REPORTABLE  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 25-29 OF 2002

STATE OF MAHARASHTRA — APPELLANT (S)

VERSUS

AHMED SHAIKH BABAJAN & ORS.

— RESPONDENT (S)

J U D G M E N T

D.K. JAIN, J.:

1. The State of Maharashtra has preferred these five

appeals,  by  special  leave,  against  the  common

judgment and order of the High Court of Judicature

at Bombay, in Criminal Appeals No.240, 241, 273,

381 of 1995 and Criminal Revision No.156 of 1995.

By  the  impugned  order  the  High  Court,  while

allowing all  the criminal  appeals  preferred  by the

convicts  and  dismissing  the  criminal  appeal  and

criminal  revision  preferred  by  the  State,  has

affirmed  the  order  passed  by  the  Additional

Sessions  Judge  dated  25th April,  1995,  acquitting

respondents No.1 to 3 herein, of the charge under

Section  302  read  with  Section  34  of  the  Indian

Penal Code, 1860 (for short ‘the I.P.C.’) and has set

aside the order of the Trial Court convicting the said

respondents  for  offence  under  Section  456  read

with Section 109 I.P.C.  Conviction of respondents

No.4 and 5 for the offence under Section 456 I.P.C.

has also been set aside by the High Court.

2.  The backdrop under which the alleged occurrence

took place on 27th April, 1989, in brief, is as follows:

By  an  agreement  of  leave  and  licence  dated  28th

July, 1988, Ahmed Shaikh, (accused A-1), the owner of

Flat No.H-14, 3rd Floor, Zohra Agadi, Yari Road, Versova,

Andheri, inducted Smt. Rani Bhagwant Singh (PW-6), as

a licensee of the said premises.  The agreement was for a

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period of 9 months and was to expire on 27th April, 1989.

The flat was occupied by PW-6 along with her husband

Bhagwant  Singh  (PW-4),  her  daughter,  Harjeet  Kaur

(PW-5), her son Indrajeet Singh (deceased) and two other

sons,  Arvinder  Singh (PW-1)  and Harvinder  Singh (not

examined).   Though  the  agreement  was  initially  for  a

period of 9 months commencing from 28th July, 1989, it

was subject to further extension and renewal.  Advance

rent  for  9  months  was  paid  to  accused  A-1  with  one

month’s rent as security deposit.

3. The said agreement was finalised through an Estate

Agent – Moinuddin Khan (accused A-3), a resident

of the same society.  About two weeks prior to the

date  of  incident,  accused  A-1,  his  estate  agent

(accused A-3) and one Usmangani Shaikh (accused

A-2),  approached  Bhagwant  Singh  Anand  (PW-4)

asking him to deliver vacant possession of the flat

on  the  expiry  of  the  said  leave  and  licence

agreement.  Thereafter on 24th, 25th and 26th April,

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1989, they again met Bhagwant Singh Anand and

insisted on the delivery of vacant possession of the

flat by 27th April, 1989.  It will be of some relevance

to note that Usmangani Shaikh (accused A-2) is the

brother of Asmabi (accused A-4), wife of accused A-

1  and   Rahimabi,  (accused  A-5)  is  the  sister  of

accused A-1.  PW-4 requested for permission to stay

in  the  flat  for  a  few  more  days  as  his  children,

including  the  complainant  (PW-1),  were  busy  in

their  annual  examination;  his  wife,  Rani  Anand

(PW-6) and daughter Harjeet Kaur (PW-5) were also

away to Hyderabad since the latter was appearing

for  her  final  B.A.  examination  in  Osmania

University and they were expected to return back to

Bombay  on  27th April,  1989.   The  request  was

turned down by accused  A-1, who insisted that the

possession  of  the  flat  must  be  delivered  by  27th

April,  1989,  failing  which  possession  would  be

taken by force.

