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PETITIONER: BAITULLAN & ANR.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       17/10/1997

BENCH: M.M. PUNCHHI, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Venkataswami, J.      This appeal  is preferred under section 379 of the code of Criminal  Procedure in  connection with  a double  murder which took  place at  about 10.00  a.m.  on  26.4.79.  Seven accused, namely,  Sirajul Haq,  Abdulas, Anwar  Ali,  Zainul Abdin, Yunus,  Haroon  and  Baitullah,  were  charged  under Section 147, 148, 302 read with Section 149, I.P.C. The case of the  prosecution as  culled out from the paper book is as follows:-      On the fateful day the deceased Nabi Rasool. brother of informant in  the case  and another  deceased  Nisar  Ahmed, cousin of  the informant,  were going  from east  to west in Chhithi  village   within  Mahuli   Police  Station,  Pasti, District.   When  all  the  accused  were  concealing  their presence behind  a Masjid,  which was on the eastern side of the house  of Sirajul  Haq accused.   On  this, the deceased raised alarms  and ran  towards the  north of the Masjid, At that time PWs.2,3 and 4, who were sitting at the door of one Abdul Rashid,  ran towards them.  In the meantime, A-2 dealt a spear blow n the chest of Nizar Ahmad.  On account of that he  fell   down  in   the  field   of  Mujibullah  and  died instantaneously.   Accused 5 to 7 surrounded Nabi Rasool and caused spear  injuries to  him. Nabi  Rasool  ran  with  the injuries on  his body and fell down in the room of one Mohd. Hussain.   He was  taken later  on to  the Hospital where he died at  7.10 p.m.  on 26.4.79.  When PWs. 2 to 4 and others rushed to  save the  victim  the  accused  made  good  their escape.      After the incident, PW.2,  Informant, gave a Report and the FIR  was lodged  on the  same day  at 11.00  a.m. on the basis of  the written report given by the Informant. PW.6, a Sub-inspector, reached the place of occurrence at 11.45 a.m. and prepared  an Inquest  Report and  the dead body of Nisar Ahmad was sent to the mortuary.  Thereafter, he examined the prosecution witnesses.   On their pointing out he prepared a site plan  in respect  of the place of occurrence, recovered blood  stained   and  ordinary   earth  from  the  place  of occurrence and  a recovery  memo  was  prepared  in  respect thereof.

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    PW.1 the  Doctor who  conducted the  post-mortem of the deceased  Nizar   Ahmad,  found  the  following  ante-mortem injury:      "Punctured wound  3 cms. x 2.5 cms.      x chest  cavity deep over left side      of  chest  2  cms  medial  to  left      nipple, placed vertically, directed      oblique medially and backward.  The      margins of  wound are  quite  sharp      and gaping.  The injury is situated      by the side of sternal bone cutting      4th  and   5th  (ribs.)  cartilages      vertically and thoroughly.      Internal    examination    revealed      cutting of  4th and  5th cartilages      under the  injury.   The surface of      chest-wall was  congested under the      injury  2.5  litres  of  blood  was      found   in    the   chest   cavity.      Pericardial sec. was punctured 3 cm      x 1  cm. x  0.6  cm.  Rest  of  the      internal organs were normal.      The Doctor  was of  the opinion that the death of Nisar Ahmad was  due to shock and haemorrhage as a result of ante- mortem injury.  One Dr.Avinash Chandra examined the injuries inflicted on by Nabi Rasool and found the following injuries on the  body of  nabi Rasool  when he  was  brought  to  the Hospital:-      "(1) Punctured  wound 4  cms.  x  2      cms. x  plural  cavity  deep  right      side  front   of  chest  vertically      placed  14  cms.  away  from  right      nipple.     Bleeding  present  kept      under observation, Margins sharp.      (2) Abrasion 1 cm. x 1 cm. on right      thumb.      (3) Incised wound 1 cm. x 0.2 cm. x      muscle deep  on left  thumb,  stern      aspect.      According to the Doctor, Injury Nos.1 and 3 were caused by sharp-edged  point weapon and they were fresh at the time of examination.   After  the  death  of  Nabi  Rasool,  PW.1 conducted the  post-mortem of  deceased Nabi  Rasool and  he gave his report as follows:-      "1. Stitched  wound 4.5  cms.  long      with 4  stitches.  After removal of      stitches, the  margins  are  sharp.      The wound  is stitched  over  right      side of chest in posterior axillary      line  6.5   cms.  below   axillary.      Placed vertically Directed slightly      medially and  downwards, underneath      4th and  ribs are  cut sharply, The      death of  the  wound  extends  upto      line.      2. Stitched  wound with  one stitch      over  dorsum   of  left   thumb  in      middle,  removal  of  stitch  shows      skin deep depth.      3. Abrasion  1 cm.  x 0.5  cm. over      basef dorsum of right thumb.      4. Incised  wound 0.6 cm. x 0.2 cm.      x skin  deep over dorsum and middle      of right index finger.      Internal examination  revealed that

