State Of Maharsthra vs Ahmed Shaikh Babajan & Ors

criminal revision preferred by the State, has

affirmed the order passed by the Additional

Sessions Judge dated 25th April, 1995, acquitting

respondents No.1 to 3 herein, of the charge under

Section 302 read with Section 34 of the Indian

Penal Code, 1860 (for short `the I.P.C.') and has set

aside the order of the Trial Court convicting the said

respondents for offence under Section 456 read

with Section 109 I.P.C. Conviction of respondents

No.4 and 5 for the offence under Section 456 I.P.C.

has also been set aside by the High Court.

2. The backdrop under which the alleged occurrence

took place on 27th April, 1989, in brief, is as follows:

By an agreement of leave and licence dated 28th

July, 1988, Ahmed Shaikh, (accused A-1), the owner of

Flat No.H-14, 3rd Floor, Zohra Agadi, Yari Road, Versova,

Andheri, inducted Smt. Rani Bhagwant Singh (PW-6), as

a licensee of the said premises. The agreement was for a

2 period of 9 months and was to expire on 27th April, 1989.

The flat was occupied by PW-6 along with her husband

Bhagwant Singh (PW-4), her daughter, Harjeet Kaur

(PW-5), her son Indrajeet Singh (deceased) and two other

sons, Arvinder Singh (PW-1) and Harvinder Singh (not

examined). Though the agreement was initially for a

period of 9 months commencing from 28th July, 1989, it

was subject to further extension and renewal. Advance

rent for 9 months was paid to accused A-1 with one

month's rent as security deposit.

3. The said agreement was finalised through an Estate

Agent - Moinuddin Khan (accused A-3), a resident

of the same society. About two weeks prior to the

date of incident, accused A-1, his estate agent

(accused A-3) and one Usmangani Shaikh (accused

A-2), approached Bhagwant Singh Anand (PW-4)

asking him to deliver vacant possession of the flat

on the expiry of the said leave and licence

agreement. Thereafter on 24th, 25th and 26th April,

3 1989, they again met Bhagwant Singh Anand and

insisted on the delivery of vacant possession of the

flat by 27th April, 1989. It will be of some relevance

to note that Usmangani Shaikh (accused A-2) is the

brother of Asmabi (accused A-4), wife of accused A-

1 and Rahimabi, (accused A-5) is the sister of

accused A-1. PW-4 requested for permission to stay

in the flat for a few more days as his children,

including the complainant (PW-1), were busy in

their annual examination; his wife, Rani Anand

(PW-6) and daughter Harjeet Kaur (PW-5) were also

away to Hyderabad since the latter was appearing

for her final B.A. examination in Osmania

University and they were expected to return back to

Bombay on 27th April, 1989. The request was

turned down by accused A-1, who insisted that the

possession of the flat must be delivered by 27th

April, 1989, failing which possession would be

taken by force.

4

4. In this background, very shortly put, the

prosecution version was that apprehending that the

possession of the flat may not be delivered on the

expiry of the licence agreement, accused A-1

decided to take the possession forcibly with the help

of his wife (accused A-4), her brother (accused A-

2), his sister (accused A-5) and the Estate Agent,

(accused A-3). On 27th April, 1989 at about 7.30

p.m., the deceased was standing in front of the

shop of accused A-3 on the ground floor in the

same society, three buildings away from the

building in which the deceased resided, waiting for

his mother and sister, who were scheduled to

return from Hyderabad in the evening. He had the

keys of the flat with him. His father (PW-4), who

was in the flat till evening later left the house for

bringing food for the family, instructing the

deceased to wait on the road. Arvinder Singh (PW-

1) also left the house at about 7.00 p.m. for paying

obeisance at the Gurudwara. While the deceased 5 Inderjeet Singh was standing in front of the shop of

accused A-3, accused A-1 and accused A-3 came

near him and started beating him. The beating was

witnessed by PW-1 who was returning from the

Gurudwara. He rushed to save his brother, who, by

that time had fallen down on the ground and was

stifling.

5. The incident drew attention of the public and the

two accused were apprehended. One, Sunil Salvi

(PW-2), a police constable (off duty) and a family

friend of the Anands, also happened to be at the

spot and he too accosted the two accused. He along

with PW-1 took the victim to the clinic of one Dr.