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4. In  this  background,  very  shortly  put,  the

prosecution version was that apprehending that the

possession of the flat may not be delivered on the

expiry  of  the  licence  agreement,  accused  A-1

decided to take the possession forcibly with the help

of his wife (accused     A-4), her brother (accused A-

2),  his  sister  (accused A-5) and the Estate Agent,

(accused A-3).   On 27th April,  1989 at about 7.30

p.m.,  the  deceased  was  standing  in  front  of  the

shop  of  accused  A-3  on  the  ground  floor  in  the

same  society,  three  buildings  away  from  the

building in which the deceased resided, waiting for

his  mother  and  sister,  who  were  scheduled  to

return from Hyderabad in the evening.  He had the

keys of the flat with him.  His father (PW-4), who

was in the flat till  evening later left the house for

bringing  food  for  the  family,  instructing  the

deceased to wait on the road.  Arvinder Singh (PW-

1) also left the house at about 7.00 p.m. for paying

obeisance at the Gurudwara.  While the deceased 5

Inderjeet Singh was standing in front of the shop of

accused A-3,  accused A-1 and accused A-3 came

near him and started beating him.  The beating was

witnessed  by  PW-1  who  was  returning  from  the

Gurudwara. He rushed to save his brother, who, by

that time had fallen down on the ground and was

stifling.

5. The incident drew attention of the public  and the

two accused were apprehended.   One,  Sunil  Salvi

(PW-2),  a  police  constable  (off  duty)  and  a  family

friend of  the Anands,  also happened  to be at the

spot and he too accosted the two accused.  He along

with PW-1 took the victim to the clinic of one Dr.

Asif Ali (PW-8) situated on the ground floor of the

same building in which Anands resided.   Finding

the victim in a serious condition, PW-8 advised his

removal to a bigger hospital.  In the meanwhile, he

also contacted the police control room.  In a short

while  the  police  mobile  van  arrived  and  the

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deceased  was removed to Cooper  Hospital.   PW-1

also  accompanied  him.   The  police  also  took

accused  A-1  and  A-2  with  them  to  the  hospital.

However, accused A-3 escaped.  The deceased was

examined by the doctors on duty and was declared

brought dead.   

6. PW-1 returned back to the flat to inform his father

(PW-4) about the incident and the death of Indrajeet

Singh but did not find him in the flat.  Instead he

found that the flat had been occupied by two ladies,

accused A-4 and A-5 with a small child.  When he

protested, the said accused retorted by saying that

he had no right to occupy the flat after the expiry of

the agreement.  He went out in search of his father

who was found in a garden.  He informed him about

the incident and thereafter went to lodge the First

Information Report (FIR) with the police.

7. When Smt.  Rani  Anand (PW-6)  and Harjeet  Kaur

(PW-5)  returned  from Hyderabad  and went to  the

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flat, they also found accused A-4, A-5 and a small

child occupying the flat.  They carried their luggage

inside the flat but the said accused did not permit

them to do so and, in fact, accused A-4 threw the

luggage  outside  the  flat  with  the  assistance  of

accused A-5.  Accused A-4 informed PW-5 and PW-

6 that Inderjeet had assaulted her husband.  In the

meanwhile a police constable came to the flat and

asked accused A-4 and A-5 and PW-6 to accompany

him to the police station.

8. On  completion  of  investigations,  chargesheet  was

filed  against  the  respondents.   All  of  them  were

charged  under  Section  460,  I.P.C.  for  committing

offence  of  house  breaking  by  night  and  causing

death of a person.  Additionally, accused A-1 to A-3

were  also  charged  under  Section  302  read  with

Section 34 I.P.C. for committing murder of Inderjeet

Singh.   In  support  of  its  case,  the  prosecution

examined ten witnesses out of which PW-1 (brother

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of the deceased) and PW-2 (off duty constable) were

stated  to  be  the  eye-witnesses.   No  evidence  was

produced  in  defence.  The  learned  Additional

Sessions  Judge,  on  appreciation  of  evidence,

acquitted accused A-1 to A-3 of the offence under

Section 302 read with Section 34 I.P.C.  However,

relying  on  the  testimony  of  PW-5  and  PW-6,  the

Trial  Court  convicted  accused  A-4  and  A-5  for

offence under Section 456 I.P.C. for house breaking

by night and accused A1 to A-3 for offences under

Section  456  read  with  Section  109  I.P.C.  and

sentenced  each  of  them  to  undergo  rigorous

imprisonment for a term of two years and pay fine

of Rs.5000/- each with default stipulation.

