Javed Masood & Anr vs State Of Rajasthan

the scene of occurrence under the impression that

Mohammad Deen @ Mulla was dead. Meanwhile police patrol

van reached at the spot and removed the deceased to the 3

hospital where he was declared dead. On the basis of Parcha

Bayan, the FIR No.184/99 (Ex.P-48) was registered and

investigation commenced. On completion of investigation,

charge-sheet was filed against the appellants and

investigation was kept pending under Section 173(8) Cr.P.C.

against the rest of the individuals named in the Parcha Bayan.

The prosecution in support of its case examined as many as

33 witnesses and got marked certain documents and material

objects in evidence. The appellants denied the charges and

claimed trial.

3. The trial court accepted the prosecution case and convicted

and sentenced the accused, as stated above. The trial

court held that the prosecution proved its case beyond

reasonable doubt against the appellants and held them

guilty of having entered into a criminal conspiracy, unlawful

assembly and committing murder of the deceased. The

High court, however, confirmed the conviction of the

appellants only under Section 302 IPC and acquitted them

of the rest of the charges.

4. In the appeal before the High Court and as well as before

us, it was contended on behalf of the defence that the 4

incident took place out of acute enmity. The evidence of

highly interested eye-witness should be rejected as there is

likelihood of implicating some innocent persons.

5. Shri Amarender Sharan, learned senior counsel, inter-alia,

submitted that the presence of alleged eye-witnesses at

the scene of offence is highly doubtful and no reliance can

be placed on their evidence. He relied on the evidence of

Mohammad Ayub-PW-6 and police personnel-Laxmi

Narayan-PW-29, Suresh Kumar-PW-18 and Ranjeet Singh-

PW-30 in this regard. The learned counsel appearing for

the State supported the judgment under appeal.

6. As has been rightly held by the courts below that the death

of Mohammad Deen @ Mulla was homicide in nature. As

per post-mortem report (Ex.P-43) following ante mortem

injuries were found on the dead body:

1. Incised wound 1" x =" sub cut deep right parietal posterior part, elliptical

2. Incised wound 1" x =" pharyngeal cavity deep elliptical vertical bleeding + Rt. carotid region ant. to ear lobule.

3. Incised wound =" x <" muscle deep on Rt. parotid region anterior to injury No. 2 vertical elliptical. 5

4. Contusion 3" x 2" lt. forehead above lt. eye brow with black eye.

5. Incised wound 1" x 1/8" sub cut elliptical 1=" lateral to eye on face right vertical.

6. Incised wound elliptical 1=" x =" muscle deep on upper 1/3rd forearm Lt. vertical.

7. Incised wound elliptical 1=" x =" muscle deep on lt. arm upper 1/3 vertical.

8. Penetrating incised wound 1=" x =" Rt. chest cavity deep 2" above & =" medial to right nipple on anterior right chest wall elliptical, directing down & medial aspect.

9. Penetrating incised wound 1=" x =" chest cavity deep elliptical, oblique 1<" medial to injury No. 8 giving downward & laterally on ant. chest wall (Rt.)

10. Incised wound 1=" x >" muscle deep elliptical oblique direction medial & lateral aspect Rt. lower chest mammary line interiorly.

11. Penetrating Incised wound 1=" x =" abdominal cavity deep on left hypochondrium on abdominal wall elliptical obliquely placed 2" below sub costal Lt. marg & 2" lt. lateral to mid line.

12. Incised wound =" x 1/8" sub cuticle 4=" below left nipple transverse elliptical.

13. Abrasion 3 No. 2=", 2", 1" linear oblique each parallel to each other 4" lat. & above to umblicus on lt. Ant. abdominal wall.

14. Incised wound 4" x =" muscle oblique above down 2"

lateral to (Rt. nipple, on Rt. chest anterior lat.)

15. Incised wound 1=" x <" muscle deep elliptical horizontally in mid axillary region (right). 6

16. Penetrating Incised wound 1=" x =" chest cavity deep Rt. mid axillary region =" below injury No. 15, elliptical vertical bleeding.