Asif Ali (PW-8) situated on the ground floor of the

same building in which Anands resided. Finding

the victim in a serious condition, PW-8 advised his

removal to a bigger hospital. In the meanwhile, he

also contacted the police control room. In a short

while the police mobile van arrived and the

6 deceased was removed to Cooper Hospital. PW-1

also accompanied him. The police also took

accused A-1 and A-2 with them to the hospital.

However, accused A-3 escaped. The deceased was

examined by the doctors on duty and was declared

brought dead.

6. PW-1 returned back to the flat to inform his father

(PW-4) about the incident and the death of Indrajeet

Singh but did not find him in the flat. Instead he

found that the flat had been occupied by two ladies,

accused A-4 and A-5 with a small child. When he

protested, the said accused retorted by saying that

he had no right to occupy the flat after the expiry of

the agreement. He went out in search of his father

who was found in a garden. He informed him about

the incident and thereafter went to lodge the First

Information Report (FIR) with the police.

7. When Smt. Rani Anand (PW-6) and Harjeet Kaur

(PW-5) returned from Hyderabad and went to the 7 flat, they also found accused A-4, A-5 and a small

child occupying the flat. They carried their luggage

inside the flat but the said accused did not permit

them to do so and, in fact, accused A-4 threw the

luggage outside the flat with the assistance of

accused A-5. Accused A-4 informed PW-5 and PW-

6 that Inderjeet had assaulted her husband. In the

meanwhile a police constable came to the flat and

asked accused A-4 and A-5 and PW-6 to accompany

him to the police station.

8. On completion of investigations, chargesheet was

filed against the respondents. All of them were

charged under Section 460, I.P.C. for committing

offence of house breaking by night and causing

death of a person. Additionally, accused A-1 to A-3

were also charged under Section 302 read with

Section 34 I.P.C. for committing murder of Inderjeet

Singh. In support of its case, the prosecution

examined ten witnesses out of which PW-1 (brother

8 of the deceased) and PW-2 (off duty constable) were

stated to be the eye-witnesses. No evidence was

produced in defence. The learned Additional

Sessions Judge, on appreciation of evidence,

acquitted accused A-1 to A-3 of the offence under

Section 302 read with Section 34 I.P.C. However,

relying on the testimony of PW-5 and PW-6, the

Trial Court convicted accused A-4 and A-5 for

offence under Section 456 I.P.C. for house breaking

by night and accused A1 to A-3 for offences under

Section 456 read with Section 109 I.P.C. and

sentenced each of them to undergo rigorous

imprisonment for a term of two years and pay fine

of Rs.5000/- each with default stipulation.

9. The High Court, as noticed hereinabove, while

affirming the acquittal of A-1 to A-3, has disagreed

with the Trial Court and has set aside the

conviction of the respondents for offences under

Section 456 read with Section 109 I.P.C as well. In

9 reversing the judgment, the High Court has relied

on the following circumstances - (i) though the FIR

was lodged by PW-1, three hours after the

occurrence and that too after consulting his father

(PW-4) there is not a word in the FIR about the

forcible occupation of the flat in question by

accused A-4 and A-5; (ii) since accused A-1 and

A-2 were admittedly apprehended by the mob soon

after the incident in which Indrajeet was assaulted

and they remained in police custody thereafter,

there was no possibility of their abetting the

commission of offence by accused A-4 and A-5; (iii)

after the male members of the family had been

apprehended and had been taken into custody by

the police, the two female members of the family

would not dare to forcibly occupy the flat; (iv) if the

version of PW-5 is to be believed, accused A-4 and

A-5 were detained by the police constable, who had

taken them to the hospital with PW-6, the

1 concerned constable was not examined to prove this

fact. Hence the present appeals.

