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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 872 OF 2015

KHURSHID AHMED      APPELLANT

VERSUS

STATE OF JAMMU AND KASHMIR      RESPONDENTS

JUDGMENT N.V. RAMANA, J.

This appeal is directed against the judgment dated 11th

March, 2015 passed by the High Court of Jammu and Kashmir at

Jammu in Criminal Appeal No. 36 of 2012. By the said judgment,

the  High  Court  reversed  the  order  of  acquittal  passed  by  the

Principal  Sessions  Judge,  Bhaderwah against  the  appellant,  and

convicted him for the offences punishable under Sections 302/341

of  the  Ranbir  Penal  Code  (hereinafter  referred  to  as  ‘RPC’)  and

sentenced him to suffer imprisonment for life and to pay a fine of

Rs.1,000/- for the offence punishable under Section 302, RPC and

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to pay a fine of Rs.500/- for the offence under Section 341, RPC,

with the direction to realize the fine amount from his estate.

2. The brief facts, as culled out from the prosecution case

are that on 18th May, 2006 a shop keeper of  hardware material,

namely,  Arshad  Sajad  accompanied  by  his  father  Sajad  Ahmed

Bhat (PW9) were going to their home after closure of shop in the

evening  at  about  5.30 p.m.,  while  they  were  on their  way,  near

Masjid,  the  appellant  herein  intercepted  them from the  opposite

direction  and  started  hurling  abuses  against  them.  When  they

ignored  his  abuses  and  moved  forward,  the  appellant  attacked

Arshad Sajad on his head from behind with an iron rod. The injured

Arshad Sajad and his father then went to the clinic of one Ali Mohd.

(PW3) and on his advise they went to the Bhaderwah police station

and informed the police about the incident. Accordingly, FIR No. 53

of  2006  was  registered  against  the  accused—appellant  for  the

offences punishable under Sections 341/323, RPC. Police then sent

the injured to Sub District Hospital, Bhaderwah for treatment. As

his condition was deteriorating, for better treatment, he was being

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shifted to Government Medical College, Jammu, but on the way, he

succumbed to the injuries.

3. Nisar Ahmed, S.H.O. of police station Bhaderwah—PW 14

took  up  the  investigation,  sent  the  body  of  the  deceased  for

postmortem,  seized  his  clothes,  inspected  the  spot,  collected

samples of bloodstained earth as well as normal earth and prepared

site map (Ext. PW N.A.) and seizure memos. The accused—appellant

was arrested on 20th May, 2006 and one iron rod being the weapon

of  assault  has  been  recovered  at  his  instance  and  sent  it  for

chemical  examination.  Having  recorded  statements  of  witnesses

under Section 161, Cr.P.C. the I.O. carried on the investigation in

which  it  was  revealed  that  the  motive  behind  the  accused

assaulting  the  deceased  was  actually  related  to  a  prior  tussle

between them during the daytime at the shop of the deceased over a

financial  transaction.  Allegedly,  basing  on  the  guarantee  and

undertaking  given  by  the  accused—appellant,  the  deceased

supplied some G.I. sheets to one Gias-ud-Din. When the appellant

came to the shop of the deceased, he insisted the appellant to make

payment.  Over  that  issue,  there  occurred  a  scuffle  between  the

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appellant  and the deceased.  The passersby including Farid Iqbal

(PW1), Sajad Ahmed—father of the deceased (PW9), Abid Hussain

(PW10) and Amjad Hanif (PW12) got them separated. While leaving

the  shop,  the  appellant  declared  that  he  will  see  the  deceased

anytime,  and  in  the  evening  when  the  deceased  and  his  father

(PW9) were going to their home, the accused met them on the way

and assaulted the deceased on his head.

4. As the head injury resulted in the death of Arshad Sajad,

charge  against  the  accused  was  altered  for  the  offence  under

Section 302/341, RPC and accordingly charge sheet was laid. The

accused pleaded not guilty and claimed to be tried.

5. At the trial,  in  its  endeavour  to  prove the  guilt  of  the

accused,  prosecution  had  examined  as  many  as  14  witnesses,

whereas the accused in his defence has examined one witness. The

trial Court after a full fledged trial, came to the conclusion that the

prosecution has failed to prove motive and the statement of  sole

eyewitness (father of the deceased) stood uncorroborated with the

other witnesses, as the prosecution has failed to establish the guilt

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of the accused beyond reasonable doubt has acquitted the accused

from the alleged offences under Section 302/341, RPC.

