2009 Supreme(SC) 1744

2009(7) Supreme 404
SUPREME COURT OF INDIA
B. Sudershan Reddy and J.M. Panchal, JJ.
Ram Bharosey — Appellants
versus
State of U.P. — Respondents
Criminal Appeal No. 1059 of 2005
Decided on : 17-11-2009

IMPORTANT POINT
It is well settled that no direct evidence of knowledge on the part of an accused that he knew that deceased was to come at a particular place can be led in a criminal trial- It is only from the proved circumstances of a particular case that the Court would attribute such a knowledge to an accused
2. Merely because a witness is close relative of the deceased he does not become an interested witness.Interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes relating to properties.

Headnote:Indian Penal Code,1860 – Section 302 – Prosecution of appellant along with three other accused persons for causing death of deceased by firing shot at him from a Tamancha – Conviction by Trial Court – Appeal – High Court while upholding conviction of appellant set aside conviction of other accused persons – Appeal – The plea that prosecution having failed to adduce evidence to establish that the accused had knowledge that deceased was to come to the petrol pump at the appointed time and therefore the conviction of the appellant should be set aside, held unsustainable – The prosecution in this case never approached Court with a case that the accused had pre-meditated the murder of deceased after hatching a conspiracy – It is well settled that no direct evidence of knowledge on the part of an accused that he knew that deceased was to come at a particular place can be led in a criminal trial – It is only from the proved circumstances of a particular case that the Court would attribute such a knowledge to an accused-It may be that the accused persons had come to Shamsabad in connection with their work and when they saw their target, they decided to do away with him – In this case the case of prosecution was that out of the four, two accused had fired arms and had used the same to murder the deceased – To prove this case, direct evidence had been tendered by the prosecution – Hence , so called failure of prosecution to adduce evidence to establish that accused had knowledge that the deceased was to come to the petrol pump at the specified time, was of no consequence – Prosecution case that appellant fired a shot from tamancha at the deceased which caused his death was satisfactorily established-Hence, conviction of appellant under Section 302 could not be regarded as erroneous or illegal so as to warrant interference by this Court in the instant appeal – Appeal having no merit dismissed (Paras 8, 11)

        Criminal Trial – Evidence of close relative of deceased – Admissibility of – Merely because a witness is close relative of the deceased he does not become an interested witness – Interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes relating to properties – The facts of the case did not show that the first informant who was father of deceased had any dispute with any of the accused including appellant – His simple case was that H who was father of accused J and M was murdered for which his deceased son was prosecuted but acquitted and therefore in order to take revenge, the deceased was done to death – This fact would not show in any manner that first informant was interested in securing conviction of the appellant and therefore he had wrongly deposed on oath before the Court that his son died due to the shot fired by appellant – Even if it was assumed for the sake of argument that the witness examined in this case were close relatives of deceased and, therefore, should be regarded as interested witnesses, the law relating to appreciation of evidence of an interested witness is well settled, according to which the version of an interested witness cannot be thrown over board but has to be scrutinized carefully and critically before accepting the same – Trial Court and High Court had subjected the evidence of first informant who is father of deceased and P.W.4.to careful scrutiny before accepting the same – Hence , on the facts and in the circumstances of the case held that neither the Trial Court nor the High Court committed error in placing reliance on testimony of first informant who was father of deceased and P.W.4 (Para 9)

        Test Identification Parade – Contention that accused in the instant case were not known to the witnesses examined in the case and in the absence of holding of Test Identification Parade benefit of doubt should be given to the appellant as his identification as one of the accused was not established by prosecution satisfactorily, was merely stated to be rejected-As far as the appellant was concerned, he was named by the first informant in the FIR itself-The first informant knew very well that his son was prosecuted for the murder of father of accused J and M- During cross-examination, it was never suggested to the first informant that the appellant or for that purpose any of the accused was not known to him-The evidence of the first informant made it clear beyond pale of doubt that he was knowing the appellant and three other accused prior to the occurrence in question and named the appellant and another in the FIR whereas description of two other accused was given in the FIR.- The evidence of Investigating Officer indicated that after reading FIR he did not feel that either witness was not knowing the accused persons by their faces and names and, therefore, it was necessary to hold test identification parade- Further, it could not be satisfactorily established by the defence that the appellant or any of the accused had demanded holding of identification parade and that the said prayer was either rejected by the Investigating Officer or Magistrate- On the facts of the case, held that identity of the appellant was not in dispute at all and he was not entitled to any benefit on the ground that he was not identified by the witnesses (Para 10)

       Facts of the Case :

        Appellant along with three others was prosecuted herein in the instant case for causing death of deceased by firing shot at him from a Tamancha. Trial Court convicted accused persons for said offence .On Appeal,High Court while upholding conviction of appellant set aside conviction of other accused persons.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        The plea that prosecution having failed to adduce evidence to establish that the accused had knowledge that deceased was to come to the petrol pump at the appointed time and therefore the conviction of the appellant should be set aside, was held unsustainable. The prosecution in this case never approached Court with a case that the accused had pre-meditated the murder of deceased after hatching a conspiracy. It is well settled that no direct evidence of knowledge on the part of an accused that he knew that deceased was to come at a particular place can be led in a criminal trial. It is only from the proved circumstances of a particular case that the Court would attribute such a knowledge to an accused. It may be that the accused persons had come to Shamsabad in connection with their work and when they saw their target, they decided to do away with him. In this case the case of prosecution was that out of the four, two accused had fired arms and had used the same to murder the deceased. To prove this case, direct evidence had been tendered by the prosecution- Hence , so called failure of prosecution to adduce evidence to establish that accused had knowledge that the deceased was to come to the petrol pump at the specified time, was of no consequence. Prosecution case that appellant fired a shot from tamancha at the deceased which caused his death was satisfactorily established. Hence, conviction of appellant under Section 302 could not be regarded as erroneous or illegal so as to warrant interference by this Court in the instant appeal. Appeal having no merit was dismissed.