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CASE NO.: Appeal (crl.)  197 of 198  

PETITIONER: HAJI KHAN

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 23/11/2005

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: JUDGEMENT

P.P.NAOLEKAR, J.

       The accused appellant along with two other persons  namely, Sahdulli Khan and Mehtab Khan were tried for  committing an offence under Section 302,307/34 IPC and  under Section 27 of the Arms Act.  The learned Sessions  Judge acquitted all the accused persons.  The State  preferred two appeals challenging the order of acquittal of  the appellant and the other being acquittal of two other  persons.  The High Court refused leave in appeals  preferred by the State against the two other persons and  accordingly the appeals were dismissed. Against the  order of acquittal passed in favour of the appellant in two  appeals,  leave was granted and the High Court set aside  the order of the Sessions Judge, acquitting the accused- appellant and convicted the appellant under Section 302  IPC and sentenced him to undergo life imprisonment.  He  was further held guilty of the charge under Section 307/34  IPC and sentenced to undergo five years rigorous  imprisonment and guilty of the charge under Section 27 of  the Arms Act and sentenced to undergo one year rigorous  imprisonment.  All the sentences were  to run  concurrently. Aggrieved by the order of conviction the  present appeal is filed.  The prosecution case in short as per the FIR lodged  at the Police Station Kotwali, Mathura on 22.2.1978 by  PW-1Satya Prakash is that his father living in Pirpanchi  Gali, Mathura had litigation with one Kedar, son of  Ayodhya Prakash, resident of Mathura.   On 22-2-1978 at  about 6.30 P.M.  a call  was given at the door of Ranchor  Lal, father of the complainant, to come and receive a  telegram.   Ranchor Lal came out to the main door ,  received the telegram and started reading it.  Satya  Prakash followed him and was standing behind him.  The  complainant saw that some one fired two shots on his  father Ranchor Lal and the shots hit Ranchor Lal  PW-15  on his chest and elbow, whereafter he fell down.  Shiv  Kumar PW-2, the other brother of the complainant ran  after the miscreants raising hue and cry, who were four in  number in the street.  One Ramesh (deceased), son of   Keshav also ran after the miscreants and was able to  catch hold of one of them.  The miscreant in his attempt  to flee fired on Ramesh which hit Ramesh on the  abdomen.  After the fire was shot the miscreant was  overpowered in Holiwali Gali, near Chhota Bazar,  Mathura by the complainant and other namely, Halla,

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Banwari Lal,Dauji and few others. The other three  companions of the miscreant were successful in escaping  from the spot but various witnesses, in the streetlight   managed to see their faces.  The apprehended miscreant  had a country made pistol in his hand and upon  questioning, gave out his name as Haji Khan (appellant  herein). The FIR was prepared by Satya Prakash PW-1 in  his own hand and was sent to the police station.  His  brother Shiv Kumar, PW-2 and witnesses Dauji  and  Banwari Lal PW-3, caught the appellant on the spot and a  country made pistol was recovered from him. It is also  mentioned in the FIR that injured Ramesh had been sent  to the hospital and Satya Prakash the complainant was  also in the process of taking his father to the hospital. On  his way to the Agra Hospital, Ramesh succumbed to his  injuries and died.                 The defence version appears to be that they  have been falsely roped in the case due to some wrong  assumptions.  According to the appellant-Haji Khan, he  was serving in the Indian Army at the relevant time and  that he had gone to Chhota Bazar, Mathura. There was   electricity failure in the market and suddenly some  commotion took place, people started running helter- skelter.  In the confused melee, some one hit him on the  head and he fell down in the market.  He was then taken  to the house where he was mercilessly beaten, upon  gaining consciousness he found himself in the hospital  and only then he came to know that he was under arrest.   He alleged false implication.  In support of the defence of  the appellant, four witnesses were examined.  Relevant  for the purposes of the appellant’s case are DW-3, Vinod  Kumar Bisht, Asstt. Supervisor in the Hydel Sub-station,  Mathura, to prove that there was electricity failure in the  evening of 22.2.78 in Chhota Bazar area of Mathura and  its adjacent streets; DW-4 Virendra Singh, Arms and  Ammunition Expert of Indian Army to contradict the  version and the facts proved by the Ballistic Expert  (Budhal Rai) examined by the prosecution.                 The learned Sessions Judge acquitted the  appellant as the court did not place reliance on the  statement of PW-1 Satya Prakash and PW-2 Shiv Kumar,  PW-4 Bhanwari Lal, eye witnesses examined by the  prosecution of the incidence concerning the deceased,  Ramesh and attack on  PW-15 Ranchor Lal.  The court  did not rely on these witnesses as they were not found to  be trustworthy.  The Sessions Court disbelieved the  statement of PW-1 mainly on the ground that it looks  unnatural that he would scribe the FIR in his own hand  inside his house when his injured father remained lying at  the door during that period and that  he did not take  immediate steps to provide to him medical aid.  Further  that when 32-40 persons had assembled at the house of  PW-1, he could not name even 2-4 persons.  The  Sessions Court further held that while chasing the four  assailants, only one was apprehended but none tried to  go after the remaining assailants and, further how is it that  his clothes were not found smeared with blood when his  father PW-15 Ranchor Lal was hit on the right side of the  chest and right elbow region causing bleeding injuries. PW-2 Shiv Kumar was disbelieved  because he was  unable to see the person who handed over the telegram  to his father but was able to see the other four persons,  who came to the house and were at a distance of about  15 paces.   The four miscreants who fired at PW-15 were  facing north-west whereas PW-2 was coming from west