9. The  High  Court,  as  noticed  hereinabove,  while

affirming the acquittal of A-1 to A-3, has disagreed

with  the  Trial  Court  and  has  set  aside  the

conviction  of  the  respondents  for  offences  under

Section 456 read with Section 109 I.P.C as well.  In

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reversing the judgment, the High Court has relied

on the following circumstances – (i) though the FIR

was  lodged  by  PW-1,  three  hours  after  the

occurrence and that too after consulting his father

(PW-4)  there  is  not  a  word  in  the  FIR  about  the

forcible  occupation  of  the  flat  in  question  by

accused A-4 and    A-5; (ii) since accused A-1 and

A-2 were admittedly apprehended by the mob soon

after the incident in which Indrajeet was assaulted

and  they  remained  in  police  custody  thereafter,

there  was  no  possibility  of  their  abetting  the

commission of offence by accused A-4 and A-5; (iii)

after  the  male  members  of  the  family  had  been

apprehended and had been taken into custody by

the  police,  the  two female  members  of  the  family

would not dare to forcibly occupy the flat; (iv) if the

version of PW-5 is to be believed, accused A-4 and

A-5 were detained by the police constable, who had

taken  them  to  the  hospital  with  PW-6,  the

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concerned constable was not examined to prove this

fact.  Hence the present appeals.

10. Mr. Adsure, learned counsel appearing for the State

submitted  that the High Court committed  serious

error in passing impugned judgment without taking

into consideration the fact that a day prior to the

date  of  occurrence,  accused  A-1  to  A-3  had

threatened PW-4 (father of the deceased) of forcible

eviction from the flat and assault on the deceased

was  in  furtherance  thereof.   Learned  counsel

asserted  that  insofar  as  accused  A-1  to  A-3  are

concerned,  in  addition  to  commission  of  offence

under Section 456 read with Section 109 I.P.C., a

clear  case  for  their  conviction  for  offence  under

Section  304  Part-I,  I.P.C.  is  made  out.   It  was

argued  that  the  testimony  of  PW-5  and  PW-6,

coupled  with  the  fact  that  there  was  no  cross

examination of the said witnesses in regard to the

presence  of  accused A-4 and A-5 in the  flat,  was

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sufficient to establish the case against the accused.

It  was  also  contended  that  accused  A-4  and  A-5

committed the offence in furtherance of instigation

by  the  male  members  of  the  family,  namely,

accused A-1 to A-3 and, therefore, all of them were

rightly  convicted  for  offences  punishable  under

Section 456 read with Section 109 I.P.C.

11. Learned  counsel  appearing  on  behalf  of

respondents No.1, 2, 4 and 5, on the other hand,

submitted that PW-2 having been declared hostile

and  presence  of  PW-1  at  the  time  and  place  of

occurrence having been doubted by both the courts

below  and  in  the  absence  of  any  other  public

witness, particularly when accused A-1 and A-2 are

alleged to have been apprehended by the mob, the

prosecution has failed to prove the involvement of

accused A-1 to A-3 in the incident of assault on the

deceased.   It  was  also  urged  that  there  is  no

evidence on record to prove that any of the accused

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had  forcibly  entered  in  the  flat,  belonging  to

accused A-1 and thereby committed house breaking

by night so as to attract Section 456 I.P.C.  It was

also argued that failure to mention anything about

forcible occupation of the flat in the FIR by PW-1,

who claims to have met accused A-4 and A-5, by

itself, is fatal to the prosecution case against all the

accused.  Lastly, it was pleaded that accused A-4

and A-5 being ladies and the incident having taken

place as far back as in the year 1989, a lenient view

may be taken against them.

