State Of Haryana vs Mohd.Yunus .

2024 INSC 34 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s).1307 OF 2012

STATE OF HARYANA …. APPELLANT

VERSUS

MOHD. YUNUS & ORS. ... RESPONDENTS

WITH CRIMINAL APPEAL NO(s)._1308 OF 2012 `

MOHD. JAMIL & ANR. …. APPELLANTS

VERSUS

STATE OF HARYANA ... RESPONDENT

JUDGMENT

PRASHANT KUMAR MISHRA, J.

1. Four accused persons namely, Mohd. Yunus (A1),

Mohd. Jamil (A2), Ghasita (A3) and Akhtar Hussain (A4) were

sent for trial for the same incident which occurred on Signature Not Verified Digitally signed by Deepak Singh Date: 2024.01.12 15:29:56 IST Reason:

09.01.1999 causing death of Akbar (deceased) and injuries to 2

Deenu (PW-1), Ahmad (PW-2) and Harun. Initially, accused nos.

1, 2 and 3 were tried in Sessions Case No. 12 of 1999 arising

from FIR No. 10 dated 09.01.1999 of Police Station Nuh,

Haryana in which they were convicted for offences under

Sections 302 and 323 read with Section 34 of the Indian Penal

Code, 18601 while acquitting them of the charge under Section

325 read with Section 34 of the IPC. During the pendency of the

trial against first three accused, the prosecution moved an

application under Section 319 of the Code of Criminal

Procedure, 19732 which was allowed by the Trial Court on

02.11.1999. While the first trial was decided on 25.07.2001,

when accused Akhtar Hussain was absconding, he was tried

separately after he surrendered, and charge sheet was

submitted on 01.04.2003. The trial against Akhtar Hussain in

Sessions Case No. 112 of 1999 dated 29.08.2003 was decided

on 05.10.2004 in which he was acquitted of the charges under

Sections 302, 323, 325 read with Section 34 of the IPC.

2. Akhtar Hussain’s (A4) acquittal was challenged

before the High Court which came to be dismissed against

which no further appeal has been preferred either by the

complainant or by the State.

1 For short ‘IPC’ 2 For short ‘Cr.P.C.’ 3

3. Under the impugned judgment in Criminal Appeal No.

1308 of 2012 the High Court has passed the common order

disposing of Criminal Appeal No. 437-DB of 2001 and Criminal

Revision No. 418 of 2005. The criminal appeal was preferred by

Mohd. Yunus, Mohd. Jamil and Ghasita challenging their

conviction by the Trial Court whereas criminal revision was

preferred by the complainant-Deenu challenging the judgment

of acquittal passed in favour of accused-Akhtar Hussain. The

High Court dismissed the appeal qua accused-Ghasita and

Mohd. Jamil whereas the appeal preferred by accused Mohd.

Yunus was allowed in part acquitting him of the charges under

Section 302 read with Section 34 of the IPC but maintained his

conviction for offence under Section 323 read with Section 34

IPC and sentenced him for the period already undergone.

4. Ghasita (A3) has died during the pendency of this

appeal. Resultantly, at present, out of the four accused

persons, Mohd. Yunus (A1) stands convicted only under Section

323 of the IPC, Ghasita (A3) has died, and Akhtar Hussain (A4)

is acquitted by the Trial Court and affirmed by the High Court

against which there is no further appeal. Thus, out of four 4

accused persons, only Mohd. Jamil (A2) stands convicted under

Sections 302 and 323 read with Section 34 IPC.

5. Criminal Appeal No. 1307 of 2012 has been preferred

by the State challenging the judgment of the High Court

acquitting Mohd. Yunus (A1) from the charges under Section

302 of the IPC while convicting him under Section 323 of the

IPC.

