Chand
Khan & Anr Vs. State of Uttar Pradesh [1995] INSC 299 (11 July 1995)
Mukherjee
M.K. (J) Mukherjee M.K. (J) Anand, A.S. (J) M.K. Mukherjee. J.
CITATION:
1995 AIR 2140 1995 SCC (5) 448 JT 1995 (5) 329 1995 SCALE (4)276
ACT:
HEAD NOTE:
THE
11TH DAY OF JULY, 1995 Present:
Hon'ble
Dr. Justice A.S. Anand Hon'ble Mr. Justice M.K. Mukherjee Mr. D.D .Thakur, Sr.
Adv. Mr.Suman Kapoor, and Mr.Pankaj Kalra, Advs. with him for the appellants. Mr.Anis
Ahmed Khan and Mr.A.S.Pundir, Advs. for the Respondent.
The
following Judgment of the Court was delivered:
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 716
OF 1991 Chand Khan and anr. Versus State of Uttar Pradesh
Chand
Khan and Shabbu, the two appellants before us, and seven others were placed on
trial before an Additional Sessions Judge of Rampur to answer common charges
under Sections 452, 302/149, 325/149, 324/149 and 323/149 of the Indian Penal
Code (`IPC' for short). Against five of them, including the two appellants, a
charge under Section 148 IPC and against the other four a charge under Section
147 IPC were also framed. Besides, a separate charge under Section 302 IPC was
framed against appellant Shabbu. The trial ended in an order of acquittal
recorded in favour of all the persons araigned. Aggrieved thereby the State of Uttar Pradesh preferred an appeal which was
partly allowed by the High Court by setting aside the acquittal of the two
appellants and three others. After setting aside their acquittal the High Court
convicted the two appellants for the offence under Section 302 IPC as also for
the other offences for which they were charged and sentenced them to suffer
imprisonment for life for the former conviction and for the period already
undergone for the other convictions.
The
other three were convicted of all the charges levelled against them except the
one under Section 302/149 IPC and sentenced to imprisonment for the period
already undergone.
Assailing
the above order of conviction and sentence only the two appellants have filed
this appeal invoking their statutory right under Section 379 Criminal Procedure
Code.
Facts
which are not in dispute are that Shah Alam (the deceased), his cousin Faheem
Khan (P.W.6) and appellant Chand Khan were carrying on business of Karchobi
from two separate workshops in Mohalla Gher Pipalwala within the police station
of Ganj. Aslam (P.W.7), a boy aged about 7/8 years, had been working for the
appellant Chand Khan in his business but a few days before the incident out of
which the present appeal arises he left his services and joined the set-up of Faheem
Khan. On May 26, 1977 at or about 1 P.M. the two appellants and accused Ishtiaq Khan went to the
workshop of Faheem Khan and asked him to release Aslam so that he could work
with Chand Khan again. When Faheem Khan refused to oblige they assaulted him.
For that incident, he lodged a complaint with the police the same afternoon.
However,
according to the prosecution Shah Alam and Faheem Khan used to carry on their
above business jointly but as adequate accommodation was not available at one
and the same place they were maintaining two workshops, one in the house of one
Allah Rakha Khan and the other in the terrace of Md. Jama Khan.
The
prosecution version of the incident is that on the same night (on May 26, 1977)
the two appellants along with the other accused persons went to the house of
Shah Alam to teach him a lesson for the report his business partner Faheem Khan
had lodged against some of them earlier in the afternoon for assaulting him.
For that purpose the two appellants went armed with Knives and the rest with
other weapons including danda. Shah Alam was then sitting on a cot in the open
space in front of his house along with Irshad Khan, Babar Khan and Kaisher
(P.W.2). Immediately after entering the premises the accused persons started
assaulting them. Chand Khan gave two knife blows to Shah Alam and some others
hit Irshad Khan, Babar Khan and Kaisher Khan with dandas. When the victims
cried aloud, Keramat Ali Khan (P.W.1), father of the deceased Shah Alam, who
was inside the house came out and some people from the mohalla including Kallan
Mian @ Mardan Mian (P.W.4) arrived there.