6. Aggrieved by the order of  acquittal  passed by the trial

Court, the State of Jammu & Kashmir raised appeal before the High

Court. Upon adjudicating the same, the High Court has come to the

contrary  conclusion  and  observed  that  the  evidence  of  the  sole

eyewitness (father of the deceased) was duly corroborated by oral,

documentary and expert evidence and by improperly rejecting the

same, the trial Court has committed grave miscarriage of justice.

Therefore,  the  High  Court  reversed  the  order  of  acquittal  into

conviction  for  the  charges  under  Section  302/341,  RPC  and

sentenced the  accused—appellant  as  stated hereinabove.  That  is

how the accused is in appeal before this Court.

7. Before  analyzing  the  evidence  available  on  record  and

going into the legal aspects of the same, we feel it appropriate to

first deal with the contentions advanced by the learned counsel on

either side.

8. Mohd. Aslam Goni, learned senior counsel representing

the  accused—appellant  has  advanced  his  arguments  strongly

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pointing out that in the entire case there were several lapses on the

part of  prosecution which were ignored by the High Court, while

reversing the well considered judgment of the trial Court. Disputing

the genesis of FIR itself, learned senior counsel argued that as per

the  prosecution,  on  18.5.2006,  oral  report  was  given  by  the

deceased  at  8.30  p.m.  at  police  station,  Bhaderwah  about  the

occurrence, based on which FIR was registered. According to I.O.—

Nisar Ahmed (PW14), he recorded the statement of deceased at 10

p.m. in the hospital. But, the said statement is missing in the main

file which was replaced with a statement in the handwriting of ASI

—Jan Mohd (DW1), who has not been examined as a prosecution

witness. The reason behind replacing the statement of I.O. with that

of ASI Jan Mohd is only with a view to implicate the appellant in the

crime.

9. It  was  further  contended  that  despite  there  being  no

proof of strong motive for the appellant to commit the offence, nor

there being any independent eyewitness to the incident,  the fact

that only one injury has been suffered by the deceased, the High

Court should not have taken a different view to the one taken by

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the trial Court. The High Court should have dealt with the case with

high  standard  of  presumption  of  innocence  on  the  part  of  the

appellant.  Supporting  the  decision  rendered  by  the  trial  Court,

learned  senior  counsel  relied  on the  judgments  of  this  Court  in

Rathinam @ Rathinam Vs. State of Tamil Nadu & Anr., (2011)

11 SCC 140,  Bindeshwari Prasad Singh & Ors.  Vs.  State of

Bihar & Anr., (2002) 6 SCC 650 and Sunil Kumar Sambhudayal

Gupta & Ors.  Vs.  State of  Maharashtra,  (2010)  13 SCC 657,

submitted that interference by the High Court is not justified in the

present case inasmuch as there is no manifest error, perversity or

illegality in the trial Court’s judgment.

10. The learned senior  counsel  tried  to  impress  upon this

Court that the evidence of PW9 i.e. father of the deceased, is not

trustworthy and he is an interested witness. Further, as a matter of

fact, it can be found from Page No. 64 of account (khata) that there

was nothing to establish that the accused stood as guarantor to pay

the sum due by Gias-ud-Din. Taking strength from the deposition of

PW9 that in 2007 one Villayat Goni paid him the amount due in the

name of Gias-ud-Din, it was argued that prosecution has failed to

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prove the motive and the alleged offence beyond reasonable doubt

for the reason that it was someone else who paid the due amount

but  the  prosecution  had  wrongly  projected  the  accused  as

guarantor and unnecessarily implicated the appellant in the case.