6. The prosecution case, in brief, is that at about 09.10

p.m on 09.01.1999, the informant-Deenu (PW1) along with his

brother Akbar (deceased) and Harun (son of PW1) were sitting

together warming themselves in front of fire. When the

deceased was going to his house, Ghasita (A3), his son Akhtar

Hussain (A4) armed with Pharsa, Mohd. Jamil (A2) armed with

Kulhari and Mohd. Yunus (A1) armed with lathi reached there to

teach a lesson in connection with a fight broke between them a

day before. As per the FIR, Ghasita (A3) and Akhtar Hussain

(A4) gave Pharsa blows on the head of the deceased. Akhtar

Hussain (A4) gave another blow whereas Jamil (A2) also

inflicted injuries by Kulhari on the head of the deceased. When

the deceased fell down Yunus (A1) gave lathi blows on the legs 5

of the deceased and Ghasita (A3) gave another Pharsa blow

over his head. When Ahmad (PW2) tried to rescue the

deceased from the accused persons, Yunus (A1) gave lathi

blows on the shoulder of Ahmad (PW2). Deenu (PW1) lodged

the first information report.

7. During the investigation, Dr. M.S. Ranga (PW3)

medically examined the deceased-Akbar and found the

following injuries on his person:

“(1). Incised wound 2.5 cm x 2 cm x bone deep placed over the scalp frontal region in the midline transversely with profuse bleeding.

(2) Incised wound 4cm x 2mm x bone deep placed over the frontal region of the scalp profused bleeding placed just paralled and behind the injury no.1

(3) Incised wound 1cm x 2cm placed over the frontal region of the scalp just lateral to injury no. 1 & 2 placed vertically with profused bleeding.

(4) Incised wound 2cm x 1cm bone deep placed over the frontal region of the scalp just behind the injury no.3 anteroposteriorly."

PW-3 opined that the injuries are caused within six hours

by using sharp edged weapons.

6

8. Ahmad (PW2) received two injuries over his right

shoulder and right hip joint respectively. Both having been

caused by blunt weapon within six hours. The deceased-Akbar

succumbed to the injuries on 11.01.1999. Dr. Chander Kant

(PW7) of Safdarjang Hospital, New Delhi conducted the post-

mortem examination and found the following injuries:

“1. One transversely placed stitched wound on right fronto temporal region. Total length 12 cm. Total number of stitches 12. on removal of the stitches the wound was partially surgical in nature.

(a) One incised wound on right fronto region at the junction of frontal region with anterior aspect of right parietal region size 3 x 1.3 cm x bone deep.

Margins were clean cut except at the places of stitched both angles acute.

(b) One incised wound parallel to injury No.(a) size 2.1cm x 1.4 cm x bone deep, both margins clean cut except at the place of stitches.

Underneath right fronto-parietal bones were in pieces in irregular shape and size, already removed in an area of 8 cms x 5 cms.

2. One incised wound vertically placed middle of fronto-parietal region 2.6 cms x 2 cm x bone deep.

3. Abrasion on back of left shoulder region size 4 cms x 3 cms.

4. Abrasions on occipital region left side size 2 cm x 1 cm .

5. Contusion left eye.” 7

9. On 14.01.1999, Yunus (A1) and Jamil (A2) were

arrested and a lathi was recovered from Mohd. Yunus (A1)

whereas Kulhari was recovered from Mohd. Jamil (A2) . Ghasita

(A3) was arrested on 22.01.1999 and blood stained Pharsa was

recovered from him. Akhtar Hussain (A4) was found innocent by

the police and was not sent for trial. However, he was

summoned later under Section 319 Cr.P.C. There is no recovery

against Akhtar Hussain (A4). Akhtar Hussain (A4) challenged

the order of summoning before the High Court and the trial

against him was stayed which commenced later on after

dismissal of the criminal revision.

10. During the course of trial, the prosecution examined

the complainant/eye-witness-Deenu (PW-1), injured eye-

witness- Ahmad (PW-2), Dr. M.S. Ranga (PW-3), Constable

Sarwan Kumar (PW-4), Head Constable Sunil Dutt (PW-5),

Constable Raj Kumar (PW-6), Dr. Chander Kant (PW-7), ASI Siri

Niwas (PW-8), Head Constable Hari Kishan (PW-9) and SI Daya

Nand (PW-10). However, listed prosecution witnesses namely,

Harun, Abdul Rashid, Mozam Khan, Rati Mohd. And Fattu were

gave up being unnecessary.