In the
meantime some of the miscreants including Chand Khan entered into the house of Keramat
and assaulted his daughter Sm. Naeema Parveen (P.W.5) and his sister-in-law Sm.
Raees Begum. When Sm. Naeema Parveen found that Chand Khan was about to beat
her mother she picked up a knife used for cutting vegetables which was lying
nearby and assaulted him.
While
coming out of the house Shabhu thrust his knife on the neck of Shah Alam
felling him down. All of them then fled away. Keramat Ali Khan arranged
immediate hospitalisation of all the injured including Shah Alam, whose
condition was precarious. Before, however, any treatment could be administered
Shah Alam died. While in the hospital Keramat Ali Khan got a complaint written
by Asmat Ali Khan (P.W.9) as per his dictation and forwarded the same to the
police station.
At the
hospital, Dr. S.P. Pandey (P.W.3) examined Sm. Naeema Parveen (P.W.5), Irshad
Khan, Babar Khan, Sm. Raees Begum and Kaisher Khan (P.W.2) and found injuries
on their persons. P.W.5 had two incised wounds which, according to P.W.3, could
be caused by sharp edged weapon and the other four had sustained contusions,
which could be caused by blunt weapons. Chand Khan, who was also brought under
arrest to the hospital in that very night as he had injuries on his person, was
also examined by P.W.3. He found three incised wounds on his person, all of
which, according to him, could be caused by a sharp edged weapon. Besides,
P.W.3 examined Faheem Khan for injuries which, he alleged, were sustained by
him in the incident that took place earlier in the afternoon. According to
P.W.3 the two stab injuries he found on his person were likely to have been
caused by a pointed weapon.
The
post-mortem examination on the body of Shah Alam was held by Dr. O.N. Gupta on
the following day (27.5.1977) He found the following external injuries on his
person:-
1.
Incised punctured wound 5 cm. x 3 cm. x chest cavity deep on the base of left
side neck, 5 cm. from the left sterno clavicular joint with direction
downwards.
2.
Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above right eye brows.
3.
Abrasion 3 cm. x 2 cm. on right side forehead 3 cm. lateral to injury No. 1.
4.
Abrasion 2 cm. x 1cm. on the left side scapular region back.
5.
Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of
left scapula.
6.
Incised punctured wound 3 cm. x 1 cm.
chest
cavity deep on left side back 4 cm. below injury No. 5.
On
internal examination of the dead body he found that the sixth rit was cut under
injury No. 6; the pleura was cut beneath the injuries No. 1 and 6, the left
lung was cut through and through upper lobe was cut both under injury No.1 and
6 and the pericardium and the right side of the heart were cut by the injury
No.1. Dr. Gupta opined that the death was due to shock and haemorrhage as a
result of the injuries to vital organs.
Shri
V.P. Singh (P.W.16) Station House Officer of Ganj Police Station took up
investigation of the case registered on the complaint of Keramat Ali Khan.
Besides, interrogating him and the injured persons in the hospital on that very
night, he inspected the place of occurrence, prepared a site plan and seized
some blood stained earth from near the gate of the complainant's house. After
completion of investigation he submitted charge-sheet against the nine accused
persons.
