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PETITIONER: AHMED BIN SALAM

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       13/04/1999

BENCH: M.B.Shah, G.B.Pattanaik

JUDGMENT:

PATTANAIK, J.

     The  appellant  and  two  others  were  tried  by  the Additional  Metropolitan  Sessions Judge, Hyderabad for  the offences  under Sections 307 & 302 IPC and Sections 3 and  5 of  the  Indian Explosive Substances Act.  Accused  Mohammed Sardar  died during the pendency of the trial and therefore, the  criminal  proceeding stood abated as against him.   The appellant  was convicted by the learned Sessions Judge under Section  302 IPC and was sentenced to imprisonment for  life and  also to pay a fine of Rs.5,000/- , in default to suffer R.I.   for  two  years.  He was also  sentenced  to  undergo imprisonment for a period of 10 years and also to pay a fine of  Rs.5000/-, in default to suffer R.I.  for two years  for the offence under Section 307 IPC and under Section 3 of the Explosive  Substances Act, he was sentenced to undergo  R.I. for  ten  years  and also to pay a fine  of  Rs.5,000/-,  in default  to suffer R.I.  for three years and under Section 5 of  the Explosive Substances Act, was sentenced to R.I.  for five  years  and to pay a fine of Rs.5000/-, in  default  to suffer  R.I.  for two years.  The sentences were ordered  to run  concurrently.  The other accused Mohd.  Burhanuddin was convicted  under  Section  302/34 IPC and was  sentenced  to imprisonment  for  life and to pay a fine of  Rs.1000/-,  in default  to  suffer R.I.  for one year and for  the  offence under   Section   307/34,  he   was  sentenced  to   undergo imprisonment  for  a period of five years and also to pay  a fine  of Rs.2000/-, in default to suffer R.I.  for one  year and  for  the  offence  under Section  3  of  the  Explosive Substances Act read with Section 34 IPC, he was sentenced to imprisonment for a period of 10 years and also to pay a fine of  Rs.2000/-, in default to suffer R.I.  for two years  and for  the offence under Section 5 of the Explosive Substances Act  read  with  Sec.34  IPC, he was  sentenced  to  undergo imprisonment  for  a period of five years and also to pay  a fine  of Rs.1000/-, in default to suffer R.I.  for one year. Sentences  were ordered to run concurrently.  On appeal, the High  Court  of  Andhra  Pradesh   came  to  hold  that  the prosecution  has  failed  to  establish  the  charges  under Sections  3  and  5  of the  Explosive  Substances  Act  and accordingly   set  aside  the   conviction   and   sentences thereunder,  but  affirmed the conviction of  the  appellant under  Section  302 IPC and Section 307 IPC as well  as  the sentences  passed  thereunder  and also the  conviction  and sentences  against the accused Md.Burhanuddin under  Section

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302/34  and  Section  307/34.  The appellant  preferred  the appeal  in  this  court which was registered  as  Crl.Appeal No.587/94  and the co-accused preferred the appeal which was registered  as Crl.Appeal No.  375/93.  Crl.Appeal No.375/93 stood  abated  as  the  appellant therein  died  during  the pendency  of this appeal and hence we are concerned with the present appellant alone.

     Prosecution  case  in  nutshell is that on  6.7.90  at about  10.15 AM, the three accused persons came on a scooter which  was  being  driven  by accused  Burhanuddin  and  the present  appellant hurled five bombs, causing injury to  PW1 as  well  as deceased Gopal Sharma and deceased  Kishan  Rao Kandekar  and on account of such injuries received by  them, Gopal  Sharma  died  in the hospital on 10.7.90  at  9  A.M. while  Kishan Rao Kandekar died on the same day at 6.50 A.M. in  Osmania General Hospital.  The prosecution alleged  that there  exist  civil disputes between brother of the  present appellant  and PW1 and others in respect of a land in Piagah colony  and  on  account of the said dispute one  Sabir  Bin Salam  had  been  murdered  on 2.3.90  and  the  police  had registered Crime No.  48/90 on that score against PWs 1,2, 6 and  8.   After PW 1 was released on bail in  the  aforesaid case  on 4.5.90 and was running his wine shop at  Muslimgunj Bridge  on  partnership with one Ranjit Singh and  was  also doing  real estate business at a place opposite to the  wine shop,  on  the relevant date the accused persons came  on  a scooter  and after getting down from the scooter accused No. 1  (the  present appellant) who was the pillion rider,  took out  from  a box some bombs and hurled at the office of  PW1 which  exploded and there was lot of smoke and it is in that explosion,  not  only  PW1 himself was injured but  the  two persons as already stated died and accused persons went away with  the scooter.  The two deceased persons were brought to the Osmania General Hospital in an unconscious condition and PW1  himself  was  admitted to the hospital.  The  S.I.   of Police  PW25 came to know of the incident from some passerby and  then  he  came to the hospital where  he  recorded  the statement  of PW1 Exhibit-P2.  PW 26, another  Sub-Inspector of  Police  also had received a prior intimation Exhibit  P2 and had registered the crime case and treated the same to be F.I.R.   and  took  up   investigation.   On  completion  of investigation,  the police submitted the charge-sheet and on being committed, the accused persons stood their trial.  The prosecution examined as many as 28 witnesses and exhibited a large  number  of  documents.  The defence plea was  one  of denial.   The  learned  Sessions Judge and  the  High  Court relied upon the evidence of the three eye witnesses PWs 1, 6 and  7  and  convicted  the appellant of  the  charge  under Sections  302 and 307 as already stated on the basis of  the aforesaid  evidence.  It may be noted that the appellant was not  in the picture and his name also did not find place  in the  F.I.R.   and it is only after the statement of PW6  was recorded  on  30.7.90,  the appellant was brought  into  the arena of accused persons.