11. Relying further on the decisions of this Court in Shivaji

Sahabrao Bobade & Anr.  Vs.  State of Maharashtra,  (1973) 2

SCC 793, State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73,

Nallabothu Venkaiah  Vs.  State of  Andhra Pradesh,  (2002)  7

SCC 117 and Jarnail Singh & Ors. Vs. State of Punjab, (2009) 9

SCC 719,  learned senior  counsel  submitted that  the  High Court

ignored the important legal principles while convicting the accused,

who was already declared innocent and acquitted by the trial Court,

under Section 302, RPC the circumstances should be conclusive in

nature. The prosecution stated that at the time of occurrence, one

Aslam and Zakir  were also there at  the spot,  but they were not

named  as  witnesses  nor  were  they  examined.  Even  the  alleged

eyewitness, father of the deceased, has not exactly seen at whose

hands  the  deceased  was  injured.  It  can be  found from his  own

words that he was walking one meter ahead of the deceased and

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when he turned back on hearing the cry of his son, the appellant

disappeared  from there.  In  such  situation,  the  prosecution  case

solely  based on the  evidence  of  PW9 cannot  be  believed,  as  his

evidence is  filled with assumptions and presumptions as well  as

surmises and conjectures.

12. The next contention of the learned senior counsel is that

when  the  deceased  was  taken  to  hospital  he  was  in  complete

consciousness,  but  the  attending  Doctor  did  not  adopt  proper

course  of  treatment  so  as  to  save  the  life  of  the  deceased.  The

Doctor  did  not  even  advise  for  X-ray.  In  fact,  the  death  of  the

deceased should have been ascribed to medical negligence.

13.  On the  other  hand,  learned counsel  appearing  for  the

State of Jammu & Kashmir, while supporting the judgment of the

High Court, submitted that there is enough material on record to

prove  the  guilt  of  the  accused  which  is  duly  supported  by  the

evidence of  witnesses and corroborated by the medical  evidence.

Immediately after the occurrence, the deceased personally visited

the  police  station  and  apprised  under  what  circumstances  the

accused  attacked  him.  Even  within  three  hours  after  the

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occurrence,  the  I.O.  recorded  the  statement  of  injured  victim

(deceased) when he was sent to the hospital for treatment where the

deceased  had  further  explained  to  the  I.O.  in  detail  about  the

altercation  took  place  during  the  day  in  connection  with  the

financial transaction for which the accused was a guarantor. When

there is direct evidence available on record in the form of statement

of the deceased himself and the statement of the eyewitness Sajad

Ahmed—father  of  the  deceased  (PW9),  prosecution  is  no  longer

burdened  with  proving  motive.  At  the  same  time,  it  is  also

immaterial to examine all the witnesses who carried the injured to

the hospital.  Similarly,  on the advice of  Ali  Mohammad (PW3) to

inform about  the assault  to  police,  when the  deceased hurriedly

reached the police station, his focus would naturally be limited only

to the extent of informing the police about how he got injured and

to get immediate medical assistance, and it shall not be expected

from a seriously injured person to narrate whole episode at that

point of time. In such circumstances, the High Court has rightly

assessed  the  incriminating  facts  and  circumstances  and  by  a

prudent judgment, reversed the order of acquittal into conviction for

which  the  accused—appellant  was  liable  as  he  had  made  an

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inhuman attack on the deceased merely for demanding to pay the

money for which he stood as a guarantor.

14. Having heard the learned counsel  on either  side,  after

going through the material  available on record, we would like to

deal with the contentions one after the other. The first and foremost

contention,  the  learned  senior  counsel  appearing  for  the

accused-appellant advanced is with regard to the credence to be

attached to the FIR No. 53 of 2006 registered on 18.5.2006, we find

from the  material  on  record that  soon after  the  occurrence,  the

deceased as well as his father—Sajad Ahmed (PW9) rushed to the

clinic of Ali Mohammad (PW3) for first aid, then on his advice they

went to the police station at about 8.45 p.m. and lodged an oral

complaint. Based on the same, FIR No. 53/2006 was registered and

investigation has been entrusted to Ved Raj 185, Head Constable.

This fact is affirmed by the testimonies of father of the deceased

(PW9),  Ali  Mohammad  (PW3)  and  PW14—Nissar  Ahmed,  I.O.

According to PW3, on the day of occurrence, the deceased and his

father along with 2-4 persons visited his clinic seeking treatment to

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the injured/deceased whereupon without providing any treatment,

he advised them to go to the police station at first instance.

15. PW14—Nissar Ahmed, I.O. stated that the oral report was

written by munshi and he had put his signature on it (Parcha-53).

