police on 26. 7 .1996 at
1.10 p.m., at about 12 noon, while he was sitting on the veran-
dah of the house and his son Nand Kumar Singh, the deceased
G had gone to the field to inquire as to whether the land has been
ploughed or not, he did not find tractor there and while he was
returning he saw the appellants and started shouting. Hearing ~-
----~'··"°'"the alarm, the informant along with Sachida Nand Singh (PW-
4) rushed there and found that appellants Vinay Kumar Rai and
H Ajeet Kumar Rai alias Ajeet Narayan Rai had caught hold of his
VINAY KUMAR RAI & ANR. v. THE STATE 151
OF BIHAR [DR. ARIJIT PASAYAT, J.]
~
son and appellant Ashutosh Kumar Rai @ Sanjay Kumar Rai A
had put pistol on his right temple. The moment they saw him and
Sachida Nand Singh, appellant Vinay Kumar and Ajeet Kumar
Rai @ Ajeet Narayan Rai exhorted to fire at which appellant
Ashutosh Kumar Rai alias Sanjay Kumar Rai fired at his son on
the temple. Sustaining the injuries his son fell down and all the B
appellants fled away brandishing the pistol. When the informant
;t
and his nephew Sachidanand Singh reached there, they found
injury above the temple and immediately put him on a rickshaw
and brought to the Government Hospital, Sasaram where the
doctor declared him brought dead. On the basis of the aforesaid c
information, Sasaram (M) P.S. Case No.386 of 1996 was regis-
tered under Section 302/34 of IPC and 27 of the Arms Act.
According to the first information report, the motive for the
occurrence is the pendency of litigation before the Director of
Consolidation. D
-+ The police, after investigation, submitted charge sheet
-~
against the appellants and they were ultimately committed to
the court of Sessions where all the appellants were charged for
offence under section 302/34 of IPC whereas, appellant
Ashutosh Kumar Rai alias Sanjay Kumar Rai was further E
charged for offence under section 302 of IPC and section 27 of
the Arms Act.

The appellants denied to have committed any offence and
pleaded false implication on account of previous enmity and F
-4,. their further defence was that the deceased was killed on the
I

same day at about 12 noon by fire arm by some unknown per-
sons near the house of Ram Nagina Singh.

Prosecution in order to substantiate the accusations exam-
ined nine witnesses out of which Sachidanand (PW-4), Sunil G
-l-
Kumar Singh (PW-5), Srikant Singh (PW-6) and Vishwa Nath
Singh (PW-7) claimed to be eye-witnesses. The last named per-
son was the informant. In order to prove their innocence, the ac-
cused persons examined four witnesses. The trial Court believed
the evidence of the eye-witnesses and found the accused guilty. H
152 SUPREME COURT REPORTS [2008] 12 S.C.R

~ '
A 3. In appeal, it was submitted that there was discrepancy
between the medical evidence and the oral evidence and, there-
fore, the prosecution version should not have been accepted. The
primary stands were regarding the alleged discrepancy between
the medical evidence and the ocular evidence and the eye-wit-
B nesses being related to the deceased. The High Court did not find
any substance in any of these stands and dismissed the appeals.
"--
4. The stands taken before the High Court were reiterated
in these appeals, It was highlighted by learned counsel for the
-~
appellants that it is unusual that eye witnesses who are closely
c related to the deceased did not try to intervene to save the de-
+
.I
I

ceased from the assailants.
5. Learned counsel for the State on the other hand with
reference to the conclusions of the High Court pointed out that
the witnesses have said that they saw the incidence from a dis-
D
tahce of about 15 to 20 yards. They stated that the deceased
was shot dead even before they reached the place of occur- +
~
rence. Therefore, there was no question of intervening to save
the life of the deceased.