12. Before examining the rival stands with reference to

the evidence adduced by the prosecution, the scope

of our jurisdiction to deal with appeals by special

leave against a judgment of acquittal  by the High

Court needs being noticed.  True it is that Article

136 of  the Constitution invests  this  Court  with a

plentitude of plenary appellate power over all courts

and tribunals in India but a conspectus of a series

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of decisions shows that this Court has set for itself

certain  limits  within  which  the  power  under  the

said Article is to be exercised.  It is the established

practice of this Court that power under Article 136

is invoked in very exceptional circumstances, when

the approach of the lower courts is vitiated by some

manifest  illegality  or  the  conclusion  recorded  is

such which could not have been possibly arrived at

by  any  court  acting  reasonably  and  judiciously.

Nevertheless, even within the restrictions imposed,

this Court has undoubted power to interfere even

with findings of fact, making no distinction between

a judgment of acquittal and conviction, though in a

case  of  acquittal  ordinarily  the  Court  does  not

interfere  with  the  appreciation  of  evidence  or  of

findings of fact, more so because the presumption

of innocence of the accused is further reinforced by

his acquittal, unless the High Court “acts perversely

or  otherwise  improperly”. (See:  The  State  of

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Madras  Vs.  A.  Vaidyanatha  Iyer1;  Himachal

Pradesh Administration Vs. Shri Om Prakash2).

13. In so far as the jurisdiction of the appellate court in

dealing with an appeal against an order of acquittal

is concerned,  referring to the aforenoted decisions

in  Arunachalam  Vs.  P.S.R.  Sadhanantham  &

Anr.3, O. Chinnappa Reddy, J. went on to observe

as follows:

“In  dealing  with an appeal  against  acquittal, the  Court  will,  naturally,  keep  in  mind  the presumption  of  innocence  in  favour  of  the accused,  reinforced,  as  may  be,  by  the judgment of acquittal. But, also, the Court will not  abjure  its  duty  to  prevent  violent miscarriage of justice by hesitating to interfere where  interference  is  imperative.  Where  the acquittal  is  based  on  irrelevant  ground,  or where  the  High  Court  allows  itself  to  be deflected  by  red  herrings  drawn  across  the track, or where the evidence accepted by the trial Court is rejected by the High Court after a perfunctory  consideration,  or  where  the baneful  approach  of  the  High  Court  has resulted  in  vital  and  crucial  evidence  being ignored, or for any such adequate reason, this Court may feel obliged to step in to secure the

1  (1979) 2 SCC 297 2  (1972) 1 SCC 249 3  (1979) 2 SCC 297

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interests  of  justice,  to  appease  the  judicial conscience, as it were.”

14. Recently,  in  Chandrappa  &  Ors.  Vs.  State  of

Karnataka4 referring to almost  the entire  law on

the point,  one of us (C.K. Thakker,  J.)  has culled

out  the  following  general  principles  regarding

powers of the appellate court while dealing with an

appeal against an order of acquittal:-

“(1) An  appellate  court  has  full  power  to review,  reappreciate  and  reconsider  the evidence  upon  which  the  order  of acquittal is founded.

(2)The Code of Criminal Procedure, 1973 puts no  limitation,  restriction  or  condition  on exercise  of  such  power  and  an  appellate court on the evidence before it may reach its own conclusion,  both on questions  of  fact and of law.

(3)Various expressions,  such as, “substantial and  compelling  reasons”  “good  and sufficient  grounds”,  “very  strong circumstances”,  “distorted  conclusions”, “glaring mistakes”, etc. are not intended to curtail  extensive  powers  of  an  appellate court in an appeal against acquittal.  Such phraseologies  are  more  in  the  nature  of “flourishes  of  language”  to  emphasise  the

4  (2007) 4 SCC 415 1

reluctance of an appellate court to interfere with acquittal  than to curtail the power of the  court  to  review  the  evidence  and  to come to its own conclusion.

(4) An appellate court,  however,  must bear in mind  that  in  case  of  acquittal,  there  is double  presumption  in  favour  of  the accused.  Firstly, the  presumption  of innocence  is  available  to  him  under  the fundamental  principle  of  criminal jurisprudence  that  every  person  shall  be presumed  to  be  innocent  unless  he  is proved guilty by a competent court of law. Secondly,  the  accused  having  secured  his acquittal, the presumption of his innocence is  further  reinforced,  reaffirmed  and strengthened by the trial court.

