Mohabbat & Ors. Vs.
State of M.P.  INSC 203 (3 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of SLP (Crl.) NO. 3251 of 2008) Mohabbat and Ors. ...Appellants Versus
State of M.P. ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Madhya Pradesh
High Court, Indore Bench, which by the impugned judgment disposed of three
appeals filed by the accused persons who faced trial in Sessions Trial
No.276/2000 before learned IInd Additional Sessions Judge, Dhar. Nine accused
persons faced trial. They were charged for commission of offences punishable
under Sections 147, 148 and Section 302 and in the alternative under Section
302 read with Section 149 of the Indian Penal Code, 1860 (in short the `IPC').
The trial Court convicted each one of them under Section 302 read with Sections
149, 147 and 148 IPC and imposed sentences to life imprisonment and fine with
default stipulation of one year and two years respectively.
version in a nutshell is as follows:
On 02.09.2000, Yunus
(hereinafter referred to as the `deceased') along with Jafar (PW-6) at about
2.30 p.m. left by bike for Ujjain. On the way near Kesur, one Kadar (PW-4) met
them, and they had a talk with him.
Since it was 4.00
p.m., Jafar (PW-6) and the deceased changed their mind and did not go to Ujjain
and came back to Dhulana. On the way accused persons armed with swords were
standing there. Seeing that the accused persons were standing the deceased left
his bike and ran inside the house of Bagdiram (PW-5) to take shelter. However,
the accused persons removed the tin ceiling of the house, entered it and struck
sword blows on him.
Yunus the deceased
came out of the house, where accused again dealt sword blows on him. The
accused ran away. Thereafter, Jafar (PW-6) reached the spot. Village Chowkidar
Ranchhod (PW-7) also came there. The deceased had a talk with Chowkidar
Ranchhod (PW-7). Yunus said that it was accused persons who caused injuries to
him. By that time one Mehboob (PW3) of Babeda Village had come there. Jafar
requested him to intimate his relatives. He informed Dawood (PW8), Mubarak,
Ayub (PW-9). At that time Yunus (the deceased) was alive who told them also
that accused have caused these injuries. Thereafter, he was taken to hospital
where Dr. P.C.
examined him and found that he is dead. The matter was reported to police by
intimation Ex.P/20. The Police Dhar registered Merg No.067/2000 under Section
174, of Code of Criminal Procedure, 1973 (in short the `Code'). FIR was chalked
out as Ex.P/57 and investigation was started by the Kanwan Police Station as
the case was in its jurisdiction.
charge-sheet was filed.
After postmortem on
the body of the deceased Yunus, Dr. Borasi (PW-10) found the cause of death as
shock and hemorrhage from multiple injuries over the body especially wrist
imputation and anckle joint injury.
The deceased had 9
incised injuries on different parts of the body. Heart chamber was empty. The
wrist of left hand was fractured and imputed, ulna, patella were fractured.
Left tibia, flbula bones were fractured. Injuries were of grievous nature and
were sufficient in the ordinary course of nature to cause death. Ex.P/18 is his
postmortem report. According to him, the death was within 24 hours from the
time of postmortem.
3 Since the accused
persons pleaded innocence trial was held. PWs 3, 4, 5 and 7 who were projected
as eye witnesses by the prosecution did not support the prosecution version and
resiled from the statements made during investigation. However, PW-6 the
brother of the deceased who was going alongwith the deceased re-iterated the
statements made during investigation.
Placing reliance on
the evidence of PW-6, the trial Court found the accused persons guilty.
appeal, stand was that when four of the so called eye witnesses did not support
the prosecution version, merely only on the basis of evidence of PW-6, the
brother of the deceased, conviction should not have been recorded. It has been
vehemently urged by learned counsel for the appellants that PW-6 is the
relative, so his version should not have been relied upon. Apart from that, it
was submitted that before doctor PW-9 the deceased had made a dying declaration
but had not implicated the accused persons. The High Court did not find any
substance. Accordingly, the appeals filed by the nine appellants were
present appeal is by accused Nos.1, 6 and 7. It is submitted by learned counsel
for the appellants that PW-6 had not implicated the appellants and he being the
only witness on whose version the conviction was recorded the trial Court and
the High Court should not have found them guilty.
counsel for the respondent-State on the other hand supported the judgment of
the High Court.
because the eye-witnesses are family members their evidence cannot per se be
discarded. When there is allegation of interestedness, the same has to be
established. Mere statement that being relatives of the deceased they are
likely to falsely implicate the accused cannot be a ground to discard the
evidence which is otherwise cogent and credible. We shall also deal with the
contention regarding interestedness of the witnesses for furthering the
prosecution version. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not conceal actual
culprit and make allegations against an innocent person.
