Absence of bullet in the body as per the opinion by physical examinatoin of injury- can falsify the prosecution story=Apex court said No – The nature of injuries especially injury in the back of head led him to believe that bullet entered from back of the head and came out of the mouth. The above impression recorded 14 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1617 of 2014
SHIO SHANKAR DUBEY & ORS. …APPELLANT(S)
VERSUS
STATE OF BIHAR …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed by the three
appellants challenging the judgment of High Court of
Patna dated 16.07.2013, by which Criminal Appeal (DB)
No. 410 of 1990 filed by them questioning their
conviction and sentence under Section 302 and some
other sections of I.P.C. has been dismissed.

  1. The prosecution case is that on 16.05.1980, one
    Raj Ballam Rai, informant alongwith his brother Raj
    Keshwar Singh came to Sasaram Court. After finishing
    his work in court informant proceeded with his
    brother to his residence near Dharamshala. Raj
    1
    Keshwar Singh was on rickshaw and the informant was
    on the bicycle. Raj Keshwar Singh was armed with a
    double barell gun. The further case is that at about
    9:00 am when they reached 50 to 60 yards east of
    Kargahar More, the informant saw that Doodnath
    Dusadh, Jamadar Dusadh and Ram Nandan Dusadh stopped
    the rickshaw. They were armed with Lohbanda. Shio
    Shankar Dubey was armed with Rifle and his brother
    Ram Pravesh Dubey was armed with lathi and they were
    also alongwith them. They pulled down Raj Keshwar
    Singh from rickshaw and started assaulting with
    Lohbanda. The Mukhiya that is Shio Shankar Dubey
    asked them to kill in a hurry. The informant fled
    away. Shio Shankar Dubey opened fire but none
    received any injury. The accused persons thereafter
    fled away towards south.
  2. At 9:30 am, the police official namely, S.N.
    Singh of Sasaram Police Station arrived at the place
    of occurrence to whom Raj Ballam Rai gave a
    fardbeyan. On the basis of fardbeyan given at the
    place of occurrence by informant, First Information
    Report was registered against 05 accused.
    2
  3. The prosecution, to prove its case, produced 15
    witnesses. PW11, informant, fully supported the
    prosecution case. PW13, Ragho Ram Singh, who was
    also an eyewitness, supported the prosecution case.
    PW5 was another eyewitness, who saw 04 of the accused
    running away from the spot. Formal witnesses were
    also produced by the prosecution. On the spot
    seizure was also made by one Siddhanath Singh,
    Inspector of Police, which seizure also contained
    copy of four applications, which were typed at
    District Court, Sasaram and were being carried by the
    deceased alongwith him in a diary, which applications
    were marked as Ext.3/2 to 3/5.
  4. Inquest Report was also prepared on the spot.
    Body was sent for post mortem. Post mortem report
    was prepared as Ext.4. One defence witness, DW1,
    Dasrath Ram was also produced, who brought the
    register of the employees for the period 1961 to 1963
    containing the signatures of deceased Raj Keshwar
    Singh.
    3
  5. The trial court vide its judgment and order dated
    14.09.1990 convicted 04 accused, (one of the accused
    namely, Doodnath Dusadh having died during the
    pendency of trial. The appellant No.1 – Shio Shankar
    Dubey, accused No.3, was convicted for the offence
    under Sections 302/149/148 I.P.C. and Section 27 of
    the Arms Act. The appellant No.2 – Ram Pravesh
    Dubey, accused No.4, was convicted for 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 criminal appeal in
    the High court, which has been dismissed. One
    Ramnandan Dusadh also having died during pendency of
    the appeal before the High Court, the three surviving
    accused are in the appeal before this Court.
  6. Learned counsel for the appellant in support of
    the appeal submits that PW11 – informant being
    brother of the appellant and PW13 being husband of
    the niece of the deceased were all close relatives
    and interested witnesses, the Courts below committed
    an error in relying on the testimony of interested
    4
    witnesses. There being no independent witnesses
    corroborating the charge against the appellants the
    appellants ought not to have been convicted and
    sentenced. It is further submitted that PW5, who
    claimed to be an eyewitness and deposed before the
    courts below that he saw four accused running away
    from the spot, he has not taken the name of Ram
    Pravesh Dubey, the appellant No.2. PW5 having not
    taken the name of Ram Pravesh Dubey, the presence of
    Ram Pravesh Dubey on the spot is not proved and the
    Courts below have ignored this evidence. Ram Pravesh
    Dubey having not been proved to be on the spot, could
    not have been convicted. It is further submitted
    that inquest report mentioned a bullet injury whereas
    in the post mortem report, no bullet injury was
    found. There being no bullet injury found in the
    post mortem report, the entire prosecution theory is
    inconsistent. Learned counsel for the appellant
    further submits that there was no motive for
    appellants to kill Raj Keshwar Singh.