After  completing  that  formality,  he  assigned  the  investigation  to

Hawaldar  Ved  Raj.  Then  at  the  first  instance,  he  had  sent  the

injured to hospital, and later on he visited the injured at about 11

p.m. in the hospital. Whereupon finding his condition to be serious,

he took up the investigation and recorded the statement of injured

and  added  offence  under  Section  307,  RPC.  He  specifically

mentioned that the statement recorded under Section 161, Cr.P.C.

was not in his own handwriting but he has affixed his signature on

it. In our opinion, there is no doubt that the FIR was lodged in this

case on the basis of the oral complaint made by the deceased at the

police station which is a reliable document and made soon after the

incident.  Time and again this Court has illustrated that the first

information report is not an encyclopaedia. It is not necessary that

it should contain each and every detail concerning the offence at

the time of lodging of FIR. Here in the present case, the informant

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who had received a  severe  head injury  and accompanied by his

father  (PW9),  went  to  the  clinic  of  PW3  and  later  to  the  police

station,  would  have  been  under  great  tension.  Their  mental

condition in such a situation can be visualised. In such a state of

mind, failure on their part to disclose the entire sequence of events

in the first information report is neither unnatural nor fatal to the

case of the prosecution. The trial Court has misconstrued the two

statements  of  the  deceased,  one  given  at  the  police  station

immediately  after  the  occurrence  and  the  other,  at  the  hospital

while his condition was deteriorating. We are of the view that the

subsequent statement of the deceased at the hospital as recorded

by  the  I.O.  is  duly  corroborated  by  the  evidence  of  PW9  and

absolutely  there  is  no  reason  to  disbelieve  the  same  and  the

contention in this regard is meritless.

16. Another argument advanced is that there was no motive

to  commit  the  offence  and in  the  absence  of  strong  motive,  the

appellant  cannot  be  held  guilty  under  Section 302,  RPC.  In the

present case, motive can be traced from the evidences produced by

the prosecution with regard to the prior incident that took place

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between the deceased and accused in connection with payment of

money over a transaction where the accused stood as a guarantor.

Because of the earlier scuffle, the subsequent incident has occurred

in  which the  accused hit  the  deceased  with  an iron rod due to

which the deceased lost his life. It is appropriate to observe that in

Halsbury’s Laws of England, 3rd Edition, with regard to ‘motive’, it is

stated that “the prosecution may prove, but it is not bound to prove

the motive for a crime”. ‘Motive’ is an emotion which compels the

person to do a particular act. But in all the cases, it will be very

difficult  for the prosecution to prove the real motive.  Motive is a

double edged weapon when there is a direct and reliable evidence

available  on  record,  motive  loses  its  importance.  In  a  case  of

circumstantial evidence, motive assumes greater importance than

in the case of direct evidence. In a case of direct and compelling

evidence,  even  assuming  that  no  motive  is  attributed,  still  the

prosecution  version  has  to  be  examined.  As  regards  to  the

importance  of  existence  of  motive  in  a  criminal  case,  here  it  is

worthwhile to look at the ratio laid down by this Court in Shivaji

Genu Mohite v. State of Maharashtra, AIR 1973 SC 55:

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“In  case  the  prosecution  is  not  able  to  discover  an impelling  motive,  that  could  not  reflect  upon  the credibility  of  a  witness  proved  to  be  a  reliable eye-witness. Evidence as to motive would, no doubt, go a long way in  cases  wholly  dependent  on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that  would  not  be  so  in  cases  where  there  are eye-witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of  an eye-witness is rendered untrustworthy”.

17. In the light of the above, we have to examine whether the

prosecution was successful in proving the motive and what is the

evidence available on record to prove the alleged act of the accused.

