SHIO SHANKAR DUBEY & ORS. versus STATE OF BIHAR

Citation: [2019] 7 S.C.R. 607 · Decided: 09-05-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed

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Judgment (excerpt)

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SHIO SHANKAR DUBEY & ORS.
v.
STATE OF BIHAR
(Criminal Appeal No. 1617 of 2014)
MAY 09, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Penal Code 1860: s. 302 – Murder – Accused persons armed
with weapons killed the victim – Informant fled from the scene of
incident and recorded FIR – Conviction of appellant no. 1 to 3 for
the offence u/ss. 302/149/148, u/ss. 302/149/147 and u/s. 302/147
and 379 respectively – Upheld by the High Court – On appeal held:
Courts below justified in convicting and sentencing the appellants
– Prosecution case fully proved against them – Prosecution witness,
who accompanied the deceased-victim gave the eyewitness account
of the entire incident – Mere fact that witness was related does not
lead to inference that such witness was an interested witness – Names
of all the five accused and role attributed to them promptly recorded
by the police officials – Non-mentioning of the name of one of the
accused by the prosecution witness cannot lead to the inference
that he was not involved in the incident – Ocular evidence
corroborated the medical evidence – Motive for the occurrence was
proved – Witness – Interested witness.
Dismissing the appeal, the Court
HELD: 1.1 PW11, brother of the deceased, fully
corroborated the prosecution case in his evidence. In spite of
thorough cross-examination, the witnesses could not be shaken.
The submission of the appellant that witnesses PW11 and PW13
being related to the deceased are interested witnesses and should
not be relied, cannot be accepted. The mere fact that deceased
was brother of the informant and PW13 is the husband of the
niece of the deceased, does not impeach their evidence in any
manner. The mere fact that witness is related does not lead to
inference that such witness is an interested witness. Thus, it
cannot be said that PW11 and PW13 being related to deceased,
their evidence cannot be relied. [Para 10, 12] [612-C-D; 614-E]
   [2019] 7 S.C.R. 607
607
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 :
[1995] 5 Suppl. SCR 239 ; Namdeo v. State of
Maharashtra (2007) 14 SCC 150:[2007] 3 SCR 939 –
referred to.
1.2 PW5 in his statement stated that at 9 O’clock in the
morning, he had gone to place S. where he saw the accused
persons namely RND, DD, JD and SD fleeing on the road. It is
true that in his statement, he mentioned names of only four
persons, who were seen fleeing on the road. The mere fact that
he did not mention name of RPD cannot lead to the inference
that RPD was not involved in the incident. There may be several
reasons due to which, he could not see RPD. When PW11 and
PW13, whose evidence has been relied by the trial court as well
as High Court, have categorically proved the presence of RPD
and his participation in the occurrence. [Para 13] [614-F-H;
615-A]
1.3 The nature of injuries especially injury in the back of
head led the officers recording the inquest report to believe that
bullet entered from back of the head and came out of the mouth.
The above impression recorded in the inquest report was only
opinion of person preparing inquest report and due to the above
impression recorded in the inquest report and no bullet having
been found in the post mortem report, it cannot be concluded
that incident did not happen in a manner as claimed by the
prosecution. The mention of bullet injury was only an opinion of
the officer writing the inquest report and in no manner belies the
prosecution case as proved by eyewitnesses PW11 and PW13.
[Para 17] [616-D-G]
1.4 PW11 in his statement clearly mentioned that as his
nephew had contested election against the accused SSD for the
post of Mukhiya, due to which SSD was angry with his deceased
brother. The trial court held that motive for the occurrence has
been proved from the oral evidence of PW11 and the exhibits.
[Para 18 and 19] [616-H; 617-A, D]
1.5 Within half an hour of the occurrence, police officials
from Police Station ‘S’ arrived on the spot, a fardbeyan of the
informant, PW11 was recorded on the spot itself by the police
officials. At 9.30 AM, the fardbeyan has been proved. The inquest
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report and the seizure report were provided at 10.00 AM and
10.15 AM respectively on the spot. FIR was sent to the court
the next day. Trial court noticed the entire sequence of the events
and rightly came to the conclusion that there was no opportunity
for the informant to implicate other leaving the real culprits

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