  7. Learned counsel appearing for the State refuting
    the submissions of the learned counsel for the
    5
    appellant submits that informant PW11 was
    accompanying the deceased and his evidence was found
    trustworthy. The Courts below did not commit an
    error in relying on his evidence. It is submitted
    that the mere fact that PW11 and PW13 are related to
    the deceased does not in any manner impeach their
    truthfulness. It is submitted that the mention of
    the bullet injury in the inquest report was due to
    error of judgment by the person writing inquest
    report. The skull being crushed in a manner and
    bones being fractured, impression was drawn that
    bullet entered from behind the skull and came out of
    the mouth, which in no manner can be said to be fatal
    to the prosecution case. It is submitted that PW5 is
    a trustworthy witness, who is not related to the
    deceased and saw the accused running away from the
    spot.
  8. We have considered the submissions of the learned
    counsel for the parties and have perused the records.
  9. PW11, who is a brother of the deceased, has fully
    corroborated the prosecution case in his evidence.
    6
    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 does not commend us. The mere fact that
    deceased was brother of the informant and PW13 is the
    husband of the niece of the deceased and 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. This
    Court has occasion to consider such submission in
    number of cases. In Kartik Malhar Vs. State of
    Bihar, (1996) 1 SCC 614, this Court held that a close
    relative who is a very natural witness cannot be
    regarded as an interested witness. In paragraph Nos.
    15 and 16, following was laid down:-
    “15. As to the contention raised on behalf
    of the appellant that the witness was the
    widow of the deceased and was, therefore,
    highly interested and her statement be
    discarded, we may observe that a close
    relative who is a natural witness cannot be
    regarded as an interested witness. The term
    ‘interested’ postulates that the witness
    must have some direct interest in having
    the accused somehow or the other convicted
    for some animus or for some other reason.
    In Dalbir Kaur (Mst) v. State of Punjab,
    7
    (1976) 4 SCC 158, it has been observed as
    under: (SCC pp. 167-68, para 11)
    “Moreover, a close relative who is a
    very natural witness cannot be
    regarded as an interested witness.
    The term ‘interested’ postulates that
    the person concerned must have some
    direct interest in seeing that the
    accused person is somehow or the
    other convicted either because he had
    some animus with the accused or for
    some other reason. Such is not the
    case here.”
  10. In Dalip Singh v. State of Punjab, AIR
    1953 SC 364 it has laid down as under:
    “A witness is normally to be
    considered independent unless 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 relative would be
    the last to screen the real culprit
    and falsely implicate an innocent
    person. It is true, when feelings run
    high and there is personal cause for
    enmity, that there is 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 from
    being a foundation is often a sure
    guarantee of truth. However, we are
    not attempting any sweeping
    generalisation. 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
    8
    prudence. There is no such general
    rule. Each case must be limited to
    and be governed by its own facts.”
  11. Further in Namdeo Vs. State of Maharashtra,
    (2007) 14 SCC 150, same propositions were reiterated
    by this court elaborately referring to the earlier
    judgments, this Court rejected the same submission in
    paragraph Nos. 29, 30 and 38, which are to the
    following effect:-
    “29. It was then contended that the only
    eyewitness, PW 6 Sopan was 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
    particulars by other witnesses. We are
    unable to uphold the contention. In our
    judgment, a witness who is a relative of
    the deceased or victim of 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
    convicted due to animus or for some other
    oblique motive.
  12. Before more than half a century, in
    Dalip Singh v. State of Punjab, AIR 1953 SC
    364, a similar question came up for
    consideration before this Court. In that
    case, the High Court observed that
    testimony of two eyewitnesses required
    corroboration since they were closely
    related to the deceased. Commenting on the
    approach of the High Court, this Court held
    that it was “unable to concur” with the
    9
    said view. Referring to an earlier decision
    in Rameshwar Kalyan Singh v. State of
    Rajasthan, AIR 1952 SC 54, Their Lordships
    observed that it was a fallacy common to
    many criminal cases and in spite of
    endeavours to dispel, “it unfortunately
    still persists, if not in the judgments of
    the courts, at any rate in the arguments of
    counsel” (Dalip Singh case, AIR p. 366,
    para 25).