17. Incised wound 1=" x =" x scapular deep horizontal elliptical Rt. back chest inter scapular region.

18. Incised wound 1<" x <" muscle deep left to mid line of back on chest vertical elliptical

19. Incised wound 1<" x <" muscle deep transverse =" right medial to mid line on Rt. back of chest

20. Incised wound =" x <" muscle deep on left lower to chest back in lower part elliptical horizontal.

21. Abrasion (three) <" x <" each three No. number Rt. knee joint.

22. Abrasion (two) <" x <" on left knee joint.

7. The cause of death according to the medical opinion was

due to the excessive haemorrhage on account of injuries

caused to right lung and liver. The injuries found on the

chest were penetrating in nature.

8. The short question that arises for consideration in this

appeal is as to whether the courts below committed any

manifest error in relying on the evidence of Chuttu (PW-5),

Noor (PW-13) and Rayees (PW-14) to convict the

appellants for the charge under Section 302 IPC. It is well

settled and needs no restatement at our hands that

concurrent findings of facts are not usually interfered with 7

by this court in exercise of its jurisdiction under Article 136

of the Constitution of India by reappreciating the evidence

unless it is clearly established that the courts below

altogether ignored vital piece of evidence and rested their

conclusion placing reliance on the evidence which cannot

be accepted on the face of it.

9. Chuttu (PW-5) who lodged the FIR is an important witness.

He more or less confirmed in the examination-in-chief as

to what has been stated by him in Parcha Bayan (Ex.P-12).

He specifically alleged that Javed Masood (A.1) inflicted

gupti blow on the chest of the deceased and Najeeb (A.2)

had inflicted with gupti on abdomen and chest. It is in his

evidence that the occurrence was witnessed by Husain

(PW-4), Rayees (PW-14) and Ayub Bhai Tyrewala (PW-6).

He stated that while assault was going on the deceased he

remained shouting and no one came to rescue the

deceased. Meanwhile, a white coloured police gypsy

arrived at the scene of offence in which the deceased was

removed to hospital where Mullaji was declared dead. He

admitted that police gypsy reached just after two minutes

of occurrence. He also admitted that there was an enmity 8

between him and the appellants as Javed Masood lodged a

case against him and PW 14 and others.

10. The evidence of Ayub Bhai (PW-6) is very crucial. It is in

his evidence that on the fateful day the deceased alone had

come on a motorcycle to his shop at about 12.30 p.m. to

repay an old debt. The deceased requested for sale of

some more tyres on credit basis to which he refused.

There was conversation for about 15 minutes in that

regard. While the deceased was sitting in the shop he

went into the basement of the shop to find as to any old

tyres were available to sell as requested by the deceased

and when he returned to the shop the deceased was not

found in the shop. Then he found crowd in the street

parallel to his shop and went to the place to know as to

what transpired and found the deceased was lying

overturned completely soaked in blood. He had died at the

place of occurrence. Within 5-10 minutes the police came

in gypsy and removed the body to hospital in gypsy. It is

specifically stated in his evidence that PW-5-Chuttu who is

none other than the brother of the deceased came to the

spot after 10 minutes of the removal of the dead body and 9

enquired from him regarding the occurrence and he

informed that the police took him to the hospital. He also

stated in his evidence that he has not given the names of

any individuals to the police in as much as he had not seen

the actual occurrence of the incident. It is also in his

evidence that immediately after the incident he telephoned

to one Habib with a request to communicate the message

to Chuttu about the occurrence. He repeatedly stated that

Chuttu (PW-5), Noor (PW-13), Saleem (PW-7) and Rayees

(PW-14) were not present when the police kept the dead

body of Mullaji (deceased) in gypsy. He also explained that

there was no need for him to send any telephonic message

had they been present at the scene of occurrence. This

witness did not support the prosecution case. He was not

subjected to any cross-examination by the prosecution. His

evidence remained unimpeached.

11.The evidence of Noor (PW-13) and Rayees (PW-14) is

more or less the same as of PW-5 and therefore no detailed

discussion is required about their evidence.

