REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1522 OF 2008

Javed Masood & Anr. …APPELLANTS

VERSUS

State of Rajasthan …RESPONDENT

JUDGMENT

B. Sudershan Reddy, J :

This  appeal  pursuant  to  the  special  leave  granted  is  

directed against the concurrent judgments.

2. The  two  appellants  were  tried  for  offences  punishable  

under Sections 147, 323, 324, 302 of IPC.  The trial court  

convicted both of them for the offences punishable under  

Sections  148,  201  and  302  IPC.   On  appeal,  the  High  

Court, however, confirmed the sentences awarded against  

the appellants  for  the offences punishable  under  Section  

302 of  the  IPC while  setting aside the conviction  of  the

appellants of the charges under Sections 201 and 148 IPC.  

The prosecution case is as follows :

On  May  25,  1999  at  about  1.00  p.m.,  Chuttu  @  

Nizamuddin (PW-5) lodged a Parcha Bayan (Ex.P-12) before  

the  Police  Sub-Inspector  of  Kotwali,  Tonk  inter-alia  stating  

that at about 12.30 in the noon he along with Saleem (PW-7)  

and Noor (PW-13) were getting a truck repaired at Rajasthan  

Tyrewala  near Roadways Depot, Tonk. One Mohamaad Deen  

@ Mulla (deceased) came at the shop of Ayub Bhai (PW-6).  

All  of a sudden about 10-12 persons equipped with deadly  

weapons such as gupties, swords, knives and gandasas  came  

there  and surrounded  the deceased.   Javed  Masood (A.1),  

Syed Najeeb Hassan (A.2), Ashraf and Aziz were armed with  

gupties and others were equipped with swords and knives.  

Javed Masood inflicted blow with gupti  on the chest of the  

deceased, Najeeb and others inflicted blows on neck, face and  

back.  One Gullo and Sadiqque gave blows with swords on  

hands of deceased.  Thereafter the assailants fled away from  

the  scene  of  occurrence  under  the  impression  that  

Mohammad Deen @  Mulla was dead.  Meanwhile police patrol  

van reached at the spot and removed the deceased to the  

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hospital where he was declared dead.  On the basis of Parcha  

Bayan,  the  FIR  No.184/99  (Ex.P-48)  was  registered  and  

investigation  commenced.   On  completion  of  investigation,  

charge-sheet  was  filed  against   the  appellants  and  

investigation was kept pending under Section 173(8) Cr.P.C.  

against the rest of the individuals named in the Parcha Bayan.  

The prosecution in support of its case  examined as many as  

33 witnesses and got marked certain documents and material  

objects in evidence.  The appellants denied the charges and  

claimed trial.

3. The trial court accepted the prosecution case and convicted  

and  sentenced  the  accused,  as  stated  above.   The  trial  

court  held  that  the  prosecution  proved  its  case  beyond  

reasonable  doubt  against  the  appellants  and  held  them  

guilty of having entered into a criminal conspiracy, unlawful  

assembly  and  committing  murder  of  the  deceased.  The  

High  court,  however,  confirmed  the  conviction  of  the  

appellants only under Section 302 IPC and acquitted them  

of the rest of the charges.

4. In the appeal before the High Court and as well as before  

us,  it  was  contended  on  behalf  of  the  defence  that  the  

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incident took place out of acute enmity.  The evidence of  

highly interested eye-witness should be rejected as there is  

likelihood of implicating some innocent persons.

5. Shri Amarender Sharan, learned senior counsel, inter-alia,  

submitted  that  the  presence  of  alleged  eye-witnesses  at  

the scene of offence is highly doubtful and no reliance can  

be placed on their evidence.  He relied on the evidence of  

Mohammad  Ayub-PW-6  and  police  personnel–Laxmi  

Narayan-PW-29, Suresh Kumar-PW-18 and Ranjeet Singh-

PW-30 in this regard.  The learned counsel appearing for  

the State supported the judgment under appeal.

6.  As has been rightly held by the courts below that the death  

of Mohammad Deen @ Mulla was homicide in nature.  As  

per post-mortem report (Ex.P-43) following ante mortem  

injuries were found on the dead body:

1. Incised wound 1” x ½” sub cut deep right parietal posterior  part, elliptical

2. Incised wound 1” x ½” pharyngeal  cavity deep elliptical  vertical bleeding + Rt. carotid region ant. to ear lobule.

3. Incised wound ½” x ¼” muscle deep on Rt. parotid region  anterior to injury No. 2 vertical elliptical.

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4.  Contusion  3”  x  2”  lt.  forehead above lt.  eye brow with  black eye.