In the instant case, according to PW9, the deceased had supplied

some G.I. tin sheets to one Gias-ud-Din and the accused stood as

guarantor  for  its  payment.  On the  day  of  occurrence,  when the

deceased demanded to  pay  the  money from the  accused,  he  got

annoyed and caught hold of the neck of the deceased and started

beating him by which some bruises also appeared on the right side

of his neck. At that point of time, Farid Iqbal (PW1), Amzad Hanif

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(PW12) and Abid Hussain (PW10) were present there and separated

them. The accused then threatened the deceased that he would see

him anytime. After the closure of shop, when deceased was going

home along with his father, on their way the accused holding an

iron rod in his hands, appeared from opposite direction, intercepted

their  way  and  abused  them.   When  they  moved  forward,  the

accused hit the deceased on his head with the rod due to which he

fell down with bleeding. When PW9 responded to the cry of his son,

the accused disappeared from the scene. Thereafter they went to a

local  doctor  (PW3)  for  first  aid  and then reported  the  matter  at

police station.  

18. It is also evident from the record that the iron rod of 3

feet  length  and  8  centimeter  circumference,  used  as  weapon  of

offence was recovered by the police at the instance of the accused

vide  Ext.  PW-MH I  on 21.5.2006.  The evidence  of  Mohd.  Hafeez

(PW2) and Abid Hussain (PW10) also corroborate the testimony of

PW9 and prove the attack as PWs 2 & 10 having heard the same

from the deceased himself. PW10 has categorically deposed to have

witnessed  the  scuffle  between  the  accused  and  deceased  at  the

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latter’s  shop  in  the  daytime,  and  also  the  threat  given  by  the

accused.  He  further  stated  that  the  deceased  was  taken  to  the

hospital  on  his  motor  cycle  and  he  accompanied  the  deceased

throughout till the last rites of the deceased. PWs 2 and 10 further

stated  that  they  have  also  witnessed  the  recovery  of  weapon  of

offence (iron rod) at the instance of  accused, as the weapon was

recovered  by  the  police  in  their  presence.  The  said  recovery  of

weapon in the presence of PWs 2 & 10 and their depositions would

therefore corroborate and strengthens the case of prosecution.  

19. We  have  also  given  our  precise  consideration  to  the

evidence of Dr. Raj Kumar—PW 13 who conducted postmortem on

the body of the deceased on 19th May, 2006. The postmortem report

(Annexure  P/2)  shows that  the  deceased sustained the  following

injuries:

1. Lacerated wound bone deep 1.5 cm x 0.25 cm on left frontal parietal region (Stitched).

2. Three  linear  scratch marks  on  right  side  of  neck each ½ cm. in length.

On internal examination, the Doctor found

1. Linear left temporal frontal region

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2. Extradural haematoma on left lamprey parietal region

3. Meiurages over left temporal lobe torn

4. Underlying left temporal parietal lobe lacerated

The Doctor opined that the cause of death was head injury resulted

by a blunt object within the duration of 12 hours. It was specifically

deposed by the Doctor in his evidence that the injuries found on the

body of the deceased were sufficient to cause death. It was further

revealed that while undergoing initial treatment at the hospital, the

deceased  narrated  to  him  that  when  he  was  going  towards  his

home, someone had assaulted. In his cross examination, the Doctor

made it clear that when the deceased was kept in observation, he

was  in  full  senses  and  a  specialist  surgeon  was  also  called.

Ambulance was also provided to shift the patient to GMC, Jammu

for providing better treatment. He could not detect the fracture of

left frontal parietal bone initially due to non-availability of  X-ray,

but even if it was detected, it could be fatal, but in some cases if

specialized  treatment  is  provided  life  could  be  saved.  In  our

considered view, the postmortem report and the evidence of Dr. Raj

Kumar (PW13) fully corroborates with the evidence of PW9.

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20. Considering the evidence of other prosecution witnesses,

we find that Farid Iqbal (PW1), an independent witness, proved the

scuffle that took place at the shop of the deceased, and the angered

accused admonishing and threatening the deceased that he will see

him anytime. PW4—Nazir Ahmed, deposed that police had taken his

signatures at the time of postmortem on blank paper. However, he

proved  to  have  received  the  dead  body  of  the  deceased  (Ext.

PW-NH). PW5—Riyaz Ahmed also while proving the receipt of dead

body of the deceased, deposed that 20-25 days after the death of

deceased,  police  seized  a  register  from the  shop  of  deceased,  to

which he was the witness. PW7—Mohammad Ramzan stated that

when he visited the hospital in the year 2006, the clothes were put

off from the body of the deceased in his presence. Accordingly he

witnessed  the  seizure  of  clothes  of  the  deceased  and  put  his

signature on the seizure memo (Ext. PW-MR).  Mohd. Saleem (PW8)

also deposed that police seized the clothes of the deceased and he

had put his signature on the seizure memo. PW11—Ishteyaq Ahmed

and PW12—Amjad Hanif  also  supported the  prosecution case  in

toto.

