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CASE NO.: Appeal (crl.)  827 of 1997

PETITIONER: Shamsuddin & Ors.                                                

RESPONDENT: State of M.P.                                            

DATE OF JUDGMENT: 18/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Communal disturbances have taken toll of many lives at different  times.  This is a sad reflection on our society, though the Constitution  of India, 1950 (in short ’the Constitution’) underlines in no uncertain  terms that ours is a secular country, where caste, creed and religion  cannot and do not have any differentiating base. One Rajunath  (hereinafter referred to as ’the deceased’) lost his life on account of  communal disharmony and another Narish Chandra (PW-1) was seriously  injured.  Accused persons were stated to be the authors of the crime,  who committed offences punishable under Section 302 and 307 read with  Section 34 of the Indian Penal Code, 1860 (for short ’the IPC’).   

       Prosecution version as unfolded during trial is as follows:

       On 21.10.90 at about 2.30 p.m. there was rising of tension on  account of communal feelings in Sandhwa which is a highly sensitive  town.  Around mid-day, some dispute arose between two communities and in  that dispute one person belonging to a particularly community was  murdered and this news spread far and wide. Several incidents followed  in quick succession. Some parts of the market were closed, some were in  the process of being close down when police force started taking action.   PW-1 runs a barber shop.  He was to leave for Shastri colony which was  situated at a short distance from his shop. The deceased also lived in  the same locality. At about 2.30 p.m. the deceased and PW-1 were  returning home after closing their shops.  When they were near the Dak  Bungalow, the accused persons surrounded them and started inflicting  injuries indiscriminately. The injured and the deceased tried to save  their lives and started running away. The occurrence was witnessed by  Mitthu Sharma (PW-2) and Premchand (PW-8). One Satyanarayan also  witnessed the occurrence. PW-8 informed PW-1’s brother Santosh (PW-4),  who went to the police station and his statement was recorded at about  2.45 p.m. At about 2.00 p.m., Section 144 of the Criminal Procedure  Code, 1973 (for short ’the Cr.P.C.’) was promulgated and after short  time curfew was also imposed by the administration to bring the tense  situation under control. The investigating officer PW-18 reached the  spot of occurrence and sent the deceased and the accused to the  hospital.  On the basis of information lodged investigation was  undertaken and charge sheet was filed.  Accused persons pleaded  innocence.  It is to be noted that post-mortem was conducted by PW-15 on  the deceased and PW-16 examined injured PW-1.  The trial Court found  that the prosecution version was not supported by cogent evidence and  accordingly directed acquittal.

       The State of Madhya Pradesh preferred appeal before the High Court

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which by the impugned judgment set aside the acquittal; but held that  the case is not covered by Section 302 IPC but is covered by Section 324  and sentenced the accused to undergo RI for 2 years and to pay a fine of  Rs.2,000/-. It was further directed that in case of recovery of the  amount the same was to be paid to the widow of the deceased if he  happened to be married, and if not, to be paid to his parents or any one  of them who happened to be alive. Out of the fine recovered a sum of  Rs.2,000/- was also directed to be given to PW-1.  It is noted that the  High Court held that the accused persons were guilty of offence  punishable under Section 324 IPC as aforesaid for causing injuries to  the deceased as well as PW-1.   

       Learned counsel for the appellant submitted that the trial Court  had analysed the evidence in great detail and found infirmities which  the High Court failed to notice and on surmises held the accused persons  guilty.

       It was further submitted that the evidence of PW-1 does not  inspire confidence. He does not speak about presence of PW-8 and his  name was not also mentioned in the first information report. It has been  clearly established that the first information report was ante-timed and  was fabricated. There is also no evidence to show that the same was sent  to the Court.  

       In response, learned counsel for the State submitted that the  first information report was not lodged by a person who was an  eyewitness. Though PW-1 was extensively questioned so far as assault on  him was concerned, there was not even any suggestion regarding the  assaults on the deceased.  The High Court has analysed as to how the  pleas that the first information report was not lodged at the time  claimed or it was fabricated is not established by evidence on record.  If the evidence of a single person who is claimed to have been injured  is credible and trustworthy there is no requirement in law to insist on  plurality of witnesses. In case at hand the evidence of PW-1 has been  carefully analysed by the High Court and has been found to be credible.   

       It could not be pointed out to us as to how the evidence of PW-1  suffers from any infirmity.  The core of the evidence has to be seen and  not any borderline’s aspect.  Minor variations which do not have any  effect on the credibility of the evidence cannot be the basis to discard  intrinsic value of the evidence. Absence of PW-8’s name in the first  information report is really of no consequence as, the first information  report was lodged by PW-4 who was not an eyewitness. The High Court’s  finding that the first information report was not fabricated does not  suffer from any infirmity to take any contrary view.  It is to be noted  that there was practically no cross-examination of PW-1 so far as the  assaults on the deceased are concerned.  The High Court seems to have  proceeded on the premises that because injury no.6 which was stated to  be fatal injury was not clearly established, to have been inflicted by  any particular accused, the case is not covered under Section 302 IPC  with application of Section 34.  This in our opinion does not appear to  be a correct or rational and reasonable approach.  In any event, the  State has not preferred any appeal and, therefore, we do not think it  necessary to express any view on that issue.  However, there is no  infirmity in the judgment of the High Court which warrants any  interference. The appeal is dismissed. The accused persons shall  surrender to custody to serve the remainder of their sentence, if any.