Yusuf & ANR Vs. State of Bihar  INSC
155 (7 May 1971)
CITATION: 1971 AIR 1405 1971 SCR 792
Constitution of India, Art. 136-Appreciation
of evidenceThis Court will not re-appraise evidence except in special
circumstances-Minor embellishments and exaggeration do not detract from value
of testimony of a witness.
Nine persons including the two appellants
were tried for the murder of Gas well as attempting to murder P.W. 9. Four of
the nine accused were acquitted by the trial court and the others were
convicted under several provisions of the Indian Penal Code. In appeal the High
Court disbelieved the witnesses speaking to the attack on G and acquitted all
the appellants before it in respect of the murder of G. It also came to the
conclusion that it was not proved that there was any unlawful assembly. Even in
the matter of the attack on P.W. 9 the High Court came to the conclusion that
as there was no proof of previous concert on the part of the assailants no aid
could be taken from s. 34. Therefore it commuted the conviction of appellant
No. 1 for causing injury to P.W. 9 from one under s. 307 read with s. 34 I.P.C.
to one under s. 326 I.P.C. The conviction of appellant No. 2 was converted from
s. 307 I.P.C. read with s 311 I.P.C. to one under s. 324 I.P.C. Against this
decision the present appeal was brought by special leave. The question for
consideration was whether the conviction of the appellant on the sole testimony
of P.W. 9 was justified fled when even the two witnesses who tried to
corroborate P.W. 9 were disbelieved by the High Court.
HELD:(i) This Court ordinarily does not re appreciate
the evidence unless it is satisfied that exceptional and special circumstances
exist for doing so. The Court must be satisfied that as a result of serious mis
appreciation of the evidence by the trial court and the High Court substantial
and grave injustice has been done. Even it the final hearing only those points
can be urged which are fit to be urged at the preliminary stage when the leave
to appeal is asked for. [794F-H] Hem Raj v. State of Ajmer,  S.C.R. 1133,
(ii)It was fully established that P.W. 9 was
injured at about the time and the place mentioned in the charge. The incident
had taken place when there was still day light.
The appellants were well known to the injured
so that there could be no difficulty in identifying them. P.W. 9 was not shown
to have had any motive to falsely implicate the appellants. He had mentioned
the names of the appellantsas the assailants at the earliest opportunity. His
version was corroborated by medical evidence and was a probable one.
The fact that the High Court had disbelieved
the two witnesses who sought to corroborate P.W. 9 or that there were certain
minor contradictions and embellishments in his statement could not detract from
the value of his testimony.
Both the trial court and the High Court had
accepted his testimony. There was no reason for this Court to differ from them.
The appeal must accordingly fail. [795A-B] 793
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 265 of 1968.
Appeal by special leave from the judgment and
order dated July 19, 1968 of the Patna High Court in Criminal Appeal No. 72 ,of
Nur-ud-din Ahmed and B. P. Singh, for the
U. P. Singh, for the respondent.
The Judgment of the Court was delivered by
Hegde, Nine persons including the two appellants were tried for the murder of
Ghulam Rasool as well as for attempting to m urder P.W. 9, Mohd. Islam. Four
out of those nine accused were acquitted by the trial court. The remaining
accused were convicted under several provisions of the Indian Penal Code. But
in appeal, the High Court acquitted all the appellants before it in respect of
the incident relating to the murder of Ghulam Rasool. Further it converted the
conviction of appellant No. 1 for causing injuries to P.W. 9 from one under s.
307 read with s. 34, I.P.C. to one under s. 326, I.P.C. and for that offence
sentenced him to suffer rigorous imprisonment for seven years.
The conviction of appellant No. 2 Bano alias
Ibrahim was converted from s. 307 I.P.C. read with s. 34, I.P.C. to one under
s. 324, I.P.C. and for that offence he was sentenced to suffer rigorous
imprisonment for three years. As against that decision this appeal has been
brought by special leave.
The prosecution case in brief is that there
was a Qawali competition about a month prior tothe occurrence. P.W. 4 Imteyaz
was one of the competitors. In order to show that his performance was excellent
accused Nizam made a show of making a present of Rs. 3 to him on that occasion.
But on the very next day, he demanded back that amount. After some persuasion
Imteyaz returned Rs. 2 but he failed to return the balance of Rs. 1. This led
to a friction between Imteyaz and his friends on one side and Nizam and his
friends on the other. On December 3, 1964, some of the accused persons
including the appellants started a quarrel with Imteyaz and P.W. 5 Babu Qasab
in connection with the return of the aforementioned Rs. 1. Because of the
intervention of P.W.