  13. From the above case law, it is clear
    that a close relative cannot be
    characterised as an “interested” witness.
    He is a “natural” witness. His evidence,
    however, must be scrutinised carefully. If
    on such scrutiny, his evidence is found to
    be intrinsically reliable, inherently
    probable and wholly trustworthy, conviction
    can be based on the “sole” testimony of
    such witness. Close relationship of witness
    with the deceased or victim is no ground to
    reject his evidence. On the contrary, close
    relative of the deceased would normally be
    most reluctant to spare the real culprit
    and falsely implicate an innocent one.”
  14. We, thus, reject the submission of the appellant
    that PW11 and PW13 being related to deceased, their
    evidence cannot be relied.
  15. Now, the next submission of the learned counsel
    for the appellant that PW5, who is held to be an
    eyewitness has in his statement only taken names of
    the four accused, who, according to him, were seen
    running away from the spot. It is submitted that PW5
    10
    did not take the name of Ram Pravesh Dubey, the
    appellant No.2. The statement of PW5 has been
    brought on the record. PW5 in his statement stated
    that at 9 O’clock in the morning, he had gone to
    Sasaram and when he went about fifty steps south to
    Rouza Road from G.T. Road, he saw the accused persons
    namely Ram Nandan Dusadh, Dudnath Dusadh, Jamadar
    Dusadh and Shankar Dubey fleeing on Rouza Road going
    from the west to the east. It is true that in his
    statement, he mentioned names of only four persons,
    who were seen fleeing on Rouza Road. The mere fact
    that he did not mention name of Ram Pravesh Dubey
    cannot lead to the inference that Ram Pravesh Dubey
    was not involved in the incident. There may be
    several reasons due to which, he could not see Ram
    Pravesh Dubey. When PW11 and PW13, whose evidence
    has been relied by the trial court as well as High
    Court, have categorically proved the presence of Ram
    Pravesh Dubey and his participation in the
    occurrence. The mere fact that PW5 did not see Ram
    Pravesh Dubey fleeing is not conclusive nor on that
    basis, we can come to any inference that Ram Pravesh
    Dubey was not involved in the occurrence.
    11
  16. Now, we come to the another submission of the
    appellants that in the inquest report, it was
    mentioned that pellet from back in the head has come
    out of the mouth, but there was no bullet injury
    found in the post mortem report. In column No.5 of
    the inquest report brought as Annexure-P42, following
    was stated:-
    “It appears that the pellet from back in
    the head has come out of the mouth.
    (illegible) part has been cut. The brow on
    the eyes are (illegible). Left elbow has
    bruise injury. Left had has also bruise
    injury. Lacerated.”
  17. We may further notice other details given in the
    inquest report in column No.4, following was
    noticed:-
    “Head in north-east direction, leg in south
    direction, felt facing upward, the back
    portion of the head heavily damaged, both
    the eye closed. Eye has blackened. Injury
    in mouth also. Blood is oozing from the
    mouth also.”
  18. Now, we come to the post mortem report. Post
    mortem report has been extracted by the High Court in
    12
    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 occipital bone in two
    multiple pieces at back of head. Some
    fragments of bone had pierced into
    brain covering. There was collection of
    blood clot outside and inside
    durameter. Corresponding part of the
    brain was found softened and with
    lacerated injury. There was no
    blackening of margin of surrounding
    area or no tatooing.
    (ii) Bruise 4″ X 2″ in front of face
    involving right eye brow, right malar
    bone and bridge of nose with multiple
    fracture of right mallar bone, nosal
    bone and right maxilla.
    (iii) Bruise 2″ x 1″ left and below the
    nose with fracture of left maxilla and
    lacerated cut of cheek from inside 1″ X
    1/2″.
    (iv) Abrasion 1″ x ½” of upper lip right to
    mid-line.
    (v) Lacerated cut ½” x ½” left margin of
    tongue with blood clot in the mouth.
    (vi) Abrasion ½” x ½” at left knee.
    (vii) Abrasion 1″ x ½” at left forearm.
    Injury Nos. (i), (ii) and (iii) are
    grievous in nature caused by hard blunt
    substance, may be lathi and Lohbanda.
