LexDAHARI & ORS. versus STATE OF U.P.
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[2012) 8 S.C.R. 1219 DAHARI & ORS. v. STATE OF U.P. (Criminal Appeal No. 1253 of 2008) OCTOBER 11, 2012 [DR. B.S. CHAUHAN AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.) Penal Code, 1860 - s. 302134 - Murder - Prosecution A B of 7 accused uls. 3021149 - Eye-witnesses to the incident - C FIR lodged within time - Enmity between complaint and accused party - Conviction by trial court - High Court confirming conviction of 4 accused while acquitting 3 accused - On appeal held: In the facts of the case, conviction of appellants-accused and acquittal of 3 accused correct - o However, since the total number of accuse_d was reduced to Jess than 5, on acquittal of the 3 accused, c.onviction with the aid of s. 149 not correct - Conviction altered to uls. 304134. Witness - Related witness - Reliance on - Held: Where the evidence of related witness has a ring of truth, is cogent, E credible and trustworthy, it can be relied upon. The 4 appellants-accused, alongwith 3 other accused were prosecuted for having caused death of one person. The prosecution case was that the deceased, on a motor- F cycle, with the pillion rider, was going to attend court proceedings. He was followed by his brothers PWs 1 and 2 on a moped. The accused persons, armed with country- made pistol, came and fired at the deceased resulting in instantaneous death. PWs 3 and 5 were eye-witnesses to G the incident. Trial court convicted all the 7 accused u/ss. 302 r/w s. 149 and 148 IPC. High Court acquitted 3 accused and affirmed the conviction and sentence of the appellants-accused. 1219 H 1220 SUPREME COURT REPORTS (2012) 8 S.C.R. A In appeal to this Court, appellants contended that prosecution case is not reliable as it withheld its most material witness i.e. the pillion rider; that absence of injuries on the pillion rider makes the prosecution case doubtful; that PWs 1 and 2 being related to the deceased, 8 their evidence was not reliable; that in view of acquittal of 3 accused, conviction of appellants not justified; and that after acquittal of 3 accused, the number of accused remained only 4 and hence the provisions of s. 149 IPC are not attracted. C Dismissing the appeal, the Court HELD: 1.1. The appeal is devoid of any merit. The medical evidence i.e. the deposition of PW.6 corroborates the ocular version of events as has been given by the eye- D witnesses. It was also stated that the deceased had fallen down and was then surrounded by the accused persons, who shot at him repeatedly. Thus, there is no incompatibility in the oral evidence and the medical evidence, on record. [Paras 20 and 7) [1227-G; 1232-G] E F 1.2. The FIR was lodged within a period of one hour, at a police station which was at a distance of 12 kms. from the place of. occurrence, and this goes to prove that PW.1 and PW.2 were in fact, present at the place of occurrence and were in a position to see the accused from close quarters. They all were also known to the witnesses. The reason that they happened to be accompanying the deceased was because they were all going to the court in relation to a criminal case, in which son of PW.2 was the accused. There is nothing in the G cross-examination of the eye-witnesses to cast a doubt upon the veracity of their testimony or to discredit it in anyway. [Para 8) [1227-H; 1228-A-C] 1.3. The evidence of closely related witnesses is H required to be carefully scrutinised and appreciated DAHARI & ORS. v. STATE OF U.P. 1221 before any conclusion is made to rest upon it, regarding A the convict/accused in a given case. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, ahd certainly should, be relied upon. PW.1 and PW.2 undoubtedly, are the real brothers of the deceased. They, at the time of the incident, were following 8 the deceased on their 'Moped'. They have supported the case of the prosecution to the fullest extent, and even though they were thoroughly questioned by the defence in the course of cross-examination, they did not elicit anything which coul~ shake their testimony. Thus, there is no reason to discard their testimonies. [Paras 9 and 10] C [1228-D-G] Himanshu v. State (NCT of Delhi) (2011) 2 SCC 36: 2011 (1) SCR 48: Ranjit Singh v. State of M.P. AIR 2011 SC 255: 2010 (14) SCR 133; Onkar and Anr. v. State of Uttar D Pradesh (2012) 2 SCC 273- relied on. 1.4. So far as the non-production of the witness (pillion
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