E 6. Merely because the eye-witnesses are family members
their evidence cannot per se be discarded. When there is alle-
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
F evidence which is otherwise cogent and credible. We shall also _.)__
deal with the contention regarding interestedness of the wit- I

nesses for furthering prosecution version. 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 alle-
gations against an innocent person. Foundation has to be laid
G
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 i~ cog~At and credible.
7. In· Dalip Singh and Ors. v. The State of Punjab (AIR
H 1953 SC 364) it has ·been laid down as under:-
VINAY KUMAR RAI & ANR. v. THE STATE 153
OF BIHAR [DR. ARIJIT PASAYAT, J.J

"A witness is normally to be considered independent unless A
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
the last to screen the real culprit and falsely implicate an B
innocent person. It is true, when feelings run high and there
:'f'
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 c
from being a foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping
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
D
prudence. There is no such general rule. Each case must
-+ be limited to and be governed by its own facts."
y

8. The above decision has been followed in Guli Chand
and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which
Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was E
also relied upon.

9. 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 F
.
........
(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:
G
"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 based on the fact that the witnesses are
women and that the fate of seven men hangs on their
H
154 SUPREME COURT REPORTS [2008] 12 S.C.R.

~
A 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
B 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." t-
l
10. Again in Masalti and Ors. v. State of UP (AIR 1965 '

SC 202) this Court observed: (p. 209-210 para 14):
c
"But it would, we think, be unreasonable to contend that
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
D
to failure of justice. No hard and fast rule can be laid down
as to how much evidence should be appreciated. Judicial +
'I
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."
E ~
11. To the same effect is the decisions in State of Punjab
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) SCC 381).
F 12. The above position was also highlighted in Babuial -.s-
Bhagwan Khandare and Anr. v. State of Maharashtra (2005 '
(10) SCC 404] and in Salim Sahab v. State of M.P (2007 (1)
sec 699).
13. The over insistence on witnesses having no relation
G
with the victims often results in criminal justice going away. When
any incident happens in a dwelling house the most natural wit- -f-
nesses would be the inmates of that house. It is u_npragmatic to
ignore such natural witnesses and insist on outsiders who wou:d
not have even seen any thing. If the Court has discerned from
H
VINAY KUMAR RAI & ANR. v. THE STATE 155
OF BIHAR [DR. ARIJIT PASAYAT, J.]

the evidence or even from the investigation records that some A
other independent person has witnessed any event connecting
the incident in question then there is justification for making
adverse comments against non-examination of such person as
prosecution witness. O.therwise, merely on surmises the Court
should not castigate a prosecution for not examining other per- B
sons of the locality as prosecution witnesses. Prosecution can
be expected to examine only those who have witnessed the
events and not those who have not seen it though the neighbor-
hood may be replete with other residents also. [See: State of
Rajasthan v. Teja Ram and Ors. (AIR 1999 SC 1776)]. c
14. It is to be noted that PWs 4 and 7 have stated in their
evidence about the presence of PWs 5 and 6. Interestingly, Raj
Kumar Singh (PW-1) in his statement also stated about their
presence at the place of occurrence. Though it was pleaded by
learned counsel for the appellants that PW-1 's evidence cast a D
doubt about the prosecution version it is to be noted that PW-1
never claimed to be an eye witness. The evidence of PWs and
eye witnesses clearly established that accused Ajeet Kumar
Rai and Vinay Kumar Rai caught hold of deceased and on their
exhortation appellant Ashutosh shot at the deceased. There- E
fore, Section 34 has application.
15. Coming to the alleged discrepancy between the ocu-
lar evidence and the medical evidence as rightly noted by the
High Court there was no discrepancy. The medical evidence
was clearly in line with what has been stated by eye-witnesses. F
The High Court has noted that the expression used by the wit-
,. nesses cannot be analysed in hypothetical manner. According
to the eye witnesses gunshot injury was caused on the right
temple but the injury was found on the upper eyelid and everted
wound on the right oricle margin. Therefore, it can never be said G
that medical evidence is contrary to the ocular evidence.
16. Looked at from any angle, the appeals are without merit
and deserve dismissal which we direct.

N.J. Appeals dismissed. H