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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.911 OF 2007  

HABIB   .. Appellant

Versus

STATE OF UTTAR PRADESH .. Respondent

WITH

CRIMINAL APPEAL No.915 OF 2007  

MANUWA   .. Appellant

Versus

STATE OF UTTAR PRADESH .. Respondent

J U D G M E N T  

K. S. Radhakrishnan, J

1. The appellants herein were charge-sheeted for the offences  

punishable  under  Section  302  of  the  Indian  Penal  Code.   The  

accused Habib was charge-sheeted under Section 302 IPC and the

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remaining two accused persons including Manuwa were charge-

sheeted under Section 302 read with 34 IPC, however, Manuwa  

was also charge-sheeted under Section 307 IPC as well.

2. The  trial  court  after  appreciating  the  oral  as  well  as  

documentary evidence acquitted all the accused persons vide its  

judgment dated 3.10.2008.  Aggrieved by the said order the State  

preferred G.A. No.114 of 1982 before the High Court of judicature  

at Allahabad.  The High Court, vide its judgment dated 23.3.2007  

confirmed the acquittal  of the accused Bhappa but acquittal  of  

Habib and Manuwa was set aside.  Habib was found guilty and  

convicted for the offences punishable under Section 302 IPC and  

accused  Manuwa  was  convicted  under  Section  302  read  with  

Section  34  IPC.   Aggrieved  by  the  said  order  Habib  has  filed  

Criminal Appeal No.911 of 2007 and Manuwa has filed Criminal  

Appeal No.915 of 2007.   

3. The prosecution story is that Sammo, daughter of deceased  

Fakira and sister of Hamid (PW 1) - complainant  was married to  

Habib, one of the accused.  Sammo left the matrimonial home

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due to demand of dowry.  Later PW 1 settled her marriage with  

another person but the nikah was not performed since no divorce  

was obtained from her husband–accused Habib.  The prosecution  

version  is  that  on  13.1.1981  at  about  6.30  PM  PW  1  Hamid  

accompanied by his father Fakira (deceased), his brother Rafique,  

servant Ashraf  and other person namely Kailash Chandra were  

proceeding  to  a  place  Goverdhan  along  with  cattle  through  a  

canal  road.   The  accused  Manuwa,  his  son  Habib,  appellants  

herein, and his brother Bhappa met PW 1 and others on the way  

and enquired about their destination.  PW 1 informed that they  

are  going  to  Goverdhan for  cattle  business.   On seeing  them,  

accused  Manuwa  instigated  his  sons  Habib  and  Bhappa  to  

challenge PW 1 and others.  Manuwa himself opened fire with a  

view to kill Fakira, but it did not hit Fakira,  Habib also opened fire  

and shot Fakira at his neck and he fell down and died on the spot.  

PW1  Hamid  lodged  a  report  to  the  police  station  Goverdhan,  

Mathura on 13.1.1981 at about 8.45 PM.  Thereafter a case Crime  

No.13 under Section 302 IPC was registered.  The case was tried  

by the Sessions Judge, Mathura.  Prosecution, in order to bring  

home the charge, examined PW 1 Hamid, the informant,  PW 2

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Rafique,  brother  of  the  deceased,  PW 3 Kailash  Chandra,  eye-

witness to the murder, PW 4 Radhey Shayam, head constable, PW  

5 Ram Kheladi, constable, PW 6 Dr. K.K. Khanna, CMO of Mathura  

to prove the post-mortem report, prepared by Dr. K.K. Seth.  PW 7  

Brijpal  Singh  –  Investigating  Officer  and  PW  8  Bankey  Lal,  

constable.  On the side of the defence, accused examined Abdul  

as DW1 and Rajendra Prasad Pandey as DW2.

4. Sessions Court after appreciating the oral and documentary  

evidence  acquitted  all  the  accused  persons  and  on  appeal  

preferred by the State, the High Court reversed the judgment of  

the  trial  court  and,  as  already  stated,  convicted  the  accused  

persons and sentenced them to undergo imprisonment for life.

5. Mr.  M.Z.  Chaudhary,  learned  counsel  appearing  for  the  

appellants submitted that the High Court has committed a serious  

error in reversing the order acquittal  which was passed by the  

trial court after appreciating the oral and documentary evidence  

adduced  by  the  prosecution  as  well  as  by  the  defence.   He  

submitted  that  various  circumstances  pointed  out  by  the  trial

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court in disbelieving the evidence of the prosecution witnesses  

should not have been disturbed by the High court and no reason  

exist to do so.  Learned counsel also pointed out that the eye-

witnesses are closely related and there are possibilities of false  

implication due to some grudge entertained by the deceased and  

the complainant against the accused persons since PW 1’s sister  

was married to Habib.   