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    the  right   liver  and  lung  were      punctured under  Injury No.1 In the      opinion of  the Doctor,  death  was      due to  shock and  haemorrhage as a      result of ante-mortem injury No.1."      All the  accused pleaded  not guilty and claimed trial. At the  trial the prosecution examined seven witnesses.  Out of them  PWs. 2 to 4 were eye-witnesses.  On the side of the defence, two  Doctors were examined as DWs. 1 and 2 to speak out  about the injuries found on the body of accused Haroon.      PWs. 2,3 and 4 deposed stating that Adulas (A-2) gave a spear blow  to Nisar Ahmad in his chest as a result of which he fell  down and  died instantaneously.   They  also  spoke about the  role played  by accused  Haroon.   Baitullah  and Yunus stating  that they  seized Nabi  Rasool and gave spear blows to him.  In the light of the consistent evidence given by PWs.  2.3 and  4, the  learned counsel  for  the  defence appears to have accepted the fact that the two deceased were injured on  the date,  time and place and also in the manner alleged by  the prosecution.    in  fact,  the  Trial  Court observed as follows:-      "In view  of all  this evidence the      learned counsel for the defence has      also  not  seriously  disputed  the      fact that  the  two  deceased  were      injured on the date, time and place      and in  the manner  alleged by  the      prosecution."      On the  basis of  the above,  the Trial  Court gave the following finding:-      "Subject to this finding it is held      that  the   prosecution  has  fully      established that  the two  deceased      were murdered on the date, time and      place and  in the manner alleged by      the prosecution."      Nevertheless, the  Tribal Curt  acquitted all the seven accused mainly  on the  ground that the motive suggested for the occurrence  has not  been established,  that PWs. 2 to 4 cannot be  believed for  convicting  the  accused  as  their presence in  the scene  of occurrence  cannot be  implicitly believed and they are all interested witnesses.  In addition to the  above, the Trial Court also accepted the case of the defence that  they caused  the injuries  to the  deceased in exercise of their right to self defence.  The Trial Court on the issue of private defence held as follows:-      "I am,  therefore, of  the  opinion      that  accused   Haroon  and   other      persons who  caused injuries to the      deceased acted  within the ambit of      right of self-defence of person and      they are not held to have committed      any offence."      On the basis of this finding, the Trial Court acquitted all the accused.      On appeal  by the  State, the  Trial Court admitted the appeal only against three accused, namely, A-2 (Abdulas), A- 6 (Haroon) and A-7 (Baitullah).      The High  Court on  a thorough  reconsideration of  the case and  appreciating afresh  the evidence  both  oral  and documentary, differed  from the  findings given by the Trial Court.      On the  question of motive disagreeing with the learned Sessions Judge,  the High  Court found  that the  Haroon for injunction to  restrain the  accused Haroon  from proceeding

