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1999 Supreme(All) 712
HIGH COURT OF ALLAHABAD
Khem Karan
RAJESH KUMAR
Versus
STATE
Decided On : 12 May 1999
Criminal Appeal No. 582 of 1985
I.Murtaza, M.S.Khan, Rishad Murtaza,
The absence of motive does not diminish the credibility of the victim and eyewitnesses' testimony in a case where there is direct evidence of the actual assault.
Headnote:
ATTEMPT TO MURDER - SECTION 307 IPC - ABSENCE OF MOTIVE - ANTE-DATING OF FIR - INDEPENDENT WITNESSES - CONTRADICTIONS IN STATEMENTS - MEDICAL EVIDENCE - SEVERITY OF SENTENCE - SECTION 307/34 IPC - COMMON INTENTION - OVERT ACT - ACQUITTAL OF CO-ACCUSED - CONFLICT BETWEEN ORAL AND MEDICAL EVIDENCE - SECTION 307 IPC - SENTENCE - REDUCTION - SECTION 307/34 IPC - SENTENCE - REDUCTION.
Fact of the Case:
Rajesh Kumar and Bhagwan Din were convicted under Sections 307 and 307/34 of the Indian Penal Code (IPC), respectively, for attempting to murder Abdul Raseed. The prosecution alleged that the appellants, along with two others, fired at Abdul Raseed, causing him injuries. The appellants denied the charges.
Finding of the Court:
The court found that the prosecution had proved the charges against the appellants beyond a reasonable doubt. It held that the evidence of the victim and the eyewitnesses was reliable and that the absence of motive did not diminish the credibility of their testimony. The court also rejected the appellants' contention that the FIR was ante-dated and that the witnesses were not independent.
Issues: 1. Whether the absence of motive demolishes the prosecution story and makes the evidence of the victim and eyewitnesses untrustworthy? 2. Whether the FIR was ante-timed or ante-dated? 3. Whether the witnesses Abdul Hameed and Basir Ahmad are independent and their evidence should be discarded? 4. Whether there are contradictions in the statements of Abdul Raseed, Abdul Hameed, and Bashir Ahmad, which make their evidence unreliable? 5. Whether the victim is a smuggler and might have been assaulted by some unknown persons in some other manner? 6. Whether the non-examination of Putan or other probable witnesses is a ground to reject the evidence of Abdul Raseed and other witnesses? 7. Whether the acquittal of the other accused makes the evidence of Abdul Raseed, Abdul Hameed, and Bashir Ahmad infirm or unreliable? 8. Whether there is a conflict between oral and medical evidence?
Ratio Decidendi: 1. The absence of motive does not diminish the credibility of the victim and eyewitnesses' testimony in a case where there is direct evidence of the actual assault. 2. The court found no evidence to support the appellants' contention that the FIR was ante-timed or ante-dated. 3. The court found no basis to reject the evidence of Abdul Hameed and Basir Ahmad on the ground that they were not independent witnesses. 4. The court found that the contradictions in the statements of the witnesses were minor and did not affect the overall credibility of their testimony. 5. The court rejected the appellants' contention that the victim might have been assaulted by unknown persons, finding no evidence to support this claim. 6. The court held that the non-examination of Putan or other probable witnesses was not a ground to reject the evidence of Abdul Raseed and other witnesses. 7. The court held that the acquittal of the other accused did not make the evidence of Abdul Raseed, Abdul Hameed, and Bashir Ahmad infirm or unreliable. 8. The court found no conflict between the oral and medical evidence.
Final Decision: The court dismissed the appeal against conviction but reduced the sentences of Rajesh Kumar and Bhagwan Din to two years and one year of rigorous imprisonment, respectively.
Rajesh Kumar has been convicted under Section 307 and sen tenced to R. I. for four years and Bhagwan Din has been convicted under Section 307/34 and sentenced to four years R. I. by the HIrd Addl. Sessions Judge, Unnao, vide his judgment and order, dated 3-9-1985 delivered in Session Trial No, 322 of 1984. It is against this judgment and order that the present appeal has been filed by the two appellants.
2. The prosecution case was that on 8-10-1983 at about 6 p. m. while the injured Abdul Raseed was sitting at the betel shop of one Putan, in front of the State Bank, Ganga Ghat, that these two appellants, accompanied by Mahesh Kumar and Sariya alias Amrat Lal reached there and on the exhortation of Bhagwan Din, Rajesh fired country-made pistol at Abdul Raseed, as a result of which he sustained injuries on his back. The incident of firing was allegedly witnessed by Jalil Ahmad, Bashir Ahmad and Abdul Hameed. After necessary investigation, police submitted a charge- sheet in the Court of Magistrate and the latter committed the case to the Court of Sessions.
3. The accused Rajesh Kumar was charged under Section 307 and the remaining three accused were charged under Section 307 read with Section 34 of I. P. C. Theypleadednot guilty.
4. In the support of this case, the prosecution examined Abdul Raseed as P. W 1, Abdul Hameed as P. W. 2, Dr. Jitendra Singh as P. W. 3, Basir Ahmad as P. W 4, Head Constable, Jag Dev Singh, as P. W. 5 and I. O. , Prithvi Pal Singh, as P. W. 6.
5. The learned Addl. Sessions Judge came to the conclusion that involvement of Mahesh and Amrat Lal was not proved beyond reasonable doubt as there was no overt act on their part, so he acquitted both
of them. He, however, concluded that the charges framed against Rajesh Kumar and Bhagwan Din were well-established from the evidence on record, so he convicted these two accused and sentenced them, as stated above.
6. The learned counsel for the appel lants has submitted that there was no mo tive on the part of the appellants to kill or to cause hurt to Abdul Raseed. According to him, absence of motive demolishes the prosecution story and makes the evidence of Abdul Raseed and other alleged eye witnesses untrustworthy and unreliable. I am of the view that in such a case, where the prosecution claims to have direct evidence on the point of actual assault, absence of motive assumes no sig nificance. The question in such a case is whether the evidence of the victim and as well as what alleged eye-witnesses is reli able and adequate enough to establish the charges beyond all reasonable doubts. Their evidence cannot be rejected simply on the ground that the prosecution has not proved the motive.
7. The second contention from the side of the appellants is that the First In formation Report was ante- timed and ante-dated. According to the prosecution case and the evidence, the injured Abdul Raseed lodged First Information Report on the same day at 6. 45 p. m. at police station Ganga Ghat. Written First Infor mation Report has been proved as Ext. K-1, chik F. I. R. as Ext. K-3 and entries in G. D. as Ext. K-4. The basis of the argument seems to be the statement of Abdul Raseed on page 8, where he says that he sent the written F. I. R. from the hospital at about 1. 30 in ihe night, to the police station. It is the statement of P. W 1 that has given material to the learned counsel for the appellants to say that F. I. R. was ante-timed or ante-dated but Jagdev Singh P. W. 5, who prepared the chik report on the basis of the written F. I. R. Ext. K-A and who made necessary entries in the General Diary, deposes that chick F. I. R. was prepared at 6. 45 p. m. and at the same time necessary entries were made in the G. D. and the injured was sent to the doctor, with a report for medical examination. He has denied the suggestion that the papers were prepared on the next day. Dr. Jitendra Singh appearing as P. W 3 deposes that he had medically exmained Abdul Raseed on