12. Suresh Kumar (PW-18) is a Police Constable who along

with driver Ranjit Singh (PW-30) went in the gypsy to the 10

spot and lifted the injured person into gypsy to take him

to the hospital. He stated in his evidence that at that time

except himself, driver Ranjit Singh (PW-30) and Circle

Inspector nobody else was present. He specifically stated

that Chuttu (PW-5), Rayees (PW-14) and Noor (PW-13)

were not present at the place of occurrence at the time

when he reached the scene of offence. Laxshami Narayan

(PW-29) is another Policeman who corroborated the

evidence of Constable Suresh Kumar (PW-18) stating that

he and Constable Suresh Kumar and driver Ranjit Singh

(PW-30) kept the body of the injured (deceased) in the

gypsy and went to Sahadat hospital. There was crowd

near the injured person but no relative of deceased was

present. In the same manner Ranjit Singh (PW-30) driver

of the gypsy corroborated the evidence of PW-18 and PW-

29 stating that no one was present when they have lifted

the body from the scene of occurrence and placed the

same in gypsy. All of them were police personnel and on

duty at the relevant time. There is no reason for them to

depose falsely. It is nobody's case that PWs 6, 27, 29 and

30 are not independent witnesses. There is no reason to 11

disbelieve the evidence of PW-6 and no valid reason has

been suggested as to why his evidence cannot be relied on

and taken into consideration. The evidence of PW-6, if it

is to be taken into consideration, makes the presence of

PWs 5, 13 and 14 highly doubtful at the scene of

occurrence. We do not find any reason whatsoever to

discard the evidence of PW-6 who is an independent

witness. He was not present at the actual scene of offence

when the deceased was subjected to attack even though

PW-5, in his evidence stated as if PW-6 was also present at

the time of attack. But PW-6 in categorical terms stated, by

the time he went to the scene of offence within a couple of

minutes, the deceased was lying dead in a pool of blood

and neither PW-5 nor PWs 13 and 14 were present at the

scene of offence. PW-5 is none other than the brother of

deceased and a highly interested witness whose evidence

was required to be carefully scrutinised and precisely for

that reason we have looked into the evidence of PW-5 with

care and caution. The testimony of Mohammad Ayub (PW-

6) cannot easily be surmounted by the prosecution. He has

testified in clear terms that PWs 5, 13 and 14 were not 12

present at the scene of occurrence. It is not known as to

why the public prosecutor in the trial court failed to seek

permission of the court to declare him "hostile". His

evidence is binding on the prosecution as it is. No reason,

much less valid reason has been stated by the Division

Bench as to how evidence of PW-6 can be ignored.

13. In the present case the prosecution never declared PWs

6,18, 29 and 30 "hostile". Their evidence did not support

the prosecution. Instead, it supported the defence. There is

nothing in law that precludes the defence to rely on their

evidence. This court in Mukhtiar Ahmed Ansari vs.

State (NCT of Delhi)1 observed:

"30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution.

1 (2005) 5 SCC 258 13

31. In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, accused can rely on that evidence."

14.The proposition of law stated in the said judgment is

equally applicable to the facts in hand.

15. It is clear that the evidence of PW-6 completely rules out

the presence of Chuttu (PW-5) at the scene of offence. It is

thus clear that PW-5 was not speaking truth, being

interested witness obviously made an attempt to implicate

the appellant in the case due to previous enmity. Be it

noted that the entire prosecution case rests upon the

Parcha Bayan (Ext. P12) lodged by PW-5. Once his

presence is disbelieved, the whole case of the prosecution

collapses like a pack of cards. In addition, the evidence of

PWs 18, 29 and 30 who are all independent witnesses, also

cast a serious shadow on the evidence of PWs 5, 13 and 14

as regards their presence at the scene of offence. It is

under those circumstances, we find it difficult and

impossible to place any reliance whatsoever on the 14

evidence of PW-5 who is a highly interested and partisan

witness. No reliance can be placed on his evidence in order

to convict the appellants of the charge under Section 302,

IPC. For the same reasons, the evidence of PWs 13 and 14

also is to be discarded. None of them was speaking truth.

16. The Courts below altogether ignored these vital aspects of

the matter which compelled us to carefully analyze their

evidence. On such careful analysis, we find it difficult to

accept the evidence of PWs 5, 13 and 14 to sustain the

conviction and sentence imposed on the appellants. There

is no other acceptable evidence on record based on which

the charge could be held proved against the appellants.

17. For the aforesaid reasons the conviction of the appellants

and the sentence imposed on them is set aside and they

are directed to be released forthwith.

18.The appeal is accordingly allowed.

...............................................J. (B. SUDERSHAN REDDY)

................................................J. (SURINDER SINGH NIJJAR) 15

New Delhi, March 9, 2010