Evidence Act, 1872 – Hostile Witness – Reliability of – The evidence of a witness who has been declared hostile can be relied if there are some other material on the basis of which said evidence can be corroborated. More so, that part of evidence of a witness as contained in examination-in-chief, which remains unshaken even after cross-examination, is fully reliable even though the witness has been declared hostile.
Constitution of India – Article 136 – principles for exercising the power discussed.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(S.A. BOBDE) AND (ASHOK BHUSHAN) JJ.
JULY 25, 2016
CRIMINAL APPEAL NO.423 OF 2015
DEVRAJ … APPELLANT
STATE OF CHHATTISGARH … RESPONDNET
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against the judgment and order dated 7th January, 2013 of the High Court of Chhattisgarh in Criminal Appeal No. 780 of 2008. The First Additional Sessions Judge in Sessions Trial No.396 of 2006 had convicted the appellant-Devraj and Dinda @ Deenanath under Section 302 and 201 IPC and awarded imprisonment for life and to pay fine of Rs.1,000/- each for the charge levelled under Section 302 IPC and RI for three years and to pay fine of Rs.1,000/- each for the charge under Section 201 IPC. Four other accused were acquitted by the First Additional Sessions Judge. The High Court in Criminal Appeal No.780 of 2008 although acquitted the accused Dinda @ Deenanath, it confirmed the conviction of the appellant under Section 302 IPC. The High Court has set aside the conviction and sentence of Devraj under Section 201 IPC.
2. Aggrieved by the judgment and order of the High Court, Devraj has come up in this appeal.
3. The prosecution case in brief is: There existed a land dispute between the deceased Devi Prasad @ Prachar and Devraj, Dinda @ Deenanath. Devraj and Dinda @ Deenanath are real brothers whereas deceased Devi Prasad was their cousin brother. On 26th June, 2006, after 8 p.m. when deceased Devi Prasad was going along with one Ratan Singh Guruji in a motorcycle he was intercepted by five persons near pakkar tree. The deceased was beaten by geda and lathi by Devraj, Dinda and others and after killing him his body along with motorcycle was thrown below Rakhet Pulia. The body was seen on next day morning by a boy of village who informed the wife of the deceased. Thereafter, First Information Report was lodged by Anita Bai at 10.15 a.m. on 27th June, 2006. Police official came on the spot prepared death panchnama and site plan. The statements from various persons were recorded. The charges were framed against six accused under Section 147, 148,149, 302 and 201 IPC. The accused Sheonath, Thema @ Vishwanath, Devraj, Dinda @ Deenanath, Khoru and Dayalal were sent for trial.
4. The prosecution examined 20 witnesses and placed reliance on various exhibits. Learned Additional Sessions Judge after examining the statements of witnesses held charges under Section 302 and 201 IPC proved against accused Devraj and Dinda @ Deenanath, other four accused were acquitted by the Trial Court.
5. The Trial Court placed heavy reliance on witnesses PW.8-Ratan Singh, PW.13-Shivlochan and PW.16-Ajar Das who were found to be eye-witnesses. The statements of witnesses were found corroboration from other evidence. Although witnesses PW.13-Shivlochan and PW.16-Ajar Das were declared hostile witnesses and they were cross-examined but the Trial Court relied on their statements having found to be truthful and worth reliance.
6. Both Devraj and Dinda @ Deenanath filed an appeal before the High Court. The High Court vide its judgment and order dated 7th January, 2013 acquitted Dinda @ Deenanath from all the charges. However, it confirmed the conviction of the appellant-Devraj under Section 302 IPC while setting aside the conviction under Section 201 IPC.
7. Devraj is before us in this appeal. Only Devraj being in this appeal, we need to confine our discussion with regard to the evidence against Devraj only and as to whether the courts below on valid materials and evidence were justified in convicting Devraj.
8. We have heard Shri Akshat Shrivastava, learned counsel appearing for the appellant and Shri C.D. Singh, learned Additional Advocate General for the State.
9. Learned counsel for the appellant in support of the appeal contended that the courts below have relied on three eye-witnesses namely PW.8-Ratan Singh, PW.13-Shivlochan and PW.16- Ajar Das. PW.13-Shivlochan and PW.16-Ajar Das having been declared hostile witnesses, their evidence could not have been relied and PW.8-Ratan Singh, another eye-witness having not stated that Devraj had assaulted the deceased hence there was no evidence worth name to convict the accused-Devraj. It is further contended that even the eye-witnesses, PW.13 and PW.16 had only stated that they have heard the voice of Devraj, the prosecution ought to have proved that witnesses had recognised the voice of Devraj and Devi Prasad. The witnesses have only stated that Devraj had assaulted Devi Prasad @ Prachar by Danda. It has not been proved that injury by Danda, if any, was sufficient to kill Devi Prasad. The Doctor in his evidence has stated that injuries which were sustained by Devi Prasad could be possible by an accident. Thus, the prosecution failed to prove beyond reasonable doubt that it was Devraj who killed Devi Prasad @ Prachar. There was contradiction between the statements of eye-witnesses, which has not been adverted to by the courts below.