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having his face towards east.  PW-3 was disbelieved as  he could not give the direction of the shop at which he  was standing at the time of the incidence.  He could not  tell from where the deceased Ramesh entered and  chased the miscreants.   The court in its finding has also  stated that it could not understand as to how an attempt  was not made to get the miscreant free at the time of his  capture despite the fact that the other two accused out of  the  three who made the escape, were the real brothers of  the miscreant and were fully armed at that time.  It is also  surprising that the persons responsible for  hatching  conspiracy of firing were not proceeded against inspite of  the fact that the evidence was collected against them.   The prosecution version was  disbelieved by the Court as  it found that PW-1 and his family members were not   strangers to the crime.  PW-3 is the chance witness and  has close association with PW-1.  From the place where  PW-2 was standing, it would not have been possible for  him to see the miscreants.  The prosecution has not  examined independent witnesses when their presence is  admitted and examination of the interested witness does  not inspire confidence.                 In the appeal, the High Court has re- appreciated the evidence as according to the High Court  the prosecution has proved that the FIR was lodged by  PW-1 without any delay and thus there was not much  time and opportunity available to the complainant to  consult others and to cook-up a tailored case.  In the  absence of  adequate evidence regarding the enmity of  the complainant with one Kedar Nath, who was alleged to  be behind the incident and who was instrumental and  conspirator to the crime, the conspiracy does not play a  significant part to prove the involvement of the appellant  in the commission of crime. The Sessions Court had not  scrutinized the ocular testimony of PW-15 who was  attacked by the assailants and whose presence at the   initial stage of the crime is undoubtedly proved.  The  Sessions Judge has ignored the statement of PW-15 who  is an injured witness which is supported by prompt FIR  and medical evidence.  The Sessions Judge has  committed a gross illegality in not analyzing the version of  PW-15 in a fair manner and ignored its legal value.  On  appreciation of the evidence of PW-1 the court found that  his presence at the spot could not be doubted rather his  presence is very much undisputed and proved by his  statement and the evidence of the other witnesses  as  well by his conduct.  The Sessions Judge has  unnecessarily created a doubt in the version of PW-1 and  PW-2 on the basis of the fact that they had left their  injured father and started chasing the culprits, which  according to the High Court is the most natural conduct  when there are other persons to look after the injured  father.  The High Court was also of the view that the  statement of PW-1 could not have been disbelieved  simply because he could not name the persons gathered  at the time of the shooting incident on his father at his  residence.  The High Court further found that the  statement of PW-3 should not have been rejected outright  although he was  not wholly a true witness, at least the   truthful portion of his evidence should have been  accepted after due care and caution.  The High Court  discarded the evidence of DW-4, Jitendra Singh, the  witness examined as an expert on the ground that it was  not scientific.  The High Court was of the view that his  evidence is not reliable to discard the testimony of PW-21