(5)If two reasonable views are possible on the basis  of  evidence  on  record  and  one favourable  to the accused has been  taken by  the  trial  court,  it  ought  not  to  be disturbed by the appellate court.”

15. Bearing the afore-noted principles in mind, we shall

now  examine  whether  the  present  case  calls  for

interference.  We may note at the outset that in so

far as the first part of the incident, viz., assault on

the  deceased  is  concerned,  the  prosecution

examined only PW-1 and PW-2, as eye witnesses to

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the  incident.   PW-2  (Sunil  Salvi),  the  sole

independent  witness  did  not  support  the

prosecution version, in as much as he did not claim

to have seen the occurrence in which the deceased

was assaulted.  In fact, in his deposition he stated

that he came soon after the assault and PW-1 came

even later.  Thus, his testimony casts serious doubt

on the presence of PW-1 at the spot at the time of

occurrence.   The  Trial  Court  as  well  as  the  High

Court  have  noticed  many  inconsistencies  in  the

evidence  of  PW-1  and  PW-2.   It  has  also  been

observed that no member of the crowd which had

gathered  there,  have  been  examined  by  the

prosecution.   Having  regard  to  the  evidence  on

record, we do not find any ground to interfere with

the concurrent findings recorded by both the Courts

below  in  reaching  the  conclusion  that  a  case  for

conviction of the respondents under Section 302/34

I.P.C. is not made out.  In view of the evidence on

record, we find it difficult to accept the alternative 1

contention of learned counsel for the State that an

offence under Section 304 Part-I I.P.C. is made out

against accused A-1 to A-3.  Accordingly, we affirm

the decision of the Courts below on the point.   

16. However, as regards the offence under Section 456

I.P.C.,  since  the  Trial  Court,  on  consideration  of

evidence before it, had convicted all the accused for

the said offence and the High Court  has reversed

the order of conviction, we propose to delve on this

aspect of the matter in a little greater detail.

17. As  noted  above,  the  first  and  the  foremost

circumstance,  which  has  weighed  with  the  High

Court  for  acquittal  of  all  the  accused  for  offence

under Section 456 I.P.C. is that although the FIR

was lodged by PW-1 more than three hours after the

occurrence and after due discussion with his father

(PW-4), yet the factum of forcible occupation of the

flat by accused A-4 and A-5 did not find mention in

the FIR.  The High Court has observed that having

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admittedly  met  his  mother  (PW-6),  father  (PW-4)

and brother Harvinder Singh in the Cooper Hospital

and  lodged  the  FIR  thereafter,  it  was  difficult  to

believe that if PW-1 had seen accused A-4 and A-5

occupying the flat possessed by his family, this fact

would  not  have  been  mentioned  in  the  FIR.

According to the High Court, it was not a case of

mere  omission,  but  a  case  where  the  very  fact

constituting the offence was absent from the FIR,

the earliest version of the occurrence.

18. The First Information Report is a report relating to

the  commission of  an offence,  given to  the  police

and recorded by it under Section 154 of the Code of

Criminal  Procedure,  1973  (for  short  the  “Cr.PC”).

Though,  as  observed  by  the  Privy  Council  in

Emperor  Vs.  Khwaja Nazir Ahmad5, recording of

a  First  Information  Report  is  not  a  condition

precedent to the setting in motion of the criminal

investigation  yet  from  the  view  point  of  the 5    A.I.R. (32) 1945 Privy Council 18

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investigating authorities it conveys to them earliest

information regarding the circumstances  in which

the crime was committed; the names of the culprits

and the role played by them as well as the names of

the witnesses present at the scene of occurrence, so

vital for effective and meaningful investigation.  The

information about  an occurrence  can be  given by

any person knowing about the commission of such

an offence and not necessarily by an eye witness.

