2003 Supreme(SC) 279

2003(2) Supreme 743
SUPREME COURT OF INDIA
(From Allahabad High Court)
N. Santosh Hegde & B.P. Singh, JJ.
State of U.P. -Appellant
versus
Rasid & Ors. -Respondents
Criminal Appeal No. 142 of 1996
Decided on 5-3-2003
Counsel for the Parties :
For the Appellant : Prashant Choudhary, Praveen Swarup and Pramod Swarup, Advocates.
For the Respondents : Sushil Kumar, Sr. Advocate, P.V. Yogeswaran, D.K. Garg, Ashok Sharma and Adolf Mathew, Advocates.

IMPORTANT POINT
The High Court erred in disturbing the conviction of those accused also whose overt acts in the Commission of alleged crimes was proved by prosecution witnesses in their clear and consistent evidence duly supported by medical evidence.

Headnote:(i) Time of incident-Trial Court finding it at about 9.30 a.m. on the basis of eye witnesses and medical evidence-High Court taking it before break of the day on calculation based on probabilities-Whether correct?

       Held : The trial court in regard to the time of the incident relying on the oral evidence of PWs.2, 3, 4, 11 and 12 held that it was possible to conclude that the incident in question had occurred at about 9.30 a.m. in the morning in which these witnesses were also injured. In this process, it accepted the prosecution s ocular evidence as to the incident. Of course, it also found corroboration from the medical evidence as also from certain circumstantial evidence adduced by the prosecution. (Para 15)

       The High Court, however, proceeded on the basis of probabilities of the case rather than the evidence of eye-witnesses to come to the conclusion that the incident in question could not have taken place at 9.30 a.m. Having perused the material on record and heard the arguments of the learned counsel, we are of the opinion that when there is acceptable oral evidence of eye witnesses who were present at the time of incident to speak about the time of incident, the High Court erred in entering into the exercise of calculation based on probabilities which has no foundation in evidence. (Para 16)

       Held on evidence : The learned Sessions Judge rightly accepted this evidence and the High Court, in our opinion, erred in rejecting this evidence based on probability which had no foundation in evidence. (Para 16)

       (ii) Criminal Trial-17 persons were tried under Sections 148, 452, 302 r/w 147 and 307 for having committed murder of one Nasir, his wife, infant son and wounded others-Trial Court convicted 15 and acquitted two-High Court acquitted all-Appeal to Supreme Court by State-Prosecution witnesses found to have clearly and consistently spoken about six persons supported by medical evidence-One of them having died during trial-Whether remaining five be convicted and sentenced? (Yes)-Appeal partly allowed.