     Mr.   U.R.Lalit, the learned Senior Counsel, appearing for  the appellant submitted that the prosecution version as unfolded  in the F.I.R.  was to the effect that one  Sayeed, who  was the pillion rider, got down from the scooter,  took out a bomb and threw it towards PW1and then four other bombs were  thrown  by  him.  This earliest version is  now  being changed  in  course of evidence during trial and  Sayeed  is being  replaced by appellant and it is being stated that the appellant  threw  the bomb.  According to Mr.   Lalit,  this

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story  as  unfolded through prosecution witnesses  in  court cannot  be  sustained in view of the positive  statement  of Raghunandan  PW1  that it was one Sayeed, who got down  from the  scooter, took the bomb and threw it.  According to  Mr. Lalit,  the eye witnesses admittedly being enemical  towards the accused persons, their evidence need a stricter scrutiny before  being  accepted by the court and on such a  scrutiny being  made, no court can rely upon their testimony in  view of  several  material omissions from their earliest  version recorded   under   Section   161    Cr.P.C.    and   several contradictions have brought out by way of confrontation and, therefore,  the Sessions Judge and the High Court  committed error  in  relying  upon  the   evidence  of  the  aforesaid witnesses.   It is to be noticed that though in Exhibit  P2, Raghunandan had categorically stated that Sayeed was sitting as  a pillion rider and then threw bombs but no charge-sheet was  filed against Sayeed and instead charge-sheet was filed against  the  present  appellant and two others who  in  the meantime have died.

     Learned  Counsel  appearing  for the State  of  Andhra Pradesh,  on the other hand contended that two courts having believed  the evidence of the three eye witnesses, it  would not  be  proper for this court to re-examine the  same  and, therefore   the  conviction  of   the  appellant  cannot  be interfered with.

     It is true that ordinarily this court does not examine the  evidence and re-appreciate the same when two courts  of fact  have  already  relied upon but if there  appears  some glaring  features in the evidence, which can be seen by mere perusal,  then  the court will be failing in its duty if  it does not examine the same to test their reliability on which evidence the accused persons are being convicted of a charge of  murder and sentenced to imprisonment for life.   Bearing in  mind the aforesaid principle if we examine the  evidence of  PW1,  whose statement has been recorded on the  date  of occurrence,  it  appears that it would be highly  unsafe  to rely  on his evidence.  At the outset it may be stated  that while   in  his  statement  recorded   on  6.7.90   he   had unequivocally  stated that on the scooter he could recognise Sayeed  and his two brothers and it is Sayeed who was having a  box  in his hand and after getting down from the  scooter took out a bomb and threw it and thereafter four other bombs were  thrown,  but in his evidence in court, the version  is totally  changed and he stated that only two persons were on the  scooter namely the appellant and accused No.  3 and  it was  appellant No.  1 who was the pillion rider and it is he who  brought  out a bomb from a box and threw.  When he  was confronted  with his earlier version made before the  police he  gave  the explanation that his signature was taken on  a document without the contents being known and, therefore his so-called  earlier  version  is not his statement.   In  his examination-in-chief,  while he stated that he knew both the accused persons those who were present in court but in cross examination  he stated that the accused persons were totally stranger   and,   therefore   he    participated   in    the identification   test   that  was   conducted.    When   the contradictions  made in his earlier statement to the  police were  confronted,  he  flatly  denied   to  have  made  such statement  to  the police as contained in Exhibit P2.   This being  the  evidence  of the witness in court,  we  have  no hesitation  to hold that he is thoroughly unreliable witness and,  therefore  his  testimony cannot be  utilised  by  the prosecution  for  bringing  home   the  charge  against  the

