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CASE NO.: Appeal (crl.)  1863-64 of 1996

PETITIONER: State of Uttar Pradesh   

RESPONDENT: Farid Khan & Ors.

DATE OF JUDGMENT: 23/09/2004

BENCH: K.G. Balakrishnan & B.N. Srikrishna  

JUDGMENT: J U D G ME N T  

K.G. BALAKRISHNAN, J.

       These appeals are preferred by the State of Uttar Pradesh assailing the acquittal  of the three respondents accused of the offences charged against them under Section  302 read with Section 34 IPC.   The respondents-accused were found guilty by the  Sessions Court, Rampur, for offences punishable under Section 302 read with Section  34 IPC for having caused the death of one Khurshid Mian.

       The incident giving rise to the present appeals happened on 2.8.1978 at about  5.45 P.M. in Mohalla Mazar Tat.   On the date of occurrence, Achhey Mian, brother of  deceased Khurshid Mian, who lived in Mohalla Nalapar, visited his brother Khurshid  Mian.   Their father,   Banney Mian, had died 28 days prior to the date of occurrence  and Achhey Mian visited his brother Khurshid Mian to discuss about the arrangements  for the Chaalisvan [the fortieth day ceremony] of their late father.   Achhey Mian found  the house of his brother locked.   There, he met Wajid Khan, who told him that Khurshid  Mian had gone to the mosque for offering prayer.  Achhey Mian; witness Wajid Khan;  and one Alla Rakha stood in front of a shop and were exchanging pleasantries.   They  saw the three accused persons coming there and asked Wajid Khan whether he had  seen Khurshid Mian.      In the meantime, Khurshid Mian was   also   seen coming from  the western side.   The accused persons surrounded Khurshid Mian and immediately  started attacking him with knives.     Accused Saghir pierced the chest of the deceased  and accused Mamoo and Farid Khan gave knife blows on the back and legs of the  deceased.    The deceased was repeatedly   stabbed by the assailants and thereafter  they ran away from the place of incident.   The deceased fell on the ground and died on  the spot.    Two other persons, namely, Sharif and Salim Khan who were also coming  behind the deceased arrived at the scene.   Achhey Mian, the brother of the deceased,  went to the Ganj Police Station and gave the Exh. K-1 report.   The motive of the crime  is stated to be that Banney Mian, the father of Khurshid Mian and Achhey Mian had  rented out certain shops in Mohalla Mazar Tat to one Zakkan Khan and his children.    They committed default in paying arrears and, therefore, Banney Mian filed a suit for  recovery of arrears of the rent and in the execution of the decree obtained by him, the  house of the accused was attached for court sale.   The accused persons thus bore a  grudge against Banney Mian and his family members.

       Investigation of the case was taken over by PW-6, who prepared the inquest  report.    Post-mortem examination on the dead body of the deceased was conducted  by PW-4.   There were five incised injuries and the doctor was of the view that the death  of the deceased had taken place due to shock and hemorrhage resulting from the  incised injuries found on the chest of the deceased.    The accused persons pleaded not  guilty and they alleged false implication.   The   accused persons contended that the  witnesses spoke falsehood and that they had not seen any incident.      They alleged  that Achhey Mian, in collusion with the police, implicated the accused as   he was  inimically disposed towards them.

       On the side of the prosecution,   six witnesses were examined.   PW-2 Sharif and

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PW-3 Salim Khan were the eye witnesses to the occurrence.   The Sessions Court  believed the evidence of PW-2 and PW-3.    PW-2 Sharif deposed that the incident  happened at about 5.45 P.M. and he saw accused, Saghir, Mamoo and Farid Khan  coming from the western side.    He   stated that he heard accused Saghir shouting and  thereafter striking a   blow of knife on the chest of the deceased.    He also saw Mamoo  and Farid Khan stabbing the deceased with knives.    He saw   Khurshid Mian falling on  the ground with injuries and the accused persons running towards south.     He was  extensively cross examined by the counsel for the accused.   He stated that he was a  "Beedi" roller by profession and on the day of occurrence he was going to meet Safi to  collect his wages.   He also stated that he saw PW-3 Salim Khan coming from the  western side.  Both of them    walked together and deceased Khurshid Mian was  walking twenty five paces ahead of them.   This witness saw the accused surrounding  deceased, Khurshid Mian and causing knife injuries to him.   The learned Sessions  Judge relied on the evidence of this witness.   However, the High Court   disbelieved his  evidence on two counts -- firstly on the ground that he was previously convicted in a  criminal case and was sentenced four years’ imprisonment.  This, according to the    High Court, was a valid ground to discard his evidence.   Another ground to disbelieve  the evidence  of  PW-2 Sharif was  that he must have been a chance witness and his  explanation that he was going to  the shop of Safi may not have been true  as  there  were several other "Beedi"  manufacturers in that locality nearest to his house.   Of  course, the evidence of a witness, who has got a criminal background, is to be viewed  with caution.  But if such an evidence gets sufficient corroboration from the evidence of  other witnesses, there is nothing wrong in accepting such evidence.   Whether this  witness was really an eye witness or not is the crucial question.     If his presence could  not be doubted and if he deposed that he had seen the incident, the court shall not feel  shy of accepting his evidence.   The High Court must have kept in mind that the  Sessions Court, which had the opportunity to see the witness, relied on the evidence of  such a witness and such an evidence should not have been lightly discarded on these  grounds.    