5. Incised wound 1” x 1/8” sub cut elliptical 1½” lateral to eye  on face right vertical.

6. Incised wound elliptical 1½” x ½” muscle deep on upper  1/3rd forearm Lt. vertical.

7. Incised wound elliptical 1½” x ½” muscle deep on lt. arm  upper 1/3 vertical.

8. Penetrating incised wound 1½” x ½” Rt. chest cavity deep  2” above & ½” medial to right nipple on anterior right chest  wall elliptical, directing down & medial aspect.

9.  Penetrating  incised  wound  1½” x  ½”  chest  cavity  deep  elliptical, oblique 1¼” medial to injury No. 8 giving downward  & laterally on ant. chest wall (Rt.)

10. Incised wound 1½” x ¾” muscle deep elliptical oblique  direction medial  & lateral  aspect Rt. lower chest mammary  line interiorly.

11.  Penetrating Incised wound 1½” x ½” abdominal  cavity  deep  on  left  hypochondrium  on  abdominal  wall  elliptical  obliquely placed 2” below sub costal Lt. marg & 2” lt. lateral  to mid line.

12. Incised wound ½” x 1/8” sub cuticle 4½” below left nipple  transverse elliptical.

13. Abrasion 3 No. 2½”, 2”, 1” linear oblique each parallel to  each other 4” lat. & above to umblicus on lt. Ant. abdominal  wall.

14. Incised wound 4” x ½” muscle oblique above down 2”  lateral to (Rt. nipple, on Rt. chest anterior lat.)

15.  Incised  wound  1½”  x  ¼”  muscle  deep  elliptical  horizontally in mid axillary region (right).

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16. Penetrating Incised wound 1½” x ½” chest cavity deep  Rt.  mid  axillary  region  ½”  below  injury  No.  15,  elliptical  vertical bleeding.

17.  Incised  wound  1½”  x  ½”  x  scapular  deep  horizontal  elliptical Rt. back chest inter scapular region.

18. Incised wound 1¼” x ¼” muscle deep left to mid line of  back on chest vertical elliptical

19. Incised wound 1¼” x ¼” muscle deep transverse ½” right  medial to mid line on Rt. back of chest

20. Incised wound ½” x ¼” muscle deep on left lower to chest  back in lower part elliptical horizontal.

21. Abrasion (three) ¼” x ¼” each three No. number Rt. knee  joint.

22. Abrasion (two) ¼” x ¼” on left knee joint.

7. The cause of death according to the medical opinion was  

due to the excessive haemorrhage on account of injuries  

caused to right lung and liver. The injuries found on the  

chest were penetrating in nature.  

8. The  short  question  that  arises  for  consideration  in  this  

appeal is as to whether the courts below committed any  

manifest error in relying on the evidence of Chuttu (PW-5),  

Noor  (PW-13)  and  Rayees  (PW-14)  to  convict  the  

appellants for the charge under Section 302 IPC.  It is well  

settled  and  needs  no  restatement  at  our  hands  that  

concurrent findings of facts are not usually interfered with  

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by this court in exercise of its jurisdiction under Article 136  

of the Constitution of India by reappreciating the evidence  

unless  it  is  clearly  established  that  the  courts  below  

altogether ignored vital piece of evidence and rested their  

conclusion placing reliance on the evidence which cannot  

be accepted on the face of it.

9. Chuttu (PW-5) who lodged the FIR is an important witness.  

He more or less confirmed in the examination-in-chief  as  

to what has been stated by him in Parcha Bayan (Ex.P-12).  

He specifically alleged that Javed Masood  (A.1) inflicted  

gupti blow on the chest of the deceased and Najeeb (A.2)  

had inflicted with gupti on abdomen and chest.  It is in his  

evidence  that  the  occurrence  was  witnessed  by  Husain  

(PW-4), Rayees (PW-14) and Ayub Bhai Tyrewala (PW-6).  