Commenting on the object, value and use of First

Information  Report,  in  Sheikh  Hasib  alias

Tabarak Vs.  The State of Bihar6, a three-Judge

Bench of this Court had observed as under:-

“The  principal  object  of  the  first  information report from the point of view of the informant is to set the criminal law in motion and from the  point  of  view  of  the  investigating authorities is to obtain information about the alleged  criminal  activity  so  as  to  be  able  to take suitable steps for tracing and bringing to book  the  guilty  party.   The  first  information report, we may point out, does not constitute substantive evidence though its importance as conveying  the  earliest  information  regarding

6    (1972) 4 SCC 773 2

the  occurrence  cannot  be  doubted.   It  can, however, only be used as a previous statement for  the  purpose  of  either  corroborating  its maker  under  Section  157  of  the  Indian Evidence  Act  or  for  contradicting  him under Section 145 of that Act.  It cannot be used for the purpose of corroborating or contradicting other witnesses.”

19. Apart  from  the  fact  that  lodging  of  information

under  Section  154  Cr.PC  keeps  the  District

Magistrate  and  the  Superintendent  of  Police

informed of the occurrence and when recorded, is

the basis of the case set up by the informant and

provides  material  to  the  police  to  commence

investigation, its fundamental object is that it acts

as a safeguard against embellishment, exaggeration

and  forgetfulness.   True,  that  it  is  not  the

requirement of law that every minute detail of the

occurrence  needs  to  be  recorded  in  the  First

Information Report and as observed by this Court in

State of A.P. Vs. Golconda Linga Swamy & Anr.7

that the FIR is not intended to be an encyclopedia 7 (2004) 6 SCC 522

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of the background scenario.  Nevertheless,  having

regard to  the  fact  that it  is  one  of  the  modes  by

which a person aggrieved sets the criminal law in

motion,  it  must  disclose  the  commission  of  an

offence.  Though it is trite that the First Information

Report  does  not  constitute  substantive  evidence

and  can,  strictly  speaking,  be  only  used  as  a

previous  statement  for  the  purpose  of  either

corroborating  or  contradicting  its  maker,  yet

omission of material facts pertaining to the crime is

undoubtedly  relevant  in  judging  the  veracity  of

prosecution case.

20. In  the  present  case,  admittedly  in  the  First

Information Report lodged by PW-1, a law student,

more than three hours after the alleged occurrence,

there  was  no  complaint  of  house  breaking  and

occupation of the flat by accused A-4 and A-5 when

he claims to have met them at the flat and had an

altercation.   In  his  cross-examination,  when

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questioned on the omission to mention the fact of

forcible occupation of the flat by accused A-4 and

A-5, he stated as under:  

“At the time of recording of my complaint I was giving  true  and  detailed  account  of  all incidences  regarding  the  visit  of  24.4.89, 25.4.89, 26.4.89 and threats of dispossession and  in  the  last  of  my  complaint  I  deposed about  the  incident  of  assault  in  which Inderjeet Singh died.  Therefore my F.I.R. is in detail on that behalf.  However, name of two ladies accused nos.4 and 5 was not given out in  my  complaint  against  them  for  having trespassed  in  the  flat  immediately  after  the incident when I had gone to see my father.  I cannot assign reason for such omission.”

21. It  is  also  pertinent  to  note  that  in  his  cross-

examination, he also stated that when his further

statement was recorded on 29th April, 1989, i.e. two

days  after  the  occurrence,  even  then  he  did  not

disclose  the  fact  that  accused  A-4  and  A-5,  viz.,

Asmabi and Rahimabi, had broken open their flat

and had occupied it with a kid.  He simply stated

that  “I  cannot  assign  any  reason  to  omit  their

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names  as  persons  taking  unlawful  occupation  in

the house immediately after the occurrence.  This

might be due to shock and tragedy we had faced on

that date, which continues today.  Before I met my

father, I  did not make report of the occurrence to

the police, although police and police officers were

present  in  the  Cooper  Hospital”.   It  is,  thus,

manifest that the informant (PW-1) was not able to

give any reasonable explanation for the significant

omission on his part.  We feel that the evidence of

PW-1 is tainted with certain embellishments.