6. Sammo, sister of Hamid, as already stated, was married to  

accused - Habib, son of Manuwa and the third accused Bhappa is  

real  brother  of  Manuwa and  uncle  of  Habib.   Sammo left  the  

matrimonial  home due to  strained relationship  with  Habib,  the  

accused.  Prior to the incident the deceased and PW 1 had settled  

the marriage of  Sammo with  somebody before getting divorce  

from  Habib.  The  motive  for  the  murder  was  the  strained  

relationship  between  the  accused  persons  and  PW  1  and  the  

deceased.   It  is  settled  legal  position  that  if  there  is  direct  

trustworthy  evidence  of  witnesses  as  to  the  commission  of  

offence,  motive  part  loses  its  significance.   Therefore,  if  the  

genesis of the occurrence is proved, the ocular testimony of the

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witnesses  could  not  be  discarded  only  by  the  reason  of  the  

absence of motive, if otherwise the evidence is worthy of reliance.  

This legal position has been settled by this Court in its Judgment  

in Sheo Shankar Singh v.  State of Jharkhand  (2011) 3 SCC  

654 and Bipin Kumar Mondal v. State of West Bengal (2010)  

12 SCC 91.

7. We are of the view that the mere fact that PW 1 Hamid, PW 2  

Rafique are son and brother of the deceased, that itself is not a  

ground to disbelieve their evidence.  Both, PW 1 and PW 2 have,  

categorically stated that the first shot was fired by Manuwa but  

missed his aim and it was Habib who fired the fateful shot at the  

neck of the deceased and thereafter three culprits ran away from  

the spot.  Prosecution also placed reliance on the testimony of PW  

3, Kailash Chandra who is a co-villager of the informant and he  

fully corroborated the testimony of other witnesses regarding the  

part played by the three accused persons in the commission of  

crime.  We have gone through the depositions of PW1, PW2, PW3  

and nothing  could  be  brought  out  in  the  corss-examination  to  

discredit their statement.  

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8. We are of the view, the mere fact that PW1 and PW2 are  

interested witnesses being relatives  is  not  a  reason to  discard  

their  evidence,  if  the  evidence  is  trustworthy.   This  Court  in  

Brathi v.  State  of  Punjab (1991)  1  SCC  519  held  that  the  

mechanical rejection of the evidence on the sole ground that it is  

interested would invariably lead to the failure of justice.  In State  

of  Jammu and  Kashmir v.  S.  Mohan  Singh  and  another  

(2006) 9 SCC 272 this Court held that in a murder trial, merely  

because a witness is interested or inimical, his evidence cannot  

be  discarded  unless  the  same  is  otherwise  found  to  be  

trustworthy.   In  Shyamal  Ghosh v.  State  of  West  Bengal  

(2012)  7  SCC  646  this  Court  held  that  merely  because  three  

witnesses were related to the deceased, the other witnesses, not  

similarly paced would not attract any suspicion of the court on the  

credibility and worthiness of their statements.

9. The  medical  evidence  of  PW6,  Dr.  K.K.  Khan,  who  was  

examined to prove the port-mortem report by Dr. K.K. Seth, would  

indicate  that  Fakira  was done to  death as  a  result  of  gunshot

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injury on his neck.  The doctor, who conducted the autopsy found  

that  death  had  taken  place  about  one  day  prior  to  the  

examination which was done at 5.30 PM on 14.1.1981.  Doctor  

also found one gun short wound of entry trachea deep on the  

front of neck and there were fractures of third and fourth cervical  

vertebrae and laceration at the level of third and fourth cervical  

vertebrae.

10. We  are  of  the  view  that  the  High  Court  has  correctly  

appreciated  the  oral  and  documentary  evidence,  including  the  

evidence of PW6, the Chief Medical Officer and rightly came to  

the  conclusion  that  the  trial  court  had  committed  an  error  in  

discarding  their  evidence.   This  Court  in  State  of  Punjab v.  

Ajaib Singh and others (2005) 9 SCC 94, also recorded that in  

an appeal against acquittal, the appellate court is entitled to re-

appreciate the evidence on record if the court finds that the view  

of  the  trial  court  acquitting  the  accused  was  unreasonable  or  

perverse.   The  golden  thread  which  runs  through  the  web  of  

administration of justice in criminal cases is that if two views are  

possible on the evidence adduced in the case, one pointing to the

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guilt  of  the accused and the other  to  the innocence,  the view  

which is favourable to the accused should be adopted.   However,  

the  paramount  consideration  of  the  court  is  to  ensure  that  

miscarriage of justice is prevented as noted in the Judgment of  

this Court in V.N. Ratheesh v.  State of Kerala (2006) 10 SCC  

617.   

11. We  are  of  the  considered  view  that  the  High  Court  has  

rightly  found  that  the  finding  recorded  by  the  trial  court  was  

unreasonable and perverse and reversed the order of acquittal  

passed by the trial Court.  The appeals, therefore, lack merits and  

the same are dismissed.         

……………………………..J. (K.S. Radhakrishnan)

……………………………..J. (Dipak Misra)

New Delhi, May 1, 2013