Foundation has to be
laid if plea of false implication is made. In such cases, the court has to
adopt a careful approach and analyse evidence to find out whether it is cogent
Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid
down as under:- "A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the accused, to wish
to implicate him falsely. Ordinarily a close relation 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 there 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. However, we are not attempting any sweeping generalization. Each case
must be judged on its own facts. Our observations are only made to combat what
is so often put forward in cases before us as a general rule of prudence. There
is no such general rule. Each case must be limited to and be governed by its
above decision has since been followed in Guli Chand and Ors. v. State of
Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR
1957 SC 614) was also relied upon.
may also observe that the ground that the witness being a close relative and
consequently being a partisan witness, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh's
case (supra) in which surprise was expressed over the impression which
prevailed in the minds of the Members of the Bar that relatives were not
independent witnesses. Speaking through Vivian Bose, J.
it was observed:
"We are unable
to agree with the learned Judges of the High Court that the testimony of the
two eyewitnesses requires corroboration. If the foundation for such an
observation is based on the fact that the witnesses are women and that the fate
of seven men hangs on their testimony, we know of no such rule. If it is
grounded on the reason that they are closely related to the deceased we are
unable to concur. This is a fallacy common to many criminal cases and one which
another Bench of this Court endeavoured to dispel in - `Rameshwar v. State of
Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately
still persists, if not in the judgments of the Courts, at any rate in the
arguments of counsel."
in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p.
209-210 para 14):
"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.......The mechanical rejection of such evidence on the sole ground
that it is partisan would invariably lead to failure of justice. No hard and
fast rule can be laid down as to how much evidence should be appreciated.
Judicial approach has to be cautious in dealing with such evidence; but the
plea that such evidence should be rejected because it is partisan cannot be
accepted as correct."
the same effect is the decisions in State of Punjab v. Jagir Singh (AIR 1973 SC
2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera and
Ors. v. State of Orissa (2002 (8) SCC 381).
above position was also highlighted in Babulal Bhagwan Khandare and Anr. v.
State of Maharashtra [2005(10) SCC 404], Salim Saheb v. State of M.P. (2007(1)
SCC 699) and Sonelal v. State of M.P.
(SLP (Crl.) No.3220
of 2007 disposed of on 22.7.2008).
needs to be noted that PW-6 has referred to the incident in detail.
According to him
initially five persons had come running. He has specifically named the persons.
He has further stated that the deceased being afraid jumped out of the motor
cycle and ran away. The witness has further stated that the deceased ran for
some distance and entered into the house of one Bagdiram and closed the door
from inside. Thus at that time nine persons including the present appellants
came running and they were armed.
It has further been
stated by him that the deceased opened the door and started running away and
was attacked with sword. In the cross examination he had admitted that the
deceased was attacked by Kamal, Ansar, Inayat and Mohabbat inside the house of
Bagdiram. Though it was the stand of learned counsel for the State that in the
dying declaration all the accused persons were named, it appears that PWs 6 and
7 did not state about the dying declaration vis-`-vis Israil and Iqbal. PWs 8
and 9 have also given different names. In view of the aforesaid, it cannot be
said that the prosecution has established the accusations so far as accused
Iqbal and Israil i.e. accused Nos. 7 and 6 are concerned. But the prosecution
has clearly established the accusations so far as Mohabbat accused No.1 is
The appeal filed by
accused Mohabbat is dismissed while the appeal filed by Iqbal and Israil is
allowed. They are set at liberty forthwith unless required to be in custody in
any other case, if any.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)