13, nothing serious happened on that day. But
it is said that on the next evening at about 7 P.M. when .W. 5, Babu Oasab and
P.W. 6 Shamsuddin came near the scene of occurrence, the accused persons
stopped them and assaulted them. Coming to know of that incident from P.W. 1,
Naso, his father Ghulam Rasool went to the scene. There he was severely
attacked as a result of which he died. Thereafter P.W. 9 ,came to know that
there was a marpit going on at the scene and 794 therefore he went to that
place to see what the matter was.
As soon as he went there, he was attacked by
Chamo (appellant No. 1) with an instrument like Bhalla and by Bano with a
Gandasa as a result of which he sustained serious injuries. Immediately P.W. 9
was shifted to the hospital where his dying declaration was recorded on
December 5, 1964.
The High Court has disbelieved the witnesses
speaking to the attack on Ghulam Rasool. As mentioned earlier all the accused
were acquitted of the charges relating to that incident.
The High Court has also come to the
conclusion that it is not proved that there was any unlawful assembly. Even in
the matter of attack on P.W. 9, the High Court has come to the conclusion that
as there is no proof of previous concert on the part of the assailants, no aid
can be taken from s.
34, I.P.C. Consequently it convicted the
assailants of P.W. 9 only for the injuries caused by them.
Both the trial court as well as the High
Court have concurrently believed the testimony of P.W. 9. His testimony is
fully corroborated by the medical evidence adduced in the case' He had
sustained two serious injuries one on the stomach and the other on the shoulder
blade. As a result of the stomach injury his intestines had come out. The evidence
of P.W. 10, Dr. Ambika Prasad who examined P.W. 9, corroborates his testimony.
Further corroboration for the testimony of P.W. 9 is available from the dying
declaration given by him in the hospital on the, 5th of December, 1964.
This Court ordinarily does not re-appreciate
the evidence unless it is satisfied that exceptional and special circumstances
exist for doing so. The court must be satisfied that as a result of serious mis-appreciation
of the evidence by the trial court and the High Court substantial and grave
injustice has been done. It was held by this Court in Hem Rai v. The State of
Ajmer (1) that unless it is shown that exceptional and special circumstances
exist, that substantial and grave injustice has been done and the case in
question presents features of sufficient gravity to warrant a review of the
decision appealed against, this Court does not exercise its over-riding powers
136(1) of the Constitution. It is further
held therein that the circumstance that the appeal' has been admitted by
special leave does not entitle the appellant to open out the whole case and
contest all the findings of fact and' raise every point which could be raised
in the High Court. Even at the final hearing only those points can be urged
which are fit to be urged at the preliminary stage when the leave to appeal is:
(1)  S.C. R. 1133.
795 It is fully established that P.W, 9 was
injured at about the time and the place mentioned in the-charge. The incident
had taken place when there was still day light. The appellants were well known
to the injured. Hence he had no difficulty in identifying them. It is not shown
that P.W. 9 had any motive to falsely implicate the appellants. He bad
mentioned the names of the appellants as his assailants at the earliest
possible opportunity. The version given by him as regards the manner of attack
on him is corroborated by medical evidence. It is true that the High Court has
not accepted the evidence of P.Ws. 1 and 2 who sought to corroborate the
testimony of P.W. 9. That cannot throw any doubt on the testimony of P.W. 9.
The probabilities of the case are in favour of the version given by P.W. 9.
The only thing urged against the evidence of
P.W. 9 is that in his dying declaration he had said that A-1 had attacked him
with a Bhalla, but during his evidence in court he stated that he was attacked
by an instrument resembling Bhalla. Later on it was proved through him that he
was attacked by the instrument Exh. 1 which is a KAFGIR. This contradiction is
of very minor significance. Another contradiction brought out at the time of
his crossexamination was that during his evidence he had merely spoken to the
attack on him by the appellants, but in his dying declaration in addition to
saying that these appellants had attacked him, he had also stated that after he
fell down some of the other accused had attacked him with sticks. This
statement appears to be an exaggeration. But under the circumstances of the
case that embellishment is not sufficient to detract from the value to be
attached to his testimony. As mentioned earlier both the trial court as well as
the High Court have accepted his testimony as being substantially true. We see
no reason to differ from that conclusion.
In the result this appeal fails and the same
The appellants are on bail. They shall now
surrender to the authorities and undergo the remaining portion of the sentence
imposed on them.
G. C. Appeal dismissed.