       Held : This leaves us to examine the merit of the prosecution case as to the involvement of accused persons in the incident. It is the case of prosecution that out of the 17 accused persons 9 of them remained outside the house of PW-2, while A-1 to A-8 entered the house carrying various weapons and were responsible for the death of the three persons as also injuries to the 4 witnesses. So far as the identity of the 9 accused persons who stayed outside is concerned, we notice considerable discrepancy in the prosecution evidence. As a matter of fact it has come in evidence that those witnesses who were inside the house could not even have seen these accused who were outside the house, therefore, in our opinion, it is not safe to accept this evidence to base a conviction of those accused who were standing outside the house. The only person who could have possibly noticed all these accused who were outside the house is PW-12 but from his evidence alone, we think it is not safe to hold these accused persons guilty of the offence alleged against them. At this stage itself, we notice that so far as accused A-6 and A-7 are concerned, the learned Sessions Judge himself found some difficulty in accepting the evidence of PW-2 because of some confusion in his evidence. That finding has since become final, therefore, we will accept the said finding of the learned Sessions Judge in regard to A-6 and A-7. In view of this discussion of ours, so far as the accused persons A-6 to A-15 are concerned, we must hold the prosecution has not established its case of the involvement of these accused in the alleged crime, therefore, they are entitled to the benefit of doubt and to that extent, the State appeal should fail. So far as A-2 is concerned from the prosecution evidence, it is clear that he actually cut the head of Nasir. Therefore, he is guilty of the offence charged against him but it has come on record that he has since died, therefore, the appeal against him has abated. So far as accused Nos.1, 3 to 5 and 8 are concerned, in our opinion there is sufficient material on record to hold them guilty of the charges levelled against them. PW-2 in the course of his evidence has stated when these accused persons entered the house of A-1 Yusuf exhorted others to kill consequent to which he himself shot at Nasir which hit deceased Nasir on his right elbow and he fell down. As per this witness, A-1 again fired simultaneously with A-5 which hit him (PW-2), PW-3 and PW-11 as also deceased child Ishtiyaq. This evidence of PW-2 is supported by the evidence of PW-3 who in his evidence stated that at the time of incident A-1 was carrying a single barrel gun and he exhorted others to kill and fired from his gun which hit Nasir who fell down. PW-3 also states that A-1 again fired simultaneously with Khaliq A-5 which hit PW-2, himself, PW-11 and deceased Ishtiyaq. PW-11, the other injured witness in his evidence has stated that he identified A-1 in the group of people who entered the house and that he exhorted others to kill A-1. He also supports PWs. 2 and 3 in regard to overt act of A-1. Thus from the evidence of these witnesses, it is clear that A-1 had entered the house carrying a fire-arm and he exhorted the other accused persons inside the house to kill the people there and he himself fired twice causing injuries to the deceased Nasir and Ishtiyaq as also causing injuries to witnesses PWs 2, 3 and 11, therefore, his involvement in the incident in question stands established. Similar is the evidence in regard to A-3, 4, 5 and 8 wherein PW-2 has stated that Rasid A-3 fired twice which hit Chheddan and Ishtiyaq. This evidence of PW-2 in regard to overt act of Rasid finds corroboration from the evidence of PW-3 who has stated that A-3 Rasid who was carrying a single barrel gun had fired at deceased Chheddan and Ishtiyaq. PW-11 in his evidence states though he has not named A-3 by name in his previous statement but he had seen A-3 fire with a gun at the wife of Nasir which hit her and she fell down which, in our opinion, is sufficient to corroborate the evidence of PWs.2 and 3. In regard to A-4 Qayum, PW-2 says he assaulted Nasir with lathi and assisted A-2 in cutting his head by pinning the deceased down. The lathi assault on Nasir is corroborated by the corresponding contusions found in the chest of the deceased and evidence of PW-2 in this regard is corroborated by PW-3 who says that he knows the accused and had seen him assaulting Nasir on the date of incident in the house of PW-2. In regard to A-5 Khaliq, PW-2 says this accused fired twice from his gun which hit Nasir and Ishtiyaq and the same is supported by PW-3 Mukhtar. The evidence of this injured witness PW-3 also supports PW-2 in regard to the act of this accused firing two shots. PW-11 also supports the evidence of PW-2 and 3 in regard to overt act of A-5, therefore, we have no hesitation in coming to the conclusion that this accused also took part in the incident in question. In regard to A-8 Barqat, PWs.2 and 3 have stated that this accused was carrying a lathi and dealt blows along with A-4 Qayum on deceased Nasir which as stated above is supported by the medical evidence which shows deceased Nasir had as many as 4 contusions on his chest and other parts of the body. Therefore, we hold this accused also guilty of the offence charged against him. (Paras 17 to 24)

       Held therafter : It is true that the prosecution has in the instant case not been able to prove its case as against many of the accused persons beyond reasonable doubt, it is only on that basis they have been given the benefit of doubt and have been acquitted of the charges levelled against them by us. But that does not mean that the other accused against whom there is sufficient material to establish the prosecution case should also be given such benefit of doubt. The prosecution witnesses who were present at the time of incident have very clearly and consistently spoken about the overt acts of A-4, A-5 and A-8 along with A-1, A-2 and A-3 which is supported by medical evidence also, therefore, we accept the prosecution case in regard to accused A-1, A-3 to A-5 and A-8, that along with deceased A-2 had entered the house of PW-2 and were responsible for the death of Nasir, Chheddan and Ishtiyaq. They were also responsible for causing injuries to PWs. 2, 3 and 11 therefore we are in agreement with the finding of learned Sessions Judge in regard to these accused persons. (Para 26)

       Held consequently : In the said view of the matter, the appeal of the State succeeds in regard to (i) respondent No.1 Rasid, s/o Abdul Majid; (ii) respondent No.2 Qayum s/o Nazir, (iii) respondent No.4 Barkat s/o Hamid, (iv) respondent No.5 Yusuf s/o Rahim and (v) respondent No.13 Khaliq s/o Abbas. We set aside the judgment of the High Court in regard to these respondents and confirm the conviction and sentence imposed by the learned Sessions Judge on these respondents. The appeal of the State in regard to other respondents stands dismissed. The bail bonds of the convicted accused persons shall stand cancelled, and they shall serve out the remainder of the sentence imposed on them by the learned Sessions Judge. (Paras 27 & 28)

       Held finally : The appeal is allowed in part. (Para 29)