8

In defence, accused appellants submitted certified copy of

complaint made by Ghasita (A3) against deceased-Akbar, PW

Harun and others for offences punishable under Sections 379,

380, 411, 406, 407, 452, 120-B, 506, 427 and 403 IPC for illegal

cutting and removal of 13 trees belonging to the Panchayat. A

copy of pedigree showing 4th degree relationship between

prosecution witnesses namely, Deenu and Ahmad as well as

certified copy of statement of Ghasita (A3) as prosecution

witness in trial “State vs. Tundal etc.” under Section 304 IPC

were also submitted.

11. Upon their conviction by the Trial Court, Mohd. Yunus

(A1), Mohd. Jamil (A2) and Ghasita (A3) preferred appeal before

the High Court which was dismissed qua Mohd. Jamil (A2) and

Ghasita (A3) whereas appeal preferred by Mohd. Jamil (A1) was

allowed in part. In the separate trial, Akhtar Hussain (A4) was

acquitted which was affirmed by the High Court against which

there is no further appeal.

12. In the present Criminal Appeal No.1308 of 2012, we

are required to consider the legality and validity of conviction

imposed upon Jamil (A2) whereas in the Criminal Revision, the 9

State has called in question Yunus (A1) acquittal under Section

302 IPC.

13. It was argued by the learned counsel for the

appellant-Mohd. Jamil (A2) that the FIR is ante-timed and

delayed; the conviction is based on the testimony of interested

witnesses who are closely related to the deceased and the

prosecution has failed to examine the independent witnesses

namely, Harun and Deenu s/o Kalu. It is also argued that the

presence of informant (PW-1) is doubtful considering the

statement of Ahmad (PW-2) recorded under Section 161 Cr.P.C.

in which he did not mention that Deenu (PW-1) was present at

the spot; moreover, Deenu’s clothes were not smeared with

blood, although Deenu deposed in his statement that after the

deceased suffered injuries he lifted him in an injured condition

and put him in the tractor. Learned counsel has referred to the

omissions and contradictions in the statements of these

witnesses.

14. On the contrary, learned counsel appearing for the

State of Haryana would submit that conviction of Mohd. Jamil 10

(A2) under Section 302 read with Section 34 IPC is born out

from the evidence on record, which is unimpeachable,

therefore, no interference is called for. Challenging the acquittal

of Mohd. Yunus (A1) for offence under Section 302 read with

Section 34 IPC (in Criminal Appeal No.1307/2012), learned

counsel for the State of Haryana argued that the same set of

evidence, which holds good for convicting Mohd. Jamil (A2)

should have been given due weightage for upholding the

conviction of Mohd. Yunus (A1) for the offence under Section

302 read with Section 34 IPC. According to him, the High Court

ought not to have acquitted Mohd. Yunus (A1) of the charge

under Section 302 read with Section 34 IPC.

15. We have heard learned counsel for the parties at

length and perused the material available on record.

16. The High Court has rejected the argument qua delay

in registration of FIR or that it is ante-time, and we see no

reason to disagree with the High Court’s finding on this aspect

of the matter.

17. It is to be noticed that as per the first version of the

incident narrated by the informant-Deenu in the FIR lodged by 11

him, Ghasita (A3) gave a Pharsa blow on the head of the

deceased and second blow was given by Akhtar Hussain (A4)

by Pharsa over his head and third blow was given by Mohd.

Jamil (A2) with Kulhari on his head and when the deceased fell

down, Mohd. Yunus (A1) gave a lathi blow and Ghasita (A3)

gave another blow over the head of the deceased. When Akhtar

Hussain (A4) was sent for trial, Deenu was examined as PW-7

who maintained his statement that Mohd. Jamil (A2), Ghasita

(A3) and Akhtar Hussain (A4) assaulted the deceased with

Pharsa and Kulhari. Comparing the statement of the Deenu

(PW-7) with the statement of Ahmad (PW-8), the Trial Court

found major contradictions and disbelieved the statement of

Deenu (PW-7) while acquitting Akhtar Hussain(A4) of the

charges under Section 302 read with Section 34 IPC. It was also

held in the said judgment of the Trial Court that PW-7 and PW-8

are interested witnesses and cannot be relied upon in the

circumstances of the case. Further it was noticed that PW-7 is

changing his stand inasmuch as in his earlier statement dated

08.07.1999 he denied that Ghasita (A3) and Akhtar Hussain

(A4) were armed with Pharsa which he stated in the trial

against Akhtar Hussain (A4). The Trial Court was of the opinion 12

that both the important witnesses namely, Deenu (PW-7) and

Ahmad (PW-8) made improvements in their statements.

