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SUPREME COURT OF INDIA
A.M. AHMADI AND M. FATHIMA-BEEVI, JJ.
Anvaruddin and others, Appellants
Versus
Shakoor and others, Respondents.
Criminal Appeals Nos. 199, 120, 121 and 122 of 1979, D/- 30-3-1990.
Held: It will thus be seen that the High Court rejected the direct testimony of the aforesaid three witnesses principally for three reasons, namely, (1) all of them are highly interested and partisan witnesses, (2) their evidence is not consistent with medical opinion and the opinion of the ballistic expert, and (3) independent witnesses, though available, were not examined to corroborate their testimony. They Trial Court found the three witnesses to be natural witnesses and on a close scrutiny of their evidence, applying the normal rule of prudence, it concluded that it was safe to act on their testimony. It preferred the direct testimony of the three eyewitnesses vis-a-vis the opinion of the ballistic expert and came to the conclusion that injuries Nos. 12 and 13 to Ali Mohammad were caused by separate gun shots fired by Shakoor and Allauddin. On the third contention the Trial Court observed that since the incident occurred in the house of the deceased Siraju which was bounded on all the four sides by a compound wall of the height of 4 to 5 feet, it was not possible to expect independent witnesses to the actual occurrence. As regards the statement made in the First Information Report that many persons had witnessed the incident the Trial Court held that P.W. 1 was merely referring to the presence of neighbours after the event and not at the time of the actual assault. In this view that the Trial Court took it convicted 7 out of the 9 accused persons, giving the benefit of doubt to Gaju and Kallu. The High Court reversed the decision of the Trial Court on the aforesaid grounds. The question before us is whether the High Court, was justified in so doing. We are of the view that the High Court wholly mis-directed itself in the view that it took. (Para 7)
Held further: In this nebulous state of the evidence of the ballistic expert we are of the view that the High Court was wholly wrong in doubting the direct evidence of the three eye-witnesses on this ground. Where the expert evidence is obscure and oscillating, it is not proper to discredit the direct testimony of the eye-witnesses on such uncertain evidence. In such a situation unless the evidence of the eye-witnesses is shaken by some glaring infirmities, it would not be proper to doubt the correctness of their statements. We are, therefore, of the opinion that the High Court was wrong in its conclusion based on the vacillating evidence of the ballistic expert. (Para 10)
Held also: In these circumstances we think that the High Court was not right in concluding from this solitary statement in the First Information Report that the prosecution was guilty of keeping back independent witnesses. It must also be remembered that accused Shakoor was a village headman since almost a decade and wielded considerable influence. Having regard to the manner in which he and his companions had done to death both the deceased, it is difficult to expect residents of that village to come forward to depose against him. (Pam 11)
Held in addition: Therefore, the mere absence of spear injuries on the person of the two deceased cannot render the evidence of the eye-witnesses as to the actual commission of the crime doubtful. All that one can say is that as the eye-witnesses are highly interested witnesses and since their evidence regarding the part played by Alam and Wasla is not corroborated for want of spear injuries, they should be given the benefit of doubt. We are, therefore, of the opinion that Alam and Wasla are entitled to the benefit of doubt. We, therefore, confirm their acquittal. (Para 12)
Held: Ordinarily, close relatives of the deceased would not allow the real culprits to escape. The possibility of their implicating others with the real offenders must, however, be kept in mind. Keeping that in mind we have given the benefit of doubt to Alam and Wasla. We cannot, however, persuade ourselves to the view that the High Court bad not committed a serious error. We are, therefore, constrained to interfere. It is our duty to correct a manifest error by interfering under Article 136 of the Constitution 0: India for otherwise a serious crime of double murder will go wholly unpunished. (Para 13)
Consequently held: For the above reasons we allow the appeals against (1) Shakoor (2) Fayaz Ahmad (3) Ahsan (4) Allauddin and (5) Shamshu, set aside the order of their acquittal passed by the High Court and restore the conviction recorded by the Trial Court. Since they are on bail we direct that they should surrender forthwith and serve their sentence. We confirm the acquittal of Alam and Wasla. (Para 14)
Judgment
AHMADI, J.:- These four appeals, the first by a relative Anvaruddin and the others by the State of U.P., arise out of a single incident which occurred on February 11, 1973 at about 11 a.m. wherein Siraju and his son Ali Mohammad were killed. Nine persons, namely, (i)Shakoor, (ii)Fayaz Ahmad, (iii)Ahsan, (iv)Allauddin, (v)Shamshu, (vi) Alam, (vii) Wasla, (viii) Gaju and (ix) Kallu were arraigned. before the learned Sessions Judge, Meerut, principally on the charge of having formed an unlawful assembly for the murder of the aforesaid two persons. They were charged under Ss. 147 and 302 read with S. 149, I.P.C. The learned Sessions Judge acquitted two of them, namely, Gaju and Kallu. of all the charges levelled against them and directed that they be set at liberty whereas the remaining seven persons were convicted under S. 3021149, I.P.C. and were sentenced to suffer imprisonment for life. Accused Shakoor, Alam, Fayaz Ahmad, Ahsan, Allauddin and Wasla were also convicted. under S. 148, I. P. C. and were sentenced to suffer rigorous imprisonment for one year. Both the sentences were directed to run concurrently. Accused Shamshu was convicted under S. 147 and was directed to suffer rigorous imprisonment for six months. In his case also the substantive sentences were ordered to run concurrently. Against the said order of conviction and sentence recorded by the learned trial Judge, three appeals, being Criminal Appeals Nos. 2933, 2976 and 3303 of 1973, were preferred by the convicted accused persons. All these three appeals were disposed of by a common judgment rendered on October 5, 1978. The High Court came to the conclusion that the evidence tendered by the prosecution suffered from several infirmities and it was not safe to place implicit reliance on the three eye-witnesses who were close relatives of the deceased. In this view that the High Court took, it allowed the appeals and acquitted all the seven accused persons of the-charges levelled against them. Feeling aggrieved by the order of acquittal Anvaruddin, a relative of the deceased, sought special leave of this Court, which was granted. The State also filed three separate appeals against the aforesaid seven accused persons. In all these four matters special leave having been granted, the appeals are before us for disposal.
2. The facts in brief are that the deceased and the accused persons were residents of the same village and neighbours. It appears that one Shabbir, brother of accused Shakoor, was murdered sometime back. The deceased Siraju and his son Ali Mohammad were tried along with two others for the said murder. Siraju and Ali Mohammad were convicted by the trial Court and were sentenced to suffer imprisonment for life. Their two companions were however acquitted Siraju and Ali Mohammad preferred an appeal challenging the order of their conviction which was admitted to hearing by the High Court. The High Court also enlarged them on bail pending the disposal of the appeal. The case of the prosecution is that on their being enlarged on bail the accused Shakoor and his family members were displeased and they took a vow to punish them even before the disposal of the appeal. When Ali Mohmmad learnt about the same he preferred an application to the District Magistrate, Meerut on November 22, 1972 seeking protection on the ground that his life was in danger. It does not appear from the record that any protection was extended to him.
3. On February 11, 1973, at about 11 a.m. when Siraju, his son Ali Mohammad and P.Ws. 1 to 3 were in the house, the nine accused persons suddenly entered the house armed with lethal weapons. Shakoor was armed with a gun, Fayaz Ahmad, Ahsan and ,Kallu were armed with tabals, Allauddin was armed with a pistol, Shamshu and Gaju were armed with lathis and Alam and Wasla wielded spears. After these nine persons entered the house of Siraju, Shakoor declared that they would take revenge for the murder of his brother Shabbir and so saying he fir
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