He stated that while assault was going on the deceased he  

remained  shouting  and  no  one  came  to  rescue  the  

deceased.   Meanwhile,  a  white  coloured  police  gypsy  

arrived at the scene of offence in which the deceased was  

removed to hospital where  Mullaji was declared dead.  He  

admitted that police gypsy reached just after two minutes  

of occurrence.  He also admitted that there was an enmity  

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between him and the appellants as Javed Masood lodged a  

case against him and PW 14 and others.

10. The evidence of Ayub Bhai (PW-6) is very crucial.  It is in  

his evidence that on the fateful day the deceased alone had  

come on a motorcycle to his shop at about 12.30 p.m. to  

repay an old  debt.   The deceased requested  for  sale  of  

some  more  tyres  on  credit  basis  to  which  he  refused.  

There  was  conversation  for  about  15  minutes  in  that  

regard.   While  the  deceased was  sitting  in  the shop he  

went into the basement of the shop to find as to any old  

tyres were available to sell as requested by the deceased  

and when he returned to the shop the deceased was not  

found  in  the  shop.  Then  he  found  crowd  in  the  street  

parallel to his shop and went to the place to know as to  

what  transpired  and  found  the  deceased  was  lying  

overturned completely soaked in blood. He had died at the  

place of  occurrence.  Within 5-10 minutes the police came  

in gypsy and removed the body to hospital in gypsy.  It is  

specifically stated in his evidence that PW-5-Chuttu who is  

none other than the brother of the deceased came to the  

spot after 10 minutes of the removal of the dead body and  

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enquired  from  him  regarding  the  occurrence  and  he  

informed that the police took him to the hospital.  He also  

stated  in his evidence that he has not given the names of  

any individuals to the police in as much as he had not seen  

the  actual  occurrence  of  the  incident.   It  is  also  in  his  

evidence that immediately after the incident he telephoned  

to one Habib with a request to communicate the message  

to Chuttu about the occurrence.  He repeatedly stated that  

Chuttu (PW-5), Noor (PW-13), Saleem (PW-7) and  Rayees  

(PW-14) were not present when the police kept the dead  

body of Mullaji (deceased) in gypsy.  He also explained that  

there was no need for him to send any telephonic message  

had they been present  at  the  scene of  occurrence.  This  

witness did not support the prosecution case.  He was not  

subjected to any cross-examination by the prosecution. His  

evidence  remained unimpeached.

11.The  evidence  of  Noor  (PW-13)  and  Rayees  (PW-14)  is  

more or less the same as of PW-5 and therefore no detailed  

discussion is required about their evidence.

12. Suresh Kumar (PW-18) is a Police Constable  who along  

with driver Ranjit Singh (PW-30) went in the gypsy to the  

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spot  and lifted the injured person into gypsy to take him  

to the hospital.  He stated in his evidence that at that time  

except  himself,  driver  Ranjit  Singh  (PW-30)  and  Circle  

Inspector nobody else was present.  He specifically stated  

that  Chuttu  (PW-5),  Rayees  (PW-14)  and  Noor  (PW-13)  

were not present at the place of occurrence at the time  

when he reached the scene of offence.  Laxshami Narayan  

(PW-29)  is  another  Policeman  who  corroborated  the  

evidence of Constable Suresh Kumar (PW-18) stating that  

he and Constable  Suresh Kumar and driver  Ranjit  Singh  

(PW-30) kept the  body of  the injured (deceased)  in  the  

gypsy and  went  to  Sahadat  hospital.   There  was  crowd  

near the injured person but no relative of deceased was  

present.  In the same manner Ranjit Singh (PW-30) driver  

of the gypsy corroborated the evidence of PW-18 and PW-

29 stating that no one was present when they have lifted  

the  body  from  the  scene  of  occurrence  and  placed  the  

same in gypsy.  All of them were police personnel and on  

duty at the relevant time.  There is no reason for them to  

depose falsely.  It is nobody’s case that PWs 6, 27, 29 and  

30 are not independent witnesses.  There is no reason to  

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disbelieve the evidence of PW-6 and no valid reason has  