    Injury Nos. (iv), (v), (vi), (vii) are
    simple in nature, caused by hard blunt
    13
    substance, may be lathi and Lohbanda. Time
    elapsed since death within 12 hours.
    XXXXXXXXXXXXXXXXXX”
  19. A perusal of the injuries, which have been
    noticed in the post mortem report indicates that
    there was fracture of occipital bone in two multiple
    pieces at back of the head. Some fragments of bone
    had pierced into brain covering. Multiple fracture
    of right mallar bone, nosal bone and right maxilla
    has also been noticed. The nature of the injuries,
    which were found in the post mortem report indicates
    that on seeing the injuries, the officers recording
    the inquest report thought that since occipital bone
    in two multiple pieces at back of head have been
    fractured and some fragments of bone had pierced into
    brain covering, the bullet entered from the back side
    of the head and came out of the mouth, which is
    noticed in the inquest report and the officer writing
    the inquest report made his opinion by seeing the
    injury by bare eyes. The nature of injuries
    especially injury in the back of head led him to
    believe that bullet entered from back of the head and
    came out of the mouth. The above impression recorded
    14
    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.
  20. Learned counsel for the appellant has further
    contended that there was no motive proved. PW11 in
    his statement clearly mentioned that as his nephew
    had contested election against the accused Shio
    Shankar Dubey for the post of Mukhiya, due to which
    Shio Shankar Dubey was angry with his deceased
    brother. In paragraph No.5 of the statement,
    following has been stated:-
    “5. Accused Shiv Shankar Dubey was the
    Mukhiya of my Gram Panchayat Gotpar
    Khatadihri at the time of occurrence. My
    nephew Ram Bachan Singh had contested
    election against the accused Shio Shankar
    Dubey for the post of Mukhiya. This is why
    15
    Shio Shankar Dubey was angry with my
    deceased brother and all the accused
    jointly murdered him. Bikram Dusadh had
    been jailed three to four days earlier to
    this occurrence. He was full brother of
    the accused namely Dudnath Dusadh and
    Jamadaar Dusadh and son of the accused Ram
    Nandan Dusadh. The accused were suspicious
    of the fact that my deceased brother had
    got him jailed.”
  21. In paragraph No.58, the trial court has
    discussed about the motive and it held that motive
    for the occurrence has been proved from the oral
    evidence of PW11 and Ext. 5 and Ext.5/1.
  22. There is one more fact, which needs to be noted
    in the present case. The occurrence is of 9.00 AM on
    16.05.1980 and within half an hour of the occurrence,
    police officials from Police Station, Sasaram 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 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 on 17.05.1980. Trial court
    has noticed the entire sequence of the events and has
    16
    rightly come to the conclusion that there was no
    opportunity 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 occurrence took place at 9
    a.m. on 16-5-80. The Fardbeyan was
    recorded at 9-30 a.m. at the place of
    occurrence. The inquest report and the
    seizure list was prepared at 10 a.m. and
    10.15 a.m. respectively at the spot. The
    postmortem was done on the same day at
    12.10 p.m. These facts are proved from
    ext.6 (Fardbeyan) Ext. 7 (inquest report),
    Ext.8 (seizure list) and Ext. 4 (postmortem
    report).
  23. The F.I.R. was sent to the court on 17-
    5-80. Admittedly, it was 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 was also
    arrested and sent to custody on 17-5-80.
    This fact is proved from the order sheet of
    the lower court dated 17-5-80 which is the
    first order sheet in this case before lower
    court.
  24. From the facts mentioned in the above
    para there was no opportunity for the
    informant to implicate other leaving the
    real culprit. Sot this cannot be a case of
    false implication.”
  25. The prosecution case in the present case being
    fully proved against the accused, the eyewitness
    17
    account of PW11, who was accompanying the deceased
    has given the eyewitness account of the entire
    incident. The names of all the five accused and role
    attributed to them have been promptly recorded by the
    police officials within half an hour of the incident
    on the spot. The medical evidence corroborates the
    ocular evidence. Both the Courts below have not
    committed any error in convicting the appellants and
    sentencing them. We do not find any error in the
    judgment of courts below. There is no merit in the
    appeal. The appeal is dismissed.

………………….J.
( ASHOK BHUSHAN )
………………….J.
( K.M. JOSEPH )
New Delhi,
May 09, 2019.
18