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2004(1) Crimes 158 (SC)
Supreme Court of India
(From Madhya Pradesh High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
Shamsuddin and Ors. —Appellants
versus
State of M.P. —Respondent
Criminal Appeal No. 827 of 1997
Decided on 18-12-2003
For the Appellants :Anis Ahmed Khan, Advocate.
For the Respondent:Siddharth Dave and Ms. Vibha Datta Makhija, Advocates.
Important point
Core of evidence has to be seen and not any borderline’s aspect hence minor variations which do not have any effect on credibility of evidence cannot be basis to discard intrinsic value of evidence.
Headnote:Indian Penal Code, 1860—Section 302—Deceased and PW1 after closing their shop due to communal tension in area were returning when accused surrounded them and inflicted injuries on them indiscriminately—PW1 was also injured and PW2 and PW8 claimed to be eye witnesses—Trial Court acquitted appellants—In State appeal, High Court set aside acquittal but found the case covered by Section 324/34 and sentenced accused to 2 years RI with fine—Appeal—Core of evidence has to be seen and not any border line’s aspect—Minor variation which did not have effect on credibility of evidence could not be basis to discard intrinsic value of evidence—Practically there was no cross-examination on PW1 as far assault on deceased—High Courts’ view that in absence of evidence which particular accused was the author of fatal injury on deceased, case was not covered u/s 302/34 IPC was not correct or rational but since there was no appeal by State no interference was called for—Conviction could not be interfered with. (Para 7)
Result : Appeal dismissed.
Judgment
Arijit Pasayat, J.—Communal disturbances have taken toll of many lives at different times. This is a sad reflection on our society, though the Constitution of India, 1950 (in short ‘the Constitution’) underlines in no uncertain terms that ours is a secular country, where caste, creed and religion cannot and do not have any differentiating base. One Rajunath (hereinafter referred to as ‘the deceased’) lost his life on account of communal disharmony and another Narish Chandra (PW-1) was seriously injured. Accused persons were stated to be the authors of the crime, who committed offences punishable under Section 302 and 307 read with Section 34 of the Indian Penal Code, 1860 (for short ‘the IPC’).
2. Prosecution version as unfolded during trial is as follows:
On 21.10.90 at about 2.30 p.m. there was rising of tension on account of communal feelings in Sandhwa which is a highly sensitive town. Around mid-day, some dispute arose between two communities and in that dispute one person belonging to a particularly community was murdered and this news spread far and wide. Several incidents followed in quick succession. Some parts of the market were closed, some were in the process of being close down when police force started taking action. PW-1 runs a barber shop. He was to leave for Shastri colony which was situated at a short distance from his shop. The deceased also lived in the same locality. At about 2.30 p.m. the deceased and PW-1 were returning home after closing their shops. When they were near the Dak Bungalow, the accused persons surrounded them and started inflicting injuries indiscriminately. The injured and the deceased tried to save their lives and started running away. The occurrence was witnessed by Mitthu Sharma (PW-2) and Premchand (PW-8). One Satyanarayan also witnessed the occurrence. PW-8 informed PW-1’s brother Santosh (PW-4), who went to the police station and his statement was recorded at about 2.45 p.m. At about 2.00 p.m., Section 144 of the Criminal Procedure Code, 1973 (for short ‘the Cr.P.C.’) was promulgated and after short time curfew was also imposed by the administration to bring the tense situation under control. The investigating officer PW-18 reached the spot of occurrence and sent the deceased and the accused to the hospital. On the basis of information lodged investigation was undertaken and charge sheet was filed. Accused persons pleaded innocence. It is to be noted that post-mortem was conducted by PW-15 on the deceased and PW-16 examined injured PW-1. The trial Court found that the prosecution version was not supported by cogent evidence and accordingly directed acquittal.
3. The State of Madhya Pradesh preferred appeal before the High Court which by the impugned judgment set aside the acquittal; but held that the case is not covered by Section 302 IPC but is covered by Section 324 and sentenced the accused to undergo RI for 2 years and to pay a fine of Rs. 2,000/-. It was further directed that in case of recovery of the amount the same was to be paid to the widow of the deceased if he happened to be married, and if not, to be paid to his parents or any one of them who happened to be alive. Out of the fine recovered a sum of Rs. 2,000/- was also directed to be given to PW-1. It is noted that the High Court held that the accused persons were guilty of offence punishable under Section 324 IPC as aforesaid for causing injuries to the deceased as well as PW-1.
4. Learned counsel for the appellant submitted that the trial Court had analysed the evidence in great detail and found infirmities which the High Court failed to notice and on surmises held the accused persons guilty.
5. It was further submitted that the evidence of PW-1 does not inspire confidence. He does not speak about presence of PW-8 and his name was not also mentioned in the first information report. It has been clearly established that the first information report was ante-timed and was fabricated. There is also no evidence to