been suggested as to why his evidence cannot be relied on  

and taken into consideration.   The evidence of PW-6, if it  

is to be taken into consideration, makes the presence of  

PWs  5,  13  and  14  highly  doubtful  at  the  scene  of  

occurrence.  We  do  not  find  any  reason  whatsoever  to  

discard  the  evidence  of  PW-6  who  is  an  independent  

witness. He was not present at the actual scene of offence  

when the deceased was subjected to attack even though  

PW-5, in his evidence stated as if PW-6 was also present at  

the time of attack. But PW-6 in categorical terms stated, by  

the time he went to the scene of offence within a couple of  

minutes, the deceased was lying dead in a pool of blood  

and neither PW-5 nor PWs 13 and 14 were present at the  

scene of offence. PW-5 is none other than the brother of  

deceased and a highly interested witness whose evidence  

was required to be carefully scrutinised and precisely for  

that reason we have looked into the evidence of PW-5 with  

care and caution.  The testimony of Mohammad Ayub (PW-

6) cannot easily be surmounted by the prosecution. He has  

testified in clear terms that PWs 5, 13 and 14 were not  

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present at the scene of occurrence.  It is not known as to  

why the public prosecutor in the trial court failed to seek  

permission  of  the  court  to  declare  him  “hostile”.   His  

evidence is binding on the prosecution as it is.  No reason,  

much  less  valid  reason  has  been stated  by  the Division  

Bench as to how evidence of PW-6 can be ignored.

13. In  the present  case the prosecution never declared PWs  

6,18, 29 and 30 “hostile”.  Their evidence did not support  

the prosecution. Instead, it supported the defence. There is  

nothing in law that precludes the defence to rely on their  

evidence.  This  court  in  Mukhtiar  Ahmed  Ansari  vs.  

State (NCT of Delhi)1 observed:

“30.   A similar question came up for consideration  before  this  Court  in  Raja  Ram  v.  State  of  Rajasthan,  (2005)  5  SCC  272. In  that  case,  the  evidence  of  the  Doctor  who  was  examined  as  a  prosecution witness showed that the deceased was  being told by one K that she should implicate the  accused or else she might have to face prosecution.  The  Doctor  was  not  declared  "hostile".  The  High  Court, however, convicted the accused. This Court  held that it was open to the defence to rely on the  evidence of the Doctor and it was binding on the  prosecution.

1  (2005) 5 SCC 258

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31.    In  the present  case,  evidence  of  PW1 Ved  Prakash  Goel  destroyed  the  genesis  of  the  prosecution  that  he  had  given  his  Maruti car  to  police  in  which  police  had gone to  Bahai  Temple  and apprehended the accused. When Goel did not  support  that  case,  accused  can  rely  on  that  evidence.”

14.The  proposition  of  law  stated  in  the  said  judgment  is  

equally applicable to the facts in hand.

15. It is clear that the evidence of PW-6 completely rules out  

the presence of Chuttu (PW-5) at the scene of offence. It is  

thus  clear  that  PW-5  was  not  speaking  truth,  being  

interested witness obviously made an attempt to implicate  

the appellant  in  the case due to  previous  enmity.  Be it  

noted  that  the  entire  prosecution  case  rests  upon  the  

Parcha  Bayan  (Ext.  P12)  lodged  by  PW-5.  Once  his  

presence is disbelieved, the whole case of the prosecution  

collapses like a pack of cards. In addition, the evidence of  

PWs 18, 29 and 30 who are all independent witnesses, also  

cast a serious shadow on the evidence of PWs 5, 13 and 14  

as  regards  their  presence  at  the  scene  of  offence.  It  is  

under  those  circumstances,  we  find  it  difficult  and  

impossible  to  place  any  reliance  whatsoever  on  the  

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evidence of PW-5 who is a highly interested and partisan  

witness. No reliance can be placed on his evidence in order  

to convict the appellants of the charge under Section 302,  

IPC. For the same reasons, the evidence of PWs 13 and 14  

also is to be discarded. None of them was speaking truth.

16. The Courts below altogether ignored these vital aspects of  

the matter which compelled us to carefully analyze their  

evidence.  On such careful  analysis,  we find it  difficult  to  

accept the evidence of PWs 5, 13 and 14 to sustain the  

conviction and sentence imposed on the appellants. There  

is no other acceptable evidence on record based on which  

the charge could be held proved against the appellants.

17. For the aforesaid reasons the conviction of the appellants  

and the sentence imposed on them is set aside and they  

are directed to be released forthwith.

18.The appeal is accordingly allowed.  

…..……………………………………J.      (B. SUDERSHAN REDDY)  

…………………………………………J.      (SURINDER SINGH NIJJAR)

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New Delhi,  March  9, 2010

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