The
appellants and the other accused persons pleaded not guilty and asserted that
they had been falsely implicated. In his statement recorded under Section 313
Dr. P.C.Chand Khan, however, admitted that earlier P.W.7 used to work at his
workshop but P.W.6 weaned him away. He also admitted that he had gone to the
workshop of Faheem Khan with Shabbu and Ishtiad and asked him to hand over Aslam
to him and that he had assaulted him. He however denied to have assaulted him
with a knife. As regards the incident in question, his version was that on that
night there was a festivity in the house of his cousin Sajjan and Mahboob
(since acquitted) to which he was an invitee. As Rafiouddin of their mohalla
was also invited in that function he went to his house which was near the house
of the complainant to accompany him. There, on hearing his voice, Shah Alam and
Kaisher Khan came out with knives accompanied by Babar Khan and Irshad Khan and
started beating him. When he cried aloud Shabbu (appellant), Sharif and Salim
who were standing nearby and talking among themselves arrived there. When Shah Alam
and his companions attempted to assault Shabbu and others, they in their defence
assaulted them. As the ladies of the house had come out then they also
sustained minor injuries. Appellant Shabbu, in his statement under Section 313 Dr.P.C.
admitted the assault on Faheem Khan in that afternoon but denied his presence
at the time of the incident in question.
To
prove its case the prosecution examined sixteen witnesses but no witness was
examined on behalf of the defence. On consideration of the evidence adduced the
trial Court held that the prosecution case was unworthy of credit.
On
appeal the learned Judges of the High Court found the evidence of the four
eye-witnesses examined by the prosecution, namely, P.Ws. 1, 2, 4 and 5
convincing and the reasons given by the trial Court for disbelieving them and,
for that matter, discarding the case of the prosecution were perverse.
It was
urgeo on behalf of the appellants that as the trial Court gave detailed reasons
for disbelieving the evidence of the prosecution witnesses the High Court was
not justified in interfering with the same even if another reasonably possible
view of the evidence in favour of the prosecution might be taken. Having heard
the learned counsel at length and seen the judgments of the learned Courts
below in the light of the evidence on record, we find that the High Court
committed no error or injustice in interfering with the order of acquittal for
it has noticed all the salient features of the case in the judgment of the
trial Court, discussed them well and disapproved them for cogent and justified
reasons. We are in complete agreement with the High Court that the judgment of
trial Court was perverse and deserved to be set aside.
In the
context of the respective cases of the parties, it could not be - nor was it -
disputed that an incident of assault took place in the night of May 26, 1977 in
or around the residential premises of Keramat Ali Khan (P.W.1) in the backdrop
of an earlier incident in the afternoon in which Faheem Khan (P.W.6) was
injured. It was also not disputed that in the incident in question Shah Alam
met with his death while some others including appellant Chand Khan sustained
injuries. In that view of the matter the principal question that fell for
determination before the learned Courts below was whether it took place within
the residential premises of P.W.1 and in the manner as alleged by the
prosecution or in the lane outside his house as claimed by the defence. To
prove its version of the incident, the prosecution relied, needless to say,
upon the evidence of the four eye-witnesses referred to earlier while the defence
relied upon the statement of the accused including the appellant Chand Khan
made under Section 313 Dr.P.C. and the circumstances appearing on record.
In negativing
the prosecution version the trial Court first held, for reasons given, that the
assault on Faheem Khan in the afternoon by Chand Khan could not be a motive for
committing the murder of Shah Alam and that no other motive was ascribed by the
prosecution. Even if we proceed on the basis that the prosecution failed to
prove the genesis or motive and that the above finding of the trial Court in
this regard is unexceptionable still then this appeal cannot succeed on that
score for proof of motive is not essential for success of a prosecution case
where - as in the instant case - the ocular testimony in support of it is
convincing and reliable. Indeed, as our discussion to follow will show the
findings recorded by the trial Court for discarding the evidence of the four
eye witnesses are based either on presumption, surmise and conjecture or on
undue and unjustified reliance upon minor and immaterial contradictions.
In
dealing with the evidence of the four eye - witnesses the trial Court first
observed that having regard to the incident that took place in that afternoon. Faheem
Khan and Shah Alam could only be the targets of the attack of the accused
persons and not others, namely, Kaisher Khan, Babar Khan and Irshad Khan as
testified by them. It next observed that if their evidence that Shah Alam and
the above three persons were sitting together in front of the complainant's
house and were talking to each other when the accused arrived there was to be
believed, the latter could have caught hold of Shah Alam from out of those
persons and put him to death in no time and then gone back. After making the
above observations the trial Court held:
"It
may be that the members of the complainant's house might have come-out at their
door on hearing the noise and alarm of this incident and that they might be
rebuking and even accusing these accused-persons on their assaulting Shah Alam
etc".