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with the  illegal  construction  on  the  land  of  Sarakat. Despite the  stay ordered by the Trial Court,  constructions were going  on and  the Police  had to  be summoned  in this connection.   Therefore, the High Court found that it cannot be said  that the  accused party had no immediate motive for commission of the offence.  In any case, the High Court also found that  when there  is a  direct evidence of eye-witness against the  accused the question of motive would plate into insignificance.      Regarding the  presence of  PWs.2 of  4 at the scene of occurrence differing  from the  Trial Court,  the High Court found that  there was  no inconsistency in the statements of witnesses in  respect of  their presence  at  the  house  of Rashid  and   after  carefully  and  closely  examining  the testimony of  the witnesses  on this  point, the  High Court found "we  feel that  the evidence of the witnesses does not suffer from  any inconsistency in respect of the place where they were sitting at the time of incident and the place from where they  saw the incident though it could not  be alleged that they  were near the spot".  On the aspect of interested witnesses, the  High Court  rightly observed that even if it is  assumed   that  the  witnesses  were  interested,  their evidence could not be discarded on that ground alone as they would be  the last  persons to  implicate the accused person falsely permitting  the real  culprits to go scot free.  The High Court  held that  the learned  Sessions Judge  was  not justified in  rejecting the evidence of eye-witnesses on the ground that  two out  of them  were inter se related and the third one was inimical to the accused.      Coming to the self-defence set up by the accused on the basis of  injuries found  on the body of the accused Haroon, the High  Court found  on an  analysis of  the evidence that nobody on  the side  of the deceased including witnesses had any weapon or lathi at the time of incident and they had not caused any  injury to  accused Haroon.   The High Court also observed  "that   none  of  those  two  accused  Haroon  and Baitullah stated  where from  they got  the spears  and used them   in self-defence.  In case they had already spears and were searching  for their  prey and they inflicted injuries, according to  the High Court, there was no reason to discard the prosecution version that the two accused, namely, Haroon and Baitullah,  were already armed with spears and they used them during  the incident.   The  High Court also found that the injury  found on  the body of Haroon as spoken to by the prosecution witnesses might have been caused while using the spars  by  the  accused  themselves  against  the  deceased. Ultimately, the High Court concluded thus:-      "We have  thoroughly  examined  the      evidence on  record and  find  that      three    eye     witnesses     have      categorically stated  that  Abdulas      inflicted spear  injuries to  Nisar      Ahmad who  died instantaneously  on      the  spot  due  to  spear  injuries      caused by  Abdulas.   So far as the      death of  Nabi Rasool is concerned,      we  have   already  observed   that      Haroon  and   Baitullah   are   the      persons responsible  for his death.      We  do   not  find   any   material      inconsistency in  the statement  of      witnesses    to    discard    their      testimony   in   respect   of   the      incident which testimony in respect      of the incident which took place in

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    broad day  light and the F.I.R. was      lodged promptly  within one hour by      the informant  and Nabi  Rasool was      examined  at   1.00  p.m.   in  the      district  hospital,  which  totally      excludes  the   embellishment   and      deliberations  in  the  prosecution      case.   In    our   opinion,    the      prosecution has successfully proved      its  case   beyond  any  reasonable      shadow of doubt.  Consequently, the      appeal       should        succeed.      Accordingly,    the    appeal    is      allowed."      It is  under these circumstances the present appeal was preferred under Section 379, Cr.P.C.      Mr. Lalit,  learned  senior  counsel,  brought  to  our notice that  pending this appeal accused No.6 (Haroon) died. Hence, the  appeal is  prosecuted only  by the remaining two accused, namely,  Abdulas and Baitullah. Mr. Lalit contended that the  motive suggested  by the  prosecution has not been established as  rightly  fond  by  the  Trial  Court.    The occurrence, admittedly, took place during broad day light at about 10.00  a.m. and  admittedly, apart  from PWs. 2 to 4 a number of  other persons  have seen  the occurrence,  but no other independent  witness came  forward  to  give  evidence supporting the  prosecution.   One of  the accused Anwar Ali (A-3) pleaded alibi and he was acquitted and, therefore, the evidence of  PWs. 2  to 4  cannot be  believed and the Trial Court rightly  discarded their  evidence, According  to  the learned counsel,  the acquittal by the Trial Court was based on a  large number  of circumstances  and the High Court was not justified  in reversing the acquittal and convicting the appellants.      Mr. Mathur,  the learned  senior counsel  appearing for the  respondent,   submitted  that   the  High   Court   had jurisdiction to reappreciate the evidence and the reasonings given by  it for  differing from  the Trial  Court are  well founded and  hey do  not call  for any  interference by this Court.      We have  considered the submissions made at the bar and have carefully  gone through the judgment of both the courts below and  also the  evidence  and  other  materials  placed before us.   We  have noticed  earlier that  the Trial Court gave a  finding to the effect that the prosecution has fully established that the two deceased were murdered on the date, time and place and in the manner alleged by the prosecution. This finding  was on  the basis  of the  stand taken  by the counsel for  the defence.   Bearing  this in mind we proceed further.   It is  an admitted fact that Abdulas (A-2) caused spear blow  in the vital part of Nisar Ahmad, which resulted in his instantaneous death.  The nature of the injury caused by the  weapon used  on the  vital part  of the  body, be it noted against  an unarmed  person negates  any just plea for right to self defence.  Here we have to point out that it is very well  established by  a catena  of cases  of this Court that when  the occurrence  was spoken  to by eye-witness and the same  was supported  by Medical  Report, it  will not be necessary to  investigate the  motive behind such commission of offence.   In  other words, where a murderous assault has been established by clear ocular evidence, motive pales into insignificance as rightly found by the High Court. We do not find any circumstance which would come to the aid of Abdulas to get out of the conviction awarded by the High Court.  The High Court  in its well reasoned and considered judgment has

