http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: YUSUF & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT07/05/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N.

CITATION:  1971 AIR 1405            1971 SCR  792

ACT: Constitution  of India, Art. 136-Appreciation  of  evidence- This  Court will not re-appraise evidence except in  special circumstances-Minor  embellishments and exaggeration do  not detract from value of testimony of a witness.

HEADNOTE: Nine persons including the two appellants were tried for the murder  of Gas well as attempting to murder P.W. 9. Four  of the  nine accused were acquitted by the trial court and  the others were convicted under several provisions of the Indian Penal  Code.   In  appeal the  High  Court  disbelieved  the witnesses speaking to the attack on G and acquitted all  the appellants before it in respect of the murder of G. It  also came to the conclusion that it was not proved that there was any unlawful assembly.  Even in the matter of the attack  on P.W.  9 the High Court came to the conclusion that as  there was  no  proof  of  previous concert  on  the  part  of  the assailants  no aid could be taken from s. 34.  Therefore  it commuted  the  conviction  of appellant No.  1  for  causing injury  to  P.W.  9 from one under s. 307 read  with  s.  34 I.P.C.  to  one  under  s.  326  I.P.C.  The  conviction  of appellant No. 2 was converted from s. 307 I.P.C. read with s 311 I.P.C. to one under s. 324 I.P.C. Against this  decision the  present  appeal  was brought  by  special  leave.   The question for consideration was whether the conviction of the appellant on the sole testimony of P.W. 9 was  justifiedfled when even the two witnesses who tried to corroborate P.W.  9 were disbelieved by the High Court. HELD:(i)  This Court ordinarily does  not  reappreciate the  evidence  unless it is satisfied that  exceptional  and special circumstances exist for doing so.  The Court must be satisfied that as a result of serious misappreciation of the evidence  by the trial court and the High Court  substantial and  grave  injustice  has been done.   Even  it  the  final hearing  only those points can be urged which are fit to  be urged  at the preliminary stage when the leave to appeal  is asked for. [794F-H] Hem Raj v. State of Ajmer, [1964] S.C.R. 1133, relied on. (ii)It  was  fully established that P.W. 9 was  injured  at about  the time and the place mentioned in the charge.   The incident  had  taken place when there was still  day  light. The appellants were well known to the injured so that  there

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

could be no difficulty in identifying them.  P.W. 9 was  not shown  to  have  had any motive  to  falsely  implicate  the appellants.   He had mentioned the names of the  appellants- as the assailants at the earliest opportunity.  His  version was corroborated by medical evidence and was a probable one. The  fact that the High Court had disbelieved the  two  wit- nesses  who sought to corroborate P.W. 9 or that there  were certain  minor  contradictions  and  embellishments  in  his statement could not detract from the value of his testimony. Both  the  trial court and the High Court had  accepted  his testimony.   There  was no reason for this Court  to  differ from them.  The appeal must accordingly fail. [795A-B] 793

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 265 of 1968. Appeal  by special leave from the judgment and  order  dated July 19, 1968 of the Patna High Court in Criminal Appeal No. 72 ,of 1966. Nur-ud-din Ahmed and B. P. Singh, for the appellants. U. P. Singh, for the respondent. The Judgment of the Court was delivered by Hegde, Nine persons including the two appellants were  tried for  the murder of Ghulam Rasool as well as  for  attempting to  m urder  P.W. 9, Mohd.  Islam.  Four out of  those  nine accused  were acquitted by the trial court.   The  remaining accused  were  convicted  under several  provisions  of  the Indian Penal Code.  But in appeal, the High Court  acquitted all  the  appellants before it in respect  of  the  incident relating  to  the  murder  of  Ghulam  Rasool.   Further  it converted  the  conviction of appellant No.  1  for  causing injuries  to P.W. 9 from one under s. 307 read with  s.  34, I.P.C. to one under s. 326, I.P.C. and for that offence sen- tenced him to suffer rigorous imprisonment for seven  years. The  conviction  of appellant No. 2 Bano alias  Ibrahim  was converted from s. 307 I.P.C. read with s. 34, I.P.C. to  one under  s. 324, I.P.C. and for that offence he was  sentenced to suffer rigorous imprisonment for three years.  As against that decision this appeal has been brought by special leave. The  prosecution  case in brief is that there was  a  Qawali competition about a month prior to- the occurrence.  P.W.  4 Imteyaz  was one of the competitors.  In order to show  that his  performance was excellent accused Nizam made a show  of making  a present of Rs. 3 to him on that occasion.  But  on the very next day, he demanded back that amount.  After some persuasion  Imteyaz returned Rs. 2 but he failed  to  return the balance of Rs. 1. This led to a friction between Imteyaz and his friends on one side and Nizam and his friends on the other.   On  December 3, 1964, some of the  accused  persons including the appellants started a quarrel with Imteyaz  and P.W.  5  Babu  Qasab in connection with the  return  of  the aforementioned  Rs. 1. Because of the intervention  of  P.W. 13,  nothing serious happened on that day.  But it  is  said that  on the next evening at about 7 P.M. when .W.  5,  Babu Oasab  and  P.W.  6  Shamsuddin  came  near  the  scene   of occurrence,  the accused persons stopped them and  assaulted them.   Coming to know of that incident from P.W.  1,  Naso, his  father Ghulam Rasool went to the scene.  There  he  was severely attacked as a result of which he died.   Thereafter P.W. 9 ,came to know that there was a marpit going on at the scene and 794