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Budhal Rai, an expert witness examined by the  prosecution to prove the factum of usage of the country  made pistol.  On appreciation of the material placed on  record by the prosecution, the High Court was of the view  that the Sessions Court has committed an error in  appreciating the evidence, particularly the statement of  the eye witnesses in proper perspective and required  interference.                 In this appeal the learned senior counsel for  the appellant has addressed us on three broad issues.  (i)   whether the High Court, while passing an order of  conviction by reversing the judgment of the sessions  judge erred in re-apprising the evidence and not giving  enough weightage to the conclusion reached upon by the  sessions judge;  (ii)  whether the High Court has erred in  convicting the appellant even though prosecution was  unable to establish any motive and further more the  conspiracy theory as put forward by the prosecution when  it was rejected by the sessions court as well as by the  High Court;  (iii) whether the High Court has committed a  gross injustice by over looking the evidence of Mahesh  Singh Yadav DW-5 and statement of the appellant  pertaining to the purpose of his visit to Mathura and  he  being falsely implicated simply because he happened to  be at the place of incidence.                   On the first question, the submission of the  learned senior counsel is based on the principles  enunciated by this Court, in cases where two views are  possible, the High Court should not interfere because it  feels that sitting at the  sessions court it would have  preferred conviction.  The High Court should consider  every reason given by the sessions court in favour of  acquittal and then dislodge them.  We are in complete  agreement with the principles laid down by this Court in  number of decisions but at the same time we may  mention that they do not take away the powers and  jurisdiction of the appellate court to re-apprise the  evidence in cases where it feels that the sessions court  has committed an error in its approach,  application of law  and also appreciation of evidence on record or when the  court has misread or not read the evidence placed  before  it.  It cannot be said that the appellate court does not have  the power to reverse the order of the sessions court when  it feels and finds that there is a direct evidence to prove to  the contrary on record, otherwise it would defeat the  entire purpose and the intent of providing appeal against  the judgment of the sessions judge.                   In the present case, what we find is that the  High Court has reached a different conclusion on  appreciation of the statement of the eye witnesses.  The  High Court has appreciated the statement of the victim  PW-15 which the sessions court failed to do.  The High  Court has placed reliance on the fact of immediate  lodging of FIR and the confirmation of the story narrated  therein by ocular statement of the witnesses examined by  the prosecution.  The High Court has  rightly taken a  different view on the statement of PW-1 which has been  ignored by the trial court on the basis of the insignificant  aspects namely that he could not name the persons  among the crowd that had gathered outside his house. Or  that how is it that his clothes were not blood stained while  he was standing behind his father and tried to help his  father.  We have also considered the statement of PW-15  on whom the first attack was made and from where the  accused started running away and was chased by PW-1,

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along with the deceased Ramesh who was shot when he  was able to catch hold of accused appellant.  We feel that   the testimony of PW-15 cannot be discarded as he is the  victim and also there is no denying of the fact that he was  shot at.  It would be incorrect to say that the person who  was shot at from a near distance would not be in a  position to look at the face of the assailants in the  availability of sufficient light.  There does not appear to be  any motive or reason for PW-15 to falsely implicate the  appellant in such a serious crime.  The statement of PW-1  could not have been discarded whose presence in the  whole of the incident is natural as the incident  commenced at his house and culminated in a nearby  place when he along with other persons including the  deceased Ramesh, chased the miscreants and  apprehended the accused-appellant with a gun in his  hand.  It could not be ignored that there was sufficient  time and opportunity for him to see that it was the  appellant who was involved in commission of the crime.   The sessions court’s approach in appreciating the  evidence of PW-1 was, in our view, rightly discarded by  the High Court.  We do not see any merit in the argument  of the appellant that he has been falsely implicated, as he  was caught near the place of incident, along with a  country made pistol.  The fact that PW-1 could not  remember the faces of persons among the people who  had gathered outside his house at the time of incident,  would not make the testimony unreliable.  One has to look  at the situation in which crime was committed and also  the mental condition of the witness who is the son of the  injured person who had witnessed the heinous crime.  In  the heat of the moment  it is quite natural that his  attention would be more towards the assailants and his  injured father and also to catch hold of the assailants who  were running away from the spot rather than to find out  who were the persons present at the spot and in that  course if he could not remember the faces of the persons  present, it cannot be a ground for discarding his  statement whose presence at the spot was most natural.   The approach of the sessions court could not be  appreciated in discarding his statement on the ground  that his clothes were not found with blood stains.  The  evidence on record shows that he had simply helped his  father after he received the injuries and thereafter he  immediately left the spot and particularly so when there  is  nothing on record to disbelieve the statement of Ranchor  Lal.  We also do not see any reason to disbelieve the   version  of PW-2 whose presence at the spot cannot be  denied.  His testimony does not suffer from any material  incongruity or falsehood as has been noted by the High  Court. PW-3 deposed  that after hearing the sound of two  gun fires he saw four persons with tamancha  running  towards the bazaar and he followed them.  Sons of  Ranchor Lal, PW-1 and PW-2 were also chasing them.   Ramesh apprehended one of the four badmash and that  badmash turned and fired shot on Ramesh which hit him  in the stomach and he fell down but they all apprehended  the badmash who fired gun shot.  His statement was  discarded by the sessions court as he failed to point out  the direction towards which the assailants were running  and the direction of the shop at which he was standing at  the time of incidence.  The High Court has  agreed that he  is not a wholly truthful witness but so far as his statement  of identifying the assailant is concerned, it does inspire  confidence The High Court’s  acceptance of  part of the

