Md. Aziz Ali, Md. Kutub Ali, Md. Mamud Ali and Samir Ali, fast asleep in their home in the early hours of the morning, oblivious to their imminent fate, were mercilessly murdered in a barbaric manner by the armed accused, without any instigation or provocation. The incident took place at about 6.00 a.m. on 9.11.1995. Though 26 persons were arrayed as accused in the first information, the Charge Sheet came to be filed against 15 persons; 1 accused died and 2 absconded. Trial was held against 12 accused; 8 were convicted.
Shri Raj Kishore Chaudhary contended that though there are 6 eye-witnesses to the incident in question, all these eye-witnesses are closely related to the family of the deceased. Having considered the evidence of all the eye-witnesses in detail, suffice it to say that the evidence of these eye-witnesses is consistent with the case of the prosecution with respect to all material particulars, and is credible and trustworthy. About the contention that all the eye-witnesses are close relatives of the deceased, we reject the contention.
It is by now well-settled that a ‘related’ witness cannot be said to be an ‘interested’ witness merely by being a relative of the victim. This Court has elucidated the difference between ‘interested’ and ‘related’ witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a Criminal Case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused [Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 54].
In Criminal Cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in Criminal Cases was made in Dalip Singh v. State of Punjab, 1954 SCR 145.
– Hon’ble Justice Mohan M. Shantanagoudar, Md. Rojali Ali v. The State of Assam, [Criminal Appeal No. 1839 of 2010].
Justice Mohan M. Shantanagoudar did not capture the words of Justice Vivian Bose in Dalip Singh quite well.
“This is a fallacy common to many Criminal Cases. It unfortunately persists, if not in the Judgments of the Courts, at any rate in the Arguments of Counsel. 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 a 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 generalization. There is no such general rule. Each case must be limited to and be governed by its own facts.”