The
trial Court also disbelieved the prosecution case as to the manner in which the
accused persons entered into the house of the complainant and beat the female
members and, in explaining away the injuries found on the persons of Sm. Naeema
Parveen and Sm. Raees Begum, observed:
"........and
truth of the matter appears to be that Sm. Naeema Parveen and Sm. Raees Begum
had accidently sustained their injuries in this incident when they had entered
in the arena of the fight for defending Shah Alam etc. from the assault of the
accused." The High Court brushed aside the first of the above quoted
findings of the trial Court with the following comments:
"The
observation of the Additional Sessions Judge that the accused were likely to
single out Shah Alam and to assault him alone in Shah Alam, Irshad Khan, Babar
Khan and Kaiser Khan had been found sitting on the cot is misconceived and
devoid of sense for Babar Khan the brother of Shah Alam and Kaisher Khan and Irshad
Khan who were his close relatives could not have been silent soectators. It is
for this reason that they had all sustained injuries around the cot." As
regards the other finding the High Court observed that in view of the nature of
the injuries sustained by Sm. Naeema Parveen and Sm. Raees Begum and in the
absence of any suggestion put forward by the defence that those injuries were
caused accidentally the criticism of the trial Court was perverse.
On a
close analysis of the materials on record we are of the opinion that the High
Court was fully justified in making the above comments. That Kaisher Khan
(P.W.2), Babar Khan and Irshad Khan were present at the material time as
testified by the four eye witnesses was admitted by the defence. It was also
admitted that besides Shah Alam the above three persons as well as lady members
of the house sustained injuries. However, according to them, they had beaten
Shah Alam and other male members in exercise of their right of private defence
and the ladies sustained simple injuries as they had then come out of the
house. The trial Court therefore was not at all justified in disbelieving even
the presence of Irshad Khan, Babar Khan and Kaisher Khan at the spot. Then
again, keeping in view the fact that the injuries sustained by Sm. Naeema Parveen
could be caused by a sharp edged weapon only and it being not the case of the defence
that they had with them any such weapon the finding of the trial Court that Sm.
Naeema Parveen and Sm. Raees Begum had accidentally sustained their injuries
must be said to be based on conjecture only.
Another
reason which weighed with the trial Court in disbelieving the prosecution case
was that there were discrepancies in evidence as to the details and manner of
assault. While detailing those discrepancies the trial Court observed:
"According
to the complainant Keramat Ali Khan that cot was lying just in front of the main
door of his house at a distance of only 2 to 3 steps from the door and the
entire beating outside his house had taken place near that cot and the last
fatal blow of the chhuri was also inflicted by Shabbu accused on Shah Alam at
only 2 or 3 steps in front of his main door. On the other hand, according to
Sm. Naeema Parveen, that cot was lying at 6 or 7 steps in front of the main
door of the house. According to P.W. Kaisher Khan, to whom that cot belonged,
the cot was lying by the side of his chapper, i.e., towards the north- west of
the complainant's door and, according to him it was lying at 6 or 7 steps from
that door towards the left side. According to P.W. Mardan Mian alias Kallan Mian
also, that cot was lying at 7 or 8 steps towards the north- west from the
complainant's door. P.W. Keraman Ali Khan, at first, stated before me that the
accused-persons had beaten Shah Alam etc, towards the east of the cot. Then he
stated in the next breath that some of them were beating on one side, while the
others were beating on the other side of the cot. Further on he stated that the
victims were roaming around that cot, while being beaten, and the samething has
been stated by some other witnesses." The discrepancies pointed out by the
trial Court are patently of minor character and cannot detract from the
evidentiary value of the eye-witnesses. The High Court was, therefore, fully
justified in ignoring those discrepancies while dealing with the evidence of
the four eye-witnesses.