10. Learned Additional Advocate General appearing for the State supporting the judgment of courts below contended that incriminating evidence on the record are sufficient to convict the accused-Devraj. All the eye-witnesses have proved the presence of accused-Devraj. The evidence of PW.13 and PW.16 was wholly reliable and even if they were declared hostile witnesses their examination-in-chief and the cross-examination does not in any manner weaken the evidentiary value of their evidence that Devraj assaulted Devi Prasad on the late evening of 26th June, 2006. Several witnesses have testified that there was land dispute between deceased-Devi Prasad and Devraj and there being animosity between Devi Prasad and Devraj there was a motive to kill the deceased. The judgment of the Trial Court is based on correct appreciation of evidence. The High Court also having examined the statements of witnesses and having come to the conclusion that there was sufficient material on record to convict Devraj there is no ground for interference by this Court in exercise of jurisdiction under Article 136 of the Constitution of India. It is well settled that this Court shall not reappraise the evidence and interfere with concurrent findings of facts recorded by the courts below which are sufficient for upholding the conviction of the accused.
11. We have considered the arguments made by the learned counsel appearing for the parties and perused the records. The original records of the Trial Court produced before us including the statements of witnesses have also been perused by us.
12. In the present case the deceased-Devi Prasad was going along with Ratan Guruji from his house on a motorcycle on Panchayat Road at about 8 p.m. Deceased left his house on a motorcycle with Ratan Singh Guruji as pillion rider for dropping Ratan Singh at village Chendra. On the Panchayat Road near pakkar tree, the deceased was intercepted and was asked to stop the motorcycle by five persons. The quarrel took place between the deceased and his interceptors. The witnesses have specially mentioned that Devraj and Dinda @ Deenanath were present on the spot and Devraj hit and gave lathi blows on deceased. The witnesses who saw the deceased being assaulted are Ratan Guruji, Shivlochan and Ajar Das. It is useful to re-capitulate the statements of the above eye-witnesses. Ratan Singh-PW.8 has stated that he had gone to Devi Prasad’s house and after 8 p.m. he along with Devi Prasad left his house on a motorcycle and as soon as they reached at some distance from his house five persons were standing near the pakkar tree. Those persons got the vehicle stopped. Dinda came towards him (Ratan Guruji), he was having a torch and switched on the torch. In the meanwhile, a person ran from back side with a stick and spoke “kill him, what are you looking’ and he gave stick blow to Devi Prasad. On receiving injury Devi Prasad ran towards back side crying “save save”. Ratan Singh further stated that Shivlochan came on the spot and told him to come with him as there was risk there. PW.8-Ratan Singh further stated that there was a land dispute between Devi Prasad and Dev Raj.
13. Shivlochan-PW.13 is a witness whose house is situated near the place where Devi Prasad was stopped. The Exhibit No.P.7 which is a site plan prepared at the spot clearly indicates the house of Shivlochan is at indication mark No.5. Shivlochan in his statement has stated that he knew both the accused-Devraj and deceased-Devi Prasad. Shivlochan belongs to the same village Sayar Rai of which accused and deceased belonged. In examination-in-chief, Shivlochan stated that he was returning to his house from his sister’s house when he saw the deceased-Devi Prasad near pakkar tree. Devraj came from the front and some dialogues entered between them. Thereafter, Devraj assaulted Devi Prasad by wood or stone. Thereafter, Devi Prasad started running. The witness was cross-examined on behalf of the accused and in his cross-examination he stated that he heard the voice of Devraj who was saying “Maro Sale Ko” and it was Devraj who hit the Devi Prasad @ Prachar and Prachar shouted “Bachao Bachao” which he heard.
14. Another eye-witness PW.16-Ajar Das has been examined by the prosecution. The house of Ajar Das is also near to the scene of occurrence which is shown in Exhibit No.P-7 as indication mark 8. Ajar Das stated that he knew the deceased and the accused. Deceased Devi Prasad was cousin brother of Devraj and Dinda @ Deenanath. The quarrel had earlier taken place between Devi Prasad and Devraj. He was returning to his house from village Gangapur and when he was going through Panchayat Road adjoining pakkar tree near Jam tree accused Devi Prasad had given three lathi blows to Devi Prasad. Accused Devraj told Shivlochan that he should run away otherwise he will also be assaulted on which he ran away. The prosecution took permission of the Court for asking question after declaring the witness as hostile. On which the witness again stated that he has forbidden Devraj from beating Devi Prasad. He further stated that he had also seen that while beating Devi Prasad, Devraj was saying that he has been tortured throughout life. Devraj and Dinda had beaten the deceased in the night and the dead body of Devi Parasad was found below the Rakhet Pulia in the morning. He further stated that due to land dispute between Devi Prasad and Devraj and Dinda, they entered into “marpeet”. In the cross-examination he stated that he has seen accused-Devraj giving three lathi blows. However, he does not know to whom the blows were given since it was dark. There is overwhelming evidence on the record to prove the land dispute between Devraj, Dinda with Devi Prasad-deceased.
15. Anita Bai-PW.7 wife of the deceased, Ratan Singh-PW.8, Shivlochan-PW.13, Shivram-PW.18,Ram Kewal-PW.3 and Narayan Prasad-PW.10 all had stated that there was a land dispute between the parties. Witness PW.10-Narayan Prasad had also stated that with regard to the land dispute the leg of Devraj was broken and there was animosity between Devi Prasad and accused-Devraj and Dinda. The arguments which have been raised by the learned counsel for the appellant that PW.13 and PW.16 having been declared as hostile witnesses their evidence ought not to have been relied by the courts below more so when Ratan Singh another eye-witness does not say that deceased Devi Prasad was assaulted by Devraj. At this juncture it is relevant to examine the question as to what extent evidence of hostile witnesses can be relied by the Court while recording conviction.
16. In a three-Judge bench judgment of this Court in