22. Furthermore,  even  in  the  evidence  of  Bhagwant

Singh, PW-4, the father of the deceased and PW-1,

there  is  not  even  a  whisper  about  the  forcible

occupation  of  their  flat  by  accused  A-4  and  A-5

although  admittedly  even  before  lodging  the  FIR,

PW-1, his father and his mother (PW-6) had already

met.   We find it  difficult  to  believe  that  their  flat

having been allegedly broken open and occupied by

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accused A-4 and A-5,  it  was an insignificant  fact

worthy of discussion amongst the family members.

It is also pertinent to note that PW-3,        (Smt.

Najma) a neighbour of Anands, who was examined

by the prosecution to prove that the accused had

borrowed a hammer and screw-driver used by them

for  breaking  open  the  latch  of  the  flat,  did  not

support the prosecution version.  Besides, as also

noted by the High Court that although as per the

prosecution version accused  A-4 and A-5,  on the

asking of the police constable, who had visited the

flat, had accompanied him to the police station, this

fact  was  not  proved  by  examining  the  constable

concerned.   All  these  circumstances,  in  our

judgment,  not  only  take  the  bottom  off  the

prosecution  story,  they  are  sufficient  to  throw

considerable  doubt  on  its  truthfulness  and  the

veracity  of  evidence  of  PW-1—an  eye  witness

complainant  and  knowing  accused  A-4  and  A-5,

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rendering  it  unsafe  to  base  the  conviction  of  the

accused upon it.

23. Under  these  circumstances,  in  our  opinion,  the

High Court  was fully  justified  in holding  that the

omission  to  mention  the  fact  regarding  the

occupation of flat  by accused A-4 and A-5 in the

First  Information  Report,  was  a  very  important

circumstance, fatal to the case of the prosecution.

24. Now,  what  remains  to  be  considered  is  whether

conviction  of  the  respondents  for  offence  under

Section 456 I.P.C. can be recorded on the basis of

the  evidence  of  two  closely  related  witnesses  viz.

PW-5 and PW-6, sister and mother respectively of

the  deceased.   In  their  testimony,  which  is  on

similar  lines,  they  have  stated  that  when  they

returned to their flat in the night of 27th April, 1989,

they found the door of the flat open and accused A-

4 and A-5 present there along with a kid and when

they entered the flat, their luggage was thrown out

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by the said  accused.   They  have  also  stated that

when  a  constable  came  to  the  flat  and  enquired

about the mother of the deceased, they had shown

to him the damaged latch and bolt at the entrance.

The constable asked both the accused and PW-6 to

follow  him  and  all  of  them  went  to  the  police

station.

25. In  Hari  Obula  Reddy  & Ors.  Vs.  The State  of

Andhra Pradesh8 while dealing with the question

whether the evidence of an interested witness can

form  the  basis  for  conviction  even  without

corroboration by an independent evidence, a three-

judge Bench of this Court,  speaking through R.S.

Sarkaria, J. had laid down that:

“Interested  evidence  is  not  necessarily unreliable  evidence.  Even  partisanship  by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it  be laid down  as  an  invariable  rule  that  interested evidence  can  never  form  the  basis  of conviction  unless  corroborated  to  a material extent in material particulars by independent evidence.  All  that  is  necessary  is  that  the

8  (1981) 3 SCC 675 2

evidence  of  interested  witnesses  should  be subjected  to  careful  scrutiny  and  accepted with  caution.  If  on  such  scrutiny,  the interested  testimony  is  found  to  be intrinsically reliable or inherently probable, it may,  by  itself,  be  sufficient,  in  the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can  be  laid  down,  yet,  in  most  cases,  in evaluating  the  evidence  of  an  interested  or even a partisan witness, it is useful as a first step  to  focus  attention  on  the  question, whether  the  presence  of  the  witness  at  the scene  of  the  crime  at  the  material  time was probable.  If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course  of  human  events,  the  surrounding circumstances  and  inherent  probabilities  of the case,  is such which will  carry conviction with a prudent person. If the answer to these questions  be  in  the  affirmative,  and  the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept  it,  without  seeking  corroboration from  any  other  source.  Since  perfection  is seldom  to  be  found,  and  the  evidence  of  a witness,  more so of an interested witness,  is generally  fringed  with  embellishment  and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances  of  the  particular  case,  from independent  evidence,  circumstantial  or direct, before finding the accused guilty on the basis  of  his  interested  testimony.  However, these  are  only  broad  guidelines  which  may often  be  useful  in  assessing  interested

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testimony,  and  are  not  iron-cased  rules uniformly applicable in all situations.”