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

therefore he went to that place to see what the matter  was. As  soon  as  he  went  there,  he  was  attacked  by  Chamo (appellant No. 1) with an instrument like Bhalla and by Bano with  a  Gandasa as a result of which he  sustained  serious injuries.   Immediately P.W. 9 was shifted to  the  hospital where  his  dying declaration was recorded  on  December  5, 1964. The High Court has disbelieved the witnesses speaking to the attack on Ghulam Rasool.  As mentioned earlier all the accu- sed were acquitted of the charges relating to that incident. The  High Court has also come to the conclusion that  it  is not  proved that there was any unlawful assembly.   Even  in the  matter of attack on P.W. 9, the High Court has come  to the conclusion that as there is no proof of previous concert on  the part of the assailants, no aid can be taken from  s. 34, I.P.C. Consequently it convicted the assailants of  P.W. 9 only for the injuries caused by them. Both the trial court as well as the High Court have  concur- rently  believed the testimony of P.W. 9. His  testimony  is fully  corroborated by the medical evidence adduced  in  the case’  He  had  sustained two serious injuries  one  on  the stomach and the other on the shoulder blade.  As a result of the  stomach  injury  his  intestines  had  come  out.   The evidence of P.W. 10, Dr. Ambika Prasad who examined P.W.  9, corroborates  his testimony.  Further corroboration for  the testimony of P.W. 9 is available from the dying  declaration given by him in the hospital on the, 5th of December, 1964. This Court ordinarily does not reappreciate the evidence un- less   it   is  satisfied  that  exceptional   and   special circumstances  exist  for  doing  so.   The  court  must  be satisfied that as a result of serious misappreciation of the evidence  by the trial court and the High Court  substantial and  grave  injustice has been done.  It was  held  by  this Court in Hem Rai v. The State of Ajmer (1) that unless it is shown that exceptional and special circumstances exist, that substantial  and grave injustice has been done and the  case in  question  presents  features of  sufficient  gravity  to warrant  a  review of the decision  appealed  against,  this Court  does not exercise its over-riding powers  under  Art. 136(1) of the Constitution.  It is further held therein that the  circumstance  that  the appeal’ has  been  admitted  by special leave does not entitle the appellant to open out the whole  case and contest all the findings of fact and’  raise every  point which could be raised in the High Court.   Even at  the final hearing only those points can be  urged  which are fit to be urged at the preliminary stage when the  leave to appeal is: asked for. (1)  [1954] S.C. R. 1133. 795 It is fully established that P.W, 9 was injured at about the time  and the place mentioned in the-charge.   The  incident had  taken  place  when  there was  still  day  light.   The appellants were well known to the injured.  Hence he had  no difficulty in identifying them.  It is not shown that P.W. 9 had any motive to falsely implicate the appellants.  He  bad mentioned  the names of the appellants as his assailants  at the earliest possible opportunity.  The version given by him as  regards the manner of attack on him is  corroborated  by medical  evidence.  It is true that the High Court  has  not accepted  the  evidence  of  P.Ws. 1 and  2  who  sought  to corroborate  the testimony of P.W. 9. That cannot throw  any doubt  on the testimony of P.W. 9. The probabilities of  the case are in favour of the version given by P.W. 9. The only thing urged against the evidence of P.W. 9 is  that in  his dying declaration he had said that A-1 had  attacked

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

him  with  a  Bhalla, but during his evidence  in  court  he stated  that  he was attacked by  an  instrument  resembling Bhalla.   Later  on it was proved through him  that  he  was attacked by the instrument Exh.  1 which is a KAFGIR.   This contradiction  is  of  very  minor  significance. Another contradiction  brought  out  at  the  time  of  his   cross- examination  was  that  during his evidence  he  had  merely spoken  to the attack on him by the appellants, but  in  his dying   declaration  in  addition  to  saying   that   these appellants  had attacked him, he had also stated that  after he fell down some of the other accused had attacked him with sticks.  This statement appears to be an exaggeration.   But under  the circumstances of the case that  embellishment  is not  sufficient to detract from the value to be attached  to his testimony.  As mentioned earlier both the trial court as well as the High Court have accepted his testimony as  being substantially  true.  We see no reason to differ  from  that conclusion. In the result this appeal fails and the same is dismissed. The appellants are on bail.  They shall now surrender to the authorities  and  undergo  the  remaining  portion  of   the sentence imposed on them. G. C.                            Appeal dismissed. 796