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appellant.   Coming to the next witness PW6 who is stated to be  a friend of PW1, it appears that he was examined by  the police  on 30th of July, though the occurrence is of 6th  of July,  1990.   There  is  no explanation  for  such  delayed examination  of  this witness under Section 161 Cr.P.C.   In such  delayed  examination  by the police, the  witness  had categorically  stated  that three persons were going on  the scooter,  whereas in court he stated that the appellant  and accused  No.  3 were going on the scooter.  In his statement under  Section 161 Cr.P.C.  he had stated that it is Sardar, who  got  down from the scooter and took out the  bombs  and threw it into the office of Raghunandan, whereas in court he stated  that  it is the appellant who threw the bombs  after getting  down  from the scooter.  A definite suggestion  was given that Inspector Narasing Rao introduced himself after a month of the incident to counter the earlier murder case and to  put  pressure on accused No.  1 to compromise  the  case which  of  course  the  witness denied but in  view  of  the material  contradictions  as pointed out earlier  even  with regard  to the person who threw the bomb, we do not think it safe   to  rely  on  the   evidence  of  this  witness   for establishing the charge against the appellant that it is the appellant  who  threw the bomb to the shop of PW1.  PW7,  is yet  another witness who in his evidence has stated that  he was  working in the wine shop of PW1 And when on the day  of occurrence  he heard some sound he found that one person was sitting  on  a scooter and the other person hurling 3  or  4 times  some  object  towards  office of PW1  And  those  are objects  of  explosions  and  he  pointed  out  towards  the appellant  to  be  the person who hurled the  bombs  and  he supposed  to  have identified them in a test  identification parade.   But  in  his  earliest  statement  to  the  police recorded  under  Section  161  Cr.P.C.   he  had  positively asserted  that  he knows all the brothers and if  he  really knew  all the brothers then the fact that he could not  name any  and  the so-called test identification parade is of  no consequence.   Further  in his earlier statement  which  was duly confronted to him, though he had stated that there were three  accused persons who sped away but in court he changes the  version and restricts it to accused No.  1 and  accused No.   3.  The so-called identification also is of a peculiar nature  and  the  witness in his evidence  stated  that  the police  asked him whether he could identify the persons  who were  on the scooter to which he replied in affirmative  and then  the two accused persons were shown for the purpose  of identification   and  he  identified   them.   We  fail   to understand  as  to how the so-called identification done  in the  aforesaid manner will assist the prosecution in any way and  this cannot be held to be a test identification parade. In  the  aforesaid premises, we feel it unsafe to rely  upon the  statement  of the aforesaid eye witness  PW7.   Learned Counsel  appearing for the State in course of his submission has urged that even PW3 can be held to be eye witness to the occurrence  and  it  is he who identified  the  two  accused persons  in court when he was examined on 8.4.1992.  He  did not  state in the evidence that he knew the persons and  the prosecution  had  not  taken  any steps  to  hold  the  test identification  parade  for  getting   the  accused  persons identified by this witness.  The so-called identification of the  accused  persons  by this witness after  two  years  in course   of  trial  is  of  no  consequence  and   on   such identification  it  cannot be said that the prosecution  has been  able  to  bring home the charge against  the  accused. This witness also in his 161 Statement, unequivocally stated that  the  three persons came on a scooter and one got  down

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and  took  out a box and pick up a bomb and threw it to  the office  of  the  PW1 which exploded loudly  and  it  further stated that of the three persons who ran away one among whom was Sayeed but in court gave a totally different picture and on  being confronted with his earlier version makes a  clean denial.   In  this  state   of  unsatisfactory   prosecution evidence it is difficult for us to sustain the conviction of the  appellant of a serious charge of murder and we have  no hesitation  to hold that the learned Sessions Judge as  well as  the  High Court committed serious error by relying  upon such untrustworthy witnesses.  In our considered opinion the prosecution  has  totally  failed to  establish  the  charge against  the  appellant  beyond  reasonable  doubt  and  the appellant  is entitled to be acquitted.  We accordingly, set aside  the  conviction  and   sentence  passed  against  the appellant  and  acquit him of the charges levelled  against. This  criminal  appeal  is allowed .  The bail  bonds  stand discharged.