       The next   independent witness was PW-3, Salim Khan.   He deposed that on the  day of occurrence at about 5.45 P.M., he met PW-2 and both of them were walking  along the road passing through the graveyard.   Khurshid Mian was also found going  ahead of them.   Then the witness heard a sound and saw the accused surrounding the  deceased and attacking him with knives.    The injured fell down right there in the  graveyard and the accused ran away from that place.   The Sessions Court relied on the  evidence of this witness,   but the High Court disbelieved the evidence of this witness as  he was a resident of a different Mohalla which was about two to two and a half miles  away from the place of incident.   This witness was also disbelieved on the ground that  in his Mohalla, there were five hundred other Beedi shops and this witness had no  business to come to Mohalla Mazar Tat where the occurrence took place.   The reasons  given by the High Court are   not tenable and can not be accepted.   In order to earn    their livelihood, people go to different places depending upon their choices and  preferences.    On the sole ground  that the witness   in question   belonged to a  different area and  had   no business to be near   the  place of occurrence, his evidence  should not have been disbelieved.

       Achhey Mian, the brother of deceased Khurshid Mian was examined as PW-1.    He is also an eye witness.    He deposed that on the date of occurrence he had come to  visit his brother and   was standing near the pathway leading to the graveyard and the  visibility was about 150 yards.  He saw the accused coming and stabbing his brother  Khurshid Mian, who was killed on the spot.   He deposed that PW-2 Sharif and PW-3  Salim Khan and one Wajid Khan were present at the time of incident.   He remained  there for about fifteen minutes and then left the dead body of his deceased brother,  Khurshid Mian, under the supervision of these witnesses and went to the Police Station  and gave the F.I. Statement.   We do not find any reason to disbelieve the evidence of  this witness.  The Sessions Court rightly placed reliance on the evidence of this witness.      The High Court gave a very strange reason to disbelieve the prosecution case and held  that witness Achhey Mian could not have been present at the place of incident on the  date of the occurrence.   PW-1 Achhey Mian in his evidence deposed that his brother  Khurshid Mian wanted to have discussions with him in connection with the  arrangements for the "Chaalisvan" of their father.      Strangely enough, the High Court  relied on a document produced by the accused persons before the High Court, to show  that Banney Mian, the father of the deceased Khurshid Mian died on 10.5.1978 and the

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same was reported to the Municipal Board on 12.5.1978.   The document is purported  to be an extract  from the Birth & Death Register maintained by the Municipal Board,  Rampur, and on this basis the High Court was of the view that Banney Mian died on  10.5.1978 and therefore,  PW-1 Achhey Mian could not have visited his brother  deceased Khurshid Mian on 2.8.1978 in connection with the arrangements of   "Chaalisvan" ceremony of their father,   as the  fortieth day would fell on 23.6.1978  going by the entry in the  Municipal  Board Birth & Death Register.    It is important to  note that when Achhey Mian was examined as PW-1, the accused persons did not  produce any document to discredit his testimony.   At the appellate stage, the accused  produced the document in question.    PW-1 did not get any opportunity to explain that  document.   If the accused wanted to disprove the statement made by the said witness,  they should have produced the document then and there to contradict the witness.   The  High Court should not have allowed this document to come on record at the appellate  stage.    If the High Court was of the view that it was a relevant document, the matter  could have been remitted to the Sessions Court for giving an opportunity to the witness  to explain.   Moreover, the document by itself is an irrelevant document and the High  Court could not have placed reliance on that document to hold that   PW-1 Achhey Mian   did not meet his brother deceased  Khurshid Mian on the day of occurrence  nor could  have any conversation with the deceased.   PW-1 saw the deceased at the place of  incident.   He saw the accused surrounding and attacking the deceased and stabbing  him to death.     PW-1 had come to visit his deceased brother, Khurshid Mian, to  enquire about the arrangements in connection with the "Challisvan" ceremony of their  father and has stated so in his deposition.     Even otherwise, there is nothing unnatural  or improbable in a person visiting his brother residing two to two and a half miles away  in a different locality   The High Court seriously erred in placing reliance on a document  which was not produced before the Sessions Court, but was for the first time produced  before the High Court, and in holding that the prosecution case was completely false    on account of this evidence.

       All the three respondents were found guilty by the Sessions Court for the offence  of murder punishable under Section 302 read with Section 34.  The evidence of the  three eye-witnesses proves that A-1 Saghir s/o Zakkan Khan stabbed on the chest of  the deceased whereas A-2 Amir Ahmad and A-3 Farid Khan caused injuries on the  back and legs of the deceased. The post-mortem report shows that the deceased  Khurshid Mian sustained two injuries on the chest whereas the injuries on the right thigh  above knee joint and the inner aspect of right ankle were very small in nature and these  injuries must have been caused by A-2 Amir Ahmad and A-3 Farid Khan.   

       Having regard to the nature of the involvement of A-2 Amir Ahmad and A-3 Farid  Khan, it is difficult to believe that they shared a common intention to cause the death of  Khurshid Mian.  If at all, they committed an offence punishable only under Section 324  read   with Section 34.   Conviction of the A-2 and A-3 for the offence of murder under  Section 302 read with Section 34 IPC is set aside.   After conviction by the Sessions  Court and earlier as under-trials, these accused had been in jail for some period.  The  imprisonment undergone by them would be sufficient to meet the ends of justice for the  offence under Section 324 read with Section 34 IPC.  

       In the result,  we reverse the findings of the High Court and find that A-1 Saghir i s  guilty of the offence punishable under Section 302  IPC and accordingly sentence him  to undergo imprisonment for life.  The Sessions Judge is directed to take urgent steps to  apprehend the accused to serve out the remaining part of   the sentence of  imprisonment for life.

 The appeals shall stand disposed of accordingly.