10. Mr. Adsure, learned counsel appearing for the State

submitted that the High Court committed serious

error in passing impugned judgment without taking

into consideration the fact that a day prior to the

date of occurrence, accused A-1 to A-3 had

threatened PW-4 (father of the deceased) of forcible

eviction from the flat and assault on the deceased

was in furtherance thereof. Learned counsel

asserted that insofar as accused A-1 to A-3 are

concerned, in addition to commission of offence

under Section 456 read with Section 109 I.P.C., a

clear case for their conviction for offence under

Section 304 Part-I, I.P.C. is made out. It was

argued that the testimony of PW-5 and PW-6,

coupled with the fact that there was no cross

examination of the said witnesses in regard to the

presence of accused A-4 and A-5 in the flat, was

1 sufficient to establish the case against the accused.

It was also contended that accused A-4 and A-5

committed the offence in furtherance of instigation

by the male members of the family, namely,

accused A-1 to A-3 and, therefore, all of them were

rightly convicted for offences punishable under

Section 456 read with Section 109 I.P.C.

11. Learned counsel appearing on behalf of

respondents No.1, 2, 4 and 5, on the other hand,

submitted that PW-2 having been declared hostile

and presence of PW-1 at the time and place of

occurrence having been doubted by both the courts

below and in the absence of any other public

witness, particularly when accused A-1 and A-2 are

alleged to have been apprehended by the mob, the

prosecution has failed to prove the involvement of

accused A-1 to A-3 in the incident of assault on the

deceased. It was also urged that there is no

evidence on record to prove that any of the accused

1 had forcibly entered in the flat, belonging to

accused A-1 and thereby committed house breaking

by night so as to attract Section 456 I.P.C. It was

also argued that failure to mention anything about

forcible occupation of the flat in the FIR by PW-1,

who claims to have met accused A-4 and A-5, by

itself, is fatal to the prosecution case against all the

accused. Lastly, it was pleaded that accused A-4

and A-5 being ladies and the incident having taken

place as far back as in the year 1989, a lenient view

may be taken against them.

12. Before examining the rival stands with reference to

the evidence adduced by the prosecution, the scope

of our jurisdiction to deal with appeals by special

leave against a judgment of acquittal by the High

Court needs being noticed. True it is that Article

136 of the Constitution invests this Court with a

plentitude of plenary appellate power over all courts

and tribunals in India but a conspectus of a series

1 of decisions shows that this Court has set for itself

certain limits within which the power under the

said Article is to be exercised. It is the established

practice of this Court that power under Article 136

is invoked in very exceptional circumstances, when

the approach of the lower courts is vitiated by some

manifest illegality or the conclusion recorded is

such which could not have been possibly arrived at

by any court acting reasonably and judiciously.

Nevertheless, even within the restrictions imposed,

this Court has undoubted power to interfere even

with findings of fact, making no distinction between

a judgment of acquittal and conviction, though in a

case of acquittal ordinarily the Court does not

interfere with the appreciation of evidence or of

findings of fact, more so because the presumption

of innocence of the accused is further reinforced by

his acquittal, unless the High Court "acts perversely

or otherwise improperly". (See: The State of

1 Madras Vs. A. Vaidyanatha Iyer1; Himachal

Pradesh Administration Vs. Shri Om Prakash2).

13. In so far as the jurisdiction of the appellate court in

dealing with an appeal against an order of acquittal

is concerned, referring to the aforenoted decisions

in Arunachalam Vs. P.S.R. Sadhanantham &

Anr.3, O. Chinnappa Reddy, J. went on to observe

as follows:

"In dealing with an appeal against acquittal, the Court will, naturally, keep in mind the presumption of innocence in favour of the accused, reinforced, as may be, by the judgment of acquittal. But, also, the Court will not abjure its duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative. Where the acquittal is based on irrelevant ground, or where the High Court allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the trial Court is rejected by the High Court after a perfunctory consideration, or where the baneful approach of the High Court has resulted in vital and crucial evidence being ignored, or for any such adequate reason, this Court may feel obliged to step in to secure the

1 (1979) 2 SCC 297 2 (1972) 1 SCC 249 3 (1979) 2 SCC 297 1 interests of justice, to appease the judicial conscience, as it were."

14. Recently, in Chandrappa & Ors. Vs. State of

Karnataka4 referring to almost the entire law on

the point, one of us (C.K. Thakker, J.) has culled

out the following general principles regarding

powers of the appellate court while dealing with an

appeal against an order of acquittal:-

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3)Various expressions, such as, "substantial and compelling reasons" "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the 4 (2007) 4 SCC 415 1 reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.

Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5)If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court."

15. Bearing the afore-noted principles in mind, we shall

now examine whether the present case calls for

interference. We may note at the outset that in so

far as the first part of the incident, viz., assault on

the deceased is concerned, the prosecution

examined only PW-1 and PW-2, as eye witnesses to

1 the incident. PW-2 (Sunil Salvi), the sole

independent witness did not support the

prosecution version, in as much as he did not claim

to have seen the occurrence in which the deceased

was assaulted. In fact, in his deposition he stated

that he came soon after the assault and PW-1 came

even later. Thus, his testimony casts serious doubt

on the presence of PW-1 at the spot at the time of

occurrence. The Trial Court as well as the High

Court have noticed many inconsistencies in the

evidence of PW-1 and PW-2. It has also been

observed that no member of the crowd which had

gathered there, have been examined by the

prosecution. Having regard to the evidence on

record, we do not find any ground to interfere with

the concurrent findings recorded by both the Courts

below in reaching the conclusion that a case for

conviction of the respondents under Section 302/34

I.P.C. is not made out. In view of the evidence on

record, we find it difficult to accept the alternative 1 contention of learned counsel for the State that an

offence under Section 304 Part-I I.P.C. is made out

against accused A-1 to A-3. Accordingly, we affirm

the decision of the Courts below on the point.

16. However, as regards the offence under Section 456

I.P.C., since the Trial Court, on consideration of

evidence before it, had convicted all the accused for

the said offence and the High Court has reversed

the order of conviction, we propose to delve on this

aspect of the matter in a little greater detail.

17. As noted above, the first and the foremost

circumstance, which has weighed with the High

Court for acquittal of all the accused for offence

under Section 456 I.P.C. is that although the FIR

was lodged by PW-1 more than three hours after the

occurrence and after due discussion with his father

(PW-4), yet the factum of forcible occupation of the

flat by accused A-4 and A-5 did not find mention in

the FIR. The High Court has observed that having 1 admittedly met his mother (PW-6), father (PW-4)

and brother Harvinder Singh in the Cooper Hospital

and lodged the FIR thereafter, it was difficult to

believe that if PW-1 had seen accused A-4 and A-5

occupying the flat possessed by his family, this fact

would not have been mentioned in the FIR.

According to the High Court, it was not a case of

mere omission, but a case where the very fact

constituting the offence was absent from the FIR,

the earliest version of the occurrence.

18. The First Information Report is a report relating to

the commission of an offence, given to the police

and recorded by it under Section 154 of the Code of

Criminal Procedure, 1973 (for short the "Cr.PC").

Though, as observed by the Privy Council in

Emperor Vs. Khwaja Nazir Ahmad5, recording of

a First Information Report is not a condition

precedent to the setting in motion of the criminal

investigation yet from the view point of the 5 A.I.R. (32) 1945 Privy Council 18 2 investigating authorities it conveys to them earliest

information regarding the circumstances in which

the crime was committed; the names of the culprits

and the role played by them as well as the names of

the witnesses present at the scene of occurrence, so

vital for effective and meaningful investigation. The

information about an occurrence can be given by

any person knowing about the commission of such

an offence and not necessarily by an eye witness. Commenting on the object, value and use of First

Information Report, in Sheikh Hasib alias

Tabarak Vs. The State of Bihar6, a three-Judge

Bench of this Court had observed as under:-

"The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does not constitute substantive evidence though its importance as conveying the earliest information regarding 6 (1972) 4 SCC 773 2 the occurrence cannot be doubted. It can, however, only be used as a previous statement for the purpose of either corroborating its maker under Section 157 of the Indian Evidence Act or for contradicting him under Section 145 of that Act. It cannot be used for the purpose of corroborating or contradicting other witnesses."