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accepted the appeal only against three accused out of seven. Coming to accused No.7 (Baitullah), we find from the records that  he  has  admitted  that  he  wielded  the  spear  but, according to  him, in  self-defence.   As pointed out by the High Court,  the question  of self-defence  in this case may not arise  when the  deceased as well as PWs.2 to 4 who were near  the   scene  of   occurrence,  were  totally  unarmed. Therefore, the High Court was right in rejecting the plea of self-defence.   Hence again,  the nature of injury inflicted on deceased  Nabi Rasool,  who has  also given  a  statement while alive  which has  been referred  to by the High Court, speak against the defence taken by the accused.  As a matter of fact,  we have  seen that PW.2 has spoken in his evidence that certain witnesses cited by the prosecution could not be examined as  they were  won over  by the accused.  Moreover, there is  nothing in  the cross-examination  of PWs.2  to  4 seriously to  discard their  version about  the  occurrence. The High  Court has  rightly pointed out that merely because the witnesses are interested/related, their evidence, cannot be brushed  aside as  it is normally expected that they will not leave  out the  real culprits  and rope in the  innocent persons.      This Court in Arjun & Ors. Vs. State of Rajasthan (1994 Supp (3) SCC 189) while considering the contention about the reliability of  interested and  inimical evidence,  observed thus:-      "Learned counsel for the appellants      first contended that there was long      standing   enmity    between    the      complainant   and   some   of   the      witnesses  on   one  hand  and  the      appellants on  the other  and  some      criminal proceedings  between  them      were  going  on  when  the  alleged      incident took  place and  hence  it      was due  to this  enmity  that  the      appellants were falsely implicated.      It was  also submitted that Bahori,      PW 1  and Sat  Pal Singh,  PW 7 are      also relatives  of the deceased and      other  prosecution   witnesses  are      also    close    associates    and,      therefore, there  is possibility of      false implication of the appellants      in the crime in question.  It is an      admitted fact  that the complainant      and the appellants were on inimical      terms and some criminal proceedings      were pending  between them  even at      the time  when the  occurrence took      place.   It is  equally  true  that      Bahori. PW  1 is  be brother of the      deceased  and   informant  Sat  Pal      Singh, PW  7  is  the  son  of  the      deceased.  But we are not convinced      by  the  aforesaid  arguments  that      either on  account of  animosity or      on account of relationship they did      not   divulge    the   truth    but      fabricated a false case against the      appellants.    It  is  needless  to      emphasise that  enmity is a double-      edged  sword  which  can  cut  both      ways.   However, the  fact  remains      that   whether    the   prosecution

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    witnesses are  close  relatives  of      the deceased  victim or on inimical      terms with the deceased involved in      the crime  of murder, the witnesses      are always  interested to  see that      the real offenders of the crime are      booked and  they are  not,  in  any      case, expected  to  leave  out  the      real  culprits   and  rope  in  the      innocent persons  simply because of      the enmity.  It is, therefore, nota      safe rule to reject their testimony      merely  on   the  ground  that  the      complainant and the accused persons      were on  inimical terms.  Similarly      the evidence  could not be rejected      merely on the basis of relationship      of the  witnesss with the deceased.      In such  a situation  it only  puts      the Court  with the  solemn duty to      make a  deeper probe and scrutinise      the   evidence   with   more   than      ordinary care  which precaution has      already  been   taken  by  the  two      courts below  while  analysing  and      accepting the evidence.      After considering carefully the judgments of the courts below and  the  relevant  documents,  we  do  not  find  any infirmity in  the judgment  of  the  High  Court  warranting interference by  this Court.   Accordingly,  the  appeal  is dismissed.