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21. Upon considering  the  evidence  of  defence  witness  Jan

Mohd. (DW1), it appears that at the relevant time he was working as

ASI, he can very well write and read Urdu, whereas the I.O. (PW14)

could  not  write  Urdu.  Therefore,  on  the  directions  of  I.O.,  he

prepared exhibits such as site plan (Ex. PW NA), seizure memo (Ex.

PW SH II), Fard Inkshaf (Ex. PW NH), Fard Baramdgi (Ex. PW NH I),

Fard Suprdnama (Ex. PW SH III), Fard Jama Talashi (Ex. PW NAV)

and  statements  of  witnesses,  in  his  own  handwriting.  In  his

cross-examination, it has been revealed that he is a distinct relative

to  the  accused  and  educated  only  up  to  middle  standard.

Investigation  has  not  been carried  out  by  him,  but  only  on the

instructions  of  I.O.  he  drafted  the  memos  wherein  his  integrity

remained doubtful as he tried to alter the prosecution case. In such

a case, we cannot give any weightage to his deposition.

22. It  was  contended  that  the  accused  was  not  at  all  a

guarantor to the alleged transaction and he had been unnecessarily

implicated in this case. In our view, there is no need for this Court

to go into the roots of the financial transaction to find out whether

the deceased,  a smalltime merchant of  hardware items, kept his

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account books in proper order or not and who is debtor and who is

guarantor.  Our  concern  is  to  see  whether  the  accused  has

committed  the  overt  act  that  led  to  the  death  of  deceased  and

whether the accused is liable to be punished in accordance with

law. The trial Court appears to have misguided itself in appreciating

the evidence on record and acquitted the accused by ignoring the

material and legal aspects surrounding the case.

23. In view of the above discussion, we are of the considered

view that the direct oral evidence available on record coupled with

the medical evidence, points at the guilt  of  the accused and not

proving the motive for commission of the offence lost its significance

in the facts of the case.

24. The learned senior counsel submits that in the present

case,  according  to  the  prosecution,  Sajad  Ahmed,  father  of  the

deceased (PW9) was the only person who was present at the scene

of  offence  at  the  time  of  occurrence.  The  entire  case,  therefore,

depends on the veracity of his evidence. PW9, being father of the

deceased, the appellant—accused had naturally made the allegation

that he is an interested witness and therefore his evidence is not

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reliable. We are not able to appreciate such contentions. This Court

considered the aspect of  truthfulness of  an interested witness in

several cases. In Dalip Singh & Ors. v. State of Punjab, (1954) 1

SCR 145 it is observed:

“Ordinarily,  a  close  relative  would  be  the  last  to screen  the  real  culprit  and  falsely  implicate  an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth”.

25. In Masalti v. State of U.P., (1964) 8 SCR 133 this Court

observed:

“There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account.

But it would, we think, be unreasonable to contend that  evidence  given  by  witnesses  should  be discarded only on the ground that it is evidence of partisan  or  interested  witnesses.  Often  enough, where factions prevail in villages and murders are committed  as  a  result  of  enmity  between  such

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factions, criminal Courts have to deal with evidence of a partisan type.

The mechanical rejection of such evidence on the sole  ground  that  it  is  partisan  would  invariably lead to failure of justice”.

26. There is  no proposition in  law that  relatives are  to  be

treated as untruthful witnesses. On the contrary, reason has to be

shown when a plea of partiality is raised to show that the witnesses

had reason to shield actual culprit and falsely implicate the accused

[See : Harbans Kaur & Anr. v. State of Haryana,  2005 CriLJ

2199].

27. If the evidence of an eyewitness, though a close relative of

the  victim,  inspires  confidence,  it  must  be  relied  upon  without

seeking  corroboration  with  minute  material  particulars.  It  is  no

doubt true that the Courts must be cautious while considering the

evidence of interested witnesses. In his evidence, the description of

the incident by PW9 clearly portrays the way in which the accused

attacked the deceased causing fatal head injury as propounded by

the prosecution. The testimony of the father of deceased (PW9) must

be appreciated in the background of the entire case.