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evidence and discarding the unreliable part is in  accordance with law and is in tune of  the established  practice followed by the courts while appreciating the  evidence of the witnesses.  The sessions court has  committed an error in discarding his evidence wholly.   The statement of PW-3 is a corroborative piece of  evidence corroborating the statement of witnesses PW-1  and PW-2.  The High Court has rightly found that the  statement of Dr. Goyal who was the first in point of time to  examine Ramesh, the deceased, is reliable  regarding the  nature of injuries and supported  by the statement of  ballistic expert (PW-21) that a gun was used in the  incidence .                 From the evidence on record the sessions  court and the High court has rightly held that the  prosecution has failed to establish the conspiracy theory,   and that  the motive to commit the crime has not  been  proved, but does this mean that the High Court could not  have convicted the accused placing reliance on the  statement of the eye witnesses just because the  prosecution failed to prove a particular theory.  We do not  think so.  It is not necessary that if the prosecution theory  of the conspiracy or the motive fails, the entire case would  crumble to ground. The High Court has found the version  given by the witnesses trustworthy and found support to  their statement from the medical evidence and lodging of  the prompt FIR,  apart from the fact that the appellant was  apprehended on the spot or near about the spot of crime  with the weapon which was used in commission of crime.   When the court finds that the evidence of the eye  witnesses is true and can be relied upon, absence of  proof of motive or the conspiracy to commit the crime  would not dislodge the prosecution of securing the  conviction of the accused on the basis of the reliable  evidence.                 Lastly, the submission of the counsel that an  innocent person  was apprehended at the spot and he  was wrongly implicated in the commission of crime, the  counsel relied upon the statement of DW-5, Mahender  Singh Yadav for the stand taken by the accused that his  presence in Mathura was for the purposes of purchase of  buffalo and he was not there at Mathura for committing  the alleged crime.  DW-5 has deposed that he was posted  at Mathura Cantonment at the relevant time and on  19.2.78, the appellant came to him at Mathura and stayed  with him till 22.2.78, he was on leave.  On 22nd he left his  house at abut 5.30 P.M. saying that he is going to see a  buffalo and he will need some money from DW-5 and he  may arrange for it, thereafter he did not return back.   Discarding this defence the High Court relied on the fact  that from the appellant only an amount of Rs.120.13 np.  was recovered at the time when he was apprehended.   Apart from this, defence was put forth not at the outset  when he was examined first time under Section 313 Cr.  P.C.  The stand was only taken when he was examined   the second time on 16.5.80 after examination of the court  witnesses.  It is surprising that any person intending to  purchase a buffalo would come with such a meager  amount. We cannot place reliance on the defence witness  on the face of the reliable evidence led by the  prosecution.                 On overall consideration and on appreciation  of the evidence on record placed by the prosecution, we  are of the view that the High Court has not committed any  error or illegality in reversing the order of acquittal passed

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by the sessions court.  Appeals are dismissed.