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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  No(s).  396-398 OF 2015

THE STATE OF UTTAR PRADESH  Appellant(s)

                               VERSUS

RAJA ETC.                                         Respondent(s)

J U D G M E N T

R. BANUMATHI, J.:

(1) These appeals arise out of judgment and order dated 29th

May, 2009 passed by the High Court of Judicature at Allahabad

in Criminal Appeal NO.568 of 2002, Criminal Appeal No.231 of

2002 and Criminal Appeal NO.250 of 2002 in which the High Court

reversed the verdict of the conviction and also the sentence

and acquitted the respondents.

(2) The facts of the case in a nutshell are as follows.  On

13th June,  1995  at  9.00  a.m.  deceased-Shabu  along  with

Riyazuddin (PW-2) was taking their buffaloes for grazing in the

jungle.  Complainant, Imamuddin (PW-1) and Hafiz were following

them.  The case of the prosecution is that when deceased-Shabu

and Riyazuddin (PW-2) were so proceeding to the jungle, accused

Raja  (A-1)  exhorted  the  other  accused  that  they  have  an

opportunity to kill both the brothers, namely, deceased-Shabu

and  Riyazuddin  (PW-2).   Raju  (A-2)  and  Aas  Mohammad  (A-3)

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(since acquitted) who were armed with rifles fired at Shabu and

also on Riyazuddin (PW-2).  Shabu sustained gunshot injuries on

his chest and died on the spot.  Injured Riyazuddin (PW-2)

received injuries on his right forearm.  On seeing Imamuddin

(PW-1) and other villagers coming towards them, all the accused

ran away.  On the complaint lodged by Imamuddin (PW-1), law was

set in motion.  Dr. P.K. Chaturvedi (PW-3) conducted post-

mortem  on  dead-body  of  the  deceased-Shabu  and  noted  the

following injuries:

“1. Gunshot wound 1 cm. x 1 cm x chest cavity deep on

right side of front of chest 2 cm. Below right nipple

at 4 O’clock position margins inverted and lacerated.

No  blackening  and  no  charring  (external  wound)

detected medially backwards towards left scapula”  

(3) Based upon the evidence of Imamuddin (PW-1) and Riyazuddin

(PW-2), injured witness, the trial court convicted Raja (A-1)

(since  dead)  Raju  (A-2)  and  also  Aas  Mohammad  (A-3)  under

Section 302 I.P.C. read with 34 I.P.C.  Fourth accused Sarfaraj

was acquitted by the trial court from all the charges.  In the

appeal preferred by the accused, the High Court set aside the

conviction  and  acquitted  the  accused  from  all  the  charges.

Being aggrieved, the State is before us.

(4) We  have  heard  Mr.  V.V.V.  Pattabhiram,  learned  counsel

appearing for the appellant-State and Mr. Yunus Malik, learned

counsel appearing for the respondent(s) and also perused the

impugned judgment of the High Court and the evidence/materials

on record.

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(5) Though the trial court held that Imamuddin (PW-1) is a

trustworthy witness, the High Court doubted the presence of

Imamuddin (PW-1) at the time and place of occurrence and also

trustworthiness of his evidence.  It is brought on record that

Imamuddin (PW-1) is an advocate having good practice at the

Bar.  Imamuddin (PW-1) was also then a member of the Nagar

Palika.  In his evidence Imamuddin (PW-1) has admitted that

normally he used to give hearing to the public in the morning

time at the Nagar Palika.  As observed by the High court that

audience to the public by Imamuddin (PW-1) could have been only

before the commencement of court hours and thereafter he would

go to the court.  Occurrence happened on 13th June, 1995 at 9.30

a.m.  It is brought on record that 13th June, 1995 was a working

day.  Imamuddin (PW-1) being a lawyer having good practice and

also a member of the Nagar Palika giving audience to the public

in the morning, the High Court rightly doubted his presence at

the place of occurrence at 9.30 a.m. on the said day.  The High

Court also doubted the evidence of Imamuddin (PW-1) as to why

an advocate like Imamuddin (PW-1) instead of going to the court

would  follow  his  deceased  brother-Shabu  who  was  taking  the

cattle for grazing in the jungle and PW-1-Imamuddin’s conduct

in  following  his  brother  being  unnatural  and  we  find  it

difficult to take a different view.

(6) In his evidence, Imamuddin (PW-1) stated that after the

occurrence he went to the court to write down the complaint

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first.  Here again, the High Court observed that the conduct of

Imamuddin (PW-1) is quite unnatural in the sense that when one

of  his  brothers,  Shabu,  was  killed  and  another  brother,

Riyazuddin (PW-2), sustained injuries in his arm, instead of

taking the injured brother to a hospital or going to the police

station, Imamuddin (PW-1) had gone all the way to the Court

only to write down the complaint.  Here again, the conduct of

Imamuddin (PW-1), as observed by the High Court appears to be

strange and unnatural.

(7) The High Court has also referred to the submission of the

counsel who appeared for the accused which in our considered

view is relevant.  As pointed out earlier, the deceased-Shabu

sustained gunshot wound on the chest with chest cavity deep.

Dr. P.K. Chaturvedi (PW-3) in his evidence as pointed out that

there was not a single hole either in the vest, kurta and

tehmad  which  were  sent  along  with  the  dead  body  for

examination.  Even the Inquest Report does not mention any

bullet hole in the clothes of the deceased-Shabu.  When the

deceased-Shabu sustained gunshot injury on the chest with chest

cavity deep, in the normal course one would expect holes on the

clothes worn by the deceased, namely, western kurta.  Absence

of bullet holes on the clothes of the deceased creates a doubt

about  the  case  of  the  prosecution  and  the  time  and  manner

alleged.  Raising doubts about the case of the prosecution, the

High  Court  has  extended  the  benefit  of  doubt  to  the

respondents-accused to reverse the conviction.

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(8) For the foregoing reasons, it cannot be said that the view

taken  by  the  High  Court  suffers  from  any  serious  and

substantial error warranting interference by this Court.

(9) In the result, the appeals are dismissed.  

..........................J.                 (R. BANUMATHI)

..........................J.         (VINEET SARAN)

NEW DELHI, AUGUST 30, 2018.