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Friday, May 3, 2013

The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence, the view which is favourable to the accused should be adopted. However, the paramount consideration of the court is to ensure that miscarriage of justice is prevented as noted in the Judgment of this Court in V.N. Ratheesh v. State of Kerala (2006) 10 SCC 617. We are of the considered view that the High Court has rightly found that the finding recorded by the trial court was unreasonable and perverse and reversed the order of acquittal passed by the trial Court. The appeals, therefore, lack merits and the same are dismissed.


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.911 OF 2007


HABIB .. Appellant
Versus
STATE OF UTTAR PRADESH .. Respondent

WITH

CRIMINAL APPEAL No.915 OF 2007


MANUWA .. Appellant
Versus
STATE OF UTTAR PRADESH .. Respondent



J U D G M E N T




K. S. Radhakrishnan, J

1. The appellants herein were charge-sheeted for the offences
punishable under Section 302 of the Indian Penal Code. The accused Habib
was charge-sheeted under Section 302 IPC and the remaining two accused
persons including Manuwa were charge-sheeted under Section 302 read with 34
IPC, however, Manuwa was also charge-sheeted under Section 307 IPC as well.



2. The trial court after appreciating the oral as well as documentary
evidence acquitted all the accused persons vide its judgment dated
3.10.2008. Aggrieved by the said order the State preferred G.A. No.114 of
1982 before the High Court of judicature at Allahabad. The High Court,
vide its judgment dated 23.3.2007 confirmed the acquittal of the accused
Bhappa but acquittal of Habib and Manuwa was set aside. Habib was found
guilty and convicted for the offences punishable under Section 302 IPC and
accused Manuwa was convicted under Section 302 read with Section 34 IPC.
Aggrieved by the said order Habib has filed Criminal Appeal No.911 of 2007
and Manuwa has filed Criminal Appeal No.915 of 2007.


3. The prosecution story is that Sammo, daughter of deceased Fakira
and sister of Hamid (PW 1) - complainant was married to Habib, one of the
accused. Sammo left the matrimonial home due to demand of dowry. Later PW
1 settled her marriage with another person but the nikah was not performed
since no divorce was obtained from her husband-accused Habib. The
prosecution version is that on 13.1.1981 at about 6.30 PM PW 1 Hamid
accompanied by his father Fakira (deceased), his brother Rafique, servant
Ashraf and other person namely Kailash Chandra were proceeding to a place
Goverdhan along with cattle through a canal road. The accused Manuwa, his
son Habib, appellants herein, and his brother Bhappa met PW 1 and others on
the way and enquired about their destination. PW 1 informed that they are
going to Goverdhan for cattle business. On seeing them, accused Manuwa
instigated his sons Habib and Bhappa to challenge PW 1 and others. Manuwa
himself opened fire with a view to kill Fakira, but it did not hit Fakira,
Habib also opened fire and shot Fakira at his neck and he fell down and
died on the spot. PW1 Hamid lodged a report to the police station
Goverdhan, Mathura on 13.1.1981 at about 8.45 PM. Thereafter a case Crime
No.13 under Section 302 IPC was registered. The case was tried by the
Sessions Judge, Mathura. Prosecution, in order to bring home the charge,
examined PW 1 Hamid, the informant, PW 2 Rafique, brother of the deceased,
PW 3 Kailash Chandra, eye-witness to the murder, PW 4 Radhey Shayam, head
constable, PW 5 Ram Kheladi, constable, PW 6 Dr. K.K. Khanna, CMO of
Mathura to prove the post-mortem report, prepared by Dr. K.K. Seth. PW 7
Brijpal Singh - Investigating Officer and PW 8 Bankey Lal, constable. On
the side of the defence, accused examined Abdul as DW1 and Rajendra Prasad
Pandey as DW2.


4. Sessions Court after appreciating the oral and documentary evidence
acquitted all the accused persons and on appeal preferred by the State, the
High Court reversed the judgment of the trial court and, as already stated,
convicted the accused persons and sentenced them to undergo imprisonment
for life.


5. Mr. M.Z. Chaudhary, learned counsel appearing for the appellants
submitted that the High Court has committed a serious error in reversing
the order acquittal which was passed by the trial court after appreciating
the oral and documentary evidence adduced by the prosecution as well as by
the defence. He submitted that eHeHevarious circumstances pointed out by
the trial court in disbelieving the evidence of the prosecution witnesses
should not have been disturbed by the High court and no reason exist to do
so. Learned counsel also pointed out that the eye-witnesses are closely
related and there are possibilities of false implication due to some grudge
entertained by the deceased and the complainant against the accused persons
since PW 1's sister was married to Habib.