26. Very recently in Ashok Kumar Chaudhary & Ors.

Vs. State of Bihar9 this Court had the occasion to

deal  with  the  question  of  creditworthiness  of  the

evidence of relatives of the victim.  On a review of

several  decisions  on  the  point,  including  Dalip

Singh Vs. State of Punjab10, Masalti Vs. State of

U.P.11 and  Rizan  &  Anr.  Vs.  State  of

Chhattisgarh,  through  The  Chief  Secretary,

Govt. of Chhattisgarh, Raipur, Chhattisgarh12 it

has  been  observed  that  though  the  Court  has  to

scrutinize  such  evidence  with  greater  care  and

caution but such evidence cannot be discarded on

the sole ground of the interest of such witness in

the prosecution.  The relationship  per se  does not

affect the credibility of a witness. Merely because a

witness happens to be a relative of the victim of the 9  AIR 2008 SC 2436 10  [1954] 1 S.C.R. 145 11  [1964] 8 S.C.R. 133 12  (2003) 2 SCC 661

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crime,  he/she  cannot  be  characterized  as  an

“interested”  witness.   The  term  “interested”

postulates  that  the  person  concerned  has  some

direct or indirect interest in seeing that the accused

is somehow or the other convicted either because

he had some animus with the accused or for some

other oblique motive.

27. In Namdeo Vs. State of Maharashtra13, one of us

(C.K.  Thakker,  J.)  has  said  that  a  close  relative

cannot be characterized as an “interested” witness.

He  is  a  natural  witness.   His  evidence,  however,

must be scrutinized carefully.  If on such scrutiny,

his  evidence  is  found  to  be  intrinsically  reliable,

inherently  probable  and  wholly  trustworthy,

conviction can be based on the ‘sole’  testimony of

such  witness.   Close  relationship  of  witness  with

the deceased or victim is  no ground to reject  the

evidence.   On  the  contrary,  close  relative  of  the

deceased would normally be most reluctant to spare 13  2007 AIR SCW 1835

3

the  real  culprit  and  falsely  implicate  an  innocent

one.

28. Having considered the evidence of PW-5 and PW-6

in the light of the legal position enunciated in the

aforementioned decisions and bearing in mind the

fact  that  PW-3,  who  was  examined  by  the

prosecution to prove the vital fact that accused A-4

and  A-5  had  borrowed  the  hammer  and  screw

driver  from  her,  being  a  neighbour  of  the

complainant has not supported the version of the

prosecution, the testimony of the said two witnesses

cannot  be  said  to  be  intrinsically  credible.

Moreover, having regard to the fact that neither in

the FIR nor in the statement of PW-1, recorded two

days after the occurrence, he had stated the fact of

house breaking, in our opinion, it will be hazardous

to rely solely on the uncorroborated evidence of PW-

5 and PW-6 to convict the accused under Section

456 I.P.C.  Evidently, having lost their son/brother,

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allegedly on account of beating by accused A-1 to A-

3, there was every reason for them to be inimical to

the accused.  They were keen to see that all of them

were convicted.

29. For the aforesaid reasons, we are convinced that the

view of the High Court in discarding the evidence of

PW-5 and PW-6, does not suffer from any infirmity.

In that view of the matter and in the absence of any

other evidence on the issue, the order of the High

Court  acquitting  all  the  accused  of  the  offence

under Section 456 I.P.C. does not suffer from any

illegality warranting interference.

30. Consequently,  all  the appeals,  being bereft  of  any

merit, fail and are dismissed accordingly.  

………………………………….…J.    ( C.K. THAKKER )  

…………………………………….J. 3

  ( D.K. JAIN ) NEW DELHI, OCTOBER 24, 2008.

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