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28. In our opinion, the testimony of PW9 inspires confidence,

and the  chain of  events  and the  circumstantial  evidence thereof

completely supports his statements which in turn strengthens the

prosecution case with no manner of doubt.  We have no hesitation

to  believe  that  PW9 is  a  'natural'  witness  to  the  incident.  On a

careful scrutiny, we find his evidence to be intrinsically reliable and

wholly trustworthy.

29. The  argument  that  the  evidence  of  PW9  cannot  be

weighed with as he was walking one meter ahead of the deceased at

the time of incident and he cannot say that it was accused who hit

the deceased with iron rod, does not sound correct and it cannot be

given any weight considering the circumstance as a whole. It was

also contested that the eyewitness did not suffer any injury. It is not

necessary that to prove an offence, every eyewitness who had seen

the accused hitting the victim should also receive injuries.  Such

contentions are meritless and do not fall for consideration.

30. When analyzing the evidence available on record, Court

should not adopt hyper technical approach but should look at the

broader  probabilities  of  the  case.  Basing  on  the  minor

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contradictions,  the  Court  should  not  reject  the  evidence  in  its

entirety. Sometimes, even in the evidence of truthful witness, there

may  appear  certain  contradictions  basing  on  their  capacity  to

remember  and  reproduce  the  minute  details.  Particularly  in  the

criminal  cases,  from  the  date  of  incident  till  the  day  they  give

evidence in the Court, there may be gap of years. Hence the Courts

have  to  take  all  these  aspects  into  consideration and  weigh the

evidence. The discrepancies and contradictions which do not go to

the root of the matter, credence shall not be given to them. In any

event,  the  paramount  consideration of  the  Court  must  be  to  do

substantial  justice.  We  feel  that  the  trial  Court  has  adopted  an

hyper  technical  approach  which  resulted  in  the  acquittal  of  the

accused.

31. The  learned  counsel  strenuously  submitted  that  in  an

appeal against acquittal, the scope of interference by the appellate

Court is very narrow and the High Court erred in interfering with

the well considered judgment of acquittal. It is appropriate to refer

Padam Singh v.  State of U.P., (2000) 1 SCC 621, in which while

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explaining the duty of the appellate court, this Court has expressed

thus:

“It  is  the  duty  of  an  appellate  Court  to  look  into  the evidence  adduced  in  the  case  and  arrive  at  an independent conclusion as to whether the said evidence can be relied upon or not and even if  it  can be relied upon, then whether the prosecution can be said to have been  proved  beyond  reasonable  doubt  on  the  said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and  admitted  facts.  It  must  be  remembered  that  the appellate court,  like the trial  court,  has to be satisfied affirmatively  that  the  prosecution  case  is  substantially true and the guilt of the accused has been proved beyond all  reasonable  doubt  as  the  presumption  of  innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.

32. The power of  the appellate Court in an appeal against

acquittal is the same as that of an appeal against conviction. But,

in an appeal against acquittal, the Court has to bear in mind that

the presumption of innocence is in favour of the accused and it is

strengthened by the order of acquittal. At the same time, appellate

Court will not interfere with the order of acquittal mainly because

two views are possible, but only when the High Court feels that the

appreciation of evidence is based on erroneous considerations and

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when there is manifest illegality in the conclusion arrived at by the

trial Court. In the present case, there was manifest irregularity in

the  appreciation  of  evidence  by  the  trial  Court.  The  High  Court

based on sound principles of criminal jurisprudence, has interfered

with  the  judgment  of  acquittal  passed  by  the  trial  Court  and

convicted the accused as the prosecution was successful in proving

the guilt of the accused beyond reasonable doubt.

33. In view of the foregoing discussion and a conspectus of

all the material would pave way to conclude that the prosecution

has  proved  the  case  beyond  reasonable  doubt  and  the  appeal

preferred by the accused is bereft of any substance and accordingly

dismissed.

…………......................J.  (N.V. RAMANA)

..................................J.         (S. ABDUL NAZEER)

NEW DELHI, MAY 15, 2018.