http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: AHMED BIN SALAM

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       13/04/1999

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

JUDGMENT:

Judgment

Pattanaik.J.

       The appellant and  two  others  were  tried  by  the Additional  Metropolitan  Sessions  Judge, Hyderabad for the offences under Sec.  307 & 302 IPC and Sections 3 & 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 Sec.  307 IPC and under Sec.    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 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 two years.  The sentences were ordered to run concurrently.  The other accused Mohd.    Burhanuddin was  convicted  under  Section  302/34  IPC and 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 A.P. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

Section 302/34  and Section 307/34.  The appellant preferred the appeal in  this  court  which  was  registered  as  Crl. Appeal No.    587/34 and the co-accused preferred the appeal which was registered as Crl.Appeal  No.375.93.    Crl.Appeal No.375/93  stood  dated 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.    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 & 8.    After PW1 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 & 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 FIR  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 FIR 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 PW1 and 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  story  as  unfolded through  prosecution  witnesses in court cannot be sustained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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.  PC  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  bbe  noticed  that through  in Exhibit P2, Raghunandan had categorically stated that Sayeed was siting 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 evience 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  a  murder  and  sentenced  to imprisonment for life. Bearing in mind the aforesaid principle if  we  examine  the evidence  of  PW1,  shoes 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 appellant.   Coming to the next witness PW6 who is stated to be a friend of PW1, it appears that he was examined  by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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  Nursing  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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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.