Therefore, when the statements are contrary, facts are twisted

and improvements are made, no reliance can be made upon

such statement.

18. Although, appellant – Mohd. Jamil (A2) and Akhtar

Hussain (A4) were tried separately and the statement of

witnesses were recorded twice, firstly, in the trial against three

accused persons (Mohd. Yunus (A1), Mohd. Jamil (A2) & Ghasita

(A3)) and secondly, in the trial against Akhtar Hussain (A4), the

fact remains that both the star witnesses of the prosecution

namely Deenu (PW-7) and Ahmad (PW-8) are disbelieved in the

second trial by clearly stating that their statements are

contradictory, the facts are twisted and improvements are

made. For trial under Section 302 IPC, if a witness is branded as

untrustworthy having allegedly twisted the facts and made

contrary statement, it is not safe to impose conviction on the

basis of statement made by such witness. When there is an

effort to falsely implicate one accused person, statement made

by such an eyewitness cannot be relied without strong

corroboration. Moreover, there is material on record proving 13

previous enmity between the parties as mentioned in

paragraph 25 of the trial court judgment.

19. It is important to notice that the Trial Court had

recorded a finding that recovery of Lathi from Mohd. Yunus (A1)

and Kulhari from Mohd. Jamil (A2) is not safe to rely upon,

meaning thereby, the recovery has not been proved. The Trial

Court found that the recovery of Pharsa from Ghasita (A3) is

fully proved. However, the appeal preferred by Ghasita (A3) has

already abated.

20. Summing up the quality of evidence available on

record, we have found that recovery of Kulhari from Mohd. Jamil

(A2) and Lathi from Mohd. Yunus (A1) has not been proved. The

deceased had sustained four injuries over his head. There are

allegations against Ghasita (A3) that he inflicted injuries over

the head of the deceased on more than one occasion. The

statement of eye-witness Deenu (PW-7) and Ahmad (PW-8)

have not inspired confidence in the second trial against Akhtar

Hussain (A4). The credibility of their evidence is under serious

doubt because of twisting of facts and improvements made.

Therefore, for all these reasons it is not safe to convict the

appellant- Mohd. Jamil (A2) for offence under Section 302 read 14

with Section 34 IPC on the basis of statement of such

eyewitness.

21. Accordingly, we set aside the impugned judgment of

the High Court and the Trial Court convicting the appellant-

Mohd. Jamil (A2) for offence under Section 302 read with

Section 34 IPC. However, in view of the evidence on record

conviction of appellant-Mohd. Jamil for the offence under

Section 323 read with Section 34 IPC is not required to be

interfered. Resultantly, Criminal Appeal No. 1308 of 2012

preferred by the appellant-Moh. Jamil (A2) is allowed in part

setting aside his conviction under Section 302 read with Section

34 IPC and, at the same time, maintaining his conviction and

sentence under Section 323 read with Section 34 IPC. The

appellant-Mohd. Jamil (A2) has been sentenced to undergo

rigorous imprisonment for six months for offence under Section

323 read with Section 34 IPC. As per the custody certificate, he

has already undergone sentence for more than six months.

Since, the appellant-Mohd. Jamil is on bail during the pendency

of this appeal, his bail bonds are discharged. 15

22. Criminal Appeal No. 1307 of 2012 preferred by the

State of Haryana challenging the acquittal of Mohd. Yunus (A1)

under Section 302 read with section 34 IPC stands dismissed.

………………………………………J. (M.M. SUNDRESH)

…………………………………… …J. (PRASHANT KUMAR MISHRA) JANUARY 12, 2024;

NEW DELHI.