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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 93 OF 2011

MOHD. BABBAN & ANR.

Appellant(s)

VERSUS

STATE (DELHI ADMN.) DELHI

Respondent(s)

O R D E R

1.

Originally, five accused faced the trial for

the offence punshiable under Section 302 of Indian

Penal Code for causing the death of Ms. Tasleem.

2.

The learned Trial Judge convicted all of them

for the offence punishable under Part-I of Section

304 of Indian Penal Code and sentenced them to

suffer rigorous imprisonment for 7 years.

3.

All the five accused preferred an appeal. Out

of them, accused No.5 (Mohd. Arafeen), who is the

brother of the appellant No.1 (Mohd. Babban), was

acquitted by the learned High Court.

4.

However, so far as the other four accused,

including the present appellants are concerned,

their conviction was converted to Part-II of 304 of

Digitally signed by

Deepak Singh

Date: 2023.03.02

10:08:17 IST

Reason:

Signature Not Verified

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Indian Penal Code and the sentence of seven years

rigorous imprisonment was maintained.

5.

Being aggrieved thereby, the present appeal

is filed by the appellants.

6.

Shr. Mohd. Saleem, learned counsel for the

appellants submits that the Trial Court as well as

the High Court grossly erred in convicting the

present appellant(s). He submits that no role has

been attributed to the present appellant(s). He

further submits that, as a matter of fact, it is

the deceased and his family members who had come to

attack the appellant No.1 at his house. He,

therefore, submits that the appeal deserves to be

allowed and the appellants be acquitted from the

charges charged with.

7.

Shri Nachiketa Joshi, learned counsel

appearing for the respondent-State has vehemently

opposed the appeal. He submits that both the

learned Trial Court as well as the High Court have

convicted the appellants in correct appreciation of

evidence. He submits that, in any case, a very

lenient view has been taken by the High Court by

convicting the appellants under Part-II of Section

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304 of the Indian Penal Code. He, therefore,

submits that no interference is warranted in the

present case.

8.

It is not in dispute that there is previous

enmity between the family of the appellants and the

family of the deceased. The star witness in the

present case is PW-2 (Smt. Parveena), widow of the

deceased.

9.

It could be seen from her evidence that there

are material omission and contradictions.

10.

In the celebrated case Vadivelu Thevar vs The

State Of Madras – AIR (1957) SC 614, the privy

council has held that there are three types of

witnesses; wholly reliable, wholly unreliable and

partly reliable & partly unreliable. Further, it

has been held that where the witness is wholly

reliable there is no difficulty, as conviction

could be based on the basis of evidence of such

witness. Equally, when the witnesses is wholly

unreliable, there would be no difficulty as no

conviction could be based on the evidence of such a

witness.

12.

The difficulty arises when the witnesses are

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partly reliable and partly unreliable. In case of

such an evidence, the Court is required to separate

chaff from the grain.

13.

As already discussed hereinabove, it is not

disputed that there is previous enmity between the

two families. [Though the previous enmity with the

deceased victim could provide motive, the

possibility of false implication cannot also be

ruled out].

14.

From the perusal of the evidence, it would

reveal that in so far as the role attributed to the

present appellants of exhortation is concerned, the

same is an improvement, inasmuch as in the

statement given to the police, there is no such

mention. This omission has been proved in the

evidence of I.O. As such, the possibility of

implicating the entire members of the family cannot