The
next reason canvassed by the trial Court for disbelieving the prosecution case
was that the evidence of P.Ws. Kaisher Khan (P.W.2) and Mardan Mian (P.W.4)
only established that some of the accused persons had assaulted Shah Alam and
not all. Having recorded the above finding it was imperative for the trial
Court to consider the case of the individual accused on their respective merits
in the light of other evidence on record and not to outright reject the
evidence of the two witnesses in its entirely for it is trite that the
principle Single in uno. Falsus in omnibus" does not apply to criminal
trials and it is the duty of the Court to disengage the truth from falsenood.
The
judgment of the trial Court is replete with similar such findings which the
High Court has rightly not accepted as correct. However, to avoid prolixity we
refrain from detailing or discussing all of them and refer only to the
concluding one to highlight the absurd and perverse approach of the trial Court
in dispensing criminal justice. It reads:- "It is quite probable that Shah
Alam etc. miont be bearing grudge and ill-will against Chand Khan etc. On
account of the noon incident of that day, in which the accused Chand Khan, Ishtiaq
Khan and Shabbu had an altercation with P.W. Raheem Khan and had then beaten
him; and it may be that Shah Alam etc. might have caught-hold of Chand Khan
accused when he had gone to the house of Rafiquddin for calling him and that
they might have taken him from there in front of the complainant's house and
might have assaulted him with churis. Then, it is also quite probable that the
accused Sharif Khan, Salim Khan and Shabbu might have arrived on the spot on
hearing the alarm raised by Chand khan accused and that Shah Alam etc. might
have tried to assault them also and thereupon they might have assaulted Shah Alam
etc. with dandas and chhuri in defence of Chand Khan accused, as also in their
own selfdefence. It has come in evidence that the house of Shabbu accused is
situated quite near to the road crossing and that the house of Salim Khan accused
is also situated in the same locality. So, it is quite possible that the
accused Shabbu, Salim Khan and Chand Khan might be standing at the road
crossing near the house of Shabbu accused and might be talking to each-other at
that time and that they might have reached the sput on hearing the alarm raised
by Chand Khan accused." (emphasis supplied) By frequent recourse to and
reliance upon the words "might be" and "might have" in the
above quoted passage the trial Court, instead of finding out which of the
contending versions was correct and acceptable, gave out a version of its own
relying solely on presumption, surmise and conjecture. The trial Court would
have been, on a proper discussion and aporaisal of the evidence, fully
justified to hold that the prosecution case was unreliable and record an order
of acquittal in favour of accused without going into the question as to whether
the defence case was true, for burden of proof was upon the prosecution.
Equally justified the trial Court would have been in recording such an order if
it found the defence case probable. But it was not at all justified to make out
a third case entering into the domain of speculation. The High Court was,
therefore, right in basing its decision on a fresh and proper appraisal of the
evidence leaving aside the obstinate findings of the trial Court. Having gone
through the record we do not find any reason to differ from the decision so
arrived at by the High Court.