19. Apart from the fact that lodging of information

under Section 154 Cr.PC keeps the District

Magistrate and the Superintendent of Police

informed of the occurrence and when recorded, is

the basis of the case set up by the informant and

provides material to the police to commence

investigation, its fundamental object is that it acts

as a safeguard against embellishment, exaggeration

and forgetfulness. True, that it is not the

requirement of law that every minute detail of the

occurrence needs to be recorded in the First

Information Report and as observed by this Court in

State of A.P. Vs. Golconda Linga Swamy & Anr.7

that the FIR is not intended to be an encyclopedia 7 (2004) 6 SCC 522 2 of the background scenario. Nevertheless, having

regard to the fact that it is one of the modes by

which a person aggrieved sets the criminal law in

motion, it must disclose the commission of an

offence. Though it is trite that the First Information

Report does not constitute substantive evidence

and can, strictly speaking, be only used as a

previous statement for the purpose of either

corroborating or contradicting its maker, yet

omission of material facts pertaining to the crime is

undoubtedly relevant in judging the veracity of

prosecution case.

20. In the present case, admittedly in the First

Information Report lodged by PW-1, a law student,

more than three hours after the alleged occurrence,

there was no complaint of house breaking and

occupation of the flat by accused A-4 and A-5 when

he claims to have met them at the flat and had an

altercation. In his cross-examination, when

2 questioned on the omission to mention the fact of

forcible occupation of the flat by accused A-4 and

A-5, he stated as under:

"At the time of recording of my complaint I was giving true and detailed account of all incidences regarding the visit of 24.4.89, 25.4.89, 26.4.89 and threats of dispossession and in the last of my complaint I deposed about the incident of assault in which Inderjeet Singh died. Therefore my F.I.R. is in detail on that behalf. However, name of two ladies accused nos.4 and 5 was not given out in my complaint against them for having trespassed in the flat immediately after the incident when I had gone to see my father. I cannot assign reason for such omission."

21. It is also pertinent to note that in his cross-

examination, he also stated that when his further

statement was recorded on 29th April, 1989, i.e. two

days after the occurrence, even then he did not

disclose the fact that accused A-4 and A-5, viz.,

Asmabi and Rahimabi, had broken open their flat

and had occupied it with a kid. He simply stated

that "I cannot assign any reason to omit their

2 names as persons taking unlawful occupation in

the house immediately after the occurrence. This

might be due to shock and tragedy we had faced on

that date, which continues today. Before I met my

father, I did not make report of the occurrence to

the police, although police and police officers were

present in the Cooper Hospital". It is, thus,

manifest that the informant (PW-1) was not able to

give any reasonable explanation for the significant

omission on his part. We feel that the evidence of

PW-1 is tainted with certain embellishments.

22. Furthermore, even in the evidence of Bhagwant

Singh, PW-4, the father of the deceased and PW-1,

there is not even a whisper about the forcible

occupation of their flat by accused A-4 and A-5

although admittedly even before lodging the FIR,

PW-1, his father and his mother (PW-6) had already

met. We find it difficult to believe that their flat

having been allegedly broken open and occupied by

2 accused A-4 and A-5, it was an insignificant fact

worthy of discussion amongst the family members.

It is also pertinent to note that PW-3, (Smt.

Najma) a neighbour of Anands, who was examined

by the prosecution to prove that the accused had

borrowed a hammer and screw-driver used by them

for breaking open the latch of the flat, did not

support the prosecution version. Besides, as also

noted by the High Court that although as per the

prosecution version accused A-4 and A-5, on the

asking of the police constable, who had visited the

flat, had accompanied him to the police station, this

fact was not proved by examining the constable

concerned. All these circumstances, in our

judgment, not only take the bottom off the

prosecution story, they are sufficient to throw

considerable doubt on its truthfulness and the

veracity of evidence of PW-1--an eye witness

complainant and knowing accused A-4 and A-5,

2 rendering it unsafe to base the conviction of the

accused upon it.

23. Under these circumstances, in our opinion, the

High Court was fully justified in holding that the

omission to mention the fact regarding the

occupation of flat by accused A-4 and A-5 in the

First Information Report, was a very important

circumstance, fatal to the case of the prosecution.

24. Now, what remains to be considered is whether

conviction of the respondents for offence under

Section 456 I.P.C. can be recorded on the basis of

the evidence of two closely related witnesses viz.