6. Sammo, sister of Hamid, as already stated, was married to accused -
Habib, son of Manuwa and the third accused Bhappa is real brother of Manuwa
and uncle of Habib. Sammo left the matrimonial home due to strained
relationship with Habib, the accused. Prior to the incident the deceased
and PW 1 had settled the marriage of Sammo with somebody before getting
divorce from Habib. The motive for the murder was the strained relationship
between the accused persons and PW 1 and the deceased. It is settled legal
position that if there is direct trustworthy evidence of witnesses as to
the commission of offence, motive part loses its significance. Therefore,
if the genesis of the occurrence is proved, the ocular testimony of the
witnesses could not be discarded only by the reason of the absence of
motive, if otherwise the evidence is worthy of reliance. This legal
position has been settled by this Court in its Judgment in Sheo Shankar
Singh v. State of Jharkhand (2011) 3 SCC 654 and Bipin Kumar Mondal v.
State of West Bengal (2010) 12 SCC 91.


7. We are of the view that the mere fact that PW 1 Hamid, PW 2 Rafique
are son and brother of the deceased, that itself is not a ground to
disbelieve their evidence. Both, PW 1 and PW 2 have, categorically stated
that the first shot was fired by Manuwa but missed his aim and it was Habib
who fired the fateful shot at the neck of the deceased and thereafter three
culprits ran away from the spot. Prosecution also placed reliance on the
testimony of PW 3, Kailash Chandra who is a co-villager of the informant
and he fully corroborated the testimony of other witnesses regarding the
part played by the three accused persons in the commission of crime. We
have gone through the depositions of PW1, PW2, PW3 and nothing could be
brought out in the corss-examination to discredit their statement.


8. We are of the view, the mere fact that PW1 and PW2 are interested
witnesses being relatives is not a reason to discard their evidence, if the
evidence is trustworthy. This Court in Brathi v. State of Punjab (1991) 1
SCC 519 held that the mechanical rejection of the evidence on the sole
ground that it is interested would invariably lead to the failure of
justice. In State of Jammu and Kashmir v. S. Mohan Singh and another
(2006) 9 SCC 272 this Court held that in a murder trial, merely because a
witness is interested or inimical, his evidence cannot be discarded unless
the same is otherwise found to be trustworthy. In Shyamal Ghosh v. State
of West Bengal (2012) 7 SCC 646 this Court held that merely because three
witnesses were related to the deceased, the other witnesses, not similarly
paced would not attract any suspicion of the court on the credibility and
worthiness of their statements.


9. The medical evidence of PW6, Dr. K.K. Khan, who was examined to
prove the port-mortem report by Dr. K.K. Seth, would indicate that Fakira
was done to death as a result of gunshot injury on his neck. The doctor,
who conducted the autopsy found that death had taken place about one day
prior to the examination which was done at 5.30 PM on 14.1.1981. Doctor
also found one gun short wound of entry trachea deep on the front of neck
and there were fractures of third and fourth cervical vertebrae and
laceration at the level of third and fourth cervical vertebrae.



10. We are of the view that the High Court has correctly appreciated
the oral and documentary evidence, including the evidence of PW6, the Chief
Medical Officer and rightly came to the conclusion that the trial court had
committed an error in discarding their evidence. 
This Court in 
State of Punjab v. Ajaib Singh and others (2005) 9 SCC 94,
also recorded that 
in an
appeal against acquittal, the appellate court is entitled to re-appreciate
the evidence on record if the court finds that the view of the trial court
acquitting the accused was unreasonable or perverse. 

The golden thread
which runs through the web of administration of justice in criminal cases
is that if two views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to the innocence, the
view which is favourable to the accused should be adopted. 

However, the
paramount consideration of the court is to ensure that miscarriage of
justice is prevented as noted in the Judgment of this Court in V.N.
Ratheesh v. State of Kerala (2006) 10 SCC 617.



11. We are of the considered view that the High Court has rightly found
that the finding recorded by the trial court was unreasonable and perverse
and reversed the order of acquittal passed by the trial Court. The
appeals, therefore, lack merits and the same are dismissed.


.....................J.
(K.S. Radhakrishnan)




.....................J.
(Dipak Misra)
New Delhi,
|May 1, 2013 | |
| | |




ITEM NO.1B (For Judgment) COURT NO.9 SECTION II

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO(s). 911 OF 2007

HABIB Appellant (s)

VERSUS

STATE OF U.P. Respondent(s)

WITH
Crl.A. No.915/2007


Date: 01/05/2013 These Appeals were called on for
pronouncement of judgment today.

CORAM :
HON'BLE MR. JUSTICE K.S. RADHAKRISHNAN
HON'BLE MR. JUSTICE DIPAK MISRA


For Appellant(s) Mr. Aftab Ali Khan,Adv.

For Respondent(s) Mr. Ravi Prakash Mehrotra,Adv.
Mr. Vibhu Tiwari,Adv.


Hon'ble Mr. Justice K.S. Radhakrishnan pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr.
Justice Dipak Misra.
The appeals are dismissed in terms of the signed judgment.


|(NARENDRA PRASAD) | |(N.S.K. KAMESH) |
|COURT MASTER | |COURT MASTER |


(Signed "Reportable" judgment is placed on the file)

1








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