Mr. Thakur,
learned counsel for the appellants, however submitted that even if it was held
that the reasons which weighed with the trial Court in recording the order of
acquittal were faulty and unsustainable still then the order of acquittal was
liable to be upheld for the evidence on record did not Justify the impugned
Judgment rendered by the High Court. To bring home his contention Mr. Thakur
urged that the incident that took place in the afternoon in which Faheem Khan
was assaulted by Chand Khan might have been a motive for the former to assault
the latter and not vice- versa. In that context, Mr. Thakur urged, the defence
version of the incident in question was more probable than that of the
prosecution. This contention of Mr. Thakur need not be gone into for we have
earlier observed, and at the risk of repetition may again point out, that as
the evidence on record clearly proves that the incident took place in the
manner alleged by the prosecution absence or insufficency of motive is
immaterial. Mr. Thakur next submitted that the evidence of the prosecution withesses
so far as it related to the assault on Sm. Naeema Praveen and Chand Khan inside
the house was patently false; firstly. because no blood was found inside the
house and secondly because no knife was produced by Sm. Naeema Praveen much
less seized by the Investigation Officer. In support of this contention he drew
our attention to the evidence of the Investigation Officer (PW 16) wherein he
stated that neither he had seen nor shown the vegetable cutting knife used by
Sm. Naeema Praveen and that he had found blood at the place which was about 8
steps from the northern main door outside the house of Keramat Ali and nowhere
else. We are not impressed by any of the above contentions.
There
is no evidence on record to show that there was profuse bleeding from the
injuries sustained by the two ladies and Chand Khan for blood to trickle down
to the floor. On the contrary, the find of blood near the threshold of P.W.1's
house fits in with the evidence of the eye- witnesses and the nature of
injuries sustained by Shah Alam.
From
the evidence of Sm. Naeema Praveen (PW 5) we get that when the accused persons
started beating the members of their family inside their premises, she her
mother and aunt (Raees Begum) started shouting and cursing them. Then, when
they found Chand Khan was approaching them they went inside.
There Ishtiaq
Khan gave two chhuri blows on the left side of her face and Sharik Khan gave
two danda blows to her aunt Raees Begum. When she found Chand Khan was about to
beat her mother, she struck him with a vegetable cutting knife. The above
evidence of P.W.5 stands substantially corroborated by the other three
eye-witnesses referred to earlier. Then again the nature of injuries as found
by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her
testimony. In our opinion the best corroborative piece of evidence is furnished
by the F.I.R. which was lodged by Keramat Ali (P.W.1) on the basis of what he
heard from P.W.5. In the F.I.R., which was lodged within two hours of the
incident, the substratum of the entire prosecution case finds place including a
statement that during the incident Sm. Naeema Praveen had, in defending
herself, given a blow to one of the accused with a vegetable cutting knife. In
view of the above statement recorded in the F.I.R., the Investigation Officer
(P.W.16) ought to have taken steps to seize the knife even if P.W. 5 had not
produced it for, one of the essential requisites of a proper investigation is
collection of evidence relating to the commission of the offence and that
necessarily includes, in a case of assault, seizure of the weapon of offence,
but then failure to collect evidence and failure to produce evidence collected
during investigation at the trial carry two different connotations and
consequences. While, the former may entitle the Court to hold the investigation
to be perfunctory or tainted affecting the entire trial in case of the latter
the Court may legitimately draw a presumption in accordance with Section 114(g)
of the Evidence Act. As the case presented before us comes under the first
category of failures we have to find out whether we will be justified in
discarding the prosecution case solely for the remissness of the Investigating
Officer in seizing the knife. The consistent and reliable evidence of the eye
witnesses coupled with the nature of injuries sustained by some of them and Chand
Khan and the fact that in the F.I.R. it has clearly been stated that one of the
miscreants had been assaulted by a vegetable cutting knife do not persuade us
to answer the question in the affirmative. Mr. Thakur lastly submitted that the
entire prosecution story was improbable for if really the incident had happened
in the manner alleged by it, the persons present in P.W.1's house would have
sustained more serious injuries. We do not find any substance in this
contention for it is evident that Shah Alam was the main target and the assault
on others was carried out to thwart any resistance from those present in the
courtyard.
As all
the points raised by Mr. Thakur fail and as on a conspectus of the entire
evidence we are fully satisfied that the conclusions drawn by the High Court,
particularly regarding the roles played by the two appellants in the riot and
the murder of Shah Alam are unexceptionable, we dismiss the appeal. The
appellants, who are on bail, shall now surrender to their bail bonds to serve
out the sentences.
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