PW-5 and PW-6, sister and mother respectively of

the deceased. In their testimony, which is on

similar lines, they have stated that when they

returned to their flat in the night of 27th April, 1989,

they found the door of the flat open and accused A-

4 and A-5 present there along with a kid and when

they entered the flat, their luggage was thrown out 2 by the said accused. They have also stated that

when a constable came to the flat and enquired

about the mother of the deceased, they had shown

to him the damaged latch and bolt at the entrance.

The constable asked both the accused and PW-6 to

follow him and all of them went to the police

station.

25. In Hari Obula Reddy & Ors. Vs. The State of

Andhra Pradesh8 while dealing with the question

whether the evidence of an interested witness can

form the basis for conviction even without

corroboration by an independent evidence, a three-

judge Bench of this Court, speaking through R.S.

Sarkaria, J. had laid down that:

"Interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the 8 (1981) 3 SCC 675 2 evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. However, these are only broad guidelines which may often be useful in assessing interested 2 testimony, and are not iron-cased rules uniformly applicable in all situations."

26. Very recently in Ashok Kumar Chaudhary & Ors.

Vs. State of Bihar9 this Court had the occasion to

deal with the question of creditworthiness of the

evidence of relatives of the victim. On a review of

several decisions on the point, including Dalip

Singh Vs. State of Punjab10, Masalti Vs. State of

U.P.11 and Rizan & Anr. Vs. State of

Chhattisgarh, through The Chief Secretary,

Govt. of Chhattisgarh, Raipur, Chhattisgarh12 it

has been observed that though the Court has to

scrutinize such evidence with greater care and

caution but such evidence cannot be discarded on

the sole ground of the interest of such witness in

the prosecution. The relationship per se does not

affect the credibility of a witness. Merely because a

witness happens to be a relative of the victim of the 9 AIR 2008 SC 2436 10 [1954] 1 S.C.R. 145 11 [1964] 8 S.C.R. 133 12 (2003) 2 SCC 661 3 crime, he/she cannot be characterized as an

"interested" witness. The term "interested"

postulates that the person concerned has some

direct or indirect interest in seeing that the accused

is somehow or the other convicted either because

he had some animus with the accused or for some

other oblique motive.

27. In Namdeo Vs. State of Maharashtra13, one of us

(C.K. Thakker, J.) has said that a close relative

cannot be characterized as an "interested" witness.

He is a natural witness. His evidence, however,

must be scrutinized carefully. If on such scrutiny,

his evidence is found to be intrinsically reliable,

inherently probable and wholly trustworthy,

conviction can be based on the `sole' testimony of

such witness. Close relationship of witness with

the deceased or victim is no ground to reject the

evidence. On the contrary, close relative of the

deceased would normally be most reluctant to spare 13 2007 AIR SCW 1835 3 the real culprit and falsely implicate an innocent

one.

28. Having considered the evidence of PW-5 and PW-6

in the light of the legal position enunciated in the

aforementioned decisions and bearing in mind the

fact that PW-3, who was examined by the

prosecution to prove the vital fact that accused A-4

and A-5 had borrowed the hammer and screw

driver from her, being a neighbour of the

complainant has not supported the version of the

prosecution, the testimony of the said two witnesses

cannot be said to be intrinsically credible.

Moreover, having regard to the fact that neither in

the FIR nor in the statement of PW-1, recorded two

days after the occurrence, he had stated the fact of

house breaking, in our opinion, it will be hazardous

to rely solely on the uncorroborated evidence of PW-

5 and PW-6 to convict the accused under Section

456 I.P.C. Evidently, having lost their son/brother,

3 allegedly on account of beating by accused A-1 to A-

3, there was every reason for them to be inimical to

the accused. They were keen to see that all of them

were convicted.

29. For the aforesaid reasons, we are convinced that the

view of the High Court in discarding the evidence of

PW-5 and PW-6, does not suffer from any infirmity.

In that view of the matter and in the absence of any

other evidence on the issue, the order of the High

Court acquitting all the accused of the offence

under Section 456 I.P.C. does not suffer from any

illegality warranting interference.

30. Consequently, all the appeals, being bereft of any

merit, fail and are dismissed accordingly.

...........................................J. ( C.K. THAKKER )

...........................................J. 3 ( D.K. JAIN ) NEW DELHI, OCTOBER 24, 2008.

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